Wednesday, November 11, 2015
Deb Widiss (Indiana) has two recent articles that will be of interest to our blog readers. The first is Griggs at Midlife, 113 Mich. L. Rev. 992 (2005), reviewing Bob Belton's recent book, The Crusade for Equality in the Workplace. From the abstract:
Griggs v. Duke Power, the Supreme Court case that held that policies that disproportionately harm minority employees can violate federal employment discrimination law even without evidence of “intentional” discrimination, recently turned forty. Griggs is generally celebrated as a landmark decision, but disparate impact’s current relevance (and its constitutionality) is hotly debated. Robert Belton’s The Crusade for Equality in the Workplace offers a rich and detailed history of the strategic choices that led to the plaintiffs’ victory in Griggs. This Review uses Belton’s history as a jumping off point to consider the contemporary importance of disparate impact in efforts to challenge employers’ use of criminal background screens. The Review also suggests that the failure to develop intersectional analysis — that is, an analysis of how sex and race may interact — in disparate impact doctrine risks obscuring key vectors of exclusion.
Belton’s book gives modern readers an inside look at the NAACP Legal Defense and Education Fund’s litigation campaign in Griggs, and it does an excellent job showing how lawyers used disparate impact doctrine to dismantle test and educational requirements that could have excluded many black employees. The book, however, focuses almost exclusively on race discrimination cases. This Review explores the contemporaneous — and less successful — development of the doctrine in early sex discrimination cases. Generally, courts have not required employers to modify workplace structures that fail to accommodate caregiving responsibilities or pregnancy, despite their disparate impact on the basis of sex. Moreover, such policies often disproportionately harm women of color. By filling in this history, the Review offers a more nuanced assessment of disparate impact’s early years.
The Review then considers contemporary efforts to challenge employers’ use of criminal background screens, policies that likewise cause a disparate impact on the basis of both race and sex. It suggests that current litigation might be more successful if the intersectional approach were better developed, but it also highlights the importance of compliance work in achieving equal employment opportunity in the modern world. Although the EEOC has lost some high profile cases in this area, its guidance indicating that criminal background screens may cause an unlawful disparate impact has pushed employers to reconsider and refine their use of such screens.
The second expanded on Deb's other work on "shadow precedents," precedents that still seem to guide the courts even after Congress amends statutes to reverse the effects of those precedents: Still Kickin after All these Years: Sutton and Toyota as Shadow Precedents, 63 Drake L. Rev. 919 (2015). From that abstract:
Congress’s ability to override judicial opinions that interpret statutes is generally understood as an important aspect of maintaining legislative supremacy. In a series of articles, I have challenged the validity of this assumption by showing that courts often continue to rely on overridden precedents — what I have called shadow precedents. My earlier work explores instances in which it was unclear or debatable whether the override or the prior precedent should control. This article further documents such ambiguities, but its primary objective is to highlight examples of ongoing reliance on shadow precedents where it is unquestionably improper. It suggests, however, that citation of shadow precedents may often stem from information failure, including poor briefing by counsel, rather than courts’ willful disregard of legislative mandates.
The article, written for a symposium on the Americans with Disabilities Act (ADA), examines implementation of the ADA Amendments Act of 2008 (ADAAA). The ADAAA, a broadly bipartisan bill, was intended to supersede Supreme Court decisions that had set a very stringent standard for what impairments qualified as a disability. The ADAAA explicitly “rejected” the reasoning in these decisions; amended the ADA’s substantive provisions; and instructed courts to interpret the standard “in favor of broad coverage.” Many lower courts are properly implementing the revised standard, and the overall number of citations to the superseded decisions has dropped sharply. But this article identifies numerous post-ADAAA cases in which courts follow the old precedents for propositions that were undeniably superseded. Mistakes are particularly prevalent in cases alleging discrimination because one is “regarded as” having a disability. Even though the ADAAA was an unusually strong and clear override, it has failed to change fully the law on the ground.
The symposium mentioned in the abstract was published in the Drake Law Review and was an outgrowth of the AALS Employment Discrimination section panel at last year's annual meeting. It's a great symposium with pieces by Senator Tom Harkin (D-Iowa), Steven Befort (Minnesota), Ruth Colker (Ohio State), Arlene Kanter (Syracuse), and Nicole Porter (Toledo).
Tuesday, November 10, 2015
There was a fascinating article in the New York Times last week which discussed proposed federal legislation to protect certain young professionals. As we are all aware, the FLSA includes a number of protections for child workers. However, these protections often do not extend to models and actors as such individuals are often exempted by the statute. The new legislation (the Child Performers Protection Act) can be found here, and as discussed in the article, the legislation "would establish specific working hours, salary and savings requirements (models could no longer be paid in clothes, for example), and it would offer private recourse for sexual harassment." It will be interesting to follow this proposed legislation and see whether it gains any traction in Congress.
-- Joe Seiner
Friday, November 6, 2015
As the labor market tightens, it has been interesting to see employers add different benefits to attract and retain workers. The Washington Post reports that several companies -- including Wal-Mart, Taco Bell and other fast food restaurants -- are helping workers to prepare for the GED Exam and are covering the costs of the test itself.
According to the article, the program "includes online study materials, practice tests, and access to an adviser whose job it is to check in with candidates and keep them motivated and engaged in what can be a lengthy process to study for and pass the tests." It is great to see these types of benefits now being provided by employers, and it will be interesting to see what other benefits might be offered if the labor market continues to tighten in this economy.
-- Joe Seiner
Tuesday, November 3, 2015
image from www.eeoc.gov
The EEOC harassment task force held a public meeting late last month with testimony from a panel of experts in the area. The EEOC's statement on the meeting is available here, and much of the testimony can be viewed here. Experts from a wide field of study weighed in on the issue, and there appeared to be agreement that a variety of measures are necessary to help prevent harassment.
From the EEOC, "Placing pressure on companies by buyers, empowering bystanders to be part of the solution, multiple access points for reporting harassment, prompt investigations, and swift disciplinary action when warranted, along with strong support from top leadership, are some of the measures employers can take to prevent workplace harassment".
I would highly recommend this source if you are interested in the topic of workplace harassment.
- Joe Seiner
Saturday, October 31, 2015
There has been much discussion recently about the treatment of workers in the gig industry. Similarly, Amazon has found itself oft-criticized for the treatment of its workers. As reported by CNN.Money, the company has now joined the growing ranks of businesses being sued over worker misclassification issues. The action maintains that the company improperly treated its drivers as independent contractors rather than employees. From the complaint:
"Plaintiffs reported to and worked exclusively out of an Amazon warehouse. They each received multiple days of training in making Amazon Prime Now deliveries at the Amazon warehouse including . . . performing practice deliveries using training routes generated in the App. Defendants require Plaintiffs to wear shirts and hats bearing the Amazon Prime Now logo and provide the Plaintiffs with a smart phone pre-loaded with the App. . . . Plaintiffs are scheduled to work fixed shifts during Amazon’s Prime Now service hours. . . Not infrequently they are scheduled to work six or seven consecutive days in a week, and have been occasionally sent home without pay after reporting to the warehouse if there is not enough work."
Like all of the pending litigation against employers in this sector, this worker misclassification case will be interesting to follow as the courts struggle to apply a decades old test to modern workers.
In another example of the New York Times weighing in on a recent employment issue, the paper recently published an op-ed arguing against tipping, authored by Saru Jayaraman (UC-Berkeley & ROC). Among the arguments against tipping is its roots in racial discrimination, as well as its negative effects on female employees. No matter your view on the topic, it's well worth a read.
Hat Tip: Harris Freeman
This is old news for most readers of this blog, but it's nice to see a paper like the New York Times highlight the issue of arbitration waivers. In particular, an article today talks about the Supreme Court's approval of arbitration class action waivers, including some backstory of the Italian Colors restaurant.
Thursday, October 29, 2015
I have just learned that friend-of-blog Leora Eisenstadt (Temple) has posted on SSRN her new piece, Fluid Identity Discrimination, which was just published by the American Business Law Journal (ABLJ) and is available online (with the print edition coming out next month). The piece takes a fresh look at multiracial and transgender plaintiffs which is an increasingly visible area of the law. The abstract is below:
According to the most recent Census, the multiracial population of children has increased dramatically in the last decade, and the number of people of any age who identify as both white and black more than doubled in that time. In addition, there is a growing number of increasingly vocal transgender individuals who cannot be defined by existing sexual categories. Nonetheless, most courts have retained a categorical approach to Title VII that demands membership in a protected class even as American society becomes increasingly mixed and less conducive to simple categorization. In light of this new reality, this article considers the jurisprudence and scholarship on multiracial and transgender plaintiffs and argues that scholars and courts in both areas are dealing with discrimination against these increasingly visible individuals in an overly narrow way, leading to incomplete or unsatisfactory solutions. Rather than approach issues of racial identity and sexual identity separately, this article contends that these issues are symptomatic of a larger problem with Title VII, namely, an enduring attempt to fit increasingly amorphous identities into a strict categorical structure that no longer matches the reality of American society. Fluid Identity Discrimination proposes a rethinking of the protected class paradigm in light of a changed American populace with the goal of providing clarity and better alignment between law and social reality.
Uber continues to make headlines in recent weeks, and the controversy surrounding the technology platform continues to swirl. In an interesting announcement, the company plans to unveil Uber Rush in Chicago, San Francisco and New York City which offers to be the delivery driver for small businesses. As reported by Business Insider, "If Uber can balance supply, demand, and efficiency at massive scale, then the real threat may be to big delivery giants like UPS and FedEx if users start choosing a cheaper and faster same-day delivery option".
Uber has also announced plans recently to expand to Pakistan. The growth of the company -- both in size and scope -- continues to raise questions about how it classifies workers. As we addressed here, there is substantial controversy and litigation over whether its workers should be considered employees (subject to the FLSA and other employment laws) or independent contractors. That issue does not appear likely to go away any time soon.
On a lighter note, Uber is working with animal shelters today to provide Kittens-On-Demand in certain locations in honor of National Cat Day (who knew?). There is a snuggle fee of $30 to play with a cat for fifteen minutes (proceeds of which will be donated), and the kittens will also be available for adoption. For one local story, see here. The only employment issue I can find on this final point is whether or not the cat's paw theory is somehow implicated. Please let me know if you would like me to re-fur you to any of that literature.
- Joe Seiner
Tuesday, October 27, 2015
Kate Griffith (Cornell ILR School) writes to tell us about the ILR Review's call for papers, which is focusing on immigrant legalization. The info:
ILR REVIEW: CALL FOR PAPERS
The Impact of Immigrant Legalization Initiatives:International Perspectives
The ILR Review [http://ilr.sagepub.com/] is calling for papers for a special issue on the impact of immigrant legalization initiatives. We seek innovative international and U.S.-sited research from a broad array of disciplines––including sociology, political science, economics, industrial relations, and law––that advances our understanding of the processes, outcomes, and policy implications of different approaches to the regularization of unauthorized immigrants. Submitted abstracts may reflect a range of methodologies, including surveys, qualitative or quantitative fieldwork, experiments, or the use of historical/archival data. The guest editors of this special issue are Maria Lorena Cook (firstname.lastname@example.org), Shannon Gleeson (email@example.com), Kate Griffith (firstname.lastname@example.org), and Lawrence Kahn (email@example.com).Prospective contributors are encouraged to consult any of the guest editors regarding preliminary proposals or ideas for papers.
The legalization, or regularization, of unauthorized immigrants has become an important and contentious policy issue in the United States and in countries around the world. While the United States is fairly unique in its long periods of legislative inaction regarding unauthorized immigrants, policies in other countries present a range of responses. In Europe, several countries have enacted periodic mass regularization programs or have provided for ongoing adjustment of status on a case-by-case basis. Traditional immigrant-sending countries in South America and Africa have recently instituted legalization programs as they become immigrant-destination countries as well. In the United States, temporary legalization measures, such as the Deferred Action for Childhood Arrivals (DACA), provide further examples of limited deportation relief and work authorization.
These legalization initiatives around the world raise a number of questions. What are the impacts of regularization programs on immigrant workers, their families, and the communities in which they live? How does acquisition of legal status affect immigrants’ workplace conditions (health and safety, employment, wages, occupational mobility)? How do legalization programs affect the work and employment conditions of those who are excluded from such programs or who do not participate and retain their unauthorized immigration status? How does loss of legal status affect workers and their families?
This special issue of the ILR Review will be among the first to examine the impact of legalization initiatives on immigrant workers across the globe. We are interested in the effects of legalization programs on the working lives of unauthorized immigrants, as well as those in temporary legal statuses, and of unauthorized immigrants who remain outside the scope of these initiatives. We invite papers that analyze different worker outcomes: labor force participation, employment, wages, workplace health and safety, discrimination, organization, social and occupational mobility, and rights mobilization, among others. We are especially keen to receive papers that address these issues in Asia, Africa, Latin America, Europe, and the Middle East, as well as papers that compare national origin groups within a country or legalization initiatives and their impacts across countries or over time. Suggested topics include, but are not limited to, the following.
- Comparative impact of legalization programs. How do the structures of legalization programs affect employer practices and worker outcomes (employment, wages, working conditions, organization, access to legal protections)? What can we learn from different national and regional models of labor integration?Does the legal status “bump”––the gap between authorized and unauthorized workers––look different from place to place?
- Comparative impact of legal status. How have different categories of legal status––including temporary and liminal legality––shaped worker outcomes and the well-being of families and communities? Do guest worker and other temporary programs necessarily produce better outcomes relative to those of unauthorized individuals? What are the lasting impacts, if any, of unauthorized status for workers? Does legal status matter more for some outcomes and processes than others? How does legal status intersect with other attributes and identities (race, ethnicity, national origin, gender, sexuality) to shape worker outcomes?
- Immigration enforcement impact. How do changes in immigration regimes affect a national labor force over time? How have increases in deportations affected worker outcomes? How have sub-national (region, state, province, municipality) immigration enforcement policies affected unauthorized workers? To what extent do changes in immigration law affect workers’ rights enforcement efforts?
- Legal mobilization and worker rights. What is the relationship between immigration status and workers’ willingness to demand, either individually or collectively, improved working conditions? How do changes in immigration status affect workers’ willingness to confront employers, speak to coworkers, or pursue formal channels of restitution when their rights are violated? How does immigration status affect workers’ willingness to participate in organizing efforts, including but not limited to union activity?
Anticipated Timeline: Prospective contributors should submit a detailed abstract of their research to firstname.lastname@example.org no later than January 31, 2016. The abstracts should include the research question(s), theoretical argument, contribution to the literature, detailed methodology, and anticipated empirical findings. The editors will review the abstracts and invite selected contributors by March 31, 2016. Full papers will be due by September 15, 2016. All papers will undergo the normal peer review process.
Saturday, October 24, 2015
The New York Times took a look in a recent article at the continuing problem of age discrimination in the workplace. The article examined the overall rise in age discrimination charge filings with the EEOC, as well as some of the possible causes for this persistent problem. The article notes that experts believe it to be "a common phenomenon that will increase with millennials eager to enter the workforce and baby boomers reluctant to leave it."
As we often discuss in our employment discrimination classes, there is something unique about age discrimination, and it is one of the areas where plaintiffs continue to gather direct evidence of bias. And, given the unique structure of the damages provision in the ADEA, these cases often tend to yield higher overall payouts for the litigants. It will be interesting to see if the make-up of millennials and baby boomers in the workplace continues to create problems in this area of the law.
-- Joe Seiner
Tuesday, October 20, 2015
The AALS L&E Sections are seeking info for the joint newsletter--please send it in soon! The same goes for those interested in case briefs.
We are reaching out once again to request information for our joint annual newsletter for the AALS Section on Employment Discrimination and the Section on Labor Relations and Employment Law. Please forward this message to any and all people you know who teach or write in the Employment Discrimination, Labor Law, and Employment Law fields.
First, if you have news of any faculty visits, lateral moves, entry-level hires, or promotions and tenure, please e-mail that news to Danielle Weatherby at email@example.com.
Second, please also e-mail Danielle Weatherby with any information about conference announcements and calls for papers, employment or fellowship opportunities, honors and awards, and reports on recent conferences or other events of interest to the two Sections’ members.
Third, we want to include a list of relevant employment or labor law-related publications published in 2015. Please hold your forthcoming 2016 publications for next year’s newsletter. These publications can be books, articles, and chapters. Please also send a list of your 2015 publications to Danielle Weatherby.
Fourth and finally, we want to solicit anyone who would be interested in writing a brief description (no more than a page or two) of a recent important labor and employment case or any significant new labor or employment legislation. Your subject could be a recent Supreme Court decision (including Young v. UPS, Inc., EEOC v. Abercrombie and Fitch, or the granting of cert. in Friedrichs v. California Teachers Association), a significant circuit court decision or emerging circuit split, a state supreme court decision, or an innovative and potentially influential new federal, state, or local law. The description should be fairly short. If you're looking for an easy way to get your name out there or want a quick outlet for your ruminations about a case or new law, this could be a good opportunity, as the newsletter is widely circulated. Just let us know what you are interested in writing about. Please send your submissions to Naomi Schoenbaum at firstname.lastname@example.org.
Please send all submissions by November 1, 2015.
Thank you very much for your help!
Danielle Weatherby & Naomi Schoenbaum
One employment issue which has been highly controversial in recent years is whether employers should be required to allow breastfeeding, and whether they must also provide a physical space for it at the workplace. The Army recently issued new regulations and a new policy on this issue. From CNN,
"[C]ommand must provide designated spaces for soldiers to pump breast milk, whether they're on base or doing field and mobility exercises. It leaves it up to soldiers and commanders to work out a schedule that balances the mother's needs and mission readiness."
The full guidance, which was issued by the Secretary of the Army, is available here. While the policy demonstrates the importance and value that is being placed on breastfeeding, critics maintain that the policy is not specific enough. It will be interesting to follow and see how the policy is actually implemented.
-- Joe Seiner
Wednesday, October 14, 2015
As many of you know Federal District Court Judge Mark Bennett (N.D. Iowa) is also a legal scholar who frequently publishes work in the employment field, and we have blogged here about his superb scholarship. I wanted to highlight another piece of his that was recently put on SSRN, and which appears in the American University Law Review. This article, Unspringing the Witness Memory and Demeanor Trap: What Every Judge and Juror Needs to Know about Cognitive Psychology and Witness Credibility, provides a fascinating look at the importance of evaluating witnesses and determining credibility issues. Though the vast majority of employment cases fail to make it to trial, these credibility determinations are of critical importance in those cases that do find their way to a jury. Witness credibility is often determinative in workplace disputes, and this article helps shed light on this important issue. It is definitely worth taking a look at if you have the time.
- Joe Seiner
To stimulate scholarly activity and broaden academic interest in comparative labour and employment law, the International Association of Labour Law Journals announces a Call for Papers for the 2016 Marco Biagi Award. The award is named in honor of the late Marco Biagi, a distinguished labour lawyer, victim of terrorism because of his commitment to civil rights, and one of the founders of the Association. The Call is addressed to doctoral students, advanced professional students, and academic researchers in the early stage of their careers (that is, with no more than three years of post-doctoral or teaching experience).
1. The Call requests papers concerning comparative and/or international labour or employment law and employment relations, broadly conceived. Research of an empirical nature within the Call’s purview is most welcome.
2. Submissions will be evaluated by an academic jury to be appointed by the Association. Submitted papers should include an abstract.
3. The paper chosen as the winner of the award will be assured publication in a member journal, subject to any revisions requested by that journal.
4. Papers may be submitted preferably in English, but papers in French or Spanish will also be accepted. The maximum length is in the range of 12,500 words, including footnotes and appendices. Substantially longer papers will not be considered.
5. The author or authors of the paper chosen as the winner of the award will be invited to present the work at the Association’s 2016 meeting which is to be announced soon on the website of the Association. Efforts are being undertaken to provide an honarium and travel expenses for the presentation of the paper. Until that effort bears fruit, however, the Association hopes that home institutional funds would be available to support the researcher’s presentation.
6. The deadline for submission is 31 March 2016. Submissions should be sent electronically in Microsoft Word both to Lavoro e diritto at email@example.com andto Frank Hendrickx, the President of the Association, at Frank.Hendrickx@law.kuleuven.be.
CAS, h/t to Steve Willborn
Tuesday, October 13, 2015
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 firstname.lastname@example.org and Professor Natasha Martin, Seattle University School of Law, at email@example.com. 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 firstname.lastname@example.org and/or the Program Chair for the Section on Employment Discrimination Law, Professor Natasha Martin, Seattle University School of Law, 206. 398. 4039 or email@example.com amford.edu.
Monday, October 12, 2015
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
Friday, October 9, 2015
Deborah Thompson Eisenberg just posted her piece on The Restorative Workplace: An Organizational Learning Approach to Discrimination. Here's the abstract:
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!
Thursday, October 8, 2015
Following 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.
Wednesday, October 7, 2015
Katie 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!