Tuesday, August 8, 2017
This case has managed to hit a bunch of labor and employment issues: A Google engineer first released a memo criticizing Google's diversity efforts and, among other things, arguing that women were biologically less suited to be engineers. It was reported within the last 24 yours that the engineer has now been fired and is exploring legal options. What those might be are questionable. Because Google is a private employer, there are no constitutional free speech rights. However, the engineer will want to explore any company policies or rules that might be interpreted as establishing contractual rights to speak one's mind or enjoy certain procedures before discipline (Google, in contrast, is already alleging that the engineer has violated its corporate conduct policies). The engineer might also have a Title VII retaliation claim if he can argue that he was objecting to illegal activity by Google, but without more facts, that seems a stretch at this point.
Interestingly, the one claim I've seen thus far is under the NLRA. There are two complaints really. First, the engineer apparently filed a complaint with the NLRB prior to his termination. I'm not sure what adverse action he's alleging, but presumably, he's also arguing that his memo was concerted and protected conduct. He does seem to be talking about workplace issues, but whether there was concerted action is less clear. It sounds like he released the memo on a company listserv, so he might be viewed as trying to instigate group action or there might have been follow-up conversations that establish concerted action, but it's not clear at present. And even if it was, Google can still argue that the memo was disruptive enough to overcome the engineer's NLRA rights. Second, the engineer alleges that his termination was in retaliation for the initial complaint. If it could prove that was Google's motivation, then it's a pretty clear violation of the NLRA. But I suspect Google won't have trouble showing that the memo--not the NLRB complaint--was the cause of the termination.
All interesting issues, so watch out for what comes next. Of course, some sort of settlement may be the most likely, as Google would probably prefer that everyone be talking about other things.
Americans are less likely to be laid off than at any point in at least 50 years. For every 10,000 people in the workforce, 66 claimed new unemployment benefits in July, trending at the lowest point on record going back to 1967. The previous low point, 83 per 10,000, was touched in April 2000, at the height of a tech boom. Separate Labor Department data shows the rate of layoffs and other discharges as a share of total employment this year is at the lowest level on records back to 2000.
The steep fall in layoffs is mainly a result of a vastly improved labor market. It means Americans have more job security than they may realize less than a decade after dismissals spiked in the 2007-2009 recession. But other factors with more mixed implications are at play, including elevated levels of long-term unemployment, an aging workforce, a decline in manufacturing work and more risk-averse businesses, which also point to a less dynamic economy.
For the full story, see Eric Morath, You're Fired! No, Wait, Keep Working.
Wednesday, August 2, 2017
Today, the Senate confirmed Marvin Kaplan as the newest member to the National Labor Relations Board by a 50-48 vote, bringing the Board an even Democratic/Republican split. Reports are that the vote on William Emanuel, which will produce a Republican-majority NLRB will occur after the August recess.
CSLSA is an organization of law schools dedicated to providing a forum for conversation and collaboration among law school academics. The CSLSA Annual Conference is an opportunity for legal scholars, especially more junior scholars, to present working papers or finished articles on any law-related topic in a relaxed and supportive setting where junior and senior scholars from various disciplines are available to comment. More mature scholars have an opportunity to test new ideas in a less formal setting than is generally available for their work. Scholars from member and nonmember schools are invited to attend.
Please click here to register. The deadline for registration is September 2, 2017.
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Monday, July 31, 2017
Friend-of-blog Lise Gelernter (SUNY Buffalo) sends along the following CALL FOR PAPERS:
The Taylor Law at 50: Bright Spots and Pressure Points .The New York State Public Employment Relations Board (PERB) and the Taylor Law 50th Anniversary Committee are pleased to invite submissions for a special conference recognizing New York’s Taylor Law and its substantial influence on public sector labor relations over the past 50 years. The conference will take place May 10-11, 2018 in Albany, NY. Practitioners and scholars interested in presenting their work at the conference should submit an abstract of a proposed paper or session by September 15, 2017. Abstracts should be no longer than 1,000 words and should include a detailed description of the focus of the proposed paper or session, its relevance to the conference, and its contribution to the study or practice of public sector labor relations. In addition, session abstracts should also include a list of invited participants and their proposed presentations. Prospective contributors are encouraged to contact PERB Chair John Wirenius (JWirenius@perb.ny.gov), Lise Gelernter (firstname.lastname@example.org), William Herbert (email@example.com), or Ariel Avgar (firstname.lastname@example.org) with any question or inquiries regarding this call for papers. Paper and session abstracts should be submitted via email to email@example.com. Authors will be notified by December 15 if their paper or session has been accepted to the conference.
For this conference we especially welcome submissions that shed new light on key aspects of the Taylor Law, its application, and its consequences for public sector labor relations. We also encourage submissions that provide a comparative perspective based on evidence from other states or countries. We welcome submissions from practitioners, scholars, policy makers across a wide array of disciplinary domains including, but not limited to, law, history, economics, sociology, political science, labor relations, and human resources.
This looks like a great conference and I strongly encourage anyone interested to apply!
Friday, July 28, 2017
Many thanks to Kim Scipes (Sociology - Purdue Northwest) for sending news of the most recent issue of the academic journal Class, Race and Corporate Power. The journal focuses on the politics of corporate power, including an analysis of capital, labor, and race relations within nation-states and the global economy. The journal encourages contributions that explore these issues within holistic frameworks that borrow from a range of scholarly disciplines.
The particular issue Kim pointed me to is volume 5, issue 2 (2017), with the theme of U.S. Labor and Social Justice. The articles in that issue are listed below; PDFs of each article can be found here at the Journal's website.
- Introduction to Section on Labor and Social Justice, by Section Editor Kim Scipes
- John L. Lewis and His Critics: Some Forgotten Labor History That Still Matters Today, by Staughton Lynd
- Time to Tackle the Whole Squid: Confronting White Supremacy to Build Shared Bargaining Power, by Erica Smiley
- The Good, the Bad, the Ugly: A Lifetime with Labor, by Vincent Emanuele
- The Epic Failure of Labor Leadership in the United States, 1980-2017 and Continuing, by Kim Scipes
Thursday, July 27, 2017
We recently blogged here about the Second Circuit's recent decision to take en banc the issue of whether or not sexual orientation discrimination is protected by Title VII. The Second Circuit case, Zarda v. Altitude Express, will re-consider a panel's earlier decision that sexual orientation is not protected. Oral arguments in the case are scheduled for the fall (see article in the New York law journal here), and it will be interesting to see if the court follows the decision of the en banc Seventh Circuit in Hively v. Ivy Tech., that "a person who alleges that she experienced employment dis-crimination on the basis of her sexual orientation has put forth a case of sex discrimination for Title VII purposes."
Yesterday, the Department of Justice filed an amicus brief in the case. DOJ is taking the position that sexual orientation is not protected under Title VII. This position is obviously creating a lot of controversy, and there are already articles in numerous news outlets on the issue, including CNN and the New York Times. It will be interesting to see what other amicus briefs are filed in the case and the positions taken by other groups and organizations on this important issue. Again, this will likely be an issue that is ultimately resolved by the Supreme Court.
-- Joe Seiner
Tuesday, July 25, 2017
The AALS Section on Employment Discrimination Law and AALS Section on Labor Relations and Employment Law is inviting submissions for a joint program, New and Emerging Voices in Workplace Law, at the AALS 2018 Annual Meeting in San Diego, California on Thursday, January 4, 2017, from 3:30-4:45 p.m.
About. This works-in-progress session will give emerging workplace law scholars the opportunity for engagement on a current project with leaders in the field. Each selected scholar will present a work-in-progress and receive comments from an assigned commentator, as well as from an audience of scholars in the field. The session will provide new scholars a supportive environment in which to receive constructive feedback.
Eligibility. Full-time faculty members of AALS member and fee-paid law schools are eligible to submit proposals. This call for papers is targeted to scholars with seven or fewer years of full-time teaching experience. Visitors (not full-time on a different faculty) and fellows are eligible to apply to present at this session.
Submission Format. Please submit an abstract, précis, and/or introduction of the article that is sufficiently developed to allow the reviewers to evaluate the thesis and proposed execution of the project.
Submission Instructions. To be considered, proposals should be submitted electronically to Professor Naomi Schoenbaum, George Washington University Law School, at firstname.lastname@example.org, and Professor Danielle Weatherby, University of Arkansas School of Law, at email@example.com. The deadline for submission is Friday, September 1, 2017.
Selection. Presenters will be selected after review by the Chairs of both sections. Selected authors will be notified by September 29, 2017. Presenters will be responsible for paying their annual meeting registration fee and travel expenses. To facilitate valuable feedback at the session, presenters should provide a substantial draft by December 4, 2017.
Questions. Any inquiries about the Call for Papers should be submitted to the Chair for the Section on Employment Discrimination Law, Professor Naomi Schoenbaum, at firstname.lastname@example.org and/or the Chair for the Section on Labor Relations and Employment Law, Danielle Weatherby, at email@example.com.
Wednesday, July 19, 2017
A Thai army general and local politicians are among the dozens of people found guilty at a Bangkok court Wednesday in one of Thailand's largest human trafficking trials.
Thailand has faced international criticism for years over human trafficking in the country, and the rights group Fortify Rights called this trial an "unprecedented effort by Thai authorities to hold perpetrators of human trafficking accountable."
"The conviction of a senior Army officer was an extremely rare event in junta-ruled Thailand," according to Thai newspaper The Nation. Lt. Gen. Manas Kongpan was found guilty of trafficking and taking bribes, The Associated Press reported.
The case involved more than 100 defendants, and the judge spent all day reading a 500-page verdict to the court, The Nation reported. The full breakdown of convictions was not immediately available, and the sentences have not been announced.
This is a huge step toward developing meaningful low-wage labor standards in Southeast Asia.
The problem-based approach of Labor Law: A Problem-Based Approach moves beyond lectures, the Socratic teaching model, and the casebook method, while developing the critical reasoning skills required to be a successful attorney. The problem-based pedagogical method will directly help students by synchronizing the way labor law is taught with the way it is typically tested. The book is updated through the end of 2016 and features the most important cases, documents, and articles for students to become proficient in the practice of American private-sector labor law.
Sunday, July 16, 2017
A district court in Minnesota recently held that retaliation against a prospective hire for requesting an accommodation wasn’t actionable under §704(a). At issue in EEOC v. N. Mem'l Health Care was a claim on behalf of an applicant whose conditional offer of employment was revoked after she requested an accommodation, even though she later indicated she was willing to meet the employer’s requirements.
The court gave short shrift to both the participation and opposition clauses of §704(a). There had been no filing before the revocation of the offer, so participation was not implicated. As for the opposition clause, the court reasoned that the statute required opposition to what the plaintiff in good faith believed to be unlawful discrimination, and there was no evidence that the applicant believed that North Memorial was acting unlawfully: “In other words, merely requesting a religious accommodation is not the same as opposing the allegedly unlawful denial of a religious accommodation.” The court cited several other district court decisions to similar effect.
It dismissed ADA authority to the contrary on the basis of differences between the statute, especially 42 U.S.C.S. § 12203(b) (which declares it unlawful “to coerce, intimidate, threaten, or interfere” with the exercise or enjoyment of any right under the statute). But, in the process, it cited Eighth Circuit dicta to the effect that, even under the parallel language of the ADA, “it might be thought that [plaintiff’s claim of retaliation for requesting an accommodation] never gets out of the starting gate.” Kirkeberg v. Canadian Pac. Ry., 619 F.3d 898, 907 (8th Cir. 2010).
In short, Memorial Health Care may be more than a one-court anomaly and but may reach beyond Title VII’s duty of religious accommodation to threaten what many view as the core protection of the ADA.
One response to this is the Supreme Court’s decision in Robinson v. Shell Oil Co., 519 U.S. 337 (1997), which read “employee” in the statute to bar retaliation in job references against a “former employee,” in part “because to hold otherwise would effectively vitiate much of the protection afforded by § 704(a).” Similarly, since employers are generally said not to have a duty to accommodate unless the employee requests one, to permit discharge of individuals for requesting accommodation would essentially read the duty out of both statutes. Interesting, Robinson wasn’t cited in either North Memorial or Kirkeberg.
But it’s also true that Justice Thomas’s opinion for the Court in Robinson looked to larger purposes and consequences only after finding “employee” to be ambiguous to begin with. So a committed textualist might find no ambiguity in the reach of the retaliation proscription and so deem irrelevant the resultant torpedoing of the duty of accommodation.
Maybe the whole problem under Title VII can be avoided by not looking to retaliation law in the first place. The conditional employee’s offer was rescinded after she had indicated that she would “make it work” by coming in on Friday night if she could not find a replacement. That would seem to fit directly within the definition of religious discrimination announced by the Court in EEOC v. Abercrombie & Fitch: “an applicant need only show that his need for an accommodation was a motivating factor in the employer’s decision.” Thus, an employer that fires someone (or revokes an offer) for asking for an accommodation would seem to be guilty of discrimination in the first place under Title VII. (For unexplained reasons, the EEOC denied the applicant’s claim of religious discrimination and pursued only the retaliation one). Similar reasoning might apply to the ADA although another way out of the textualist box under that statute is the hitherto underutilized § 12203(b).
Hat tip to my RA, Henry Klimowicz, Seton Hall Law ’19
Friday, July 14, 2017
Marcia recently had a wonderful blog post here about the U.S. Court of Appeals for the Seventh Circuit's decision en banc which held that sexual orientation was covered under Title VII. In Hively v. Ivy Tech., the Seventh Circuit specifically ruled that "a person who alleges that she experienced employment dis- crimination on the basis of her sexual orientation has put forth a case of sex discrimination for Title VII purposes." The Second Circuit, also siting en banc, will now consider the same question.
The Second Circuit case, Zarda v. Altitude Express, will re-consider a panel's decision that Sexual Orientation is not protected under Title VII. Oral arguments in the case are scheduled for the fall, and it will be interesting to see if the court follows the decision of the Seventh Circuit. There is a great article on the pending case in the New York Law Journal, which is available here.
My guess is that the Supreme Court will ultimately be faced with the decision as to whether sexual orientation discrimination is covered by federal law. It would not be surprising, however, if the Court waited until a few more appellate courts (like the Second and Seventh Circuits) weighed in before addressing the issue.
-- Joe Seiner
Thursday, July 13, 2017
There is an interesting article over at CNN.com which looks at using sick days at work to help maintain one's own mental health. Millions of U.S. workers suffer from depression and other mental issues, and the workplace can often excascerbate these problems. The article looks at one example where an employer of a small company was particularly supportive of his employee's notice to use her sick leave to help foster her own mental health, telling her in an email that "I can't believe this is not a standard practice at all organizations . . . You are an example to us all, and help cut through the stigma so we can all bring our whole selves to work."
The article does a nice job of raising this important issue, and reminds us of the unfair stigma which often follows those suffering from mental health issues. It is reaffirming to see the positive response of the employer in the story, and hopefully this stigma will continue to break down over time.
-- Joe Seiner
Wednesday, July 12, 2017
A few weeks ago, Missouri’s governor signed SB43. That law amends the State’s employment law, including the Missouri Human Rights Act (MHRA), its anti-discrimination statute—mostly in employer-friendly ways. (For media reports on the legislative politics, see, e.g., here, here, and here.) Among the many changes, I’ll highlight (1) MHRA’s new causation requirement and (2) a remarkably broad preemption provision.
- But-For Causation
Most have rightly focused on how MHRA will now require but-for causation. The legislature amended the MHRA to use “because of” to denote causation and by adding these definitions:
(2) "Because" or "because of ", as it relates to the adverse decision or action, the protected criterion was the motivating factor
. . .
(19) "The motivating factor", the employee's protected classification actually played a role in the adverse action or decision and had a determinative influence on the adverse decision or action.
By these definitions, especially the word “determinative” (and “the” in “the motivating factor”), the legislature overrode Daugherty v. City of Maryland Heights, 231 S.W.3d 814, 819 (Mo. 2007). There, the court had read MHRA not to require “a plaintiff to prove that discrimination was a substantial or determining factor in an employment decision; if consideration of age, disability, or other protected characteristics contributed to the unfair treatment, that is sufficient.”
By adopting but-for causation, the MHRA will become more stringent than section 703 of Title VII, see 42 U.S.C. § 2000e-2(m), while matching up more with how the US Supreme Court reads the federal age-discrimination statute and Title VII’s retaliation provision.
- Preemption of Common Law Claims
SB43 also substantially preempts common-law employment claims, in two ways. First, MHRA now includes this: “This chapter, in addition to chapter 285 and chapter 287, shall provide the exclusive remedy for any and all claims for injury or damages arising out of an employment relationship.” The phrase “arising out of an employment relationship” is not further defined.
Second, a new "Whistleblower’s Protection Act" contains this provision: “This section is intended to codify the existing common law exceptions to the at-will employment doctrine and to limit their future expansion by the courts. This section, in addition to chapter 213 and chapter 287, shall provide the exclusive remedy for any and all claims of unlawful employment practices.” (The Act then declares what counts as an “unlawful employment practice” under the Act.)
Courts must usually read statutes to give meaning to all their terms, and cannot read them to make certain provisions superfluous. So, what more does the MHRA preemption provision cover than the whistleblower preemption provision?
If we read “arising out of an employment relationship” broadly, that provision seems to cover all Missouri common law claims predicated on an employment relationship. That would include all the ones that apply to conduct that might not violate the new whistleblower statute (e.g., tortious interference with contract, negligent hiring, intentional infliction of emotional distress, defamation, fraud). That’s because neither chapter 287 (workers’ compensation) nor chapter 285 (miscellaneous) expressly provide for a way to bring all employment-related claims under Missouri common law.
But, does that mean that the MHRA preemption provision covers common-law contract claims for breach of an employment contract? Such claims certainly “aris[e] out of the employment relationship” and entail some allegation of “injury or damages.” It’s unlikely that Missouri’s legislators wanted to stop, for example, an employer who sues for breach of an employment contract. And yet, the text of the MHRA preemption provision doesn’t distinguish between contract and tort claims. It simply covers “any and all claims for injury or damages arising out of an employment relationship.”
SB43 goes into effect on August 28.
It's no secret that unions have faced especially difficult conditions in the South. That's why two recent stories showing signs of success for union efforts in the South caught my attention (or at least one story of success and one of hopefulness.
First is a new collective-bargaining agreement between Duke University and a unionized group of non-tenure-track faculty represented by SEUI. The faculty still need to vote on the agreement, but it looks to be very beneficial to them--significant pay increases and job security--and is expected to pass. Second is a recent election petition at a Mississippi Nissan plant. We've obviously been down this road before, but the demographics and conditions at the plant, particularly the large percentage of African-American workers, makes this a vote to watch. Of course, we've seen union support drop off significantly prior to elections, so we'll have to see what happens.
Tuesday, July 11, 2017
Thanks to Aaron Halegua, a lawyer and research fellow at NYU Law School, for keeping us in the loop about the labor practices of one of Donald Trump's friends in China:
Last week, the Financial Times did a story on the Chinese migrant workers in Saipan who continue to demand payment for their work constructing a Hong Kong-invested casino, which has now opened. As an earlier story in the New York Times noted, the CEO of the Hong Kong company, Imperial Pacific, is a former executive of one of Donald Trump's casinos in Atlantic City. Imperial Pacific hired several Chinese contractors to build the project, who are alleged to have not paid some workers at all, failed to pay all workers the minimum wage or overtime, and not compensated injured workers. OSHA has issued large fines against the contractors for safety violations, which lead to at least one documented fatality, and DOJ is prosecuting managers of these companies for harboring and illegally employing aliens. As the contractors have not paid what is owed, the workers are now calling on Imperial Pacific to compensate them. Outside groups have supported the workers, including the National Employment Law Project, National Guestworker Alliance, and, most recently, the Hong Kong Confederation of Trade Unions -- which called on people to write letters to Imperial Pacific to pay the workers.
Sunday, July 9, 2017
Many thanks to Dennis Nolan (South Carolina emeritus; NAA) for forwarding Sylvain Cypel, Macron’s California Revolution, which has a detailed discussion of French President Emmanuel Macron's plans for French labor law. Here's an excerpt:
Continuing deindustrialization has shut millions of older employees out of the job market. And unemployment among the young is beating all records: at the end of April 2017, the number of officially registered jobseekers hit 5,836,000—the same number as in the United States, a country with five times France’s population! For the past forty years, whether governed by the right or the left—or even during short periods of “cohabitation”—neither side has been able to curb unemployment.
[N]ew macroniste politicians closely follow their leader’s core socioeconomic philosophy: that in today’s world, the people who rise to the top, or at least stay afloat, are those who’ve succeeded in adapting to the relentless process of globalization and its technological disruptions. There will be less and less room for job security and more and more for people who have a capacity for innovation and adaptation. Gone are lifelong professional careers. Likewise gone are rigid job descriptions and fixed work schedules. In this, Macron once again embodies a very American way of thinking. And he believes that France has to catch up to the current reality of the labor force.
But the first real test of the new president’s mandate will be the new labor law that he intends to issue as an executive order, before asking France’s parliament to vote on it. Macron wants to move fast. He wants to take advantage of the “big bang” of his election and his opponents’ stunned paralysis to abolish much of the existing French labor code, which, because of powerful labor unions, was designed to cater to the best-protected employees—especially those in heavy industry—and has long been skewed toward the interests of workers in general at the expense of greater flexibility and efficiency for private enterprise. Just how far does he mean to take this? Clearly, as far as he can.
The real question is whether Macron is ready to take on the unions or will seek to compromise with them. His approach to economic reform has been well known since his tenure as economics minister (2014–2016): a major deregulation of existing laws to allow employers to practice less “rigid” employment and hiring policies, including fewer restrictions on salaries and working conditions. These measures, he argues, are essential if there is to be a revival of the French job market. Employers, who are also asking for a freer hand in firing workers, claim these measures will bring a reduction in labor costs. The corollary to these ambitions, and the condition for their success, is a significant reduction of what remains of the unions’ power, already enormously diminished. (Fifty years ago, 22 percent of all employees were union members, while that number is currently 7.7 percent, according to the OECD).
When Macron tried to put these reforms into effect as economics minister under François Hollande, he encountered very strong resistance from the unions and from the public itself. After a series of protest marches and demonstrations, the law had to be issued by Prime Minister Valls, through a procedure designed to avoid a parliamentary vote, which it seemed quite unlikely to pass. Today the basic problem is much the same. The unions are so hostile to reforming the labor market because, behind the apparent “change,” it is possible to glimpse a policy that’s been at work for a long time already. Ever since 1984, all governments, right and left, have worked tirelessly to shatter administrative and legal “rigidity” with respect to hiring and firing. And yet, France’s steadily worsening joblessness has never been brought under control. Even worse, in France as in nearly all the rest of the Western world, inequality has become ever more deeply entrenched, in lockstep with the deterioration of middle-class purchasing power. It’s not hard to imagine, therefore, that the unions might once again be the front line of resistance to still more radical measures to deregulate the labor market.
Friday, July 7, 2017
I came across today an interesting new article, on a topic I hadn't thought much about before, posted recently on SSRN. The article, by W.C. Bunting of the U.S. DOJ-Civil Rights Division, is Unlocking the Housing-Related Benefits of Telework: A Case for Government Intervention. Here's the abstract:
The central claim of the present article is that some form of government intervention is necessary to make telework arrangements sufficiently binding in the long-run for employees living in, or near, city centers to feel comfortable incurring the costs of relocating to more remote, lower-priced areas, and to ensure the long-run financial self-sufficiency of private telework centers, which provide important benefits, not just to employers and employees, but to society generally. The public benefit considered here is the capacity for telework, and telework centers specifically, to provide lower-priced housing alternatives for middle- and high-income earners who choose to live in, or near, the city center to reduce the time spent commuting, but who would otherwise choose to live in more remote, lower-priced areas if commuting costs were lower. As explained, a minimal amount of government intervention is necessary, however, to overcome several key economic challenges that preclude employees from relocating to remote, lower-priced exurban or rural communities, as well as the formation of a new and exciting private-sector enterprise—the privately-operated telework center.
Wednesday, July 5, 2017
When teaching the adverse employment action doctrine, I often ask my class whether an employer would be liable if it painted the workspaces of its female workers pink while painting those of its male workers blue. Objectionable as that would be to the cause of equality in the workplace, the adverse employment action doctrine might well allow it: absent some additional provable harm, the décor would not be sufficient to violate the statute.
That law school hypothetical manifested in the real world in the recent Seventh Circuit case EEOC v. Autozone, Inc. where Stuckey, a black employee claimed that his employer, Autozone, violated Title VII by transferring him from one store to a new location with the motive of keeping the store “predominantly Hispanic.” The panel held that summary judgment was appropriate for Autozone: the EEOC failed to provide sufficient evidence showing that the transfer adversely affected Stuckey’s employment status since there was no reduction in his compensation or responsibilities.
The panel was obviously skeptical of the claim to begin with but, given Stuckey’s testimony that his district manager explained to him the reason for the transfer, it assumed a triable issue on that point.
At first blush, the decision is unremarkable as a straightforward application of the adverse employment action doctrine since Stuckey suffered no diminishment in pay or responsibilities. Section 703(a)(1)’s reference to discrimination in “compensation, terms, conditions, or privileges” of employment has led to the rule that an employee has to show meaningful harm in order to state a claim. A “lateral transfer” (one without reduction in pay) has been the quintessential example of no harm/no foul. Pink offices/blue offices. Whether that result casts doubt on the whole adverse employment action doctrine is another question.
But the EEOC tried an end run around the doctrine in Autozone by invoking § 703(a)(2), which declares it unlawful “to limit, segregate, or classify his employees or applicants for employment in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee” because of the prohibited grounds. “Segregating” would seem to be exactly what Autozone was alleged to have been doing. The panel, however, rejected that argument, reading (a)(2), similar to (a)(1), to also require the EEOC to demonstrate that the transfer deprived Stuckey of meaningful employment opportunities. In short, segregating employees by race is not necessarily a statutory violation.
The court rejected the EEOC’s argument that proof of racial segregation should trigger automatic liability. Looking to the section’s phrasing, it found that the Commission reading “leaves much of the statutory text with no meaningful work to do. If it's not necessary to show that the challenged employment action ‘deprive[d] or tend[ed] to deprive’ the employee of employment opportunities ‘or otherwise adversely affect[ed] his status as an employee,’ what is the point of this statutory language?”
The panel did offer one piece of comfort to the EEOC, stressing that “(a)(2) does cast a wider net than subsection (a)(1),” because it speaks in terms of an action that “has only a tendency to deprive a person of employment opportunities” while (a)(1) addresses actions that actually "discriminate against any individual." It may be that some lateral transfer immune from (a)(1) nevertheless are actionable under (a)(2) because of their tendency to deprive the employee of opportunities. Still, the dramatic new possibilities for (a)(2) envisioned by Professor Sperino in Justice Kennedy’s Big New Idea are unlikely to be meaningfully realized if other courts take the Autozone approach.
However, to return to a point mentioned above, maybe cases like Autozone suggest a reconceptualization of the whole adverse employment action doctrine. After all, to permit racial (and other kinds of) segregation flies in the face of the antidiscrimination project, making a textual analysis that leads down this path surely suspect. Maybe more to the point, I am not the first to note that the adverse employment action doctrine is not very firmly wedded to the text of (a)(1). Where one works is surely a “term, condition, or privilege” of employment as those terms are usually used and as the first two were interpreted under the National Labor Relations Act. Ironically, maybe a textualist reading would make (a)(1) broader than (a)(2)! Finally, perhaps the courts should think more seriously about the structure of the statute. Title VII famously has a bona fide occupational qualification defense, and equally famously, it does not reach race. Autozone permits exactly the result that the BFOQ would allow, without all the messy restrictions of that doctrine.
Thanks to my research assistant Henry Klimowicz, Seton Hall Law ’19
Saturday, July 1, 2017
There is a great story in the New York Times today discussing the alarming problem and culture of sexual harassment in the technology sector. We have all seen the headlines and fallout from this conduct recently at a number of high profile companies in the modern economy. This article takes a fascinating look inside the industry and culture, focusing on the financing of start-ups. From the Times piece:
"Most venture capitalists and entrepreneurs are men, with female entrepreneurs receiving $1.5 billion in funding last year versus $58.2 billion for men, according to the data firm PitchBook. Many of the investors hold outsize power, since entrepreneurs need their money to turn ideas and innovations into a business. And because the venture industry operates with few disclosure requirements, people have kept silent about investors who cross the lines with entrepreneurs."
This is an increasingly important issue in a growing part of the economy (and as we blogged about earlier, Professors Eisenstadt and Geddes have an interesting take on the issue available here). The article definitely provides an interesting perspective on this high-profile topic.
-- Joe Seiner