Tuesday, May 17, 2016
Stacie Strong (Missouri) just sent an email to the ADR listserv describing an international labor/arbitration case. I'm reprinting here (with permission) the description of the case from her email:
A very interesting case, Suazo v. NCL (Bahamas), Ltd., was recently handed down by the U.S. Court of Appeals for the Eleventh Circuit. The case involved a cruise ship employee who was injured on the job and whose employment contract contained an arbitration agreement governed by the New York Convention and Chapter 2 of the Federal Arbitration Act. The question was whether the employee could bar arbitration by showing that high costs may prevent him from effectively vindicating his federal statutory rights in the arbitral forum.
The matter came up as part of a motion to compel arbitration, and the court held that "Our New York Convention precedent suggests (but does not hold) that a party may only raise this type of public-policy defense in opposition to a motion to enforce an arbitral award after arbitration has taken place, and not in order to defeat a motion to compel arbitration." This approach is, of course, problematic if one concludes that it will be difficult if not impossible to vindicate one's rights initially if one cannot afford to pursue the claim (here the court decided that the claimant had not made the appropriate showing, so the court was able to take a "no harm, no foul" perspective). However, the decision appears correct under the New York Convention.
Some might say that the advent of third party funding and availability of contingent fee attorneys in the United States would allow worthy claimants to assert their claims, but there is no guarantee that a third party funder or contingent fee attorney will take any particular case. While it is unclear how often this type of scenario will arise in the future, the case does identify a significant area of tension between domestic law and international law.
Monday, May 16, 2016
In news that was overshadowed by a much larger settlement with Uber, a class-action lawsuit in California against Lyft was just settled for $27 million. The case was quite similar to the Uber litigation and involved the question of whether drivers for the company were employees or independent contractors. From the USA Today:
"Under the agreement, drivers who use Lyft’s app will continue to be independent contractors but will be paid a lump sum to settle their reimbursement claims. The payout will be based on how many hours per week they drove with Lyft."
The proposed settlement still needs to be approved by the district court. It will be interesting to follow the many other technology sector systemic cases to see how many follow suit in settling the claims.
-- Joe Seiner
Saturday, May 14, 2016
The NY Times today described the increasing use of arbitration clauses for Silicon Valley and other similar start-up firms. This issue is nothing new to readers of this post, but it perhaps shows that even Silicon Valley isn't immune from broader workplace trends (although they certainly put a nicer spin on it). As always, the devil is likely in the details. Workers represented by experienced unions tend to fare well under arbitration systems, while individual employees--or those trying to form class actions--are far less likely to see the benefits of one-sided arbitration agreements. As the article notes, the Consumer Financial Protection Bureau is seeking new rules for commercial arbitration, but aside from the NLRB, there seems little that agencies are doing for employees.
Friday, May 13, 2016
It's too bad that law school finals are over because this situation has all of the labor and employment bases covered. The ACLU and the Colorado law firm of Holwell Shuster & Goldberg have filed charges with the EEOC on behalf of four pilots who argue that the airline's policies discriminate against women by failing to provide accommodations related to pregnancy and breast feeding. You can download the charges from that link if you are interested in the details.
Essentially, the charges allege that pregnant pilots are forced to take unpaid leave beginning as early as 10 weeks before their due dates and are then allowed up to 120 days after delivery of unpaid leave. Those who are nursing when they return are not accommodated at the airports nor allowed to express milk during flights, according to the charges. Three of the four women suffered mastitis as a result of the lack of accommodations. The pilots have proposed a number of accommodations like temporary non-flying assignments that would allow women to work longer before delivery and to allow for easier accommodation of milk expression, extension of maternity leave for women who want it, and designated places where the women could pump in airports Frontier uses and on the plane when necessary. According to NPR, the airline asserts that there are locations for expressing milk in airports that comply with federal and state law.
Although the charges themselves really only deal with Title VII (although they also mention Colorado's Fair Employment Practices Act and Colorado's Workplace Accommodation of Nursing Mothers Act), the lack of accommodations may also violate the FLSA (as amended by the Patient Protection and Affordable Care Act). In addition, the workplace is governed by a collective bargaining agreement, which has rules setting out non-flying reassignments, but only for on-the-job injuries.
If the charge does not lead to a settlement, the subsequent lawsuit will give a court the chance to apply the Supreme Court's framework for accommodations set out in Young v. UPS. This case is similar as it relates to pre-delivery leave, but it's also different. It is not clear that the women must take pre-delivery leave because of any medical reason. The policy requires that pilots take leave once they are no longer "medically authorized to fly," or at 32 weeks, whichever is earlier. For healthy women, doctors generally don't suggest limits on flying until 36 weeks, mostly because of the possibility of early labor. Because Frontier, requires leave by the 32d week of pregnancy, (and some women don't deliver until the 42d week), there might be several weeks where the pilot could work, but is prohibited. This requirement looks like the one struck down in Cleveland Bd. of Educ. v. LaFleur, which required pregnant school teachers to take leave before it was medically required.
The case is also somewhat different on the accommodations for milk expression. The situation Peggy Young found herself in at UPS would likely be taken care of by the ADA as amended. Her lifting restriction, imposed to prevent miscarriage or premature activity, would be found an impairment of a major life activity, most likely. And transfer to a vacant position, likely a reasonable accommodation that would not pose an undue hardship, since UPS provided that accommodation for a number of other reasons. Here, lactation itself isn't an impairment but an extension of the normal physiological processes of pregnancy and delivery. Lactation isn't impairment of normal breast function; it is normal breast function. So these accommodations may only be protected by Title VII and not by the ADA.
In any event, it will be interesting to see how this one plays out and whether remedies under other laws that might provide relief are pursued.
Wednesday, May 11, 2016
Yesterday, Uber announced that it had come to an agreement with the Independent Drivers Guild, which is not a formal union, but is affiliated with the International Association of Machinists and Aerospace Workers. This agreement is not a concession by Uber that its drivers are employees; to the contrary, it is a way to give drivers a voice explicitly without making such a concession. Broadly, the deal has Uber promising to hold monthly meeting with the Guild and sets up an appeals process for barred drivers. Drivers will also get certain benefits, such as discounted insurance, roadside help, and legal assistance. There will not be bargaining over fares and other benefits. Moreover, the machinists promised not to try to organize during the 5-year agreement or seek status as employees under the NLRA.
This is a good example of non-traditional means to provide employees with voice in a non-union workplace. I've actually been working on a paper (for far too long) that explores these and other types of non-traditional collective voice measures, particularly ones that take a more collaborative stance towards employers.
Tuesday, May 10, 2016
And so it begins. Yesterday, North Carolina filed a declaratory judgment action to challenge the US Department of Justice's position that HB2 discriminates against transgender people because of their "sex" in violation of Title VII, Title IX, and the Violence Against Women Act (VAWA). The DOJ responded with a lawsuit of its own against North Carolina. Here’s a quick rundown—focusing mostly on the Title VII dispute.
Last week, by letter dated May 4, 2016, DOJ told North Carolina Governor Pat McCrory that, because of HB2, the State was engaged in sex discrimination in violation of Title VII as well as “a pattern or practice of resistance to the full enjoyment of Title VII rights by employees of public agencies," because of a State executive order that declared HB2's restrictions to apply to all cabinet agencies. Why? Because of HB2, non-transgender state employees (and other public employees) "may access restrooms and changing facilities that are consistent with their gender identity in public buildings, while transgender state [and other public] employees may not." (For a parallel letter to the University of North Carolina (“UNC”) as to Title IX and VAWA violations, see here.)
DOJ’s reading of Title VII's prohibition on employment discrimination "because of such individual's . . . sex," 42 U.S.C. § 2000e-2(a), accords with a DOJ December 2015 DOJ memo. There, DOJ reasoned:
[A]s a matter of plain meaning, Title VII’s prohibition against discrimination “because of . . . sex” encompasses discrimination founded on sex-based considerations, including discrimination based on an employee’s transitioning to, or identifying as, a different sex altogether. Although Congress may not have had such claims in mind when it enacted Title VII, the Supreme Court has made clear that Title VII must be interpreted according to its plain text, noting that “statutory prohibitions often go beyond the principal evil to cover reasonably comparable evils, and it is ultimately the provisions of our laws rather than the principal concerns of our legislators by which we are governed.” Oncale v. Sundowner Offshore Servs., 523 U.S. 75, 79 (1998).
Some federal courts have read Title VII similarly, though the US Court of Appeals for the Fourth Circuit (which covers North Carolina) has not expressly decided that issue.
North Carolina Sues
The predictable response to DOJ’s letter: North Carolina's lawsuit against DOJ. In it, they've asked a federal district court to declare that (1) obeying HB2 "regarding bathroom and changing facility use by state employees" doesn't violate Title VII or VAWA; and (2) there is no Title VII or VAWA violation in any event, given State law allowing "accommodations under special circumstances for employees who need exceptions to state policy regarding bathroom and changing facility use by state employees."
Their main Title VII reasoning: “North Carolina does not treat transgender employees differently from non-transgender employees. All state employees are required to use the bathroom and changing facilities assigned to persons of their same biological sex, regardless of gender identity, or transgender status.”
Unfortunately, this just dodges DOJ’s main point—by restricting bathroom access based on a person’s “biological sex”, North Carolina thereby discriminates “because of . . . sex” under Title VII when a transgender employee isn’t allowed into a bathroom that’s consistent with that employee’s gender identity.
Alternatively, the State's lawyers cite Title VII decisions upholding gender-specific dress and appearance requirements, e.g., Jespersen v. Harrah’s Operating Co., 444 F.3d 1104 (9th Cir. 2006), to support their view that Title VII permits "gender specific regulation in the workplace." And that includes, they argue, gender-specific regulations that "balanc[e] the special circumstances posed by transgender employees with the right to bodily privacy held by non-transgender employees in the workplace." The complaint doesn’t specify this privacy right—maybe they mean the tort of intrusion upon seclusion, e.g., Tillet v. Onslow Memorial Hospital, 215 N.C. App. 382, 384-86 (2011). And what are those "special circumstances posed by transgender employees" that implicate privacy? The complaint is vague about that, too. Maybe they mean to conjure the mythical “bathroom predator”? On its status as myth, see, e.g., here, here, and here.
DOJ Sues Back
By yesterday afternoon, DOJ had filed its own lawsuit in federal district court against North Carolina and other State entities, including the University of North Carolina (“UNC”), alleging Title VII sex discrimination; Title IX sex discrimination by UNC; and sex and gender-identity discrimination by UNC and the North Carolina Department of Public Safety in violation of the VAWA.
On the Title VII claim, DOJ’s complaint tracks its May 4 letter and further declares that by following HB2, North Carolina “stigmatizes and singles out transgender employees,” causes their “isolation and exclusion, and perpetuates a sense that they are not worthy of equal treatment and respect.”
Meanwhile, on the Title IX claim, DOJ has an advantage—G.G. ex rel. Grimm v. Gloucester County School Board, No. 15–2056, 2016 WL 1567467 (4th Cir., April 19, 2016). There, the Fourth Circuit deferred to the US Department of Education’s reading of a Title IX regulation on the comparability of school-provided “separate toilet, locker room, and shower facilities on the basis of sex.” 34 C.F.R. § 106.33. DOE read this regulation to mean that, in assigning such facilities by sex, schools had to treat transgender students consistent with their gender identity. A Fourth Circuit panel agreed (2-1), emphasizing doctrine requiring judicial deference to agency interpretations of their own regulations.
Can DOJ extend the G.G. ex rel. Grimm reasoning to its Title VII claim? Well, there is an EEOC guideline on restrooms:
Some States require that separate restrooms be provided for employees of each sex. An employer will be deemed to have engaged in an unlawful employment practice if it refuses to hire or otherwise adversely affects the employment opportunities of applicants or employees in order to avoid the provision of such restrooms for persons of that sex.
29 C.F.R. 1604.2(b)(5). The EEOC, however, has not expressly read this text to mean that an employer adversely affects transgender employees’ employment opportunities if it provides separate bathrooms but doesn’t assign access to them consistent with employee gender identity. However, in an EEOC administrative appeal, it did read Title VII to require an employer to grant a person restroom access that's consistent with that person’s gender identity, see Lusardi v. Dep’t of the Army, No. 0120133395, 2015 WL 1607756 (EEOC, April 1, 2015).
Monday, May 9, 2016
Announcement and Call for Papers
Our late friend and colleague, Mike Zimmer, had a profound impact on the field of labor and employment law, as well as the careers of many who now teach and write in this area. To honor his legacy, Seton Hall University School of Law, where Mike taught for many years, will convene a Symposium on his scholarship. The event will take place on October 21, 2016, at the Law School, and will be hosted by Mike’s Seton Hall Forum colleagues, Charlie Sullivan, Tim Glynn, and Tristin Green. Mike’s wife, Margaret Moses, Professor of Law and Director of the International Law and Practice Program, Loyola Chicago University School of Law, also will attend.
The following members of the legal academy who worked as Mike’s co-authors or had other special connections to him have agreed to join the event and present papers relating to Mike’s scholarship:
Susan Bisom-Rapp, Professor of Law, Thomas Jefferson School of Law
William R. Corbett, Interim Co-Dean & Professor of Law, Louisiana State University School of Law
Martin H. Malin, Professor of Law & Director of the Institute for Law and the Workplace Chicago-Kent College of Law Illinois Institute of Technology
Ann C. McGinley, William S. Boyd Professor of Law, University of Las Vegas, William S. Boyd School of Law
Paul Secunda, Professor of Law & Director, Labor & Employment Law Program, Marquette University Law School
Joseph E. Slater, Eugene N. Balk Professor of Law & Values, The University of Toledo College of Law
Rebecca Hanner White, J. Alton Hosch Professor of Law, University of Georgia School of Law
Because Mike had so many other friends in the field, and influenced the work of scores of his contemporaries and more junior scholars, it befits his legacy to open the event to other participants. Thus, we are calling for paper proposals from anyone interested in presenting and writing on a topic connected to Mike’s work in one of his areas of interest (i.e., employment law, employment discrimination, labor law, comparative and international labor and employment law, and the intersection between discrimination and constitutional law). We hope to accept at least three additional papers. Seton Hall will pay presenters’ travel and lodging expenses.
Marty Malin has graciously agreed to publish the resulting articles in the Employee Rights and Employment Policy Journal.
Paper proposals should be 3-5 pages in length and submitted to Charles Sullivan (firstname.lastname@example.org) no later than July 1, 2016. We request that participants be prepared to circulate substantially completed drafts at or before the symposium.
Questions regarding the event can be directed to any of the three of us.
Charlie, Tim, and Tristin
Charles A. Sullivan Associate Dean for Finance & Faculty and Professor of Law Seton Hall University School of Law (email@example.com)
Timothy P. Glynn, Associate Dean of Graduate and Professional Education & Miriam T. Rooney Professor of Law, Seton Hall University School of Law (firstname.lastname@example.org)
Tristin Green, Professor and Dean's Circle Scholar, University of San Francisco School of Law (email@example.com)
Thursday, May 5, 2016
The New York Times is reporting on the increasingly cozy relationship between the Service Employees International Union and American Federation of State, County and Municipal Employees. Although there is nothing official at this point, a future merger between the two unions could be in the cards.
Wednesday, May 4, 2016
As the primary season transitions more solidly into the presidential election, our thoughts in the labor and employment world naturally turn to workplace captive audience speeches. WPB emeritus Paul Secunda (Marquette) is probably the country's expert on the subject. He has an important piece out in the UCLA Law Review Discourse with Alexander Hertel-Fernandez (doctoral candidate in government and social policy, Harvard), who has been engaged in empirical work to study the scope of employer political intimidation. The article, Citizens Coerced: A Legislative Fix for Workplace Political Intimidation Post-Citizens United summarizes some of Hertel-Fernandez's empirical findings and recommends that Congress amend Title VII to prohibit discrimination on the basis of political affiliation or belief.
The article lays out a compelling case and a workable solution. It finishes with this powerful exhortation:
As the country enters into a highly-contested and polarizing presidential election cycle, it is imperative that Congress act quickly to end political coercion in the workplace. Consistent with longstanding principles of freedom of speech, expression, association, and political affiliation, private-sector employees, just as much as their public-sector counterparts, have the right to engage (or not engage) in political activities without fear of retribution or disadvantage from their employer. It is one thing to provide corporations with expanded free speech rights in the electoral process. It is quite another to permit companies to coerce workers in their political expression. We should not tolerate the latter encroachment on worker autonomy.
The article is a great read, and I highly recommend it.
Tuesday, May 3, 2016
I recently learned that Matt Bodie, Miriam Cherry, Jintong Tang, and our very own Marcia McCormick just posted on SSRN their cutting-edge piece on "big data," The Law and Policy of People Analytics, which is forthcoming in the University of Colorado Law Review. Is it wonderful to see such a great collaboration of experts researching and writing on this important topic and growing field. The abstract is below:
Leading technology companies such as Google and Facebook have been experimenting with people analytics, a new data-driven approach to human resources management. People analytics is just one example of the new phenomenon of “big data,” in which analyses of huge sets of quantitative information are used to guide decisions. Applying big data to the workplace could lead to more effective outcomes, as in the Moneyball example, where the Oakland Athletics baseball franchise used statistics to assemble a winning team on a shoestring budget. Data may help firms determine which candidates to hire, how to help workers improve job performance, and how to predict when an employee might quit or should be fired. Despite being a nascent field, people analytics is already sweeping corporate America. Although cutting-edge businesses and academics have touted the possibilities of people analytics, the legal and ethical implications of these new technologies and practices have largely gone unexamined. This Article provides a comprehensive overview of people analytics from a law and policy perspective. We begin by exploring the history of prediction and data collection at work, including psychological and skills testing, and then turn to new techniques like data mining. From that background, we examine the new ways that technology is shaping methods of data collection, including innovative computer games as well as ID badges that record worker locations and the duration and intensity of conversations. The Article then discusses the legal implications of people analytics, focusing on workplace privacy and employment discrimination law. Our article ends with a call for additional disclosure and transparency regarding what information is being collected, how it should be handled, and how the information is used. While people analytics holds great promise, that promise can only be fulfilled if employees participate in the process, understand the nature of the metrics, and retain their identity and autonomy in the face of the data’s many narratives.
I highly recommend taking a look at this article if you have the chance, as it carves out new territory and explores important issues in this emerging field.
-- Joe Seiner
Monday, May 2, 2016
- Matt Friedman, Mekong Club -- a group of companies coming together to combat slavery in global supply chains.
- Mary Joyce Carlson, Global Fight for Fifteen Campaign -- fighting for fair wages.
- Christy Hoffman, UNI Global Union -- enforcing the Bangladesh Accord to provide safe working conditions, especially in the textile industry.
- Edwin Dela Cruz, National Union of Peoples' Lawyers and International Seafarers Action Center -- fighting for fair wages and working conditions for seafarers.
- Ben Hensler, Worker Rights Consortium, fighting sweatshops and poor labor practices in the garment industry.
- Melville Boase, Asia Pacific Mission for Migrants -- representing exploited domestic workers in Hong Kong and beyond.
Sunday, May 1, 2016
I'm in Hong Kong this week (with Marley Weiss) for the ABA International Labor/Employment Law Conference. It's early in the conference yet, but I have been struck by how much of the discussion so far has focused on how labor/employment law in Southeast Asia is predicted on the existence, or lack thereof, of the rule of law.
As just one example, Beijing would say that PRC has the rule of law, but would define "rule of law" very differently than we would -- in China, law exists to facilitate the Communist Party's social and political control of the country. Labor/employment "law" fits within this framework.
Hong Kong is different. Because it was a British colony until 1999, the rule of law here is firmly entrenched -- and Hong Kong provides a potent counter-example to the PRC's public position that "Western" rule of law principles are incompatible with Chinese cultural norms. But notwithstanding Beijing's technical sovereignty over Hong Kong, Beijing not only tolerates Hong Kong's relative autonomy and the continued rule of law, but actively encourages rule of law initiatives in the territory, and encourages Chinese companies to do business here. Hong Kong is a key intermediary between PRC and the West not so much because of its physical location and port facilities, but because Western companies are much more willing to contract here with Chinese companies because contracts are enforceable by an independent judiciary.
Tuesday, April 26, 2016
Lisa Gelernter (SUNY-Buffalo, and a Bills fan) writes to share her take on the Second Circuit’s decision upholding the four-game suspension of Tom Brady of the Patriots for the deflate-gate scandal. [Side note: all the NFL's footballs are manufactured right here in Ada, Ohio -- come visit the factory, and ONU Law School, some time!]
I've cut-and-pasted Lisa's comments here:
The [Second Circuit] overturned the district court’s vacatur of what the parties (including the union) all characterized as an arbitrator’s award. The “arbitrator” in the case was NFL Commissioner Roger Goodell, who under the clear language of the collective bargaining agreement, was allowed to appoint himself as the hearing officer reviewing his decision to suspend Brady.
The Second Circuit’s opinion was totally consistent with the Supreme Court’s doctrine on the limited judicial review available for arbitration awards. The twist in this case is that the arbitrator was not a neutral party – Goodell was reviewing his own decision. The Second Circuit said that since the CBA specifically provided for this unusual review process, the court had to adhere to what the parties had agreed to. Although that seems right in the collective bargaining context when both parties are on somewhat equal footing in terms of bargaining power, hopefully that reasoning will not be carried over into consumer and employment arbitrations where the individual consumer or employee may not realize that he or she is “agreeing” to a partial arbitrator. After all, the Supreme Court has said that the reason that the FAA allows for enforcement of arbitration agreements is to allow for an alternative to litigation in court, which presumes some minimal level of procedural fairness and neutrality.
Friday, April 22, 2016
Many of us in the labor and employment law community have been following the pending class-action litigation against Uber on the issue of whether its drivers are employees or independent contractors. Widespread news reports now indicate that this litigation has been settled in California and Massachusetts for $100 million. The settlement will still allow Uber to classify its workers as independent contractors. Though a massive settlement, Uber has been valued at over $60 billion, so the company should be able to easily handle the costs. It is difficult to project what the long-term impact of the settlement will be, but it is probably safe to say that it will only lead to increased litigation in the on-demand economy. From the Chicago Tribune:
"The agreement calls for Uber to pay as much as $100 million to drivers in California and Massachusetts and allows them to solicit tips from riders, but keeps them classified as contract workers instead of formal employees . . . Uber will initially pay $84 million to the drivers, with another $16 million contingent on the ride-share service going public and its valuation continuing to grow, according to the company's statement. A quarter of the payout will go toward attorney fees"
Much has already been written in this area including how to define independent contractors and employees in the technology sector, as well as how to aggregate these claims. Hopefully additional scholarship in this area will help the courts and litigants to better interpret the terminology in these gig sector cases.
Thursday, April 21, 2016
image from eeoc.gov
For those of us teaching courses in ADR/Employment, an interesting case comes out of Mississippi between the EEOC and Halliburton. The case, EEOC v. Halliburton Energy Service, Inc. and Boots & Coots, LLC d/b/a/ Boots and Coots Services, Civil Action No. 3:16-cv-00233-CWR-FKB (S.D. Miss.), alleges a violation of a mediated agreement between the parties. The original discrimination charge, which was settled by the parties, involved allegations of disability discrimination. From the government's press release:
"According to EEOC's suit, Halliburton entered into a mediation settlement agreement with EEOC and the applicant on Feb. 4, 2014, resolving a disability discrimination charge against the company. Among other relief provided, Halliburton promised to rehire the applicant into a position subject to successful employment screening. Despite the applicant's compliance with the terms of the settlement agreement, Halliburton has since failed to hire him for any position. EEOC contends that Halliburton's actions constitute breach of the settlement agreement. Further, such alleged conduct violates Title I of the Americans with Disabilities Act of 1990 (ADA)."
This case will be an interesting one to follow, and the allegations can be instructive on the requirements for following mediated agreements. As we are all well aware, many discrimination claims are settled and very few actually make it to trial.
Friday, April 15, 2016
Meanwhile, back in North Carolina, there is still no private right of action for employment discrimination under North Carolina law—except now, North Carolina Governor Pat McCrory says he wants to “restore” it. There is, however, a third way.
By now, you’ve heard the story: On a single day (March 23), the North Carolina House and Senate passed, and the Governor signed, HB2 into law. Many have blasted HB2’s bathroom provisions as motivated by prejudice against transgender people and as unconstitutional, too. HB2 also preempts local anti-discrimination ordinances, including those that had covered sexual orientation and gender identity, as well as local wage and hour laws.
But as a few quickly noticed, HB2 had also supplanted existing law affording a private right of action to enforce the North Carolina Equal Employment Practices Act (EEPA). Before HB2, EEPA had declared:
It is the public policy of this State to protect and safeguard the right and opportunity of all persons to seek, obtain and hold employment without discrimination or abridgement on account of race, religion, color, national origin, age, sex or handicap by employers which regularly employ 15 or more employees.
As originally passed in 1977, EEPA had declared such a “public policy” but afforded no real enforcement mechanism. Years later, however, some judges began letting plaintiffs use the common-law tort of wrongful discharge to sue for violation of EEPA’s expressed public policy. Not everyone was happy with this. For example, Cohen (1995, p. 55) complained that, by letting plaintiffs use the tort of wrongful discharge to enforce EEPA, judges had changed EEPA “from a toothless legislative compromise into an apparently limitless source of employment discrimination claims”—something the legislators that originally passed EEPA in 1977 wouldn’t have wanted.
Then came HB2, which supplanted the existing legal grounds for private tort suits to enforce EEPA by adding this to EEPA itself:
This Article does not create, and shall not be construed to create or support, a statutory or common law private right of action, and no person may bring any civil action based upon the public policy expressed herein.
So, now to our latest episode, in which Governor McCrory issues an Executive Order No. 93, dated April 12, 2016, which includes this statement: “I support and encourage the General Assembly to take all necessary steps to restore a State cause of action for wrongful discharge based on unlawful employment discrimination.” And from the Governor’s accompanying video statement: “I will immediately seek legislation in the upcoming short session to reinstate the right to sue for discrimination in North Carolina state courts.” Who put HB2’s no-civil-action sentence in there in the first place? The Governor didn’t say, and no one else is talking—for now, that’s an unsolved mystery.
What will North Carolina’s legislators do now? Repeal HB2’s no-civil-action sentence? Do nothing? There is a third way. Amend HB2’s no-civil-action sentence like this:
This Article does not create, and shall not be construed to create or support, a statutory or common law private right of action, and no any person may bring any civil action based upon the public policy expressed herein.
Instead of just restoring the law to pre-HB2 days, now—almost forty years after North Carolina passed EEPA as a “toothless legislative compromise”— maybe it’s finally time for EEPA to get some teeth of its own.
Wednesday, April 13, 2016
Our own, Joe Seiner, has a new Employment Discrimination textbook now out, which is definitely worth looking into. According to promotion materials, the book, Employment Discrimination: Procedure, Principles, and Practice:
This text offers a fresh perspective on employment discrimination law, presenting a procedural-based approach to the topic with interactive materials throughout the book. While still providing the traditional employment discrimination casebook coverage, this text emphasizes the importance of procedural issues in workplace cases. It includes a unique “best practices” chapter which discusses the most effective ways to address workplace discrimination, from both a theoretical and legal perspective. Numerous exercises and problems foster classroom discussion. Practice tips situate students in the role of a practicing lawyer.
Cases are modern and cutting-edge, demonstrating the importance of employment discrimination law. Each chapter includes a chapter-in-review, and summary charts and graphs are used throughout the text to further student comprehension. Text boxes within cases, historical notes, and news events are all used to help bring the material to life in an innovative new way. Instructors will have access to sample exam problems and answers, proposed syllabi, Teacher’s Manual with problem answers, and PowerPoint slides.
Thanks to Jonathan Harkavy for alerting us of a recent Fourth Circuit decision, Gentry v. East West Partners Club, that will likely be of interest to many of us. The case addresses a number of employment issues – – including causation in jury instructions, how to define disability, and the question of damages in an employment case. It is thus instructive on a number of different workplace issues, and is worth reviewing if you practice or write in these areas.
Thanks to Leora Eisenstadt (Temple) for sending along an interesting Boston Globe article which discusses a new Uber/Lyft type company -- Chariots for Women -- that has a launch date set for next week. The company would assure passengers that a female driver would always be behind the wheel. This raises obvious discrimination questions under both federal and state law. Of course, for purposes of Title VII, coverage will apply only if the drivers were seen as employees – a question which remains both controversial and complex. Feel free to weigh in below with any comments on whether such a service can be viable under the law.
Tuesday, April 12, 2016
Today marks Equal Pay Day -- the day on which women's pay catches up to what men were paid in the previous year. There are a number of different articles on the topic, and one at CNN highlights several challenges faced by pay issues. And, as we addressed recently, the EEOC has proposed controversial changes to the EEO-1 data form collection process which would include the disclosure of certain information on worker pay for larger employers. Between debates over minimum wage and salary discrimination, wage issues continue to be hot topics both on and off the political battlefield.