Tuesday, October 10, 2017

Weinstein, Harassment & Reporting in Hollywood

  • Hollywood

As we are all aware by now, there have been numerous allegations of sexual harassment and assault against the well-known Hollywood producer Harvey Weinstein.  The allegations go back many years and are made by many well-known members of the acting community.  The story is an important reminder that while harassment is often subtle, it can be (and still often is) quite overt and frequently crosses the line into assault.

There are many issues in this story which involve various aspects of harassment law, and this news story is certainly one that could be discussed for several different purposes in both your employment law and employment discrimination courses.  Feel free to share your thoughts on the case in the comments below.  One interesting aspect of the issue to me involves the relative silence of male members of the Hollywood community, and the lack of males generally to report the issue.  There is a good story on that particular part of the case in the Guardian, which is available here.  Regardless of gender, everyone must be cognizant of an existing hostile working environment, and should report it when it occurs.  And employers must foster an open environment that encourages this type of reporting by every employee in the workplace. 

It is unfortunate that it often takes this type of story to bring these issues to light.  Nonetheless, the story can help bring awareness to this ongoing problem in the workplace.

-- Joe Seiner

October 10, 2017 | Permalink | Comments (0)

Monday, October 9, 2017

Gender Sidelining Call for Proposals

A8E7E2A9-8C34-4E39-9BD8558BC623CE93Jessica Fink (Cal. Western) writes with an exciting call for proposals for a symposium on Gender Sidelining. She writes:

Hi fellow Employment and Labor scholars:

I am excited to share California Western School of Law’s Call for Proposals for an innovative Gender Sidelining Symposium to be held in San Diego on April 26 & 27, 2018.  As detailed in the attached Call for Proposals, we are seeking individuals both to serve as primary presenters in various “salons,” as well as to serve as commentators on these presentations.  Please see the attached Call for Proposals for more information.  

We are thrilled that our keynote speaker will be Dean Camille Nelson from American University Washington College of Law, a widely published and well-respected scholar.  We further are excited to be hosting a “Judge’s Panel” on the opening night of the Symposium – including Justice Judith Haller (Associate Justice, CA 4th Dist. Court of Appeals) and Judge Margaret McKeown (U.S. Court of Appeals, 9th Cir.) – during which these respected jurists will discuss issues related to our Symposium topic.

We hope that you will strongly consider submitting a proposal to join us at the Symposium this April.

The call for proposals gives more details, also:

The Symposium will begin with a panel discussion that will provide the relevant context and background for the concept of Gender Sidelining, followed by a dinner and remarks by a panel of highly respected judges who will provide their thoughts and insights regarding this topic.  The second day will include lunch and a keynote address by American University Washington College of Law Dean Camille Nelson, a well-respected and widely published scholar who focuses on gender inequality.  The second day will also include three salon-style sessions, in which a primary anchor will discuss their work in conjunction with others who will provide commentary and response.  Finally, the Symposium will conclude with a final reception and rap session, where participants will be encouraged to share their reflections in an open discussion.

In seeking to explore this Gender Sidelining phenomenon, we invite proposals for three interactive salon-style sessions surrounding the themes of Employment, Entrepreneurship/Business, and Popular Culture.  Interested participants also are free to suggest other salon session topics that are consistent with the Symposium’s broader theme.  Each individual submitting a proposal should indicate the following: (1) whether you would like to serve as a primary anchor for one of the themed salon-style sessions or (2) have an interest in providing commentary in one of the themed salons. 

Proposals should be submitted to jfink@cwsl.edu no later than November 17, 2017, and include an abstract that indicates the specific themed salon session of interest, the presenter’s proposed role (primary anchor or commentator), a description of the presenter’s research/expertise, and a CV. We also welcome proposals that are fully developed in terms of a primary anchor and commentators. Please include “Gender Sidelining Symposium” in your email subject line.  Please use Microsoft Word or the equivalent, but do not use PDF.  By submitting an application, you are agreeing that you will be present at the symposium to present your work.  Questions should be directed to Prof. Jessica Fink at jfink@cwsl.edu

Read the whole call for proposals for more complete descriptions of the salon sessions:  Download CFP-Revised.doc It looks really interesting.

MM

October 9, 2017 in Conferences & Colloquia, Employment Discrimination, Workplace Trends | Permalink | Comments (0)

Saturday, October 7, 2017

Labor & Employment Roundup

Some recent labor & employment news to catch up on: 

  • The NLRB is back at full strength, at least for a while, now that William Emmanuel has been sworn in. Terms that are set to expire soon are Chairman Miscimarra (Republican) on Dec. 16, 2017 and Mark Pearce (Democratic) on Aug. 27, 2018. They're close enough that we may see a package deal for a Republican and a Democratic nominee, but we'll see.
  • Kate O'Scannlain, a partner at Kirkland & Ellis has been nominated to be Solicitor of Labor. And yes, she is the daughter of Judge Diarmuid O'Scannlain on the Ninth Circuit.
  • The Ninth Circuit put the Uber driver classification cases (O'Connor et al.) on hold. The court decided that it should pause the numerous class action suits pending the Supreme Court's decision on whether the NLRA bars class-action arbitration waivers.
  • Speaking of the Court's class action arbitration case (Epic et al.), oral argument on the case was held on Oct. 2. SCOTUSBlog has a good summary of the argument--bottom line, it doesn't look good for the argument that the NLRA prevents these class-action waivers. Justice Gorsuch didn't ask any questions and his like of textualism suggests at least a chance that the NLRA argument could win. But I have a hard time believing that he's going to buck the trend in the Court of interpreting the Federal Arbitration Act in a way that upholds arbitration agreements.

-Jeff Hirsch

October 7, 2017 in Labor and Employment News, Labor Law | Permalink | Comments (2)

Thursday, September 28, 2017

Supre Court Grants Cert in Two Labor & Employment Cases

Supreme CourtToday, the Supreme Court agreed to hear two workplace-related cases--both involving issues that are repeat customers. In Janus v. ASFCME, the Court will take another stab at declaring that the First Amendment bars requiring public-sector employees from paying dues for union representation. (You can see here and here for our past coverage of the Friedrichs case). I'll go out on a very steady limb here and say that the Court will hold 5-4 in favor of the dissenting union-represented employees.

Also, in Encino Motorcars v. Navarro, the Court will again look at whether car dealership service advisors/representatives should be exempt from the FLSA's overtime provisions. The Court considered this case before, reversing the Ninth Circuit's reliance on a recently changed Department of Labor rule. Now that the appellate court has refused to exempt those employees based on its own reading of the statute's exclusion of car salesperson, the Court has decided to address the issue again. 

You can read more at SCOTUSBlog.

-Jeff Hirsch

September 28, 2017 in Labor and Employment News, Labor Law | Permalink | Comments (1)

Wednesday, September 27, 2017

Colvin on Arbitration Clauses and D.R. Horton

ColvinConsistent with Imre's post below, Alex Colvin (Cornell ILR) provides this news of his own study:

In a nice conjunction with the D.R. Horton cases arguments coming up, I also have a report out today on the use of mandatory employment arbitration clauses, as well as the incidence of class action waivers. The study was sponsored by the Economic Policy Institute (EPI).

This is a nationally representative, establishment-level survey of 628 employers. It allows me to get a measure of the percentage of employees covered by mandatory arbitration. The key take-away is that I find that 56.2 percent of private sector nonunion employees are covered by mandatory arbitration. Of the employees covered by mandatory arbitration, 41.1 percent have class action waivers in the procedures.

Although the methodology is different, there is some nice consistency between the results of Imre’s study and mine. His focus is on the Fortune 100 companies, where my reading is that he finds 80 use mandatory arbitration for some workers using a broad measure or 66 using a narrower measure. In some additional analysis of my survey results, I found that larger employers were more likely to use mandatory arbitration, with 65.1 percent of employers with 1000 or more employees having mandatory arbitration procedures. Our numbers are also generally consistent with regard to the proportion of mandatory arbitration procedures that include class action waivers. So my take-away is that the two studies' results reinforce the validity of each other’s findings.

rb

September 27, 2017 in Arbitration | Permalink | Comments (0)

Szalai on Arbitration Clauses and D.R. Horton

ImreImre Szalai (Loyola New Orleans) provides this update on matters related to D.R. Horton (see also Alex Colvin's study in the post above):

In anticipation of the D.R. Horton cases to be argued next week, I am publishing a report about the use of arbitration clauses for workplace-related disputes. The key finding from my study, which is based solely on publicly-available data, shows that 80 of the Fortune 100 companies, the largest companies in America by revenue, have used arbitration agreements for workplace-related disputes since 2010, and almost half of these 80 have class waivers.

My study is limited in scope; I was just trying to get a better sense of the possible impact of the D.R. Horton cases and capture a snapshot of the use of arbitration clauses in the workplace among the top companies in America.

Here’s an early link to the study, which will go live tomorrow through the Employee Rights Advocacy Institute, of which I serve as a board member:

I hope these limited findings may be of some value and provide some context for the ongoing debates about the use of arbitration. I know I sound like a broken record sometimes, but I firmly believe the Federal Arbitration Act (FAA) was never intended to cover employment disputes. Based on the original purpose, history, and text of the FAA – and if the Supreme Court were writing on a clean slate, there should be no debate that the employees would win the D.R. Horton cases. Unfortunately, the Supreme Court has long abandoned any analysis of the history and text of the FAA. To paraphrase Justice O’Connor, the FAA as interpreted today is now solely a creation of the Supreme Court’s own imagination. I hope I am pleasantly surprised in a few months when the decisions are issued. However, if the Court rules in favor of the employees, it would be the first time in decades that the Supreme Court has significantly cut back on its expansive interpretations of the FAA. My bet is that the employers win, and the Court will unfortunately continue chipping away at our ability to access the judiciary.

rb

September 27, 2017 in Arbitration | Permalink | Comments (0)

Tuesday, September 12, 2017

Seiner's New Book On SCOTUS LEL

Seiner's bookA huge congratulations to Joe Seiner (South Carolina) on the publication this week by Cambridge University Press of his book The Supreme Court's New Workplace: Procedural Rulings and Substantive Worker Rights in the United States. Here's the publisher's description:

The US Supreme Court has systematically eroded the rights of minority workers through subtle changes in procedural law. This accessible book identifies and describes how the Supreme Court’s new procedural requirements create legal obstacles for civil-rights litigants, thereby undermining their substantive rights. Seiner takes the next step of providing a framework that practitioners can use to navigate these murky waters, allowing workers a better chance of prevailing with their claims. Seiner clearly illustrates how to effectively use his framework, applying the proposed model to one emerging sector - the on-demand industry. Many minority workers now face pervasive discrimination in an uncertain legal environment. This book will serve as a roadmap for successful workplace litigation and a valuable resource for civil-rights research. It will also spark a debate among scholars, lawyers, and others in the legal community over the use of procedure to alter substantive worker rights.

Congratulations, Joe!

rb

September 12, 2017 in Book Club, Employment Common Law, Employment Discrimination, Workplace Trends | Permalink | Comments (0)

Zelinsky on ERISA Preemption

ZelinskyEdward Zelinsky (Cardozo) has just published, at 34 Hoifstra JLEL 301 (2017), ERISA Preemption After Gobielle v. Liberty Mutual: Completing the Retrenchment of Shaw. Here's the take-away:

There were other courses which the Gobeille Court could have taken. I argued, for example, that the best construction of ERISA Section 514(a) is to treat that section as reversing the normal presumption against preemption and instead presuming preemption when ERISA plans are affected by state law.
Gobeille chose a different path, completing the sub silentio retrenchment of Shaw. Gobeille confirms that, going forward, Traveler’s more restrained approach to ERISA preemption prevails over Shaw’s “plain meaning” approach to section 514(a). This is important for state-sponsored private sector retirement plans, now immune from ERISA preemption challenge, as well as state taxes as they apply to the investment trusts of ERISA-regulated retirement plans.

rb

September 12, 2017 in Pension and Benefits, Scholarship | Permalink | Comments (0)

Monday, September 11, 2017

Briefing Paper on Mexican Labour Reform

MSN Mexico Labor ReformThanks to Tequila Brooks for passing along this information on recent labor reforms to Mexico's Constitution:

Canadian NGO Maquiladora Solidarity Network has published a great briefing Briefing Paper on recent labor reforms to Mexico's Constitution. The paper highlights what's at stake for labor justice reform and full realization of the rights to Freedom of Association and Collective Bargaining in Mexico - and provides a map to what has been accomplished so far and the road ahead for a complete transformation of Mexico's labor justice reform.

Some excerpts:

This briefing paper provides an overview of the process leading to the constitutional reform, an analysis of its content and possible implications, and an assessment of the issues surrounding the coming implementing legislation. The analysis is based on research and an in-depth consultation process carried out by the Maquila Solidarity Network (MSN) between February and May. That process included interviews with 16 Mexican and international labour rights experts from academia, the legal sector, trade unions, and civil society organizations, as well as other sectors.

By reforming Articles 107 and 123, the Mexican government moves actively toward honouring its commitment to workers, business and the international community to provide an impartial, unbiased, independent, and transparent labour justice system. If the reform and its implementing legislation bring all of the necessary safeguards into effect to address the problem of employer protection contracts, including the right for all union members to freely elect their leaders and to receive a hard copy of and vote on their collective bargaining agreements, they could bring Mexico’s legal framework more into compliance with the International Labour Organization’s (ILOs) fundamental Conventions 8710 and 9811 on freedom of association and the right to collectively bargain.

While the reform process is still underway, international brands, employers, trade unions, worker support groups, human rights organizations and the international community can continue to support the process by acknowledging progress so far and encouraging the Mexican government to approve implementing legislation that is true to the underlying spirit and intent of the Constitutional Reform and avoids the pitfalls described above. Pressure can be brought to bear to ensure the expeditious roll-out of the implementing legislation and to ensure that justice is brought to those who violate the laws in the future. They can also encourage the government to resolve outstanding conflicts, to cease registering newly signed employer protection contracts, and to ratify ILO Convention 98. Cross-sector outreach and coordination would be particularly helpful in advancing this work.

rb

September 11, 2017 in International & Comparative L.E.L. | Permalink | Comments (0)

Friday, September 8, 2017

11th Circuit: Employers must accommodate breastfeeding workers under Title VII

BreastfeedingThe Eleventh Circuit issued an important opinion yesterday in Hicks v. Tuscaloosa, affirming a jury verdict for a former police officer who was demoted to patrol duty just eight days after her return from maternity leave and then denied accommodations for breastfeeding, forcing her to quit.

The Fifth Circuit had previously held that lactation is a medical condition related to pregnancy so that terminations based on a woman’s need to breastfeed would violate Title VII as amended by the Pregnancy Discrimination Act. But it is the first circuit court opinion to apply the Supreme Court's decision in Young v. UPS to the accommodation issue.  As the court noted, a reasonable jury could find that Hicks' request for accommodation--here reassignment to a desk job where she wouldn't have to wear a bulltproof vest that would be painful and could cause infection--was a request that she be treated the same as other officers. The department routinely assigned officers with injuries to desk jobs.

The court's analysis is fairly short and straightforward; it wastes little time concluding that lactation is related to pregnancy and thus sex under Title VII and that breastfeeding employees need to be accommodated the same way that other employees are accommodated. And the court summed up its decision concisely: "We find that a plain reading of the PDA covers discrimination against breastfeeding mothers. This holding is consistent with the purpose of PDA and will help guarantee women the right to be free from discrimination in the workplace based on gender-specific physiological occurrences." 

MM 

 

September 8, 2017 in Employment Discrimination, Worklife Issues | Permalink | Comments (0)

Wednesday, September 6, 2017

Selmi on Implicit Bias

IMG_0084

Friend of blog Michael Selmi (George Washington) has just posted on SSRN his fascinating new article, The Paradox of Implicit Bias and a Plea for a New Narrative.  This piece takes an innovative new look at the issue of implicit bias and discrimination. From the abstract:

"Over the last decade, implicit bias has emerged as the primary explanation for contemporary discrimination. The idea behind the concept of implicit bias, which is closely connected to the well-known Implicit Association Test (“IAT”), is that many people are unaware of the biases that influence their actions and can engage in discriminatory acts without any conscious intent. Legal scholars have fallen hard for implicit bias and dozens of articles have been written espousing the role implicit bias plays in perpetuating inequality. Within legal analysis, a common mantra has arisen that defines implicit bias as unconscious, pervasive and uncontrollable. What has been overlooked, however, and this is the paradox, is that labeling nearly all contemporary discrimination as implicit and unconscious is likely to place that behavior beyond legal reach. And it turns out that most of what is defined as implicit bias could just as easily be defined as explicit or conscious bias. This article, therefore, challenges the common narrative by questioning the unconscious nature of implicit bias, and showing that such bias is less pervasive and more controllable than typically asserted. A critical review of the IAT will also reveal that implicit bias is most relevant to snap judgments rather than the more common deliberative decisions the legal system addresses. Implicit bias can certainly influence conscious decisions but it rarely dictates them. I will also discuss a recent spate of cases rejecting the implicit bias model to demonstrate that there is a clear mismatch between the implicit bias narrative and our governing legal standards of proof. As a way of realigning the narrative, I will propose that we move away from a focus on the unconscious, and the IAT, to concentrate instead on field studies that document discrimination in real world settings. In addition, by shifting the discussion to how stereotyping, without reference to the unconscious, influences behavior and leads to discriminatory decisions we can return to familiar judicial terrain as courts have been adjudicating claims involving stereotyping for decades."

It is wonderful to see such a fresh new perspective on this topic, and I definitely recommend that you take a look at this article if you have the opportunity. 

- Joe Seiner 

September 6, 2017 | Permalink | Comments (0)

Tuesday, September 5, 2017

Protecting Migrant Workers from Workplace Injuries

TequilaTequila Brooks has just posted an essay over at Intlawgrrls on Making the human rights case for including compensation for workplace injuries in free trade agreements. Here's an excerpt:

For many undocumented workers in the U.S., suffering a workplace injury can lead to detention, deportation and worse, as reported by Michael Grabell and Howard Berkes in their August 16, 2017 Pro Publica article, They Got Hurt at Work. Then They Got Deported. Although public policy and extensive case law in the U.S. guarantee workers’ compensation coverage for undocumented immigrants, insurers have found a way to avoid paying claims by reporting injured workers to federal immigration authorities.

...

Currently, the U.S. NAFTA re-negotiation goals do not mention incorporation of workers’ compensation or protection of migrant workers – but they should. Labor provisions in FTAs contain mechanisms that can enhance member states’ ability to protect human rights. While imperfect, the NAALC and labor provisions in other FTAs provide a forum for public petitions and inter-governmental dialogue on important cross-border labor issues. They have the as yet under-utilized potential to address the kinds of failures in justice administration immigrants encounter. NAFTA re-negotiators should remember that there is nothing more fundamental to a worker and our shared global economy than the integrity of her body and mind – and act accordingly to ensure that workers’ compensation is included among the labor rights protected in any re-negotiated agreement.

rb

September 5, 2017 in International & Comparative L.E.L., Workplace Safety | Permalink | Comments (0)

Thursday, August 31, 2017

Labor & Employment Academic Hiring

Courtesy of Prawfsblawg, the following schools are in the market this year for faculty in the labor and employment law area. Feel free to add any schools in the comments section.

School: University of Alabama

Information in spreadsheet contained in post

School: Brooklyn Law School

Chairs: Minor Myers (entry levels); Alex Stein (laterals)

Committee Members: Bill Araiza, Julian Arato, Miriam Baer, Jocelyn
Simonson (entry levels); Dana Brakman Reiser, Christopher Beauchamp,
Robin Effron (laterals)

Subject Areas: securities regulation and corporate law; academic success;
and potentially civil procedure, constitutional law, labor law, antitrust, and
torts

Communications: minor.myers@brooklaw.edu; alex.stein@brooklaw.edu

Number of positions: 2

Direct applications by email are welcome

School: University of Kansas School of Law

Chair: Lou Mulligan

Other Committee Members: Chris Drahozal, Laura Hines, Elizabeth Kronk-Warner

Subject Areas: We are particularly interested in evidence, but will consider other subject areas including: employment law, health law, real estate/commercial land use/housing law.

We are currently authorized to make one hire.

Applications should be made online at https://employment.ku.edu/academic/9594BR and should include cover letter, a curriculum vitae, a detailed statement of research interests and future plans, and the names of three references.

The law school will participate in the AALS Recruitment Conference in D.C. November 2-4, 2017.

For further information, contact Professor Lou Mulligan, University of Kansas School of Law, 1535 West 15th Street, Lawrence, KS 66045-7608, 785-864-9219, lumen@ku.edu

School: University of Richmond School of Law

Chair: Jessica Erickson

Other Committee Members: Jim Gibson, Hank Chambers, Carol Brown, Andy Spalding, and Allison Tait

Subject areas: Our primary areas of interest are employment law and corporate & securities law. We are also open to candidates in other areas, including critical theory, torts, professional responsibility, property law, and civil procedure.

Packets: We are happy to receive individualized expressions of interest from candidates via email.

Communication: You can email lawfacultyapp@richmond.edu.

Positions available: We have three open positions, and we are focused primarily on entry-level or junior lateral candidates.

School: The Wharton School


Chair: William Laufer
Committee: Eric Orts, Diana Robertson, David Zaring
Subject Areas: From the announcement: Applicants must have a demonstrated research interest in an area of law relevant to the Wharton School’s business education and research missions. Examples of such fields include, without limitation, corporate law, employment and labor law, financial regulation, securities regulation, and global trade and investment law.
Communications: lgstrecruiting@wharton.upenn.edu, apply through https://facultyrecruiting.wharton.upenn.edu/ApplicationPage.aspx?form_id=30088

-Jeff Hirsch

August 31, 2017 in Faculty Moves, Faculty News | Permalink | Comments (0)

New Labor Code for France?

The French government just announced a proposed set of changes to its Labor Code. The proposal touches on several areas, such as:

  • Allows small employers to bargain directly with employees;
  • Creates bigger bargaining units at a workplace; 
  • Increases severance pay;
  • Lowers cap on wrongful dismissal awards;
  • Lowers statute of limitations on wrongful dismissal claims; and
  • Prevents labor courts that consider a company's financial health as part of a wrongful dismissal claim from considering operations outside of France.

I would expect some pretty significant protests over these changes. But Macron seems intent on pushing forward, so things should be interesting.

In the meantime, this seems like an appropriate time for a plug: Sam Estreicher and I have an article in which we evaluate the unjust dismissal laws of France and several other countries, including the U.S. In the article, we provide among other things the relevant rules for dismissal and give estimates for average awards, win rates, and time to litigate. This may be of interest to those who want to compare the new proposal with what's occurring now.

-Jeff Hirsch

August 31, 2017 in International & Comparative L.E.L., Labor and Employment News | Permalink | Comments (0)

Wednesday, August 30, 2017

Equal Pay Rule Rescinded

In an interesting move, the current administration appears to be rescinding the new rule on pay transparency that was rolled out during the Obama administration.  We had blogged about that new rule here.  The rule was to require employers with 100 or more employees to report certain wage and demographic data to the EEOC.  From Newsweek:

"The White House, with the backing of Ivanka Trump, will end an Obama-era policy that would have required business owners to document how much they pay their workers alongside their gender, race and ethnicity. . . The Trump administration is scrapping the scheme, which was due to come into force in the spring this year, on the basis that it will be a burden to employers."

It is not surprising to see this rule rescinded under the current administration, and we will continue to follow other changes as they arise.

- Joe Seiner

August 30, 2017 | Permalink | Comments (0)

Saturday, August 26, 2017

Harkavy's Annual Review of SCOTUS Employment Law

HarkavyJonathan Harkavy (Patterson Harkavy) has posted on SSRN his annual annual well-received review of Supreme Court decisions that relate to employment. Here is his 2017 Supreme Court Commentary: Employment Law.

rb

August 26, 2017 in Employment Common Law | Permalink | Comments (0)

Friday, August 25, 2017

Greene on Catastrophe Mgmt.: Splitting Hairs

Greene-WendyCongratulations to our friend Wendy Greene (visiting at Iowa), whose most recent "hair piece" has just been published by the Miami Law Review: Splitting Hairs: The Eleventh Circuit’s Take on Workplace Bans Against Black Women’s Natural Hair in EEOC v. Catastrophe Management Solutions. From the abstract:

What does hair have to do with African descendant women’s employment opportunities in the 21st century? In this Article, Professor Greene demonstrates that Black women’s natural hair, though irrelevant to their ability to perform their jobs, constitutes a real and significant barrier to Black women’s acquisition and maintenance of employment as well as their enjoyment of equality, inclusion, and dignity in contemporary workplaces. For nearly half a century, the federal judiciary has played a pivotal role in establishing and preserving this status quo. The Eleventh Circuit Court of Appeal’s recent decision in EEOC v. Catastrophe Management Solutions exacerbates what Professor Greene calls employers’ “hyper-regulation of Black women’s bodies via their hair.” This Article considers how federal courts and namely the Eleventh Circuit have issued hair splitting decisions in race-based “grooming codes discrimination cases” that decree: federal anti-discrimination law protects African descendants when they are discriminated against for adorning afros but statutory protection ceases once they grow their naturally textured or curly hair long or don it in braids, twists, or locks. Professor Greene explains that courts’ strict application of a “legal fiction” known as the immutability doctrine—and the biological notion of race that informs it—have greatly contributed to this incoherency in anti-discrimination law, which triggers troubling, tangible consequences in the lives of Black women.

This article is a great addition to Wendy's prior work and the work of others on how cultural norms of white femininity burden Black women. Wendy's work, along with the work of several other scholars, had been cited by the Eleventh Circuit in the case in a discussion about whether cultural or behavioral aspects of identity ought to be part of what Title VII protects. I can't wait to read this.

MM

August 25, 2017 in Employment Discrimination | Permalink | Comments (0)

Tuesday, August 22, 2017

Bornstein on Discrimination

Bornstein-Photo-June-2016-Web

Friend-of-Blog Stephanie Bornstein has just published her great article, Reckless Discrimination, in the California Law Review.  From the abstract:

"If there are known, easily adopted ways to reduce bias in employment decisions, should an employer be held liable for discriminatory results when it fails to adopt such measures? Given the vast amount we now know about implicit bias and the ways to reduce it, to what extent is an employer who knowingly fails to do so engaging in intentional discrimination? This Article theorizes a “recklessness” model of discrimination under Title VII, arguing for liability where an employer acts with reckless disregard for the consequences of implicit bias and stereotyping in employment decisions. Legal scholars have argued that Title VII should, and in some ways does, reflect a negligence model under which an employer may be held liable for failing to meet a duty of care to prevent discrimination at work. Yet the law of Title VII disparate treatment requires “intentional” discrimination — a term that courts have interpreted more broadly than a conscious purpose to discriminate, but more narrowly than a mere failure to prevent “societal” discrimination. This Article is the first to propose recklessness as the bridge between the theory of negligence and the requirement of intent as defined by Title VII jurisprudence.

In doing so, the Article seeks to revive the importance of social science research on bias — research that was limited in its evidentiary role by the U.S. Supreme Court’s 2011 decision in Wal-Mart v. Dukes. Decades of scientific research have documented how implicit bias and automatic stereotyping affect decision making in discriminatory ways. Years of efforts by employers to reduce bias and increase diversity in their workforces have demonstrated what interventions work. Most recently, technology has allowed some employers to easily and dramatically reduce the biasing effects of subjectivity from their hiring decisions by, for example, using algorithms instead of people to screen applicants. This vast body of research and experience developed over a half-century has shifted the baseline knowledge about the risks of bias infecting employment decisions, this Article contends. Today, an employer who continues to rely on unchecked subjective decision making that leads to disproportionate employment outcomes by race or gender is acting so recklessly that its behavior amounts to intentional disparate treatment under Title VII."

As many of you will recall, this article was selected as a winner of the 2017 Southeastern Association of Law Schools (SEALS) Call for Papers competition.  Definitely take a look at this paper if  you have the chance.

-- Joe Seiner

August 22, 2017 | Permalink | Comments (0)

Thursday, August 17, 2017

Corbin on Government Employees and Religion

Caroline%20Mala%20Corbin

Friend-of-Blog Caroline Mala Corbin (Miami) has just posted on SSRN a wonderful new article on the intersection of government employees and religion.  From the Abstract of "Government Employee Religion":

"Picture a county clerk who refuses to issue a marriage license to an LGBT couple or a city bus driver who insists on wearing a hijab. The clerk is fired for failing to fulfill job responsibilities and the bus driver for violating official dress codes. Both claim that their termination violates the First Amendment speech and religion clauses.

There is a well-developed First Amendment government employee speech jurisprudence. Less developed is the doctrine and literature for First Amendment government employee religion. The existing Free Exercise Clause jurisprudence usually does not specifically account for the government employee context. This Article attempts to fill that gap by developing a government employee religion doctrine based on the existing government employee speech doctrine.

Part I summarizes government employee speech doctrine. Part II imagines a parallel government employee religion doctrine and applies it to the opening hypotheticals. It concludes that government employees who are religiously opposed to an aspect of their job would lose their religion claims for multiple reasons. In contrast, employees who wish to wear religious garb have much stronger claims. Part III addresses two concerns with my proposed government employee religion doctrine. One criticism is that government employee speech doctrine is too flawed to serve as a model. Another is that speech and religion are too dissimilar to base one on the other."

Congratulations to Caroline on this great piece, and I hope that you will all add it to your end-of-summer reading list!

- Joe Seiner

August 17, 2017 | Permalink | Comments (0)

Monday, August 14, 2017

Hacked Employment Law

AlexanderTippettCharlotte Alexander (Georgia State) and Liz Tippett (Oregon) have just posted on SSRN their article (forthcoming Missouri L. Rev.) The Hacking of Employment Law. Here's the abstract of this timely (pun intended!) article:

Employers can use software in ways that erode employment law, through noncompliance and avoidance. The software exploits outdated regulations that do not anticipate the scale and precision with which employers can manage and manipulate the work relationship. Consequently, employers can implement systems that are largely consistent with existing laws, but violate legal rules on the margin. Employers can also use software to engage in lawful workaround tactics that avoid triggering some or all of the costs of complying with employment law. However, such tactics can cause harm to workers beyond the loss of the specific workers' rights or protections being avoided. Avoidance can create new norms about what work looks like that can degrade wages and working conditions across the labor market. Finally, when employers use software to avoid the employer-employee relationship entirely, employment law itself is weakened, as more workers operate in spaces beyond the law's reach, and employment rights are left only for a privileged few. The result is a weakened employment law regime, where legal rules struggle to keep up with employers’ software-enabled innovations in noncompliance, or are rendered irrelevant as employers innovate in spaces that regulation simply does not reach. We conclude by suggesting ways that regulators can better adapt to workplaces where employers implement their decisions and define the structure of work through software.

rb

August 14, 2017 in Employment Common Law, Scholarship, Wage & Hour | Permalink | Comments (0)