Tuesday, May 10, 2016

DOJ vs. North Carolina: The HB2 Lawsuits

    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).



--Sachin Pandya

May 10, 2016 | Permalink | Comments (1)

Monday, May 9, 2016

Seton Hall Symposium to Honor the Life and Work of Professor Michael J. Zimmer

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 (charles.sullivan@shu.edu) 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.

Thank you.

Charlie, Tim, and Tristin

Charles A. Sullivan Associate Dean for Finance & Faculty and Professor of Law Seton Hall University School of Law (charles.sullivan@shu.edu)

Timothy P. Glynn, Associate Dean of Graduate and Professional Education & Miriam T. Rooney Professor of Law, Seton Hall University School of Law (timothy.glynn@shu.edu

Tristin Green, Professor and Dean's Circle Scholar, University of San Francisco School of Law (tgreen4@usfca.edu)

May 9, 2016 | Permalink | Comments (0)

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.



May 5, 2016 in Labor Law | Permalink | Comments (0)

Wednesday, May 4, 2016

Secunda and Hertel-Fernandez on Workplace Political Intimidation

Secunda HFAs 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.


May 4, 2016 in Commentary, Employment Discrimination, Scholarship | Permalink | Comments (0)

Tuesday, May 3, 2016

Bodie, Cherry, Tang and McCormick on Big Data

Matt Bodie Miriam Cherry Dr_Jintong_Tang Marcia McCormickI 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


May 3, 2016 | Permalink | Comments (0)

Monday, May 2, 2016

Workers' Rights and Protection - an International Perspective

InternationalToday's panels at the ABA International LEL Committee conference in Hong Kong have featured a plethora of folks advocating for workers' rights all over the world, including:




May 2, 2016 in International & Comparative L.E.L. | Permalink | Comments (0)

Sunday, May 1, 2016

Hong Kong, LEL, and the Rule of Law

HkI'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.


May 1, 2016 in International & Comparative L.E.L. | Permalink | Comments (0)

Tuesday, April 26, 2016

Deflategate, Collective Bargaining, and Arbitration

DeflateLisa 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.


April 26, 2016 in Arbitration | Permalink | Comments (0)

Friday, April 22, 2016

Uber Settles Class Action for $100 million

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.

- Joe Seiner

April 22, 2016 | Permalink | Comments (0)

Thursday, April 21, 2016

EEOC/Halliburton Settlement Breach


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.

- Joe Seiner

April 21, 2016 | Permalink | Comments (0)

Friday, April 15, 2016

North Carolina, HB2, and the Right to Sue for Employment Discrimination

    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 EEPAfrom 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.

The reaction, however varied (e.g., here, here and here, and also this interview with fellow law professor Brian Clarke), generally hasn’t been favorable.

    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.



--Sachin Pandya

April 15, 2016 in Employment Discrimination | Permalink | Comments (0)

Wednesday, April 13, 2016

Seiner's Employment Discrimination: Procedure, Principles, and Practice

Seiner_FINAL COVER crop.jpgOur 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.


April 13, 2016 in Employment Discrimination | Permalink | Comments (1)

4th Circuit Employment Law Update

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.

- Joe Seiner

April 13, 2016 | Permalink | Comments (0)

Female-Only Cabs?

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.

Joe Seiner

April 13, 2016 | Permalink | Comments (0)

Tuesday, April 12, 2016

Equal Pay Day!


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. 

- Joe Seiner

April 12, 2016 | Permalink | Comments (0)

Friday, April 8, 2016

Employee Body Cameras?


As technology becomes increasingly less expensive, employers are beginning to ponder some of the potential benefits of having workers use body cameras while on the job. As we are all well aware, there is already substantial debate as to whether police officers and other law enforcement officials should wear such devices. The debate is now extending beyond that sector into a number of other areas of the workforce. Most notably, there is now a question as to whether teachers, doctors, and nurses should be required to use body cameras. An interesting Op-Ed in the LA Times takes on this question. From the piece:

“Currently, parents who insist their children are innocent or are being excessively punished for minor offenses have no evidence. . . Make teachers wear body cameras, and parents would see and hear exactly what the teacher heard and saw. An overreaction? Keep in mind, a growing body of evidence shows that school punishments do long-term damage.”

The entire issue seems a bit Orwellian, but at the same time, the relatively low cost of body cameras may seem quite attractive to a number of employers trying to limit their liability in other areas. The obvious privacy questions abound, and there are likely to be a host of other issues raised by the increased use of these technologies.

Joe Seiner


April 8, 2016 | Permalink | Comments (0)

Tuesday, April 5, 2016

St. Antoine Speaks at OSU

St. antoineI had the pleasure of seeing Ted St. Antoine (Michigan - emeritus and former dean) speak at today's Ohio State Journal on Dispute Resolution's Schwartz Lecture on Dispute Resolution. His topic was Labor and Employment Arbitration Today: A Midlife Crisis or a New Golden Age? OSU Dean Alan Michaels gave an eloquent and heartfelt introduction in which he aptly praised Ted for mentoring and nurturing several generations of labor scholars and practitioners (and, true to form, Ted spent much of his lecture praising the empirical work of Alex Colvin).

I still have a handwritten note Ted sent me, when I was still in practice, congratulating me on my first publication. Ted is a terrific role model, and it was a special pleasure to see him again today.


April 5, 2016 in Arbitration, Faculty Presentations | Permalink | Comments (1)

EEOC and LGBT Discrimination

                     image from eeoc.gov

As we are all aware, the EEOC's position on LGBT discrimination has been evolving in recent months. The agency recently posted a helpful summary on its website regarding LGBT worker protections, which is available here.  The summary includes hyperlinks to a wealth of valuable information including federal sector law, private sector developments, and training and outreach.

- Joe Seiner

April 5, 2016 | Permalink | Comments (0)

Friday, April 1, 2016

Soccer & Equal Pay


In what is shaping up to be a fascinating case, five high-profile members of the U.S. Women’s Soccer team have filed a charge of discrimination with the EEOC pursuant to the Equal Pay Act. The female players allege that they receive about four times less than the male players, despite having had greater success on the field and generating substantial revenues. Both the men’s and women’s team players have the same employer – – the U.S. Soccer Federation. From an article in the Washington Post:

“The pay disparities exist even though the U.S. women have been successful not only on the field, but also at the ticket booth and in terms of television ratings. The team’s 5-2 win over Japan in last year’s World Cup final was the second-most-watched soccer match in U.S. television history, with 25.4 million viewers. . . the biggest audience for a U.S. men’s game was 18.2 million for a USA-Portugal World Cup match in 2014.”

Pay discrimination continues to be a high profile issue, and one that is frequently in the news. We will follow this charge closely and see how the EEOC handles this claim.

Joe Seiner

April 1, 2016 | Permalink | Comments (0)

Thursday, March 31, 2016

Hamilton & Diversity


image from Treasury.gov

A recent casting call for the off-Broadway production of Hamilton has set off a wave of controversy.   The advertisement for the show's national tour initially specified a call for performers who were "non-white men and women."  The show's producer is quoted in a story over at The USA Today

"'It is essential to the storytelling of Hamilton that the principal roles — which were written for non-white characters (excepting King George) — be performed by non-white actors,' producer Jeffrey Seller explained in a statement. 'Hamilton depicts the birth of our nation in a singular way,' he stressed, adding, that 'we  will continue to cast the show with the same multicultural diversity that we have employed thus far.'"

For those of us teaching employment discrimination this semester, this story provides a platform to discuss racial discrimination, the BFOQ defense (which of course cannot be used for race or color), and the First Amendment.  It will be interesting to follow these issues in the context of this extremely popular show. 

- Joe Seiner

March 31, 2016 | Permalink | Comments (0)