Friday, December 5, 2014
There is an interesting article over at CNN Money which discusses a disturbing sexual harassment lawsuit at the real estate giant Zillow. An employee who was terminated late last summer alleges that she was subjected to graphic displays of sexual-based content. From the article and the allegations in the lawsuit,
“[the plaintiff’s] male supervisors ranked her according to her breast size, sent pictures of their penis to her, and demanded sexual gratification and obedience by [her] to continue her employment… [the workplace environment constituted an] adult frat house."
These are indeed alarming allegations, and if true, paint a disturbing picture of this employment setting. It will be an interesting case to follow…
-- Joe Seiner
Thursday, December 4, 2014
- The Conference of the Regulating for Decent Work Network, in July 2015, in Geneva. The topic will explore "Developing and Implementing policies for a Better Future at Work."
- The Labour Law Research Network Conference in June 2015, in Amsterdam. I attended the inaugual LLRN conference in Barcelona, which was quite interesting.
They both look really interesting, so definitely worth checking out.
Bill Herbert writes to inform us about a couple of announcements from the The National Center for the Study of Collective Bargaining in Higher Education and the Professions. The first is the Center's 42nd Annual Conference, at the CUNY Graduate Center in NYC, from April 19-21, 2015. The topic is "Thinking about Tomorrow: Collective bargaining and Labor Relations in Higher Education. As you can see from the conference website, there is an impressive list of panels and speakers.
Also, the Center has made available online all of its bimonthly newsletters from 1973-2000. The website containing the archive notes:
Between 1973 and 2000, the National Center published a bimonthly newsletter with contributions from directors and newsletter editors Maurice Benewitz, Thomas Mannix, Theodore H. Lang, Aaron Levenstein, Joel M. Douglas, Frank R. Annunziato and Beth H. Johnson. In addition, issues of the newsletter included contributions by other scholars including Clark Kerr, Fred Lane, Clara Lovett, Stephen Joel Trachtenberg, Myron Lieberman, Irwin Polishook, Matthew Finkin, Richard W. Hurd and Richard Chait.
Over its 27 year publication history, the newsletter contained articles, analysis and data on subjects that continue to be topical in higher education and the professions including: the impact of the Supreme Court’s Yeshiva University decision, the organizing and representation of adjunct faculty and graduate students, academic freedom and tenure, shared governance, discrimination and faculty strikes. The final issue of the newsletter appeared in 2000 with excerpts of a speech given by then AFL-CIO President John J. Sweeney at the National Center’s 28th annual conference as the first annual Albert Shanker Lecture.
Steven Greenhouse has announced that he, along with many other reporters, is taking a buyout offer from the New York Times. This is bad news for the labor community, but certainly a well-deserved move, so I congratulate him. Greenhouse has long been the go-to guy on labor reporting, not only because he's been basically the lone major media labor reporter, but also because of the high-quality of his reporting. That said, it's seemed to me that there's been a growing crop of young reporters working on the labor beat. Although they've been largely at smaller news organizations or blog-type pages at bigger outlets, there's been some really good work from these reporters over the last few years. Greenhouse can probably take credit for blazing a path for these reporters and if his legacy is a bigger pool of labor reporters--after labor reporting had seemed dead--then that's a major accomplishment by itself.
Here's the email that Greenhouse sent colleagues, quoted from Capital New York:
This has been one of the toughest decisions of my life," he wrote. "I love the Times, I love my job, and I love my colleagues here." He explained his rationale for taking the Times' offer. "The Times made a generous buyout offer that was hard to refuse. That and the fact that two good friends—both also 63, both terrific journalists—died over the past few months really pushed me to take this step and begin my next chapter. Also, I realize that I need to slow down, at least somewhat. I work too damn hard—that’s my fault, not the NYT’s." As for his next steps, Greenhouse said that he's working on a book—to be published by Knopf—about workers, and will also be freelancing for the Times.
Best of luck!
The Senate's HELP committee has approved Lauren McFerran's nomination to the NLRB by a party-line vote (12-10). The early timing of the committe's action is probably the most important fact, as it seems to indicate an intent to have a full Senate vote before the end of the year--and the changing of the Senate majority to Republicans. It's looking, therefore, that the Board will have it's full five members until at least August 2015, when Harry Johnson's term expires (there could be a minor delay between Nancy Shiefer's term, which ends on Dec. 16 and McFerran's confirmation). Given that Johnson is Republican, we could see his seat filled in a timely fashion, although I wouldn't bet either way on that one.
Hat Tip: Patrick Kavanagh
Wednesday, December 3, 2014
The Court heard oral argument in Young v. UPS (argued in part by Sam Bagenstos (Michigan)) this morning, and the transcript is now available on the Court's website. I've read it and am not entirely sure what to conclude. One analogy made by Justice Scalia, and used throughout the argument was "most favored nation" status. Does the second clause in the PDA, which requires that pregnant workers be treated the same as other workers similar in their ability or inability to work, require that pregnant workers be treated the same as the best treated of those others? Or can they be treated as least favored nations -- as long as there is a group of workers similar in their ability or inability to work that is treated poorly, pregnant workers can be treated poorly too? The policy at issue allowed light duty accommodations for workers injured on the job, but required those injured off the job who couldn't lift heavy things to take unpaid leave. So there was a distinction within the group of workers similar in their ability or inability to work that was not related to pregnancy. At the same time, the policy weeded out all pregnancy limitations. Moreover, there were two exceptions to the off-the-job part. If the off-the-job injury resulted in a disability under the ADA, or a DOT decertification, the injury was accommodated.
There was a significant amount of back and forth about what that second clause means, since it's not a full fledged accommodation requirement like the religious accommodations in Title VII or the accommodation requirement of the ADA. At the same time, it has to mean something more than simply that discrimination on the basis of pregnancy is discrimination on the basis of sex, since that's what the first clause says. And clearly the effect of the PDA on the Court's decision in General Electric Co. v. Gilbert is still under debate. I'm making no predictions, but I'd be interested in your insights in the comments.
An interesting article at Marketplace.org looks at the potential economic impact of race rioting and protests. The article highlights the recent events in Ferguson, Missouri, and compares them to the rioting which took place in the 1960s. The article notes that these types of protests can affect employment opportunities, as they make it "harder ... to raise money for revitalization projects. It's harder to attract businesses and developers, and news coverage can paint a negative picture of a place."
The piece thus provides a different angle of an important news event, highlighting the possible workplace implications.
-- Joe Seiner
Call for Papers
The Thirteenth Amendment through the Lens of Class and Labor
Approaching the 150th anniversary of the Thirteenth Amendment, we find ourselves in a period of heightened concern about issues of economic inequality. If any provision of the United States Constitution speaks to those issues, it is the Thirteenth Amendment. The Amendment’s proponents maintained that it established “freedom” and a “free labor system,” a view eventually accepted by the U.S. Supreme Court. Beginning after the turn of the millennium, Congress has drawn on the Amendment to support legislation outlawing the “new slavery,” including – for the first time – forms of labor control other than physical force or legal compulsion. Conversely, state governments have cited the Amendment’s punishment clause to justify forced labor by prisoners in a rapidly growing archipelago of private prisons and prison industries.
Paper proposals should focus on the Thirteenth Amendment and include class or labor as an important theme. Proposals addressing the relations (including relative priorities) and intersections of race, gender, and sexual orientation with class or labor are strongly encouraged. Proposals should be e-mailed to Rebecca.email@example.com by January 10, 2015. We anticipate that the papers will be published in a law review symposium issue.
The Thirteenth Amendment Through The Lens of Class and Labor Conference is sponsored by the Fred T. Korematsu Center for Law and Equality at the Seattle University School of Law, the Seattle University School of Law, and the University of Washington School of Law. The conference will be held at the Seattle University School of Law on May 31- June 1, 2015, immediately following the annual meeting of the Law & Society Association.
Planning Committee for the Sesquicentennial Conference on the Thirteenth Amendment through the Lens of Class and Labor:
Charlotte Garden (Seattle University School of Law)
Darrell A.H. Miller (Duke University School of Law)
Maria Linda Ontiveros (University of San Francisco School of Law)
James Gray Pope (Rutgers University School of Law)
Aviam Soifer (William S. Richardson School of Law)
Lea VanderVelde (University of Iowa College of Law)
Ahmed White (University of Colorado School of Law)
Rebecca E. Zietlow (University of Toledo College of Law)
Looks like a great opportunity.
Monday, December 1, 2014
Thanks to Monique Lillard (Idaho), chair of the AALS Labor Relations and Employment section and Natasha Martin (Seattle), chair of the AALS Employment Discrimination section for sending along the joint newsletter of the two sections for posting. Download it while it's hot: Download Joint Newsletter for AALS Sections
December 1, 2014 in Disability, Employment Common Law, Employment Discrimination, Faculty News, International & Comparative L.E.L., Labor and Employment News, Labor Law, Public Employment Law, Scholarship, Teaching, Wage & Hour | Permalink | Comments (0) | TrackBack (0)
Friday, November 28, 2014
image from www.dol.gov
The US Department of Labor is promoting an interesting website targeted at all aspects of the employment process. "FindYourPath" is a one-stop website that allows employers to find available workers, permits individuals to identify jobs, and shares relevant news on the employment process. The website also discusses training opportunities that allow workers to grow their skill sets. The website is worth taking a look at, and I have been impressed recently with the Department of Labor's progressive attempts to advocate for and assist workers during this down economy.
-- Joe Seiner
Thursday, November 27, 2014
New technology meets old-school labor unrest. Recently, the online ride service, Uber, has faced a series of collective actions by its drivers, which have objected to the increasingly tight terms and conditions of their relationship with the company. One of the many interesting aspects of this dispute is that the drivers, like many taxi drivers, are classified by Uber as independent contractors. That doesn't stop the drivers' ability to engage in work stoppages, but it of course eliminates any legal protection against retaliation. However, there's currently a suit pending in San Francisco challenged the classification, so things could get more interesting.
Hat Tip: Michael Duff
As the new Employment Law Restatement approaches final form, we can expect another wave of academic commentary, and I was fortunate enough to be present last week at the first such effort, a Symposium hosted at Ithaca hosted by the Cornell Law Review. Some of the papers are already available on SSRN, including Michael Harper's Fashioning a General Common Law for Employment in the Age of Statutes and Robert Hillman's Drafting Chapter 2 of the ALI's Employment Law Restatement in the Shadow of Contract Law: An Assessment of the Challenges and Results.
I assume the other papers will be available on SSRN soon, and, in any event, will be published in the Cornell Law Review in the spring. They include Steve Willborn's assessment of Chapter 7, Privacy; two offerings on Chapter 8, Employee Obligations and Restrictive Covenant, one by Mike Selmi and another by Deborah DeMott; and my own musings on Chapter 9, Remedies.
Most of the panels featured one of the Reporters for the project, and I was struck by their openness to addressing "scrivener's errors" even at this late stage. Those working from the April Proposed Final Draft considered by the American Law Institute in May should be aware of one major change (the final version will take no position on whether the wrongful discharge tort will extend to wrongful discipline short of constructive discharge) and perhaps a number of less significant ones.
And I forgot to mention the retitling -- it is no longer the Restatement (Third) of Employment Law -- the "Third" having been jettisoned. Much more sensible since as we all know there was never a First or Second version of this Restatement. If you're wondering, I think the idea for the original title was that this was part of the Third series of Restatements.
As is well known, this Restatement was more controversial than most ALI efforts, due largely to the opposition of the Labor Law Group. And that controversy will continue -- both in the law reviews and in the courts.
One measure of success, of course, is acceptance by the courts, and on that measure the Restatement is off to an ironic start. The first judicial opinion to cite it, Tamosaitis v. URS Inc., 2014 U.S. App. LEXIS 21314 (9th Cir. Wash. Nov. 7, 2014), written by Judge Berzon (who was present at the Symposium) looked at the Proposed Final Version's treatment of the tort of wrongful discipline. As I noted above, however, the Institute itself retreated from that position in May to adopt an agnostic stance about whether the tort reached so far.
Another metric, of course, is how well the Restatement maps onto the case law. That, of course, is what a Restatement is (mostly) supposed to do according to the ALI, and we can expect a number of good analyses in that regard.
Yet another metric is the internal consistency or overarching theoretic structure of a Restatment. In this regard for example, Steve Willborn's critique of the Privacy chapter stands out as a signal contribution. Worth a read also is Professor Hillman's work, which finds that the Restatement does no worse than contract law generally in failing to articulate a unifying theory of several of the contracts-related subjects it addresses.
A final metric is whether the new Restatement is employee- or employer-friendly, or at least more or less friendly than the common law. If there's one metric the Reporters don't accept, it's this. And I should know because that was largely the metric I applied in my talk on Remedies!
I do get the problem. For example, the Restatement's rejection of emotional distress contract damages for fired employees could scarcely be challenged from the point of view of case-counting. But as Alan Hyde has argued, is such a rule really sensible in light of the profound psychological and even physical effects of discharge on workers? But this is an example where the Restatement, while employer-friendly, tracks the case law.
In other instances, however, assessing the Restatement in terms of its exacerbation or amelioration of the bias built into the law seems perfectly appropriate -- to me, at least. An example I offered at the Cornell Symposium was the Restatement's approval of a version of the "lowered sights" doctrine, the notion -- definitely the minority rule -- that, in order to mitigate her damages, a wrongfully discharged employee must, after a reasonable time, accept less attractive substitute employment when more attractive employment isn't found.
At all events, I enjoyed the Symposium, and thank the Reporters for their graciousness and the Law Review for its hospitality. I look forward to the final versions of the papers and to more scholars weighing in on the entire question.
Wednesday, November 26, 2014
Over a week ago, the President extended “deferred-action” status to millions of people who faced deportation for residing in the US in violation of federal immigration law. (He then defended his legal authority to do so.) Around the same time, in Juarez v. Northwestern Mutual Life Insurance Co., No. 14-cv-5107 (S.D.N.Y., filed July 9, 2014), US District Judge Katherine Forrest ruled that 42 U.S.C. § 1981 protects people with “deferred-action” immigration status from employer alienage discrimination.
In federal immigration law, extending “deferred action” status to someone is an exercise of administrative discretion to temporarily defer his or her removal for being unlawfully present in the US. Deferred action status doesn’t confer any legal right to remain in the US—it just signals the decision to temporarily delay that person’s deportation. Reno v. American-Arab Anti-Discrimination Committee, 525 U.S. 471, 484 (1999).
But, someone with deferred-action status can get from the Department of Homeland Security the authorization to be employed in the US. See 8 CFR § 274a.12(c)(14) (authorizing grant of a work permit to “[a]n alien who has been granted deferred action, an act of administrative convenience to the government which gives some cases lower priority, if the alien establishes an economic necessity for employment”). Such work authorization can be terminated or revoked at any time because of, among other things, a pre-set expiration date, or for good cause. See 8 CFR § 274a.14(a)-(b).
With such a work permit, a person with deferred-action status is no longer an “unauthorized alien” that employers must not knowingly employ, see 8 USC § 1324a(a), because an “unauthorized alien” can’t be someone who is “authorized to be so employed by this chapter or by the Attorney General,” 8 USC § 1324a(h)(3). The work permit itself, however, doesn’t change a person’s immigration status with respect to their eligibility to be admitted into the US. See Guevara v. Holder, 649 F.3d 1086, 1092 (9th Cir. 2011) (“There is no language in the statute or regulations that suggests aliens, not previously admitted, become ‘admitted,’ when they are granted employment authorization under 8 C.F.R. § 274a.12(c).”).
Employer Alienage Discrimination
What ifemployers refuse to hire or otherwise discriminate against a person because of his or her deferred-action immigration status? Discrimination based on a person’s citizenship status is called alienage discrimination. Title VII of the Civil Rights Act of 1964 does not expressly prohibit alienage discrimination. 42 U.S.C. § 2000e-2(a)-(c). Federal immigration law does prohibit alienage discrimination, 8 U.S.C. § 1324b(a)(1)(B), but only for US citizens, lawful permanent residents, refugees, and asylum grantees, see 8 U.S.C. § 1324b(a)(3). Even with a work permit, a person with deferred-action status falls outside that class of protected individuals. See Letter from Seema Nanda, Deputy Special Counsel, US Department of Justice, to David Burton, General Counsel, National Small Business Administration, dated Sep. 10, 2012.
Enter section 1981: “All persons within the jurisdiction of the United States shall have the same right in every State and Territory to make and enforce contracts . . . as is enjoyed by white citizens . . . .” 42 U.S.C. § 1981(a) (emphasis added). Originally enacted by the Reconstruction Congress after the Civil War as part of the Civil Rights of 1870, section 1981 today expressly extends to “impairment by nongovernmental discrimination,” 42 U.S.C. § 1981(c), and has been read to prohibit alienage discrimination by employers, see Anderson v. Conboy, 156 F.3d 167 (2d Cir. 1998); Duane v. GEICO, 37 F.3d 1036 (4th 1994). However, an employer does not violate section 1981 by knowingly refusing to hire someone who is an “unauthorized alien” under 8 U.S.C. § 1324a(a) (for example, a deferred-action recipient without a work permit). In such a case, “that employer is discriminating on the basis not of alienage but of noncompliance with federal law.” Anderson, 156 F.3d at 180.
In Juarez v. Northwestern Mutual Life Insurance Co., Juarez alleged the following: He was a Mexican national living in New York. In 2012, he obtained deferred-action status, and then, as that status allows, he got a federal work permit and a Social Security number. During a job interview with Northwestern Mutual, Juarez was asked whether he was a US citizen or a legal permanent resident. He explained that he had deferred-action status. Northwestern Mutual refused to hire him, because it had a policy of refusing to hire anyone who is neither a US citizen nor a permanent resident.
Juarez sued, alleging alienage discrimination in violation of 42 USC 1981. On its motion to dismiss, Northwestern Mutual argued that Juarez had no section 1981 claim: Since its policy permitted employment of a US legal permanent resident as well as a US citizen, Northwestern Mutual refused to hire Juarez because he lacked a green card, not because he lacked US citizenship.
On November 14, 2014, District Judge Katherine Forrest denied the motion to dismiss. Judge Forrest concluded that section 1981 extends “to all lawfully present aliens, whether or not they have a green card.” An employer can’t escape section 1981 liability for discriminating against a member of a protected class simply by showing that it did not discriminate against every member of that class. And here, since the employer’s alleged policy discriminated on its face against “lawfully present aliens without green cards—a protected subclass,” Juarez had stated a claim under section 1981 by alleging that Northwestern Mutual had rejected him pursuant to that policy. For further support, Judge Forrest also discussed precedent interpreting the Equal Protection Clause to invalidate State laws because they discriminated against certain subclasses of lawfully-present aliens.
Hat tip: Jon Bauer
Tuesday, November 25, 2014
There is an interesting article at CNN Money which discusses a disturbing but important employment trend in this country. The piece looks at the movement towards employing part-time workers rather than using full-time employees. The article notes the specific disadvantages for workers in this trend, and examines the percentage of these part-time workers in individual states across the nation. From the article:
"Part-time workers are far more likely to live in poverty. They are paid less than other workers and often don't receive benefits. It's a bad sign when states have a high percentage of part-time employees in the labor force, especially those working part-time involuntarily because they can't get a full-time job."
This is an unfortunate and growing trend, and one that is important to closely watch. It is certainly indicative of whether there truly has been a rebound in our economy.
- Joe Seiner
Richard Ford (Stanford) has just posted on SSRN his article (forthcoming Stanford L. Rev. 2014) Bias in the Air: Rethinking Employment Discrimination Law. Here's the abstract:
Employment discrimination jurisprudence assumes that key concepts such as “discrimination,” “intent,” “causation,” and the various prohibited grounds of discrimination refer to discrete and objectively verifiable phenomena or facts. I argue that all of these concepts are not just poorly or ambiguously defined; most are not capable of precise definition. Drawing on familiar developments in private law, such as the legal realist critique of objective causation in torts, I argue that, in practice, the central concepts in antidiscrimination law do not describe objective phenomena or facts at all; instead, they refer to social conflicts between employer prerogatives and egalitarian goals. Ironically, at its best, employment discrimination law does not really prohibit discrimination; instead it imposes a duty of care on employers to avoid decisions that undermine social equality. This suggests that attempts to improve employment discrimination law by making it more attentive to “the facts” — for instance, refining causation in mixed-motives cases using quantitative empirical methods or defining discriminatory intent according to innovations in social psychology—are unlikely to be successful, because these facts are not really at the center of the dispute. Instead, we could better improve employment discrimination law — making it more successful as an egalitarian intervention and less intrusive on legitimate employer prerogatives — if we abandoned attempts to precisely define concepts such as “objective causation” and “discriminatory intent” and instead focused on refining the employer’s duty of care to avoid antiegalitarian employment decisions.
Thanks to Phil Sparkes for sending us a note about this gem. From yesterday's Atlanta Journal-Constitution:
Atlanta Fire Chief Kelvin Cochran has been suspended without pay for one month because of authoring a religious book in which he describes homosexuality as a “sexual perversion” akin to bestiality and pederasty.
Mayor Kasim Reed’s spokeswoman Anne Torres said the administration didn’t know about “Who Told You That You Are Naked?” until employees came forward with complaints last week. In addition to suspending Cochran, Reed’s office has now opened an investigation to determine whether the chief’s actions violated the city policies or discriminated against employees.
Cochran has been ordered to undergo sensitivity training and has been barred from distributing copies of the book on city property after a number of firefighters said they received them in the workplace.
Reed said he was “deeply disturbed” by the sentiments Cochran expressed in his book and will “not tolerate discrimination of any kind” in his administration.
Saturday, November 22, 2014
Pregnancy discrimination has been a visible area in the news recently. The EEOC has focused on this area, and the Supreme Court will look at a pregnancy discrimination claim later this term. To add to this attention, a California jury just awarded a mammoth verdict in a pregnancy discrimination and harassment case against AutoZone. In the case, the employee was demoted and fired after the employer learned of her pregnancy. A San Diego jury awarded just under $1 million in compensatory damages, and $185 million in punitive damages. From a news report at Reuters.com:
"At trial, a former district manager testified that an AutoZone vice president berated him for having so many women in management positions, saying: 'What are we running here, a boutique? Get rid of those women.' The jury ruled that the harassment against [the worker] was "severe and pervasive," and found unanimously that she was discriminated against and later fired because of her pregnancy, according to the verdict form."
I have serious doubts that the verdict will be upheld in its entirety, and it's extremely likely that the punitive damages award will be greatly reduced. Nonetheless, this case sends a significant message that this type of discrimination will not be tolerated. It will be interesting to follow this case and any appeals.
Hat tip: Suja Thomas
-- Joe Seiner
Friday, November 21, 2014
Both the WSJ and BBC have recently addressed Facebook’s goal of creating a new workplace network. The network would be designed to converse with fellow workers, network with colleagues, and coordinate office materials. The BBC article highlighted the concerns of keeping one's professional and personal profiles apart, and raised some skepticism employers have about workers using this as an excuse to spend more time on their computers doing non-work related activities. From the article:
“Facebook at Work will look similar to its existing social network, but users will be able to keep their personal profiles separate…They also would be able to chat with colleagues, build professional networks and share documents.”
This is a clear attempt by Facebook to expand its market and directly compete with such operations as LinkedIn. It further creates obvious workplace issues that will be interesting to follow. For example, can such a network be used to engage in concerted activity? Changing technologies certainly create evolving legal issues in the labor and employment field.
-- Joe Seiner
Thursday, November 20, 2014
Why do most people today not have rights at work that come from the US Constitution? That’s the puzzle at the heart of a just-published legal history: Sophia Z. Lee, The Workplace Constitution from the New Deal to the New Right (New York: Cambridge University Press, 2014). Here’s the publisher’s description:
Today, most Americans lack constitutional rights on the job. Instead of enjoying free speech or privacy, they can be fired for almost any reason or no reason at all. This book uses history to explain why. It takes readers back to the 1930s and 1940s when advocates across the political spectrum – labor leaders, civil rights advocates, and conservatives opposed to government regulation – set out to enshrine constitutional rights in the workplace. The book tells their interlocking stories of fighting for constitutional protections for American workers, recovers their surprising successes, explains their ultimate failure, and helps readers assess this outcome.
From the book itself:
From the vantage point of the mid-twentieth century, the workplace Constitution’s future looked promising. In the 1930s and 1940s, two movements began trying to extend the Constitution to the workplace. They were opposed to each other politically but they shared this legal goal. One, the civil rights movement, would go on to capture the attention of the nation and dismantle Jim Crow. The other, the right-to-work movement, fought for open shops. Although its history is less well known, this second movement was supported by prominent politicians and opinion makers. Together, the two movements created a strange and contentious but politically powerful combination. Their successes and failures change the historical understanding of constitutional law, labor politics, civil rights struggles, and conservative movements.
The book’s website is here.
Hat tip: Legal History Blog
Wednesday, November 19, 2014
Stephanie Greene and Christine Neylon O'Brien (both Boston College - Mgmt.) have just posted on SSRN their article (forthcoming 119 Penn St. L. Rev.) Judicial Review of the EEOC's Duty to Conciliate. Here's the abstract:
Fifty years after the enactment of Title VII of the Civil Rights Act of 1964, the federal courts remain unsettled on a variety of issues involving the Equal Employment Opportunity Commission’s pre-suit obligations. Courts currently disagree on: whether the EEOC’s conciliation efforts are subject to judicial review; what the standard of judicial review should be; what the remedy should be if a court finds the EEOC failed to fulfill its pre-suit obligations; and whether the EEOC may bring suit on behalf of unidentified individuals under Section 706. In EEOC v. Mach Mining, LLC, the Court of Appeals for the Seventh Circuit was the first circuit court of appeals to hold that conciliation efforts are a matter of agency discretion and are not subject to judicial review. Other courts have reviewed the conciliation process and have required that the EEOC demonstrate at least good faith efforts to conciliate. On June 30, 2014, the Supreme Court granted Mach Mining’s petition for certiorari and a decision is expected in the upcoming term. The Court’s decision will resolve some of the differences between the circuits and may indicate how courts should resolve related issues. This article maintains that the Supreme Court should affirm the Seventh Circuit’s decision. Supreme Court precedent emphasizes that the EEOC’s efforts should be focused on resolving the merits of discrimination claims and supports the conclusion that judicial review should be denied because it results in delays and distractions from Title VII’s objectives. If the Court decides that judicial review of the conciliation process is required, the EEOC will face a new landscape that will disturb Title VII’s mandate that the conciliation process be informal, confidential, and a matter of agency discretion.