Tuesday, September 12, 2017
Edward 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.
Monday, August 14, 2017
Charlotte 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 The software exploits outdated regulations that do not anticipate the scale and precision with which employers can manage and manipulate the work relationship.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.
Friday, July 7, 2017
I came across today an interesting new article, on a topic I hadn't thought much about before, posted recently on SSRN. The article, by W.C. Bunting of the U.S. DOJ-Civil Rights Division, is Unlocking the Housing-Related Benefits of Telework: A Case for Government Intervention. Here's the abstract:
The central claim of the present article is that some form of government intervention is necessary to make telework arrangements sufficiently binding in the long-run for employees living in, or near, city centers to feel comfortable incurring the costs of relocating to more remote, lower-priced areas, and to ensure the long-run financial self-sufficiency of private telework centers, which provide important benefits, not just to employers and employees, but to society generally. The public benefit considered here is the capacity for telework, and telework centers specifically, to provide lower-priced housing alternatives for middle- and high-income earners who choose to live in, or near, the city center to reduce the time spent commuting, but who would otherwise choose to live in more remote, lower-priced areas if commuting costs were lower. As explained, a minimal amount of government intervention is necessary, however, to overcome several key economic challenges that preclude employees from relocating to remote, lower-priced exurban or rural communities, as well as the formation of a new and exciting private-sector enterprise—the privately-operated telework center.
Thursday, June 22, 2017
The Call for Papers of the sixteenth International Conference in commemoration of prof Marco Biagi has been opened. The conference will take place in Modena (Italy) on 19-21 March 2018, and will be entitled “Assessing Worker Performance in a Changing Technological and Societal Environment: an Interdisciplinary and Multifaceted Perspective”. Deadlines are as follows:
- submission of short expressions of interest, July, 20th 2017;
- submission of extended abstracts (in case of acceptance of expressions of interest): October, 13th 2017.
Further information will be available soon at the Marco Biagi Foundation’s website.
Monday, June 19, 2017
The ABA Journal of Labor & Employment Law now welcomes submission of manuscripts for possible publication in Volume 33 of the Journal for 2017-2018. The Journal, whose subscribers include the 20,000-plus members of the ABA Section of Labor & Employment Law, seeks articles of current practical interest to labor and employment attorneys written by attorneys, judges, government officials, and professors. Articles should not exceed forty pages with both text and footnotes double-spaced. Academics may submit manuscripts of immediate relevance to practicing attorneys derived from longer, previously-published articles if they are within this length limitation. Manuscripts should be submitted in Microsoft Word as an attachment to an e-mail sent to firstname.lastname@example.org. Inquiries to the Faculty Co-Editors, Stephen F. Befort and Laura J. Cooper, may also be sent to that e-mail address.
Saturday, June 17, 2017
Congratulations to Steve Ware (Kansas) and Ariana Levinson (Louisville) on the publication of their new book Principles of Arbitration Law (Concise Hornbook Series, available July 2017). Here's the publisher's description:
The Concise Hornbook Principles of Arbitration Law is an authoritative and extensively cited treatise on arbitration. It thoroughly discusses general arbitration law―from federal preemption of state law to the formation, performance, and enforcement of arbitration agreements―and provides in-depth coverage of specialized law governing international arbitration and labor arbitration. The last few decades have witnessed the growth of a large body of legal doctrine―from statutes, judicial decisions, and other sources―focused on arbitration. This Concise Hornbook summarizes that body of law, so should be useful to lawyers and scholars researching arbitration law and to students learning about arbitration.
I haven't yet received a copy of the book, but know from reviewing the draft of the labor law chapter that it will be top-flight.
Wednesday, June 7, 2017
Friends of the blog Susan Bisom-Rapp (Thomas Jefferson) and Urwana Coiquaud (HEC Montreal) have posted their latest paper on SSRN. This comparative law collaboration, examining the actions of the state in undermining the standard employment relationship and increasing nonstandard work, is called The Role of the State towards the Grey Zone of Employment: Eyes on Canada and the United States. Here is the abstract:
In most countries, precarious working is on the rise and nonstandard forms of work are proliferating. What we call the “grey zone” of employment is generated by transformations at and with respect to work both in standard and nonstandard forms of working. Focusing on legal and policy regulation, and on the role of the state in the creation and perception of the grey zone, our contribution explains the way the government acts or fails to act, and the consequences of that activity or inactivity on the standard employment relationship. Examining and juxtaposing conditions in our two countries, Canada and the United States, our thesis is that the state plays a paradoxical role in the growth of nonstandard work and increasing precariousness. To assist the analysis, we construct a matrix for understanding the efforts or inertia on the part of the government. We conclude that there are seven ways in which to comprehend the role played by the government vis-à-vis the grey zone.
Susan and Urwana note that their analysis is both descriptive, in that it reveals the government’s complicity in the rise of employment insecurity, and normative, because it provides a mechanism for applauding or indicting the actions of the state in the face of changing work relations in the 21st century.
Sunday, May 21, 2017
Michael Green has been burning the midnight scholarship oil recently. He has posted two articles to SSRN in the last month: The Audacity of Protecting Racist Speech under the National Labor Relations Act, forthcoming 2017 U. Chicago Legal Forum, and Can NFL Players Obtain Judicial Review of Arbitration Decisions on the Merits When a Typical Hourly Union Worker Cannot Obtain This Unusual Court Access?, forthcoming NYU J. Legislation and Public Policy. He also has a forthcoming paper in SMU Law Review on Racial Prejudice in ADR in the Workplace (SSRN post coming soon). Congrats, Michael!
Saturday, May 13, 2017
Job applicants with criminal records are much less likely than others to obtain legitimate employment, a problem that recent legislation, including Ban the Box, has attempted to address. The success of any remedial strategy depends on why hiring firms impose a hiring penalty and whether their concerns are founded on an accurate view of how ex-offenders behave on the job if hired. Little empirical evidence now exists to answer these questions. This paper attempts to fill this gap by examining firm-level hiring practices and worker-level performance outcomes. Our data indicate that the typical employee with a criminal record has a psychological profile different from other employees, with fewer characteristics that are associated with good job performance outcomes. Despite these differences, individuals with criminal records have an involuntary separation rate that is no higher than that of other employees and a voluntary separation rate that is much lower. Employees with a criminal record do have a slightly higher overall rate of discharge for misconduct than do employees without a record, although we find increased misconduct only for sales positions. We also find that firms that do not use information about criminal backgrounds seem to compensate by placing more weight on qualifications that are correlated with a criminal record, such as low educational attainment.
Thursday, April 27, 2017
Anne-Marie Lofaso (West Virginia) has just posted on SSRN her article, Workers Rights as Natural Human Rights, which is to be published in the University of Miami Law Review. The abstract:
We live in an increasingly polarized world: one summed up by President Clinton, “we’re all in this together;” the other summed up by then-presidential candidate Trump, “I alone can fix it.” These world views have implications for workers and how the future workplace is ordered. In this Article, I explore the idea that a natural human rights approach to workplace regulations will tend to favor the we’reall-in-this-together view, whereas the Lochnerian or neoliberal view tends to favor an individualistic world view.
The Article’s six-step analytical approach starts with a historical analysis of labor law jurisprudence, concluding that U.S. labor laws must be filtered through a law-and-economic lens of U.S.-styled capitalism to predict the outcomes of legal disputes and to expose human rights infirmities inherent to that approach. In step two, I explore T.H. Marshall’s account of citizenship, concluding that Marshall’s rights-based rubric is too limited to fully explain workers’ rights, which tend to cut across the full gamut of human rights. In step three, I expand upon Marshall’s work to build a framework for evaluating workplace laws based on the worker as a citizen of the labor force who has human rights. I do this using two methodologies: (1) comparative legal analysis between U.S. law and international human rights standards; and (2) jurisprudential analysis of fundamental values within a rights-based framework. In step four, I modify John Rawls’s famous thought experiment to include a veil of empathy. In that modified experiment, I conclude that participants in the original position behind a veil of empathy would generate values underlying human rights, namely autonomy (to become part author of one’s work life) and dignity (to be treated as a person always as an end and never merely as a means). In step five, I apply this human rights approach to show that workers’ and employers’ interests conflict at the interests-level and, more fundamentally, at the values-level. I conclude that these conflicts are primarily over the distribution of that which labor and capital create. This distributional question is fundamental a question of moral and political justice, which will and does have real political consequences. In step six, I set forth a path along which this research project should explore.
Check it out!
Friday, April 7, 2017
The book is the first Canadian text to explore in depth all three regimes of work law, including Common Law, Regulatory Law, and Collective Bargaining Law and it emphasizes the interaction between the three regimes. For those interested in understanding Canadian work law, this is the book. Also, you might be interested in knowing that the book was written to be accessible to non-lawyers, including the thousands of business, HRM, industrial relations, labour studies students learning work law in Canada. I wrote it because I frequently teach business students and there was no book in Canada that explained the law of work in a sophisticated, contextual manner but that doesn’t also assume the readers have already studied law for a year or two. Finally, the book also extends the subject matter beyond most labor law texts, by including chapters on subjects such as work and intellectual property law, work and privacy law, trade law, immigration law, and bankruptcy law.
Wednesday, April 5, 2017
Gary Spitko (Santa Clara) has just posted on SSRN his article (forthcoming 69 Florida Law Review ___ (2017)) A Structural-Purposive Interpretation of 'Employment' in the Platform Economy. Here's the abstract:
The considerable growth of the platform economy has focused attention on the issue of whether a provider who is engaged through a transaction platform should be classified as an employee of the platform operator within the purview of workplace protective legislation or, rather, as an independent contractor outside the scope of such legislation’s protections. This Article focuses specifically on whether the operator’s reservation of the right to impose quality control standards on the provider ought to give rise to employment obligations running in favor of the provider and against the operator. This narrow issue is of great importance to the future of the platform economy. Quality control standards promote trust between platform consumer and provider and, thus, enable leveraging of network effects, to the benefit of the platform operator, consumer and provider. Yet, if the law considers the operator’s right to impose quality control standards on the provider as a factor that will weigh in favor of finding that the provider is an employee of the operator, the operator is more likely to forego the right to impose such standards.
With respect to much workplace protective legislation, neither the statutory language nor the legislative history is even minimally helpful in defining “employment.” Thus, this Article engages in a structural-purposive inquiry into the definition of employment as applied to the platform economy. The analysis proceeds in three steps. First, the Article explores the structure of workplace protective legislation generally and identifies a “control bargain” implicit in that structure pursuant to which the state imposes a scheme of workplace protective regulation on the firm only if the firm retains a certain type and degree of control over its worker. Second, the Article examines the nature of the platform economy and the function of quality control standards within that economy. From this examination, the Article concludes that the nature of the platform economy suggests that the platform operator’s retention of the right to impose quality control standards on providers should be seen as outside the scope of the control bargain and, therefore, should not weigh in favor of finding an employment relationship. Finally, the Article considers case law addressing the meaning of employment in the similar context of the franchisor-franchisee relationship. This case law supports the Article’s principal conclusion by demonstrating that the control bargain allows for exceptions to the rule that the firm’s retention of control over a worker weighs in favor of finding that the firm employs the worker, that the firm’s reservation of the right to impose quality control standards can be such an exception, and that such an exception can be discerned from the nature of the relevant workplace structures.
Wednesday, March 29, 2017
Camabridge University Press has just published, as part of the Cambridge Disability Law and Policy Series, Paul Harpur's (Queensland Law) Discrimination, Copyright and Equality: Opening the e-Book for the Print-Disabled. Here's the publisher's description:
- While equality laws operate to enable access to information, these laws have limited power over the overriding impact of market forces and copyright laws that focus on restricting access to information. Technology now creates opportunities for everyone in the world, regardless of their abilities or disabilities, to be able to access the written word – yet the print disabled are denied reading equality, and have their access to information limited by laws protecting the mainstream use and consumption of information. The Convention on the Rights of Persons with Disabilities and the World Intellectual Property Organization's Marrakesh Treaty have swept in a new legal paradigm. This book contributes to disability rights scholarship, and builds on ideas of digital equality and rights to access in its analysis of domestic disability anti-discrimination, civil rights, human rights, constitutional rights, copyright and other equality measures that promote and hinder reading equality.
- A valuable resource for advocates, law makers, librarians and others who seek to reform laws, policies and practices that reduce reading equality.
- Provides a comparative analysis of how copyright and anti-discrimination laws interacts.
- Provides an in-depth analysis of advances in international and domestic laws.
Monday, March 27, 2017
Participation in American labor unions have changed radically, albeit incrementally, over the last fifty years. Private-sector union density has declined five-fold, whereas public-sector density has increased almost as significantly. Today, unions rarely strike and in much of the country they are politically impotent. As traditional manufacturing declines and is replaced by on-demand work, unions risk becoming a historical footnote.
This article ties the decline in union density and power to macroeconomic trends that are highly troubling in an advanced democracy, such as rising income inequality and the failure of wage growth to keep pace with GDP growth. It next reviews the traditional prescriptions that labor scholars have advocated to reverse labor’s decline. Finally, it proposes three new radical fixes: authorizing criminal prosecution for willful violations of labor law, expanding labor protections to on-demand workers, and reversing the legal presumption that workers are not represented by a union unless they affirmatively opt in.
Rick has some interesting recommendations in the article, so definitely worth checking out.
Friday, March 17, 2017
Jeff Hirsch (North Carolina) and Joe Seiner (South Carolina) have just posted on SSRN their extraordinarily timely article A Modern Union for the Modern Economy, ___ Fordham Law Review ___(forthcoming 2018) Here's the abstract:
Membership in traditional unions has steeply declined over the past two decades. As the White House and Congress are now completely Republican controlled, there promises to be no reversal of this trend in the near future. In the face of this rejection of traditional bargaining efforts, several attempts have been made to create alternative “quasi-union” or “alt-labor” relationships between workers and employers. These arrangements represent a creative approach by workers to have their voices heard in a collective manner, though still falling far short of the traditional protections afforded by employment and labor law statutes.
This Article critiques one such high-profile, quasi-union effort in the technology sector—the Uber Guild. While the Guild does not provide any of the traditional bargaining protections found in the National Labor Relations Act (NLRA), it offers Uber drivers some input over the terms and conditions under which they work. Falling somewhere between employment-at-will and unionization protected under the NLRA, the Uber Guild is a creative attempt to help both workers and the company to better understand how they can improve the working relationship.
This Article navigates the Uber Guild and other nontraditional efforts that promise a collective voice for workers in the face of a precipitous decline in union membership. Closely examining the implications of these existing quasi-union relationships, this Article explores how workers in the technology sector face unique challenges under workplace laws. We argue that these workers are particularly well situated to benefit from a nontraditional union model and explain what that model should look like. While there can be no doubt that a traditional union protected by the NLRA is the optimal bargaining arrangement, we must consider the enormous challenges workers in the technology sector face in obtaining these protections. A modern union is needed for the modern economy.
Wednesday, March 1, 2017
While a number of concerns have been raised about the on-demand economy, evidence of discrimination has been especially noted and publically condemned. Airbnb, for instance, came under fire when a Harvard Business School study showed that property owners were less likely to accept those with black-sounding names as renters and non-black hosts were able to charge approximately 12% more than black hosts. Similarly, in an October 2016 working paper conducted by the National Bureau of Economic Research, researchers looking at taxi-services Uber and Lyft showed that the cancellation rate for those with black-sounding names was more than twice as high as for those with white-sounding names. At the same time, largely in other parts of the country, many condemn not discrimination but the antidiscrimination laws designed to curb it, especially laws aimed at shielding those within the LGBTQ community from discrimination. Debates about discriminatory immigration policies dominate national headlines. 70% of the country is aware of the Black Lives Matter movement. We are, in short, in the midst of an important conversation about discrimination, the likes of which we have not seen since the Civil Rights Movement. Legal theorists and philosophers have taken note, arguing for changes to our current antidiscrimination law regime. But while these theorists have disagreed about the proper scope of antidiscrimination law, they have widely agreed in one crucial respect: namely, that any expansion of antidiscrimination law beyond their preferred scope is problematic on autonomy grounds.
The centrality of “autonomy” in these debates should come as no surprise. Throughout our history of racial conflict, all sides have claimed the ideal of autonomy as an ally to their cause. This is possible because of the concept’s flexibility. “Autonomy” can support a range of positions, depending on the presuppositions it’s packaged with. But when scholars invoke “autonomy” in a way that simply deploys these underlying presuppositions, instead of making these presuppositions explicit, situating them against reasonable rivals, and defending them, they fail to have what scholars at this point in time most crucially need: perspective. These scholars seem to neither notice nor understand why those who take different positions on questions of autonomy, or on specific legal interventions, do so, because the real bases of disagreement – which resides within these presuppositions – remain hidden. As a result, their rejection of certain antidiscrimination law regimes and support of others do little to move the debate about the proper scope of antidiscrimination law forward. Antidiscrimination law scholars are trapped in an ongoing cycle of autonomy assertions and as a result, the important debate about the proper scope of antidiscrimination law remains stalled. We cannot afford this.
My aim in this Essay is one of illumination and aid. I attempt to show why the mere assertion that a certain antidiscrimination law “violates autonomy” hides from view the true basis of disagreement and, in so doing, both fails to engage the relevant arguments while also failing to provide readers any reason to adopt the author’s preferred antidiscrimination law regime. I will do this by illuminating the presuppositions underpinning the two main conceptions of autonomy that are invoked in the antidiscrimination law literature. I then situate these presuppositions alongside rival possibilities. My hope is that this project will aid the development of more fruitful antidiscrimination law scholarship moving forward.
Heather has said that she would love to hear any comments on the essay that readers may have, so check it out.
Tuesday, February 21, 2017
My colleague Dallan Flake (ONU) has just posted on SSRN his article When Should Employers Be Liable for Factoring Biased Customer Feedback into Employment Decisions? Here's the abstract:
In today’s customer-centric business environment, firms seek feedback from consumers seemingly at every turn. Firms factor such feedback into a host of decisions, including employment-related decisions such as whom to hire, promote, and fire; how much to pay employees; and what tasks to assign them. Increasingly, researchers are discovering that customer feedback is biased against certain populations, such as women and racial minorities. Sometimes customers explicitly declare their biases, but more often their prejudices are harder to detect — either because they intentionally hide their biases in their ratings or because the customers do not realize their implicit biases have skewed their perceptions, and consequently their ratings, of service exchanges.
When firms rely on tainted customer feedback to make employment decisions, they indirectly discriminate against employees. Although the law makes clear that employers cannot discriminate against employees based on customers’ discriminatory preferences, it has yet to address whether and to what extent employers are liable for factoring biased customer feedback into employment decisions. I argue that employers should not get a free pass to discriminate simply because it is the customers rather than themselves who bear the discriminatory animus; but nor should employers be liable in every instance where customer feedback is shown to be biased.
To strike an appropriate balance, employers should be held to a negligence standard whereby their liability for using tainted feedback depends on whether they knew or reasonably should have known the data was compromised and if so, whether they acted reasonably in response by taking appropriate preventive or corrective measures. A major advantage of this framework is that it works in both the easy and the hard cases by tying employer liability to the ease with which customer bias can be detected. If bias is explicit, the law would hold employers to a heightened duty in terms of both knowledge and response, whereas if bias is implicit, and thus harder to detect, employers would be held to a lower standard.
Tuesday, January 31, 2017
Several fantastic new works of scholarship have been posted on SSRN over the last week. Each deserves its own post, but given my travel and the wealth of extraordinary material, all I can do is to highlight them here:
- Jessica L. Roberts (Houston), Glenn Cohen (Harvard), Chris Deubert (Harvard - Football Players Health Study), & Holly Fernandez Lynch (Harvard - Petrie-Flom Center), Evaluating NFL Player Health and Performance: Legal and Ethical Issues, 165 U. Penn. L. Rev. (2017): many existing evaluations of players, both at the NFL Scouting Combine and once drafted and playing for a club, seem to violate existing federal employment discrimination laws such as the ADA and GINA.
- Michael Duff (Wyoming), Are Workers' Compensation ‘Alternative Benefit Plans’ Authorized by State Opt out Schemes Covered by ERISA? The Brief, Publication of the American Bar Association Tort Trial and Insurance Practice Section (Spring 2016): state laws authorizing employers to opt-out of workers compensation likely violate ERISA.
- Tristin Green (San Francisco), America Is from Venus, France Is from Mars: Pinups, Policing, and Gender Equality, 2017 EREPJ (forthcoming 2017): "If equality advocates cannot disrupt the pervasive sense that workplace harassment is a matter solely of interpersonal behavior to be policed, whether by employers or by the state, then the harassment laws of neither country are likely to be effective."
- Andrew Elmore (NYU), The Future of Fast Food Governance, 165 U. Penn. L. Rev. Online (forthcoming 2017): Why are fast-food franchisors not joint employers? My editorial license: This article/issue takes on particular significance given the nomination of Andy Puzder as Secretary of Labor.
- Jonah B. Gelbach (U. Penn.), The Triangle of Law and the Role of Evidence in Class Action Litigation, 165 U. Penn. L. Rev. (forthcoming 2017): This article uses a "donning and doffing" case brought under Iowa state law incorporating the FLSA's overtime pay provisions to examine the use of statistical evidence in Rule 23(b)(3) class certification decisions.
Saturday, January 28, 2017
Bill Herbert (Hunter College) has posted on SSRN his article, The Winds of Changes Shift: An Analysis of Recent Growth in Bargaining Units and Representation Efforts in Higher Education, which is being published in the Journal of Collective Bargaining in the Academy. The abstract:
This article analyzes data accumulated during the first three quarters of 2016 regarding completed and pending questions of representation involving faculty and student employees in higher education. It is part of a larger and continuing National Center research project that tracks faculty and graduate student employee unionization growth and representation efforts at private and public institutions of higher learning since January 1, 2013.
The data presented in this article demonstrates that the rate of newly certified units at private colleges and universities since January 1, 2016 far outpaces new units in the public sector. There has been a 25.9% increase in certified private sector faculty units over the number of private sector units identified by the National Center for the Study of Collective Bargaining in Higher Education and the Professions in 2012, while the increase in the public sector has been 2.1%. The largest number of newly certified units involves non-tenure track faculty at private non-profit institutions. The second largest group of new units in higher education involves tenured and tenure-track faculty at public institutions. The average final election tallies demonstrate strong support for unionization among higher education faculty: 72.8% among private sector tenured/tenure-track and contingent faculty, and 73.3% among public sector tenure-track and contingent faculty.
The article demonstrates that unionization efforts by private sector tenured and tenure-track faculty and faculty continue to be adversely impacted by two judicially-created doctrines, despite modifications made to the applicable standards in a 2014 National Labor Relations Board decision. It also examines pending and completed unionization efforts by graduate and research assistants in light of the recent NLRB decision finding that private sector graduate student employees are entitled to the associational rights guaranteed under federal labor law.
Among other things, the article highlights some of the unique characteristics of collective-bargaining in higher education. Of course, a new Board may shift some of these trends by, for example, flipping again on the question of graduate students' status as employees.
Wednesday, December 14, 2016
Deborah Brake (Pittsburgh) has just posted on SSRN her article (forthcoming Georgetown L.J.) The Shifting Sands of Employment Discrimination: From Unjustified Impact to Disparate Treatment in Pregnancy and Pay. Here's the abstract:
In 2015, the Supreme Court decided its first major pregnancy discrimination case in nearly a quarter century. The Court’s decision in Young v. United Parcel Service, Inc., made a startling move: despite over four decades of Supreme Court case law roping off disparate treatment and disparate impact into discrete and separate categories, the Court crafted a pregnancy discrimination claim that permits an unjustified impact on pregnant workers to support the inference of discriminatory intent necessary to prevail on a disparate treatment claim. The decision cuts against the grain of established employment discrimination law by blurring the impact/treatment boundary and relaxing the strictness of the similarity required between comparators in order to establish discriminatory intent. This article situates the newly-minted pregnancy discrimination claim in Young against the backdrop of employment discrimination law generally and argues that the Court’s hybrid treatment-by-impact claim is in good company with other outlier cases in which courts blur the boundaries of the impact/treatment line. The article defends the use of unjustified impact to prove pregnancy discrimination as well-designed to reach the kind of implicit bias against pregnant workers that often underlies employer refusals to extend accommodations to pregnant workers. While Young is not likely to prompt an earthquake in employment discrimination doctrine, this article identifies and defends a parallel development in the law governing pay discrimination that similarly incorporates unjustified impact into a disparate treatment framework.