Sunday, December 14, 2014
Sandra Sperino (Cincinnati) and Suja Thomas (Illinois) have just posted on SSRN a powerful new indictment of Supeme Court LEL jurisprudence, Fakers and Floodgates (Stanford J. Civil Rights & Civil Liberties 2014). Here's the abstract:
There has always been the possibility of judicial skepticism about employment discrimination claims. Recently, the Supreme Court made this skepticism explicit. In University of Texas Southwestern Medical Center v. Nassar, the Supreme Court expressed concern about fake claims and floodgates of litigation. It then used these arguments to tip the substantive law against retaliation claims. This article responds to this explicit skepticism about discrimination claims. First, it shows that the Court created reasons to limit retaliation claims that are not tied to congressional intent. Second, the factual claims that the Court makes are not grounded in evidence, and available information suggests the opposite conclusion. Third, a change to the substantive law will not prevent spurious claims. Fourth, the fakers and floodgates arguments could become accepted and embedded in judicial doctrine. Finally, it shows that Nassar is symptomatic of the broader issue that courts use procedure and substance to impede factually intensive civil rights claims.
Saturday, December 6, 2014
A zero-hour contract is a "contract" of employment creating an on-call arrangement between employer and employee and in which the employer asserts it has no obligation to provide any work for the employee. It's become common in the United Kingdom, and apparently is being "offered" to employees by many American-owned companies including McDonald's and Burger King. In many ways, it's similar to just-in-time scheduling that has become increasingly common in the U.S. retail/fast-food economy, except that in some weeks an employee many receive zero work hours.
Are zero hours contracts lawful? This note responds to the DBIS consultation on banning exclusivity clauses (August 2014). It asks the following: what is a zero hours contract? To what extent are zero hours contracts legal? Why have zero hours contracts spread? And finally, what is the right thing to do?
Stephen Lee (Irvine) has just posted on SSRN his essay (forthcoming Irvine L. Rev.) Policing Wage Theft in the Day Labor Market. The toic is one with which -- until I read his essay -- I was unfamiliar. Here's an excerpt of his abstract:
In recent years, workers’ rights advocates have turned to a novel tactic in the fight against employer exploitation: pushing for the criminalization of wage theft.... In this Essay, I focus on the challenges of enforcing wage theft laws within those industries dependent on unauthorized immigrant labor. I argue that federal immigration enforcement programs — ranging from funding inducements to information-sharing schemes to collateral penalties — dampen the promise of turning to the police as allies in the effort to eradicate wage theft.... My point here is not to dissuade labor rights advocates from ever turning to the criminal justice system for help in the fight against workplace exploitation. But assessing whether the police can solve the problem of wage theft in the day labor market requires further study. Thus, I conclude the Essay with a research agenda of sorts in which I lay out further research trajectories to help answer the question of when policing wage theft can be both effective and desirable.
Thursday, December 4, 2014
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.
Wednesday, December 3, 2014
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)
Tuesday, November 25, 2014
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.
Monday, November 10, 2014
More evidence of the adverse health effects of wage theft, this time from a case study of San Francisco’s Chinatown: Meredith Minkler et al., “Wage Theft as a Neglected Public Health Problem: An Overview and Case Study From San Francisco’s Chinatown District,” American Journal of Public Health 104(6) (June 2014): 1010-1020. Here’s the abstract:
Wage theft, or nonpayment of wages to which workers are legally entitled, is a major contributor to low income, which in turn has adverse health effects. We describe a participatory research study of wage theft among immigrant Chinatown restaurant workers. We conducted surveys of 433 workers, and developed and used a health department observational tool in 106 restaurants. Close to 60% of workers reported 1 or more forms of wage theft (e.g., receiving less than minimum wage [50%], no overtime pay [> 65%], and pay deductions when sick [42%]). Almost two thirds of restaurants lacked required minimum wage law signage. We discuss the dissemination and use of findings to help secure and enforce a wage theft ordinance, along with implications for practice.
(The paper identifies wage theft to include the employer’s failure to provide sick leave under a mandatory paid sick leave law.) Based on their findings, the study authors estimate that in 2008, the roughly 2,500 restaurant workers in Chinatown lost over $10 million in wages—over $8.5 million attributable to minimum wage violations alone.
Monday, October 6, 2014
The Southeastern Association of Law Schools holds its annual meeting every summer at the end of July/beginning of August, and planning for next year's programming has started. For the past several years, a workshop for labor and employment law has taken place over several of the days. Michael Green (Texas A & M) is helping to organize the workshop for next summer. If you are interested in participating, feel free to get in touch with him: firstname.lastname@example.org. Some suggestions already made include panels or discussion groups on whistleblowing, joint employer issues, termination for off-duty conduct (including recent NFL scandals), disability and UPS v. Young, and a junior scholars workshop.
One additional piece of programming already proposed is a discussion group on attractiveness issues in Employment Discrimination cases. Wendy Greene is helping to organize it, so get in touch with her if you are interested in participating on that topic.
And regardless of whether you get in touch with Michael or Wendy, you should think about proposing programming for the annual meeting if you are at all interested and regardless of the topic. The meeting is surprisingly (because of the lovely environs) substantive, and the environment is very relaxed and is designed to be egalitarian. Here are the details:
The SEALS website www.sealslawschools.org is accepting proposals for panels or discussion groups for the 2015 meeting which will be held at the Boca Raton Resort & Club http://www.bocaresort.com/ Boca Raton, Florida, from July 27 to Aug. 2. You can submit a proposal at any time. However, proposals submitted prior to October 31st are more likely to be accepted.
This document explains how to navigate SEALS, explains the kinds of programs usually offered, and lays out the rules for composition of the different kinds of programming: Download Navigating submission. The most important things the Executive Director emphasizes are these: First, SEALS strives to be both open and democratic. As a result, any faculty member at a SEALS member or affiliate school is free to submit a proposal for a panel or discussion group. In other words, there are no "section chairs" or "insiders" who control the submissions in particular subject areas. If you wish to do a program on a particular topic, just organize your panelists or discussion group members and submit it through the SEALS website. There are a few restrictions on the composition of panels (e.g., panels must include a sufficient number of faculty from member schools, and all panels and discussion groups should strive for inclusivity). Second, there are no "age" or "seniority" restrictions on organizers. As a result, newer faculty are also free to submit proposals. Third, if you wish to submit a proposal, but don't know how to reach others who may have an interest in participating in that topic, let Russ Weaver know and he will try to connect you with other scholars in your area.
October 6, 2014 in Conferences & Colloquia, Disability, Employment Common Law, Employment Discrimination, Faculty News, Faculty Presentations, International & Comparative L.E.L., Labor Law, Pension and Benefits, Public Employment Law, Religion, Scholarship, Teaching, Wage & Hour, Workplace Trends | Permalink | Comments (0) | TrackBack (0)
Friday, October 3, 2014
Just in time for the beginning of this Term, which, as Marcia suggests may be a blockbuster, Jonathan Harkavy has posted 2014 Supreme Court Employment Law Commentary on SSRN. It contains not only useful nuetral summaries of the opinions but also, in separate italicized sections, the author's personal take on the decisions -- often in with a dash a humor.
Tuesday, September 23, 2014
A bit of self-promotion: Carolina Academic Press has just published Mastering Labor Law, by Paul Secunda, Anne Lofaso, Joe Slater, and yours truly. Although it can be of interest to anyone, it's specifically geared to law students and practioners who want a helpful guide to the basics of labor law. One unique aspect--as you can gather from Joe Slater's presence on the author list--is that it also includes a significant amount of public sector labor law.
Saturday, September 20, 2014
How well do firms comply with the Family and Medical Leave Act? Not as much as you might think. That's the finding of a recent paper: Amy Armenia, Naomi Gerstel, and Coady Wing, "Workplace Compliance with the Law: The Case of the Family and Medical Leave Act," Work and Occupations 41(3) (2014): 277-304. Here's the abstract:
Using the 2008 National Study of Employers to analyze employers’ compliance with the Family and Medical Leave Act (FMLA), we show that prior studies have overestimated compliance due to the treatment of missing values and incomplete definitions of the FMLA. Using partial identification methods, we estimate that FMLA compliance among firms with 50 or more employees in the private sector is at least 54.3% and at most 76.8%. We also look at organizational characteristics that predict compliance, noncompliance, and nonresponse. This analysis suggests that firms with missing data are more similar to noncompliant than compliant firms and that nonresponse may indicate organizational defiance of policy.
Among other things, the authors find that organizations are more likely to comply with FMLA-mandated maternity leaves than with other FMLA requirements.
Thursday, September 11, 2014
Solon Barocas and Andrew D. Selbst have posted "Big Data's Disparate Impact," which focues on the relationship between big data mining and Title VII. Here's the abstract:
Big Data promises to replace faulty intuitions with facts, granting employers, advertisers, manufacturers, and scientists access to richer, more informed, and less biased decisionmaking processes. But where data mining is used to aid decisions, it has the potential to reproduce existing patterns of discrimination, inherit the prejudice of prior decisionmakers, or simply reflect the widespread biases that persist in society. Sorting and selecting for the best or most profitable candidates means generating a model with winners and losers. If data miners are not careful, that sorting can create disproportionately adverse results concentrated within historically disadvantaged groups in ways that look a lot like discrimination.
This Article examines the operation of anti-discrimination law in the realm of data mining and the resulting implications for the law itself. First, the Article steps through the technical process of mining data and points to different places where a disproportionately adverse impact on protected classes may result from what may seem like innocent choices on the part of the data miner. Decisions such as how to transform a problem into one that a computer can solve, how much data to collect and where to collect it, and how to label examples of "good" and "bad" outcomes, are all decisions that can render data mining more or less discriminatory. Alternatively, in a hypothetical case of perfectly executed data mining, enough information will be revealed so as to accurately sort according to pre-existing inequities in society. A disparate impact resulting from this second option would merely reflect an unequal distribution of the sought-after traits in the world as it stands as of the time of data collection.
From there, the Article analyzes the disproportionate impacts due both to errors and reflections of the status quo under Title VII. The Article concludes both that Title VII is largely ill equipped to address the discrimination that results from data mining. It further finds that, due to problems in the internal logic of data mining as well as political and constitutional constraints, there is no clear way to reform Title VII to fix these inadequacies. The article focuses on Title VII because it is the most well developed anti-discrimination doctrine, but the conclusions apply more broadly as they are based on our society’s overall approach to anti-discrimination.
A related working paper by Sarocas, "Data Mining and the Discourse of Discrimination," is available here.
Wednesday, September 10, 2014
Thomas Jefferson School of law is pleased to announce the inaugural Jameson Crane III Disability and the Law Writing Competition. Made possible by the generous gift of Thomas Jefferson School of Law alumnus Jameson Crane III, the Crane Writing Competition seeks to encourage outstanding student scholarship at the intersection of law and medicine, or law and the social sciences. The competition promotes an understanding of these topics, furthers the development of legal rights and protections, and improves the lives of those with disabilities.
The competition is open to currently enrolled law students, medical students, and doctoral candidates in related fields who attend an accredited graduate program of study in the United States. Submitted papers may be on any topic relating to disability law, including legal issues arising with respect to employment, government services and programs, public accommodations, education, higher education, housing, and health care.
Submissions will be judged anonymously by an independent panel of experts. The winner of the competition will receive a $1,500 cash prize and the Thomas Jefferson Law Review (TJLR) will consider the paper for publication under the TJLR’s editorial standards. Two second place winners will each receive a $1,000 cash prize. Preference for these additional winners will be given to submissions from disciplines not represented by the grand prize winner.
All submissions must be submitted electronically to: email@example.com. All entries must be received by midnight, Pacific Standard Time, January 15, 2015. Winning submissions will be announced by April 15, 2015.
For further details, please consult the competition webpage: http://www.tjsl.edu/cranewritingcompetition. Please distribute this information broadly so that we may reach as many eligible students as possible. Questions may be directed to Professor Susan Bisom-Rapp, who will be coordinating the competition: firstname.lastname@example.org
Friday, August 29, 2014
CALL FOR PAPERS: "APPLIED FEMINISM AND WORK"
The University of Baltimore School of Law's Center on Applied Feminism seeks submissions for its Eighth Annual Feminist Legal Theory Conference. This year's theme is "Applied Feminism and Work." The conference will be held on March 5 and 6, 2015. For more information about the conference, please visit law.ubalt.edu/caf.
As the nation emerges from the recession, work and economic security are front and center in our national policy debates. Women earn less than men, and the new economic landscape impacts men and women differently. At the same time, women are questioning whether to Lean In or Lean Out, and what it means to "have it all." The conference will build on these discussions. As always, the Center's conference will serve as a forum for scholars, practitioners and activists to share ideas about applied feminism, focusing on the intersection of theory and practice to effectuate social change. The conference seeks papers that discuss this year's theme through the lens of an intersectional approach to feminist legal theory, addressing not only the premise of seeking justice for all people on behalf of their gender but also the interlinked systems of oppression based on race, sexual orientation, gender identity, class, immigration status, disability, and geographical and historical context.
Papers might explore the following questions: What impact has feminist legal theory had on the workplace? How does work impact gender and vice versa? How might feminist legal theory respond to issues such as stalled immigration reform, economic inequality, pregnancy accommodation, the low-wage workforce, women's access to economic opportunities, family-friendly work environments, paid sick and family leave, decline in unionization, and low minimum wage rates? What sort of support should society and law provide to ensure equal employment opportunities that provide for security for all? How do law and feminist legal theory conceptualize the role of the state and the private sector in relation to work? Are there rights to employment and what are their foundations? How will the recent Supreme Court Burwell v. Hobby Lobby and Harris v. Quinn decisions impact economic opportunities for women? How will the new EEOC guidance on pregnancy accommodation and the Young v. UPS upcoming Supreme Court decision affect rights of female workers?
The conference will provide an opportunity for participants and audience members to exchange ideas about the current state of feminist legal theories. We hope to deepen our understandings of how feminist legal theory relates to work and to move new insights into practice. In addition, the conference is designed to provide presenters with the opportunity to gain feedback on their papers.
The conference will begin the afternoon of Thursday, March 5, 2015, with a workshop. This workshop will continue the annual tradition of involving all attendees as participants in an interactive discussion and reflection. On Friday, March 6, 2015, the conference will continue with a day of presentations regarding current scholarship and/or legal work that explores the application of feminist legal theory to issues involving health. The conference will be open to the public and will feature a keynote speaker. Past keynote speakers have included Nobel Laureate Toni Morrison, Dr. Maya Angelou, Gloria Steinem, Pulitzer Prize winning journalist Sheryl WuDunn, Senators Barbara Mikulski and Amy Klobuchar, and NOW President Terry O'Neill.
To submit a paper proposal, please submit an abstract by Friday, 5 p.m. on October 31, 2014, to email@example.com. It is essential that your abstract contain your full contact information, including an email, phone number, and mailing address where you can be reached. In the "Re" line, please state: CAF Conference 2015. Abstracts should be no longer than one page. We will notify presenters of selected papers in mid-November. We anticipate being able to have twelve paper presenters during the conference on Friday, March 6, 2015. About half the presenter slots will be reserved for authors who commit to publishing in the symposium volume of the University of Baltimore Law Review. Thus, please indicate at the bottom of your abstract whether you are submitting (1) solely to present or (2) to present and publish in the symposium volume. Authors who are interested in publishing in the Law Review will be strongly considered for publication. Regardless of whether or not you are publishing in the symposium volume, all working drafts of symposium-length or article-length papers will be due no later than February 13, 2015. Abstracts will be posted on the Center on Applied Feminism's conference website to be shared with other participants and attendees. Presenters are responsible for their own travel costs; the conference will provide a discounted hotel rate, as well as meals.
We look forward to your submissions. If you have further questions, please contact Prof. Margaret Johnson at firstname.lastname@example.org.
Monday, August 25, 2014
Susan Bisom-Rapp (Thomas Jefferson) and Malcolm Sargeant (University of Middlesex Business School) have posted on SSRN the page proofs for their article, It’s Complicated: Age, Gender, and Lifetime Discrimination Against Working Women – The United States and the U.K. as Examples, forthcoming at 22 Elder L.J. 1 (2014). From the abstract:
This article considers the effect on women of a lifetime of discrimination using material from both the U.S. and the U.K. Government reports in both countries make clear that women workers suffer from multiple disadvantages during their working lives, which result in significantly poorer outcomes in old age when compared to men. Indeed, the numbers are stark. In the U.S., for example, the poverty rate of women 65 years old and up is nearly double that of their male counterparts. Older women of color are especially disadvantaged. The situation in the U.K. is comparable.
To capture the phenomenon, the article develops a model of Lifetime Disadvantage, which considers the major factors that on average produce unequal outcomes for working women at the end of their careers. One set of factors falls under the heading “Gender-based factors.” This category concerns phenomena directly connected to social or psychological aspects of gender, such as gender stereotyping and women’s traditionally greater roles in family caring activities. A second set of factors is titled “Incremental disadvantage factors.” While these factors are connected to gender, that connection is less overt, and the disadvantage they produce increases incrementally over time. The role of law and policy, in ameliorating or exacerbating women’s disadvantages, is considered in conjunction with each factor, revealing considerable incoherence and regulatory gaps. Notably, the U.K.’s more protective legal stance toward women in comparison with the U.S. fails to change outcomes appreciably for women in that country.
An effective, comprehensive regulatory framework could help compensate for these disadvantages, which accumulate over a lifetime. Using the examples of the U.S. and the U.K., however, the article demonstrates that regulatory schemes created by “disjointed incrementalism” – in other words, policies that tinker along the margins without considering women’s full life course – are unlikely to vanquish systemic inequality on the scale of gender-based lifetime discrimination.
Tuesday, August 12, 2014
Just a friendly reminder that the Executive Committee of the AALS Section on Labor Relations and Employment Law is accepting abstracts for papers to be presented as part of its program at the 2015 Annual Meeting. The submission deadline is September 1, 2014. Here is the full announcement:
Call for Papers
AALS Section on Labor Relations and Employment Law
"Emotions at Work: The Employment Relationship During an Age of Anxiety"
2015 AALS Annual Meeting
January 2-5, 2015
The Executive Committee of the AALS Labor Relations and Employment Law Section is seeking abstracts for papers to be presented at the 2015 Annual Meeting in Washington, DC. The section program is entitled Emotions at Work: The Employment Relationship During an Age of Anxiety. The papers will be published in the Employee Rights and Employment Policy Journal, a multidisciplinary peer-reviewed journal published by ITT Chicago-Kent College of Law.
The program will focus on the emotional aspects of the employment relationship during uncertain economic times. Many individuals are currently experiencing a greater range and intensity of emotions at work, both as employees and as employers, due to heightened anxiety and pressures. Are these emotions in the workplace openly recognized and managed, and if so, how? In what ways should employment law or workplace policy address these concerns? A panel of leading scholars already committed to present will provide a multidisciplinary perspective on these questions. We are seeking one additional speaker who will present on a relevant topic, and we particularly encourage new voices to submit a paper abstract.
The Labor Relations and Employment Law Section program will take place on Monday, January 5, 2015 from 10:30am to 12:15pm. The program is co-sponsored by the Section on Socio-Economics.
Please submit an abstract of no more than 400 words and a resume to Section Chair Rebecca Lee at email@example.com by September 1, 2014. The author of the selected abstract will be notified before October 1, 2014.
Friday, August 1, 2014
Brad Areheart (Tennessee) and Michael Stein (William & Mary) have posted a new article on SSRN: The Disability/Employability Divide: Bottlenecks to Equal Opportunity, forthcoming in the Michigan Law Review. From the abstract:
Joseph Fishkin’s new book, Bottlenecks, reinvigorates the concept of equal opportunity by simultaneously engaging with its complications and attempting to simplify its ambitions. Fishkin describes bottlenecks as narrow spaces in the opportunity structure through which people must pass if they hope to reach a range of opportunities on the other side. A significant component of the American opportunity structure that is largely unexplored by Bottlenecks relates to people with disabilities. This review applies Fishkin’s theory to explore how disability law and its regulations create and perpetuate bottlenecks that keep people with disabilities from a greater degree of human flourishing. In particular, the opportunity structure of disability policy features a conceptual employability/disability divide that ultimately prevents people with disabilities from passing into a wider array of opportunities. Fishkin’s book, in concert with this review, prompts new and inventive ways of reimagining and implementing structural solutions to these bottlenecks.
Looks like a good read.
Tuesday, July 29, 2014
Martha Chamallas has posted “Two Very Different Stories: Vicarious Liability Under Tort and Title VII Law,” forthcoming in the Ohio State Law Journal. In it, she argues against reading the common law of vicarious liability into Title VII. Here’s the abstract:
Without much analysis, the U.S. Supreme Court has imported common law agency and tort principles to resolve issues of employer vicarious liability under Title VII. The story that emerges from the recent Title VII case law is one of similarity and continuity: the main theme is that Title VII is a statutory tort, making it seem appropriate to rely on longstanding common law agency principles to determine employer responsibility for the wrongful acts of their employees.
This article contests the prevailing narrative, arguing that it significantly downplays major differences in the structure and history of tort and Title VII claims. Borrowing from tort law is misguided because vicarious liability principles were never meant to govern claims by employees against their own employers. Instead, at common law, the infamous “fellow servant rule” insulated employers from tort liability in such suits, with vicarious liability coming into play only when injured third parties sought recovery. Unlike the dual liability scheme of tort law – which holds both the employer and the offending employee liable – Title VII claims may be brought only against the employer. The enterprise liability scheme of Title VII thus bears little resemblance to the prototypical vicarious liability structure in tort law.
The Supreme Court’s approach has lost sight of historical workers’ rights struggles which led to the enactment of comprehensive workers’ compensation statutes. By recasting Title VII as the second major intervention into the employer/employee relationship, this article tells a very different story – one of contrast and change – that would free Title VII vicarious liability doctrine from the strictures of the common law.
Sunday, July 27, 2014
Marcy Karin and Robin Runge have posted “Breastfeeding and a New Type of Employment Law,” forthcoming in Catholic University Law Review, Vol. 63, No. 2 (2014). The paper focuses on section 4207 of the Patient Protection and Affordable Care Act, codified at 29 U.S.C. 207(r). Here’s the abstract:
Buried deep within the Patient Protection and Affordable Care Act is section 4207, a little-noticed provision that amended the Fair Labor Standards Act to provide protections for some women to express milk at work. Section 4207 borrows concepts from existing labor standards and employment discrimination laws to offer job-protected break time and space-related accommodations for breastfeeding purposes. Unlike these prior employment laws, however, these protections are designed to achieve public health goals for a relatively small subgroup of individuals: non-exempt working women who choose to express milk for children under the age of one. The use of employment law to promote public health is not novel, but the decision to place breastfeeding protections in this framework must be considered within the larger context of employment law.
In its examination of this new law, this Article places section 4207 in the broader civil rights context and examines how legislation aimed to achieve goals outside the civil rights context may still nonetheless effectively address historical discrimination and societal oppression. The employment provisions of this new law represent a shift away from traditional labor standards designed to improve employment conditions for all workers and traditional employment discrimination provisions used to address historic discrimination. Its unique combination of protections and its focus on one particular class of workers facilitates the consideration of whether the government should enact workplace legislation to promote healthcare-based conduct. This Article considers, and ultimately rejects, the incorporation of limited employment rights that place symbolic requirements — without more — on employers for a public health purpose.