Tuesday, April 8, 2014
Brad Areheart (Tennessee) and Michael Stein (William & Mary; Harvard) have just posted on SSRN their article (forthcoming 83 George Washington L. Rev. (2015)) Integrating the Internet. Here's the abstract:
This Article argues that the paradigmatic right of people with disabilities “to live in the world” naturally encompasses the right “to live in the Internet.” Further, that the Internet is rightly understood as a place of public accommodation under anti-discrimination law. Because public accommodations are indispensable to integration, civil rights advocates have long argued that marginalized groups must have equal access to the physical institutions that enable one to learn, socialize, transact business, find jobs, and attend school. The Web now provides all of these opportunities and more, but people with disabilities are unable to traverse vast stretches of its interface. This virtual embargo is indefensible, especially when one recalls that the entire Web was constructed over the last 25 years and is further constructed every day. Exclusion from the Internet will cast an even wider shadow as an aging U.S. population with visual, hearing, motor, and cognitive impairments increasingly faces barriers to access. Unless immediate attention is given, the virtual exclusion of people with disabilities — and others, such as elders and non-native English speakers — will quickly overshadow the ADA’s previous achievements in the physical sphere.
Accordingly, this Article develops the claim that the Internet is a place of public accommodation, which must be integrated, by showing the same concerns that motivated access for African Americans under the Civil Rights Act of 1964 now compel Web accessibility for people with disabilities under the ADA. The issue is, however, even more pressing as the Internet is broad enough to encompass all of the traditional categories of public accommodations — as well as social arenas like education and work. In this way, access to the Internet provides an unprecedented opportunity to overcome attitudinal barriers since almost all people now interact frequently through the Web. Moreover, because disabilities are not apparent online, the Internet facilitates the social engagement of people who might not otherwise interact. Finally, Internet accessibility provokes reconsideration of the Constitutional rights of individuals with disabilities. Integrating the Internet will advance — instead of infringe upon — their rights to democratic self-governance, personal autonomy, and self-expression.
Friday, April 4, 2014
Attention: Law Professors and Law Students—Midnight (EDT) on May 15, 2014, is the deadline for submitting articles for the Annual Law Student Writing Competition sponsored by the American Bar Association Section of Labor and Employment Law and the College of Labor and Employment Lawyers. The competition offers monetary prizes and publication for the first-place winning article in the ABA Journal of Labor & Employment Law. Full competition rules are available at:
In addition to publication for the first place winner, note the monetary prizes: $1500 for first place, $1000 for second place, and $500 for third. Encourage your students to take advantage of this great opportunity!
Wednesday, April 2, 2014
A twofer from Jim Oleske (Lewis & Clark). First, his piece, Obamacare, RFRA, and the Perils of Legislative History has been published at Vanderbilt Law Review's En Banc, as part of a symposium on the Hobby Lobby case. The abstract of his piece:
In NFIB v. Sebelius, four members of the Supreme Court expressed "no doubt" about their ability to read Congress's mind based on the legislative history of the Affordable Care Act. As this essay notes, however, their reading of the legislative history was based on a fundamentally mistaken assumption and ignored the most relevant congressional debates over the Act.
In Sebelius v. Hobby Lobby, the Court will have another opportunity to consider confidently sweeping assertions about legislative history. This time the arguments center on the meaning of the Religious Freedom Restoration Act (RFRA), and the specific contention is that "everyone agreed" in a subsequent congressional debate that RFRA protects for-profit corporations. A full examination of that debate, however, casts considerable doubt on the claim that it demonstrates such an undisputed understanding of RFRA. Accordingly, this essay concludes that the Court would be better advised to interpret RFRA with reference to the surrounding body of law into which it was explicitly designed to be integrated — the Supreme Court's pre-1990 jurisprudence, which had pointedly refused to require religious exemptions from statutory schemes regulating "commercial activity."
Oleske has also published a religion-related article, Interracial and Same-Sex Marriages: Similar Religious Objections, Very Different Responses, which is appearing in the Harvard Civil Rights-Civil Liberties Law Review. The abstract:
One of the most active fronts in the debate over same-sex marriage laws concerns proposed religious exemptions that would allow for-profit businesses to discriminate against same-sex couples. These exemptions, which are being championed by a group of prominent constitutional scholars, would provide a shield from state antidiscrimination laws for a wide variety of commercial actors. Examples include innkeepers who refuse to host same-sex weddings, bakers who refuse to provide cakes for such weddings, employers who refuse to extend family health benefits to married same-sex couples, and landlords who refuse to rent apartments to such couples.
Today's widespread academic validation of religious objections to same-sex marriage stands in stark contrast to the academy’s silence in the 1940s, 1950s, and 1960s on the then-perceived conflict between religious liberty and interracial marriage. Although religious objections to interracial marriage were pervasive at the time — as reflected in the statements of politicians, preachers, and jurists, as well as in public opinion polls — those objections never found a home in the pages of America's academic law journals.
This Article offers the first comprehensive discussion of why the legal academy has been so solicitous of religious objections to same-sex marriage when it was never receptive to similar objections to interracial marriage. After examining several factors that have contributed to this "marriage dichotomy" in the academy — including the rise of the conservative legal movement, the influence of the Catholic Church, and the unique role of race in American history — the Article explains why the most important factor for purposes of the proposed exemptions is the recent reconceptualization of religious liberty as extending fully to for-profit commercial businesses. So extended, religious liberty will inevitably conflict with the rights of third-parties in the marketplace, a dynamic that is vividly illustrated by the prospect of businesses invoking religion to deny service to same-sex couples. This Article concludes that exemptions authorizing such conduct threaten the constitutional right of same-sex couples to equal protection — a right that has received scant attention in the debate until now, but one that can no longer be ignored in light of United States v. Windsor.
Jim has long been interested int he intersection of religion and employment law, so these are well worth the read.
Anjum Gupta (Rutgers - Newark) argues in Nexus Redux (forthcoming 90 Indiana L.J. (2015)) that in asylum cases in which individuals fear persecution in their home countries because of race, religion, nationality, membership in a particular social group, or political opinion, courts should adopt "a burden-shifting framework ... that is inspired by the frameworks for assessing causation in U.S. anti-discrimination law.... The article draws from the literature and jurisprudence surrounding intent in U.S. asylum law and anti-discrimination law, as well as from mixed motives jurisprudence."
Now, if the Supremes could just get the burden-shifting framework right ....
Tuesday, April 1, 2014
Friend of the blog, Mike Zimmer (Loyola Chicago) sends along news that Loyola University Chicago School of Law is organizing its fifth annual constitutional law colloquium in Chicago this fall. The dates are Friday, November 7 and Saturday, November 8. Here are the details:
Fifth Annual Constitutional Law Colloquium
Friday, November 7th and Saturday, November 8th
Loyola University Chicago School of Law is organizing a Constitutional Law Colloquium at the Philip H. Corboy Law Center, 25 East Pearson Street, Chicago, IL 60611.
This will be the fifth annual Loyola constitutional law colloquium. Once again, we hope to attract constitutional law scholars at all stages of their professional careers to discuss current projects, doctrinal developments in constitutional law, and future goals. The conference will bring together scholars to discuss their works-in-progress concerning constitutional issues, such as, but not limited to Free Speech, Substantive Due Process, Equal Protection, Suffrage Rights and Campaign Finance, Process Oriented Constitutionalism, Constitutional Interpretation, Constitutional Theory, National Security and Constitutional Rights, Due Process Underpinnings of Criminal Procedure, Judicial Review, Executive Privilege, Suspect Classification, Free Exercise and Establishment of Religion, and Federalism. As in years past, we will provide many opportunities for the vetting of ideas and for informed critiques. Submissions will be liberally considered, but participation is by invitation only. Presentations will be grouped by subject matter.
Erwin Chemerinsky, Dean and Distinguished Professor of Law at the University of California-Irvine School of Law, will be the keynote speaker.
Titles and abstracts of papers should be submitted electronically to email@example.com no later than June 15, 2014.
The Law Center is located on Loyola's Water Tower campus, near Michigan Avenue's Magnificent Mile, Lake Michigan, Millennium Park, the Chicago Art Institute, and Chicago Symphony Center.
Participants’ home institutions are expected to pay for their own travel expenses. Loyola will provide facilities, meals, and support.
There are numerous reasonably priced hotels within walking distance of the Loyola School of Law and Chicago's Magnificent Mile.
Heather Figus, ConstitutionLaw@law.edu
Loyola Constitutional Law Faculty:
Professor Diane Geraghty, A. Kathleen Beazley Chair in Child Law
Professor Barry Sullivan, Cooney & Conway Chair in Advocacy
Professor Juan F. Perea
Professor Alan Raphael
Professor Allen Shoenberger
Professor Alexander Tsesis
Professor Michael Zimmer
Looks likea great opportunity for those of us doing work at the intersection of labor, employment, and constitutional law.
April 1, 2014 in Conferences & Colloquia, Disability, Employment Common Law, Employment Discrimination, Labor Law, Public Employment Law, Religion, Scholarship | Permalink | Comments (0) | TrackBack (0)
Wednesday, March 26, 2014
The Supreme Court heard arguments yesterday in the companion cases of Sebelius v. Hobby Lobby and Conestoga Wood v. Sebelius, both dealing with whether the contraceptive mandate of the ACA violates the Religious Freedom Restoration Act if it applies to for-profit corporations that assert a religious objection to providing contraceptive coverage.
The oral argument transcripts show heavy questioning of the corporations' position by the three female justices, and heavy questioning of the Solicitor General by Justices Scalia, Alito. I won't try to read the tea leaves, because I'm almost always wrong, but I'll direct you to the commentary on the argument in ScotusBlog, Forbes, The New Yorker, Politico, The Wall Street Journal, Time, and Slate.
There are a number of scholarly works that address the issues, too. Some of them include this paper by Mal Harkins (SLU adjunct/Proskauer Rose, LLP), this article by Steven Willis (Florida), this article by Stephen Bainbridge (UCLA), this article by Jeremy Christiansen (Utah), this article by Edward Zelinsky (Yeshiva/Cardozo), this ACS issue brief and this article by Caroline Mala Corbin, this article by Matthew Hall (Georgia) and Benjamin Means (South Carolina), this article by Eric Bennett Rasmusen, this article by Priscilla Smith, this article by James Oleske, this article by Christopher Ross (Fordham), and this article by Elizabeth Sepper.
I do feel comfortable predicting that this is likely to be a 5-4 decision and likely not to be issued until June.
Monday, March 24, 2014
I just posted on SSRN an article I've co-authored with a slew of other folks. My purpose in blogging it, however, is not so much the content of the article, but the process of creating it. The article grew out of a panel presentation I gave last May at a LawAsia Employment conference. At that conference, I and attendees from several other countries learned from each other that although labor outsourcing is prevalent in all of our countries, the approach to legally regulating it varies considerably. We decided that we'd each write a summary of our country's laws; I then collected the summaries, organized them into an article, added a section comparing and contrasting the different approaches, and found a journal to publish it.
What I've particularly enjoyed about this project is the opportunity it's given me to work with labor/employment practitioners throughout the world. I'm looking forward to collaborating with them on future projects, and next time I'm in Istanbul or Jakarta or Melbourne or Beijing, I'll have a new friend there happy to show and introduce me around.
Anyway, the article is A Comparative Analysis of Labor Outsourcing (forthcoming Arizona J. Int'l & Comparative L. (2014 )). Here's the abstract:
This article compares the laws and the practice of labor outsourcing in five countries: Australia, China, Indonesia, Turkey, and the United States. The article finds both significant similarities and differences among the countries. For example, labor outsourcing is globally prolific and seems to be increasing. However, the general legal approach to regulating it varies considerably, with some countries adopting a regulatory model, others a hybrid regulatory-contractual model, and others not regulating it at all. Similarly, the scope of legal regulations varies considerably by country: some focus on protecting existing employees, other focus on curbing exploitation of workers performing outsourced work; some countries regulate the types of work that can be outsourced or subcontracted and others regulate the firms that can provide labor outsourcing services. Thus, a thorough understanding of labor outsourcing can be achieved only from considering the different perspectives and legal regimes in which it operates.
Tuesday, March 11, 2014
Sam Estreicher and I have just had our article, Comparative Wrongful Dismissal Law: Reassessing American Exceptionalism, published in the North Carolina Law Review. People can (and already have) take issue with our argument that the U.S. approach to unjust dismissal may not, in practice, be as far apart from other countries' as many have assumed. We obviously encourage such comments and look forward to further discussion.
However, I wanted to mention what I believe to be an equally important aspect of the article. As you'll notice if you download it, it's immense and very heavily footnoted. Sam & I worked hard to give as accurate a picture of we could of the studied countries' unjust dismissal laws--both on the books and as they function on the ground. For instance, where available, we provide data on average damage awards and convert those awards to current U.S. Dollars. We also explore various aspects of termination, including rules on unjust dimissals, notice, severance payments, economic dismissals, and unemployment benefits. One of the reasons that we wrote this article was that the many years of wishing that someone else would write it didn't seem to be working. So our hope is that it will serve as a useful research tool for others. While I'm at it, I should give another thanks to the research assistants and law review editors who provided invaluable help with this article. Maybe some day the law review students will stop glaring at me for subjecting them to all the foreign cite checking they had to endure.
Commentators have long debated the merits of the United States’ “at-will” rule, which allows employers and employees to end the employment relationship without cause or notice, absent a constitutional, statutory, or public policy exception. One premise for both proponents and opponents of at-will employment is to stress the uniqueness of this default among other developed countries, which generally require “cause” for most dismissals.
Although other countries’ cause regimes differ significantly from the United States on paper, this Article addresses whether those differences in normative law also reflect differences in employees’ protection against wrongful termination in reality. The existing literature on dismissal law stops at a comparison of countries’ normative laws as they appear on the books. In comprehensively examining the dismissal regimes of numerous countries, this Article goes beyond the text of the relevant statues and cases by using information from foreign employment law practitioners and available data—particularly claimants’ success rates and average remedies—in an attempt to observe how the laws actually operate. We find that, even on paper, the cause protection of the surveyed countries is far less robust than typically described. Moreover, the actual practice in these countries shows that challenges to dismissal can be difficult to pursue and generally result in modest remedies by United States standards. This suggests that the United States, with its at-will default and broader remedies, is actually part of a relatively narrow continuum of employment laws found in advanced countries.
This Article hopes to spur more in-depth descriptive work on the employment laws of other countries and to broaden the terms of the debate over the relative merits of the United States employment dismissal system and the dismissal systems of cause regimes.
Sunday, March 9, 2014
Stephanie Greene and Christine Neylon O'Brien (both Boston College - Business) have just posted on SSRN their timely article (forthcoming Am. Bus. L.J.) The NLRB v. The Courts: Showdown Over the Right to Collective Action in Workplace Disputes. Here's the abstract:
When employees sign employment agreements, they are most likely not concerned about a mandatory arbitration provision forbidding them from engaging in class or collective actions. The United States Supreme Court has shown a strong preference for enforcing arbitration agreements, even when they foreclose rights to collective action. The National Labor Relations Board, however, has found that individual employment agreements may not prevent employees from engaging in protected concerted activity in both union and nonunion environments. The Board ruled in D.R. Horton that individual, as opposed to collectively bargained, arbitration agreements that are a condition of employment, may not bar collective action through both arbitral and judicial forums. The Board reasons that Section 7 of the National Labor Relations Act mandates the preservation of rights to collective activity, and that the Supreme Court’s strong preference for individual arbitration must accommodate the text and legislative history of the Act. Despite the Board’s decision, most federal courts have declined to strike down mandatory arbitration agreements that foreclose collective action, even when it means undermining rights under federal wage and hour statutes as well as employees’ NLRA rights. The authors support the NLRB’s interpretation as the correct and preferred framework for analysis of NLRA challenges to forced individual arbitration. The authors maintain that the courts should recognize that the Board’s decision is consistent with Supreme Court precedent and adopt the reasoning of the NLRB to preserve substantive federal statutory rights of private sector employees.
I agree, but am not optomistic.
I'm looking for "hot topics" to recommend to my students for research projects. Circuit splits are welcome. If you have suggestions, please post a comment or email me directly.
Sunday, March 2, 2014
Labour Law Research Network Conference
University of Amsterdam
25-27 June 2015
The Labour Law Research Network (LLRN), established in 2011, is comprised of 46 research centres from all over the world dedicated to the study of labour law. One of the objectives of the LLRN is to hold bi-annual international conferences that will be entirely academic (dedicated to the presentation and discussion of original papers); entirely about labour law (broadly conceived); and will allow cutting-edge topics to surface from the participating scholars themselves, in a non-hierarchical way.
Each conference is organised by a different research centre from among the LLRN members. The inaugural LLRN conference was held on June 2013 at Pompeu Fabra University in Barcelona. We are delighted to announce that the second LLRN Conference, to be held on June 25-27, 2015, will be organised by the Hugo Sinzheimer Institute (HSI) at the University of Amsterdam.
Nicole Porter (Toledo) has posted on SSRN her article The New ADA Backlash. She's presented on this and related several times recently, including at my law school, and I think it's spot-on. Here's the abstract:
Many believe the Americans with Disabilities Act (ADA) suffered from a significant backlash by courts, only corrected by the ADA Amendments Act (ADAAA) in 2008. Following the ADAAA, it seemed likely the judicial backlash would continue in new ways. My analysis suggests that although the backlash has not happened as dramatically as some feared, there is reason to anticipate a new backlash against the ADA.
The initial backlash to the ADA consisted of courts strictly interpreting the definition of disability so that very few cases made it past the threshold coverage question. This Article first seeks to determine whether courts are following Congress’s mandate in the ADAAA to broadly interpret the definition of disability, making it easier for an employee to get past the threshold question of whether the employee meets the statutory definition of disability. The answer to this first inquiry is “yes” — the courts are interpreting the definition of disability much more broadly, allowing many more plaintiffs to survive summary judgment on this issue.
However, a new backlash may be coming, and it could take two forms. First, courts could broadly construe the “essential functions of the position,” giving great deference to what the employer designates as the essential functions and thereby excluding individuals with disabilities from protection. And second, courts could use the ambiguity of the word “reasonable,” to hold that many accommodations are not reasonable, thereby eliminating the available remedies for employees with disabilities. My analysis of court decisions on these issues since the passage of the ADAAA shows somewhat mixed results.
The most interesting result is that there appears to be a real backlash against the ADA when the employee is requesting an accommodation related to the structural norms of the workplace — the hours, shift, schedule, attendance, and leave policies. Courts are quite reluctant to require employers to modify these structural norms of their workplaces. Based on this last conclusion, this paper explores why the structural norms of the workplace appear to be so immune to judicial scrutiny.
Matthew Fletcher, Kathryn Fort, and Wenona Singel have just posted on SSRN their article Tribal Disruption and Labor Relations. Matthew has been posting on Indian Law topics over at Turtle Talk for several years now, and he's been kind enough to send me a heads-up whenever he's posted something labor-related. He also has the distinction of being a key player in the ALI's forthcoming Restatement of Indian Law.
Here's the abstract:
In recent years, Indian tribes have begun to assert treaty rights to govern labor relations within the reservation, most notably in Indian gaming operations. The National Labor Relations Board and several national labor unions have asserted, with a large degree of success, that the National Labor Relations Act governs labor relations in tribal casinos.
This paper addresses several aspects of the tribal-federal-labor relationship through the lens of tribal disruption theory. Professor Wenona Singel has argued, drawing from institutional economics theory, that labor relations law and policy is static, with unions and the NLRB preferring to rely upon Great Depression-era federal law to decide labor disputes arising in Indian country – not because federal law is substantively preferable to tribal law, but because it is known and predictable. These actors reject tribal labor relations legal regimes despite the possibility that tribal law may be substantively preferable to all parties.
Tribal disruption theory offers an alternative view of how to resolve these ongoing labor disputes, one preferable to the uncertain and high stakes litigation.
Friday, February 21, 2014
Last spring, the Wefel Center for Employment Law at Saint Louis University held a fantastic symposium on Teaching Employment and Labor Law. I can say that with appropriate modesty because I had very little to do with it. The symposium was organized by Tonie Fitzgibbon, my amazing colleague, who has been the Director of our center for twenty years, and who was the Assistant Director at its inception. I'm pretty sure it was my colleague Miriam Cherry's idea, and Matt Bodie, Elizabeth Pendo, and I all agreed it would be a good topic. In addition to us, Marion Crain and Pauline Kim (Wash. U.), Rachel Arnow-Richman (Denver), Laura Cooper (Minnesota), Marty Malin (Chicago-Kent), Nicole Porter (Toledo), Joe Slater (Toledo), and Kerri Stone (Florida International) all gave presentations.
The Saint Louis University Law Journal has just published the papers connected with the symposium, so now everyone can read about what we who were there got to hear. From the table of contents:
Teaching Employment and Labor Law Symposium
Susan A. FitzGibbon
Teaching Employment and Labor Law
A Holistic Approach to Teaching Work Law
Marion Crain & Pauline T. Kim
Employment Law Inside Out: Using the Problem Method to Teach Workplace Law
Teaching Employment Discrimination Law, Virtually
Miriam A. Cherry
A Proposal to Improve the Workplace Law Curriculum from a Compliance Perspective
Nicole Buonocore Porter
Teaching the Post-Sex Generation
Kerri Lynn Stone
You should check them out.
February 21, 2014 in Conferences & Colloquia, Disability, Employment Common Law, Employment Discrimination, Faculty Presentations, Labor Law, Pension and Benefits, Public Employment Law, Scholarship, Teaching | Permalink | Comments (1) | TrackBack (0)
Friday, February 14, 2014
Matthew Dimick (Buffalo-Law) and Neel Rao (Buffalo-Economics) have just posted on SSRN their paper, Wage-Setting Institutions and Corporate Governance, which examines how wage-setting institutions influence the concentration of ownership and investor=protector legislation. The abstract:
Looks really interesting, so check it out!
Thursday, February 13, 2014
Michael Duff (Wyoming) has posted on SSRN his forthcoming piece in the Catholic University Law Review entitled: ALT-Labor, Secondary Boycotts, and Toward a Labor Organization Bargain.
Here is the abstract:
Recently, workers led by non-union labor advocacy groups, popularly labelled “ALT-Labor,” have been staging strikes and other job actions across the low wage economy. Some observers see this activity as the harbinger of a reinvigorated labor movement or, more generally, as audacious dissent by low wage workers with nothing to lose. Others view the activity cynically as an exercise in futility, a struggle against inexorable market forces that refuse to pay $15 per hour to a fast food or big box retail worker. This article takes a different tack, presuming (implicitly using history as its guide) that employers will respond to ALT-Labor in a historically typical manner — by seeking labor injunctions and civil damages in courts.
Labor injunctions are available under certain sections of the Labor Management Relations Act (LMRA) when “labor organizations” violate those sections. This article specifically considers whether ALT-Labor groups, though not unions in the traditional sense, are nevertheless “labor organizations” under the LMRA capable of violating the secondary boycott provisions of the statute. If ALT-Labor groups have the requisite status to commit these violations, they may be subject to federal court injunction and civil damages under the LMRA.
The article concludes that ALT-Labor’s labor organization status is uncertain and will turn on a given group’s explicit statement of a “labor organization-like” purpose, and on whether it behaves like a statutory labor organization. Litigation premised on the labor organization status of an ALT-Labor group therefore poses risk for both sides, business and ALT-Labor.
The article accordingly proposes that unions and business strike a deal by agreeing to narrow the labor organization definition. Employers have wanted to narrow the definition for decades in order to establish workplace committees that have consistently been found presumptively unlawful. Unions, on the other hand, have historically resisted a narrowing of the definition because of the 1930s historical specter of the “company union”: “fake” unions set up by employers to confuse workers into thinking they have real representation when they do not. However, the article contends that the companies in which fake unions were once a concern are vanishing artifacts, and that unions should therefore compromise on the labor organization definition to protect a dynamic, emerging new type of workforce from labor law used as a sword.
This is really a must-read for anyone thinking seriously about labor law reform in the United States and a presents a realistic way forward for unions in the current political and legal environment.
Check it out!
Tuesday, January 28, 2014
Yuvraj Joshi has brought to my attention his article recently published in the Virginia Journal of Social Policy and the Law (Vol. 21, No. 2, 2014) entitled: The Trouble with Inclusion.
Here is the abstract:
Attempts are being made to include members of excluded groups in societal institutions. Inclusion has been proposed as the solution to the injustice caused by exclusion. Yet, inclusion does not always achieve justice and might sometimes perpetuate injustice. This Article provides a framework for understanding inclusion that may fail to achieve social justice and uses this framework to assess the inclusion of lesbians and gays within marriage (marriage equality) and of women and minorities within organizations (organizational diversity). The former case study examines the legal and social movement for recognizing same-sex marriage while the latter engages a range of contemporary debates, including workplace diversity, gays in the military, women in armed combat and gender mainstreaming at the UN. Each shows that inclusion is less likely to achieve social justice where it misconstrues injustice, maintains the status quo, decouples from justice, legitimizes the institution or rationalizes injustice.
Have not had the chance to read this piece, but it appears to challenge many conventional assumptions about inclusion in the workplace and other settings and should be a thought-provoking read.
Caroline Mala Corbin (University of Miami School of Law) has recently posted two papers on SSRN discussing her thoughts on corporate religious liberties. The first apears in the American Constitution Society Issue Brieff for January 2014 and is entitled: Corporate Religious Liberty: Why Corporations Are Not Entitled to Religious Exemptions.
Here is the abstract:
One of the main questions before the Supreme Court in Sebelius v. Hobby Lobby Stores, Inc. and Conestoga Wood Specialties Corp. v. Sebelius is whether large for-profit corporations are entitled to religious exemptions under the Free Exercise Clause or the Religious Freedom Restoration Act. In particular, the plaintiffs seek religious exemptions from the Affordable Care Act’s so-called “contraception mandate.”
This is an entirely novel claim. It is also without merit. The Free Exercise Clause and the Religious Freedom Restoration Act protect the religious practices of individuals and churches. They do not, and should not, extend to the for-profit corporate form for at least three reasons. First, corporate religious liberty makes no sense as free exercise is understood to (a) protect an individual’s relationship with the divine and (b) respect the inherent dignity of the individual. Furthermore, Citizens United v. Federal Election Commission provides no theoretical foundation for corporate religious liberty: The justifications for extending free speech protection to for-profit corporations do not translate into the free exercise context. Second, there is no precedent for the claim that for-profit corporations are entitled to religious liberty exemptions; on the contrary, precedent points in the other direction. Third, recognizing corporate religious liberty will benefit employers at the expense of their employees, who risk losing protection of the employment laws as well as their own free exercise rights.
The second (longer) piece is entitled: Corporate Religious Liberty.
Here is the abstract:
Do for-profit corporations have a right to religious liberty? This question is front and center in two cases before the Supreme Court challenging the Affordable Care Act’s “contraception mandate.” Whether for-profit corporations are entitled to religious exemptions is a question of first impression. Most scholars writing on this issue argue that for-profit corporations do have the right to religious liberty, especially after the Supreme Court recognized that for-profit corporations have the right to free speech in Citizens United.
This essay argues that for-profit corporations should not – and do not – have religious liberty rights. First, there is no principled basis for granting religious liberty exemptions to for-profit corporations. For-profit corporations do not possess the inherently human characteristics that justify religious exemptions for individuals. For-profit corporations also lack the unique qualities that justify exemptions for churches. Citizens United fails to provide a justification as its protection for corporate speech is based on the rights of audiences and not the rights of corporate speakers. Second, as a matter of current law, neither the Free Exercise Clause nor the Religious Freedom Restoration Act recognizes the religious rights of for-profit corporations. Finally, corporate religious liberty risks trampling on the employment rights and religious liberty of individual employees.
Two very interesting reads on a hot current legal topic that could have a large impact on the workplace. Check them out!
Monday, January 27, 2014
Bill Herbert sends word of the e-publication of Volume V of the Journal of Collective Bargaining in the Academy (JCBA). JCBA publishes on collective bargaining (in its broadest sense) in a university setting in three distinctive genres: scholarly articles, opinion pieces, and “notes from the field” practitioner pieces to share the practical workings of collective bargaining. JCBA is an open access, peer-review online publication of the National Center for the Study of Collective Bargaining in Higher Education and the Professions. JCBA welcomes submission of scholarly articles for future volumes from a wide community of university and college faculty, graduate students, post-doctoral scholars, administrators, union leaders and representatives and other others with an interest in collective bargaining and representation issues in the academy.
- “Positive Collaboration: Beyond Labor Conflict and Labor Peace,” by former National Center for Collective Bargaining in Higher Education and the Professions Executive Director Richard Boris.
- “Shelter from the Storm: Rekindling Research on Collective Bargaining and Representation Issues,” by current National Center Executive Director William Herbert.
- “Organizational Culture, Knowledge Structures, and Relational Messages in Organizational Negotiation: A Systems Approach,” by Vincent P. Cavataio and Robert S. Hinck.
- An analysis of messages from both sides in the most recent negotiations at Central Michigan University.
- “Collective Begging at Its Best: Labor-Management Relations in South Dakota,” by Gary Aguiar.
- An article from the union perspective on the gains in the last round of negotiations in the South Dakota system.
- "Bargaining Market Equity Adjustments by Rank and Discipline,” by Jonathan P. Blitz and Jeffrey F. Cross.
- "Negotiating For Curriculum & Class Size, 2011-13: One Faculty Union’s Perspective,” by Amy Rosenberger and Steve Hicks.
Wendy Greene (Samford) has two new articles up on SSRN. The first, A Multidimensional Analysis of What Not to Wear in the Workplace: Hijabs and Natural Hair, considers grooming codes and the way they limit at least some women's participation in the workplace. Here is the abstract:
This Article challenges a relatively universal judicial and societal assumption that employers’ enactment and enforcement of grooming codes are inconsequential to women’s access to, and inclusion in, American workplaces. Specifically, this Article provides a multidimensional analysis of workplace grooming codes, shedding light on the comparable journeys of discrimination that Black and Muslim women experience when their hair and hair coverings are subject to employer regulation. Further, it illustrates that since Black and Muslim women’s identities are not mutually exclusive, Black women who are Muslim may also suffer a double form of discrimination if an employer bans both hijabs and natural hairstyles in the workplace. Thus, for the first time, this Article specifically contemplates the interconnectivity between the socio-politically constructed identity of Black and Muslim women, the socio-political and personal meaning of Black women’s natural hairstyles and Muslim women’s hijabs and resulting discrimination — under the law and in society. In so doing, this Article illuminates how these women, who are racialized as non-white due to their physical appearance and/or their religious faith and observances, share similar experiences as it relates to workplace inclusion and exclusion vis à vis what adorns their heads. This Article also demonstrates that workplace prohibitions against Black women’s natural hairstyles and Muslim women’s donning of a hijab are closely aligned forms of race and gender-based discrimination, triggering parallel actual as well as perceived stigmatization, vulnerability, and exclusion for these women of color, which civil rights constituencies have not fully exposed and addressed.
This Article draws upon the works of notable critical race and sexuality theorists in its contention that a “multidimensional” analysis of the discrimination that women of color as a collective experience in the workplace — at the intersection of race, religion, and gender — is vital for a deeper understanding of the civil rights issues at stake, as well as for increased and sustained civil rights advocacy challenging the legality of such grooming codes. Thus, this Article calls for cross-cultural advocacy among civil and workers’ rights constituencies so that antidiscrimination law, doctrine, and advocacy can more meaningfully attend to the deprivation of equal conditions, privileges, dignity, and personhood that Black and Muslim women suffer due to the arbitrary enactment and enforcement of workplace grooming codes banning natural hairstyles and hijabs in the workplace.
The second article, Categorically Black, White, or Wrong: "Misperception Discrimination" and the State of Title VII Protection focuses on situations where employers act because of what they perceive the race, color, national origin, or religion of employees or applicants to be, but are not correct about that perception. Here is that abstract:
This Article exposes an inconspicuous, categorically wrong movement within anti-discrimination law. A band of federal courts have denied Title VII protection to individuals who allege "categorical discrimination": invidious, differential treatment on the basis of race, religion, color, national origin, or sex. Per these courts, a plaintiff who self-identifies as Christian but is misperceived as Muslim cannot assert an actionable claim under Title VII if she suffers an adverse employment action as a result of this misperception and related animus. Though Title VII expressly prohibits discrimination on the basis of religion, courts have held that such a plaintiff’s claim of "misperception discrimination" is beyond Title VII’s scope. Accordingly, Title VII protection is only extended to such a plaintiff if she is "actually" Muslim or brings forth allegations of invidious, differential treatment based upon her actual Christian identity. This Article argues that these judicially created prerequisites to Title VII protection are categorically wrong. They impose a new "actuality requirement" on Title VII plaintiffs in intentional discrimination cases that engenders unfathomable results. Plaintiffs who suffer from invidious, differential treatment animated by either their self-ascribed or misperceived protected status will be denied statutory protection against discrimination if they fail to prove their actual religious, gender, ethnic, racial, or color identity upon defendant-employers’ challenge.
Though this Article primarily examines the imposition of an actuality requirement in misperception discrimination cases, this Article also demonstrates that courts have considered and imposed an actuality requirement in conventionally framed discrimination cases as well. Accordingly, this Article is the first to enumerate the development of, and myriad justifications for, the actuality requirement in cases of categorical discrimination. This Article argues that some courts’ imposition of an actuality requirement in misperception and conventionally framed discrimination cases denotes the birth of an unorthodox interpretation of Title VII’s reach and meaning nearly fifty years after its enactment — an interpretative methodology that this Article is first to describe as "anti-anticlassificationist."
This Article also highlights a few critical, negative implications of courts’ anti-anticlassificationist interpretation of antidiscrimination law. Namely, it examines the emergence of a minimalist "actuality defense" and resulting identity adjudication, which obfuscates the chief issue in intentional discrimination cases: whether the plaintiff suffered unlawful, invidious, differential treatment. Additionally, this Article illuminates that courts’ anti-anticlassificationist interpretation and attendant actuality requirement have in fact resuscitated age-old trials of racial determination. They have thereby produced an additional destructive consequence by reifying race as a stable, biological construct.
Consequently, this Article proposes fresh, practical, and theoretical interventions to cease the continued anti-anticlassificationist interpretation of Title VII. In doing so, this Article excavates previously unexplored Title VII statutory provisions, longstanding EEOC directives, Fifth and Third Circuit precedent, and recent Supreme Court precedent. Properly read, these sources will show that a prerequisite showing of actuality in cases of categorical discrimination under Title VII is wrong. Thus, this Article affirms that all categorical discrimination plaintiffs — that is, all individuals who have allegedly suffered discriminatory treatment on the basis of their actual or mistaken religious, gender, ethnic, racial, or color identity — are entitled to vindicate their statutory rights to be free from unlawful discrimination.
Two great reads, for sure.