Thursday, October 1, 2015
Gary Spitko (Santa Clara) has just posted on SSRN his article (just published -- 20 Harv. Nego. L. Rev. 1 (2015)) Federal Arbitration Act Preemption of State Public-Policy-Based Employment Arbitration Doctrine: An Autopsy and an Argument for Federal Agency Oversight. Here's the abstract:
This article examines the negative impact that the U.S. Supreme Court’s recent jurisprudence interpreting the Federal Arbitration Act (“FAA”) will have on the ability of states to promote the public interests that ground state employment regulation and argues for a reordering of the relationship between federal arbitration law and state public-policy-based employment arbitration doctrine. The article proceeds in three steps. First, the article demonstrates that the U.S. Supreme Court’s 2011 decision in AT&T Mobility LLC v. Concepcion and 2013 decision in American Express Co. v. Italian Colors Restaurant together extinguish the state effective-vindication and public policy exceptions to FAA application. In doing so, this case law preempts a significant amount of state employment arbitration regulation and, thus, enables employers to use employment arbitration agreements imposed on employees as a condition of employment as a means to evade the strictures of state employment regulation. Second, the article argues that, as a normative matter, the FAA should allow for consideration of the public interest in determining whether an employment arbitration agreement will be enforceable. Thus, in practice, the FAA should allow for consideration of the need for a worker to effectively vindicate her state statutory employment rights and for consideration of her ability to do so in arbitration. Finally, the article suggests a way forward. Specifically, the article proposes that Congress limit the FAA’s preemptive scope by carving out an exception to section 2 of the FAA that would allow states to regulate predispute employment arbitration agreements subject to the approval of the U.S. Department of Labor or a similar body. Pursuant to this reform, a state would be authorized to propose employment arbitration regulations tailored to the specifics of that state’s employment statutes. A federal overseer with expertise in employment law would be charged, however, with evaluating any such proposed employment arbitration regulation by balancing the federal interest in promoting arbitration agreements as written with the state interest in vindicating state statutory employment rights.
Tuesday, September 29, 2015
The most recent issue of the journal Industrial Relations -- a special issue in honor of the 75th anniversary of the Fair Labor Standards Act--includes these papers on pay secrecy, reporting pay, and proposed amendments to the Fair Labor Standards Act’s overtime provisions:
In “Pay Secrecy and the Gender Wage Gap in the United States,” Marlene Kim studies the relationship between the gender pay gap and pay secrecy statutes. From the abstract:
Using a difference-in-differences fixed-effects human-capital wage regression, I find that women with higher education levels who live in states that have outlawed pay secrecy have higher earnings, and that the wage gap is consequently reduced. State bans on pay secrecy and federal legislation to amend the FLSA to allow workers to share information about their wages may improve the gender wage gap, especially among women with college or graduate degrees.
In “Underwork, Work-Hour Insecurity, and A New Approach to Wage and Hour Regulation,” Charlotte Alexander and Anna Haley-Lock discuss the reporting pay guarantee as a way to address fluctuating and unstable work schedules. From the abstract:
We begin by examining the problem of work-hour insecurity, particularly employers’ practice of sending workers home early from scheduled shifts. We then move to a detailed assessment of state laws that require reporting pay, as well as reporting pay guarantees in union contracts and private-employer practices that attempt to address the problem of work-hour insecurity. We conclude by considering paths for strengthening such protections in law.
In “FLSA Working Hours Reform: Worker Well-Being Effects in an Economic Framework,” Lonnie Golden models and predicts the effects of recently proposed FLSA amendments on workweek and overtime. From the abstract:
The model contrasts allowing compensatory time for overtime pay for private nonexempt employees to “rights to request” reduced hours. Hours demanded are likely to rise for workers who request comp time, undermining the intention of family-friendliness and alleviating overemployment, unless accompanied by offsetting policies that would prevent the denied use or forced use of comp time and that resurrect some monetary deterrent effect. A unique survey shows that the preference for time over money and comp time is relatively more prevalent among exempt, long hours and women workers; thus, worker welfare is likely better served if comp time were incorporated into an individualized, employee-initiated right to request.
Monday, September 28, 2015
Thomas Jefferson School of law is pleased to announce the second 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, 2016. Winning submissions will be announced by April 15, 2016.
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.
What a great opportunity!
Wednesday, July 29, 2015
Vladimir Kogan (Ohio State - Political Science) has just posted on SSRN his article Do Anti-Union Policies Increase Inequality? Evidence from State Adoption of Right-to-Work Laws. Here's the abstract:
The distribution of income lies at the intersection of states and markets, both influencing and being shaped by government policy. Reflecting this reality, a growing body of research has examined the political causes of rising economic inequality in the U.S. Direct evidence documenting the mechanisms through which government actors have affected the income gap remains in short supply, however. This study leverages variation in labor laws between U.S. states and differences in the timing of adoption of right-to-work legislation, along with new historical data on the distribution of income at the state level, to examine one such mechanism. Using a difference-in-differences design, the results produce no support for the contention that the adoption of RTW laws increased inequality in any meaningful way, pointing to the importance of grounding theoretical arguments about rising inequality in a sound empirical reality.
This seems counter-intuitive. Any thoughts on what might be going on here?
Tuesday, July 14, 2015
Allison Morantz (Stanford) has just written and posted on SSRN the article I've been hoping to see ever since I practiced in Texas some 20 years ago -- Rethinking the Great Compromise: What Happens When Large Companies Opt Out of Workers' Compensation? Here's the abstract:
The “great compromise” of workers’ compensation, whereby workers relinquished the right to sue their employers in exchange for no-fault insurance coverage for occupational injuries, was one of the great tort reforms of the Twentieth Century. Because participation is usually compulsory, it is difficult to forecast what the real-world effects might be of making workers’ compensation voluntary. However, there is one U.S. state that has always permitted employers to decline workers’ compensation coverage, and in which a significant number of firms (“nonsubscribers”) have chosen to do so: Texas. This is the first empirical study to examine comprehensively the impact of Texas nonsubscription on large, multistate nonsubscribers. I analyze highly granular data from fifteen large, multistate companies that provided their Texas employees with customized occupational injury insurance plans (“voluntary plans”) in lieu of workers’ compensation coverage between 1997 and 2009. As economic theory and common sense would lead one to expect, nonsubscription generates considerable cost savings, reducing total programmatic costs by an average of about 29%. These savings were driven by a drop in the frequency of injury claims – especially more serious claims involving replacement of lost wages – combined with an decline in costs per claim. The drop in cost per claim arises from a fall in both medical and wage-replacement costs. Although the decline in wage-replacement costs is larger in percentage terms, the drop in medical costs is more financially consequential since medical costs constitute such a large share of total costs. The paper finally explores whether several common attributes of workers’ compensation regimes that voluntary plans typically forgo – compensation for permanent partial disabilities, uncapped total benefits, chiropractic coverage, unlimited choice over medical providers, and lengthy injury-reporting windows – are likely to account for the observed cost disparities. Surprisingly, the first three of these features account for little of the observed variation. Although it is much more difficult to isolate the empirical impact of provider choice and reporting windows, my analysis provides some intriguing, albeit highly tentative, evidence that state-level variation in injury-reporting windows could have a significant effect. Overall, my findings suggest the urgent need for policymakers to examine the economic and distributional effects of converting workers’ compensation from a cornerstone of the social safety net into an optional program that co-exists alongside privately-provided forms of occupational injury insurance.
This article deserves a close read. National employers doubtless noticed some time ago that their workplace-injury costs are lower in Texas than elsewhere, and Allison makes the point that these employers are now starting to push other states to reconsider the Great Compromise underlying workers' compensation law. Will this beget a "race to the bottom" as states scramble to attract employers by allowing them to opt out of workers' compensation programs, and employers respond by opting out and leaving injured workers in the cold? Or is a self-insured, nonsubscriber system a net benefit to employers and workers by incentivizing employers to invest more heavily in workplace safety and to more carefully control health care costs? Allison's article answers a lot of questions, but also opens up a broad field fertile for future research.
Tuesday, June 23, 2015
Those of us who study race and social movements have had a lot to think about lately. The video of the white police officer in McKinney, Texas using force to subdue a black teenager and threaten others at a pool party, debate over Rachel Dolezal's identity, the racially motivated murders in Charleston and the ensuing calls to remove displays of the confederate battle flag, the Supreme Court's holding that Texas could refuse to issue a specialty license plate with the confederate battle flag on it, and the debate over President Obama's use of the n-word on Marc Maron's podcast have really sparked a prolonged national discussion. Fitting right in to the mix, a federal jury last week issued a defense verdict in Burlington v. News Corp. (civil action no. 09-1908 E.D. Pa) for an employer that had fired an anchor for using the n-word in an editorial meeting. (h/t Leora Eisenstadt (Temple Business))
The case has a lot of interesting pieces. The white anchor used the term in an editorial meeting and several people at that meeting, some black and some white, were offended even though they did not perceive that he meant it then as a racial slur. Burlington's claim was, essentially, that he was only fired for using the word because he was white and that a black person would not have been. He also used a cat's paw theory, alleging that his co-anchor, who was black, was behind the firing. She allegedly told him "[b]ecause you’re white you can never understand what it’s like to be called a n***** and . . . you cannot use the word . . . ."
The case made it past summary judgment, and the court's opinion is worth a read. It has something for everyone. Not only are the allegations detailed more fully, but the court analyzes whether Title VII should take into account public perceptions about the use of the n-word in the context of the race of the speaker and also struggles with how to merge Staub v. Proctor Hosp.'s cat's paw holding with Vance v. Ball State's ruling on who counts as a supervisor. You can also read more about the court's discussion of the context and use of the n-word in this ruling on motions in limine right before trial began.
And if you are looking for more commentary on Title VII, context, and use of the n-word at work, you should read Leora Eisenstadt's article, The N-Word at Work: Contextualizing Language in the Workplace--previously posted about here--which grew out of her work on the case when she was in practice. A couple of other interesting pieces by Gregory Parks (Wake Forest) and Shayne Jones (S. Fla. Criminology) here and here, are also thought provoking.
Thursday, June 18, 2015
Sam Estreicher (NYU) has just published Depoliticizing the National Labor Relations Board: Administrative Steps , 64 Emory L.J. 1611 2015). Here's the abstract:
Complaints about the political forces arrayed against the basic labor laws and about the increasing “politicization” of the National Labor Relations Board are hardy perennials. The charge remains a constant, only those who level it differ depending on which party is in the White House. On the assumption that legislative change is not in the offing, what can the Board on its own do to improve its reputation in Congress and in the courts and, at the same time, enhance its effectiveness as the essential government agency to protect workers in dealings with their employers?
Nick Ohanesian (Judge, Social Security Administration) has posted on SSRN his article (just published at 45 U. Mem. L. Rev. 245 (2014)) Does 'Why' or 'What' Matter: Should Section 302 Apply to Card Check Neutrality Agreements? Here's an excerpt from the abstract:
... In this article I will trace the histories of Section 302 and card check neutrality agreements. I will discuss how different courts have treated the application of Section 302 to card check neutrality agreements. Then I will look at the attempts to resolve the conflict between Section 302 and card check neutrality agreements by first looking at the issues of intent and whether card check neutrality agreements are covered by Section 302. Finally, I will propose looking at extrinsic evidence to decide on a case by case basis whether card check neutrality agreements run afoul of Section 302.
Thursday, June 11, 2015
Matthew Fletcher (Michigan St.) writes to update us on recent cases concerning the applicability of the NLRA to American Indian casinos. In NLRB v. Little River Band of Ottawa Indians Tribal Gov't (links are to Turtle Talk blog), the Sixth Circuit held that the Act applies to the Band's operation of a casino. In Chickasaw Nation & Teamsters Local 886, the NLRB declined jurisdiction over casino employees to avoid abrogating treaty rights.
Also of note, Matthew just posted on SSRN his essay A Restatement of Federal Indian Law?, 40:4 ABA Human Rights Magazine 23 (May 2015). The essay describes the ongoing restatement project on the law of American Indians being conducted by the American Law Institute.
Tuesday, May 26, 2015
On the heels of Jeff's announcement of international labor conferences, Bernard Banks (Keily Thompson, New Zealand) writes to tell us of the LawAsia Employment Conference that will be held in Hanoi on 14 -15 August 2015. Here are the details:
The theme of the Hanoi conference is: Free Trade Agreements and Trans National Employment –Legal Implications, and following the formal opening and keynote address there will be seven business sessions provisionally entitled: employment impacts of FTAs –a regional overview; immigration issues in trans national employment; minimum terms and conditions –employment obligations in host countries; liability for workplace injuries to trans national employees –issues and case studies; cross border taxation issues for employers and employees; liability for actions in host countries – employee obligations and employer liability; and a concluding panel discussion and forum including an international round up of FTA employment issues and contributions from delegates. We are in close liaison with the Vietnam Bar Federation which has a co-hosting role.
Tuesday, May 19, 2015
- Catherine Fisk (U.C.-Irvine) and Jessica Rutter (NLRB Honors Attorney), Labor Protest Under the New First Amendment, 36 Berkeley JLEL (2015). Catherine's scholarship over the last several years has focused on exposing the Supreme Court's inconsistent treatment of labor law under evolving constitutional law doctrine -- and how such inconsistency almost always disadvantages workers. This article is no different. Here, she argues that the Court's treatment of the NLRA's prohibition of 8(b)(7) picketing is unconstitutional speaker-based and content-based discrimination.
- Michelle Travis (San Francisco), Disqualifiying Universality Under the Americans with Disabilities Act Amendments Act, __ Mich. St. L. Rev. ___ (2015). The ADAAA removed the Supreme Court's extraordinarily restrictive definition of "disability", which for years made the ADA a toothless disability-rights statute. Now employers and courts are attempting to use the statute's "otherwise qualified" and "essential job functions" provisions to again constrain the ADA. Michelle demonstrates that employers and courts are using these provisions to entrench able-bodied norms into seemingly neutral job descriptions and workplace designs. This effectively shifts disability stereotypes away from individuals with disabilities and onto the definition of work itself, which may render those stereotypes even more difficult to recognize and disrupt.
- Edward A. Zelinsky (Cardozo), Retirement in the Land of Lincoln: The Illinois Secure Choice Savings Program Act, __ U. Ill. L. Rev. ___ (2015). Illinois has now become the first state to legislatively enact a state-mandated, state-operated retirement system for private employers. It will not be an ERISA-regulated employee benefit plan but, rather, will be an IRA payroll deposit arrangement. Is this the next wave?
Monday, May 4, 2015
Christine Neylon O'Brien (Boston College School of Management) has just posted on SSRN her article (forthcoming 66 Lab. L.J. (2015)) Am I Blue or Seeing Red? The NLRB Sees Purple When Employer Communication Policies Unduly Restrict Section 7 Rights. Here's the abstract:
This paper analyzes the National Labor Relations Board’s recent Purple Communications decision. There, the Obama Board found Purple Communication’s restrictions on employee use of its email system violated the National Labor Relations Act as employees were authorized to use the employer email system for work purposes but prohibited from using the email for concerted activities on nonworking time. The Purple Communications ruling has broad significance for employer email policies in the private sector because Section 7 of the NLRA protects employee rights to engage in concerted activity whether employees are unionized or not. The decision specifically overturned the Bush Board’s 2007 holding in Register Guard that employer property rights took precedence over employee Section 7 rights to communicate on employer email systems. This paper evaluates the parameters and implications of the Board’s recent decision on email, including the concerns raised by the dissenters regarding the application of the Board's rebuttable presumption. Practical solutions are recommended.
Thursday, April 30, 2015
Susan Bisom-Rapp (Thomas Jefferson) sends along the annual call for papers for the 14thInternational Conference in Commemoration of Professor Marco Biagi and the Fifth Young Scholars’ Workshop in Labour Relations. The theme of the 2016 conference is Well Being At and Through Work, a topic that could not be more timely given the lingering effects of the global economic crisis on working people. In addition, in connection with the Young Scholars’ Workshop, this year the Foundation is awarding a Marco Biagi Prize, which will allow the author of the best paper to take up a three-month residence at the Foundation and comes with a prize of 3500 euros.
Tuesday, April 28, 2015
The annual Colloquium on Scholarship in Employment and Labor Law (COSELL) will be held at Indiana University Maurer School of Law, Sept. 11-12, 2015, in Bloomington, Indiana. This conference, now in its tenth year, brings together labor and employment law professors from across the country. It offers participants the opportunity to present works-in-progress to a friendly and knowledgeable audience.
Registration is now open at: http://www.law.indiana.edu/cosell.
If you’re planning to come, please go ahead and register now; you can fill in details about the project you will present later in the summer.
The conference is free, and we will provide all meals during the conference. Travel & hotel information is found on the website.
Please feel free to contact any of us with questions.
We will look forward to hosting you in Bloomington!
April 28, 2015 in About This Blog, Conferences & Colloquia, Disability, Employment Common Law, Employment Discrimination, Faculty News, Faculty Presentations, International & Comparative L.E.L., Labor Law, Labor/Employment History, Pension and Benefits, Public Employment Law, Religion, Scholarship, Teaching, Wage & Hour, Worklife Issues, Workplace Safety, Workplace Trends | Permalink | Comments (0)
Tuesday, March 31, 2015
Congratulations to blogger emeritus and our friend Paul Secunda (Marquette), who has been awarded a Senior Fullbright Scholar award for this fall. He will be teaching and conducting research on the national pension program in Australia. Paul will become a senior fellow at the Melbourne University Law School, teaching courses and conducting research on the Australian Superannuation workplace pension system, which is widely considered to be a global benchmark for workplace pension programs. You can get more detail from Marquette's press release. Great work, and wonderful news, Paul!
Sunday, March 1, 2015
Edward Zelinsky (Cardozo) has just posted on SSRN his article (42 Rutgers Law Record 109-25) The Aftermath of Hobby Lobby: HSAs and HRAs as the Least Restrictive Means. Here's an excerpt from the abstract:
In Burwell v. Hobby Lobby Stores, Inc., the U.S. Supreme Court held that, under the Religious Freedom Restoration Act of 1993 (RFRA), closely-held corporations’ employer-sponsored medical plans need not provide forms of contraception to which the shareholders of such corporations object on religious grounds. The question now arises how the President, the Congress and the Departments of Health and Human Services (HHS), Treasury and Labor ought to respond to the Hobby Lobby decision.
The best alternative is to require any employer which objects to providing contraception to fund for their respective employees independently-administered health savings accounts (HSAs) or health reimbursement arrangements (HRAs). An HSA or HRA permits the covered employee to spend employer-provided, pre-tax health care dollars on any medical service the employee chooses without implicating the employer in the employee’s spending decision. The HSA/HRA alternative respects the religious rights of sponsoring employers since, unlike conventional insurance or self-insured health plans, the sponsoring employer’s plan does not provide a menu of choices which frames the employees’ decisions. Simultaneously, the HSA/HRA approach respects the autonomy of employees to spend health care dollars on whatever medical services such employees select including services to which the employer objects.
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Lance Compa and Tequila Brooks have just published NAFTA and the NAALC Twenty Years of North American Trade-Labour Linkage (2015). Here's a description from the authors:
The 20th anniversary edition of the NAFTA and NAALC monograph in the International Encyclopaedia of Laws, Labour Law and Industrial Relations by Lance Compa and Tequila Brooks provides an up-to-date retrospective on all of the citizen petitions filed under the NAFTA labour side agreement since 1994. The monograph includes early petitions filed about trade union rights at the Honeywell and Echlin plants in Mexico, the McDonald's case in Canada and the Washington Apple and DeCoster Egg cases in the United States as well as more recent petitions filed about migrant worker rights under the H-2A and H-2B visa programs in the US. In addition to being the most complete compilation of NAALC cases in existence today, NAFTA and the NAALC Twenty Years of North American Trade-Labour Linkage outlines the internal mechanics leading to the filing of a 2000 NAALC petition with the Government of Mexico about unequal treatment of migrant workers in the US, and describes changes in the treatment of petitions by US, Mexican and Canadian authorities over the last 20 years. It also contains a chapter that compares the NAALC to the OECD Guidelines for Multi-National Enterprises and highlights recent North American cases filed under the OECD Guidelines including the relatively lesser known 2004 Yucatan Markey Tex-Coco Tex petition which was dual filed under both mechanisms. Finally, the 20th edition introduces a new chapter that compares labour provisions in US and Canadian free trade agreements negotiated since 2000 and discusses recent labour petitions filed under the US-Central America-Dominican Republic Free Trade Agreement (CAFTA-DR) and US free trade agreements with Bahrain and Peru.
Bill Herbert (Hunter College) and Alicia McNally (New York State PERB) have just posted on SSRN their article, Just Cause Discipline for Social Networking in the New Gilded Age: Will the Law Look the Other Way?. The abstract:
We live and work in an era with the moniker of the New Gilded Age to describe the growth in societal income inequality. The designation is not limited to evidence of the growing gap in wealth distribution, but also the sharp rise in employment without security, including contingent and part-time work. This article examines the state of workplace procedural protections against discipline as they relate to employee use of social media in the New Gilded Age. In our times, reactions to the rapid distribution of troublesome electronic communications through social networking tend to eclipse patience for enforceable workplace procedures. The advent of social media and the decline of job security have created a perfect storm that raises the question of whether labor law will look the other way when it comes to the principles of workplace fairness and justice.
The article begins with President William McKinley’s introduction of the doctrine of just cause discipline into American labor law in 1897, during the Gilded Age, at the same time that the common law at-will doctrine was continuing to gestate. McKinley’s unilateral executive action established principles that remain the cornerstone of just cause discipline: proper notice, a fair evidentiary investigation, an opportunity to be heard, and nondiscriminatory treatment. The article then turns to the development of just cause standards in the 20th Century, which added other elements such as notice of workplace policies and the use of progressive discipline. Lastly, the article examines how just cause principles should be applied to allegations of electronic misconduct in the New Gilded Age to ensure reasonable and prudent disciplinary results, employee acceptance of adverse employment decisions, and a decreased likelihood of litigated claims of unlawful discrimination.
I'll confess that I was totally unaware of McKinley's action. Learn about that move and the intersection of just cause and technology in this interesting article.
Friday, February 13, 2015
While the idea of implicit bias pervades discussions about employment discrimination and employment discrimination law, researchers continue to fight about how well the Implicit Association Test (IAT)—perhaps the most prominent measure of such bias--predicts how people actually behave. Here are scenes from the latest round:
Anthony Greenwald, Mahzarin Banaji, and Barry Nosek have posted “Statistically small effects of the Implicit Association Test can have societally large effects,” forthcoming in the Journal of Personality and Social Psychology (2015). There, they dispute Oswald, Mitchell, Blanton, Jaccard, and Tetlock (2013), who found, in a meta-analysis of IAT studies, a lower average predictive validity correlation for IAT measures involving Black-White racial attitudes and stereotypes than reported in Greenwald, Poehlman, Uhlmann, and Banaji (2009). Oswald et al. have posted a reply.
Hart Blanton, James Jaccard, Erin Strauts, Gregory Mitchell, and Phillip Tetlock have also posted “Toward a Meaningful Metric of Implicit Prejudice,” forthcoming in the Journal of Applied Psychology. Here’s the abstract:
The modal distribution of the Implicit Association Test (IAT) is commonly interpreted as showing high levels of implicit prejudice among Americans. These interpretations have fueled calls for changes in organizational and legal practices, but such applications are problematic because the IAT is scored on an arbitrary psychological metric. The present research was designed to make the IAT metric less arbitrary by determining the scores on IAT measures that are associated with observable racial or ethnic bias. By reexamining data from published studies, we found evidence that the IAT metric is “right biased,” such that individuals who are behaviorally neutral tend to have positive IAT scores. Current scoring conventions fail to take into account these dynamics and can lead to faulty inferences about the prevalence of implicit prejudice.
Finally, Allan King, Gregory Mitchell, Richard Black, Catherine Conway, and Julie Totten have posted “Discovery and the Evidentiary Foundations of Implicit Bias,” Employee Relations Law Journal 40 (Winter 2014): 4-33. Here’s the abstract:
This article documents the extent to which expert opinions regarding implicit bias rely on research that evades careful scrutiny by either the academic journals or the courts that admit the expert’s testimony, discuss the arguments that shield the data underlying research from discovery, argue for discovery of secondary data notwithstanding the arguments against disclosure, and argue for excluding expert testimony that relies on data beyond the reach of the opposing party.
Note: Of this paper’s authors, most are lawyers who typically represent large employers: King and Black at Littler Mendelson; Conway at Gibson, Dunn, and Crutcher; and Totten at Orrick, Herrington and Sutcliffe. Mitchell is a professor at the University of Virginia Law School and a co-author of some of the other papers cited above.
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.