Tuesday, August 23, 2016
Maria Ontiveros (San Francisco) has just posted on SSRN her article (forthcoming BJELL) H-1B Visas, Outsourcing and Body Shops: A Continuum of Exploitation for High Tech Workers. Here's the abstract:
This article analyzes the exploitation of immigrant workers under the H-1B visa program. It analyzes pure H-1B workers that work directly for the company that sponsor the visa; outsourced H-1B workers that work on a visa sponsored by an outsourcing vendor; and body shop workers who work on a visa sponsored by a labor contractor that operates outside the legal boundaries of the law. The article provides a comprehensive survey of lawsuits brought under the visa laws for prevailing wage violations, wage theft, benching, and liquidated damages. It also discusses lawsuits brought as independent causes of action under state tort and contract law; the TVPA; RICO; and employment discrimination statutes. The article argues that even perfect enforcement of existing law will not eliminate H-1B worker exploitation because the program includes systemic inequalities and subordinating structures that are modern manifestations of involuntary servitude, debt bondage and unfree labor. The unfree system of labor created by the guest worker program is based in the ways in which threats of deportation and liquidated damages prevent workers from complaining or quitting; the way in which the visa sponsor's control of the guest worker's labor parallels antebellum slave codes; the commodification of immigrant workers as part of the human supply chain; and the lack of citizenship rights guaranteed to these guest workers.
Tuesday, July 19, 2016
Congratulations to Miriam Cherry (Saint Louis), Marion Crain (Washington University) and Winifred Poster (Washington University, Sociology) whose book Invisible Labor has just hit the shelves. The book is a collection of chapters by authors from, primarily, sociology and law, exploring types of labor that are unpaid and unseen. From the synopsis:
Across the world, workers labor without pay for the benefit of profitable businesses—and it's legal. Labor trends like outsourcing and technology hide some workers, and branding and employer mandates erase others. Invisible workers who remain under-protected by wage laws include retail workers who function as walking billboards and take payment in clothing discounts or prestige; waitstaff at “breastaurants” who conform their bodies to a business model; and inventory stockers at grocery stores who go hungry to complete their shifts. Invisible Labor gathers essays by prominent sociologists and legal scholars to illuminate how and why such labor has been hidden from view.
The collection brings together what previously seemed like disparate issues to show common threads among the ways labor can be invisible, and the breadth of contributions is impressive. I had the chance to attend a symposium set up by the editors to flesh out these ideas a couple of years ago and found the topics fascinating then. I can't wait to read the book!
July 19, 2016 in Books, Disability, Employment Common Law, Employment Discrimination, International & Comparative L.E.L., Scholarship, Wage & Hour, Worklife Issues, Workplace Trends | Permalink | Comments (1)
Friday, May 13, 2016
It's too bad that law school finals are over because this situation has all of the labor and employment bases covered. The ACLU and the Colorado law firm of Holwell Shuster & Goldberg have filed charges with the EEOC on behalf of four pilots who argue that the airline's policies discriminate against women by failing to provide accommodations related to pregnancy and breast feeding. You can download the charges from that link if you are interested in the details.
Essentially, the charges allege that pregnant pilots are forced to take unpaid leave beginning as early as 10 weeks before their due dates and are then allowed up to 120 days after delivery of unpaid leave. Those who are nursing when they return are not accommodated at the airports nor allowed to express milk during flights, according to the charges. Three of the four women suffered mastitis as a result of the lack of accommodations. The pilots have proposed a number of accommodations like temporary non-flying assignments that would allow women to work longer before delivery and to allow for easier accommodation of milk expression, extension of maternity leave for women who want it, and designated places where the women could pump in airports Frontier uses and on the plane when necessary. According to NPR, the airline asserts that there are locations for expressing milk in airports that comply with federal and state law.
Although the charges themselves really only deal with Title VII (although they also mention Colorado's Fair Employment Practices Act and Colorado's Workplace Accommodation of Nursing Mothers Act), the lack of accommodations may also violate the FLSA (as amended by the Patient Protection and Affordable Care Act). In addition, the workplace is governed by a collective bargaining agreement, which has rules setting out non-flying reassignments, but only for on-the-job injuries.
If the charge does not lead to a settlement, the subsequent lawsuit will give a court the chance to apply the Supreme Court's framework for accommodations set out in Young v. UPS. This case is similar as it relates to pre-delivery leave, but it's also different. It is not clear that the women must take pre-delivery leave because of any medical reason. The policy requires that pilots take leave once they are no longer "medically authorized to fly," or at 32 weeks, whichever is earlier. For healthy women, doctors generally don't suggest limits on flying until 36 weeks, mostly because of the possibility of early labor. Because Frontier, requires leave by the 32d week of pregnancy, (and some women don't deliver until the 42d week), there might be several weeks where the pilot could work, but is prohibited. This requirement looks like the one struck down in Cleveland Bd. of Educ. v. LaFleur, which required pregnant school teachers to take leave before it was medically required.
The case is also somewhat different on the accommodations for milk expression. The situation Peggy Young found herself in at UPS would likely be taken care of by the ADA as amended. Her lifting restriction, imposed to prevent miscarriage or premature activity, would be found an impairment of a major life activity, most likely. And transfer to a vacant position, likely a reasonable accommodation that would not pose an undue hardship, since UPS provided that accommodation for a number of other reasons. Here, lactation itself isn't an impairment but an extension of the normal physiological processes of pregnancy and delivery. Lactation isn't impairment of normal breast function; it is normal breast function. So these accommodations may only be protected by Title VII and not by the ADA.
In any event, it will be interesting to see how this one plays out and whether remedies under other laws that might provide relief are pursued.
Tuesday, March 22, 2016
Today, the US Supreme Court decided Tyson Foods v. Bouaphakeo, an appeal from a jury verdict for plaintiffs seeking overtime pay via a Fair Labor Standards Act (FLSA) collective action and a Rule 23 class action under Iowa’s wage payment statute—which the parties assumed required the same proof as for the FLSA claim. The defendant: their employer, Tyson Foods, who hadn’t paid them for time they spent donning and doffing safety gear at a pork processing plant.
There’s a lot going on in this Court opinion—both on the page and in between the lines. I’ll focus here just on how the Tyson Court treated a decades-old FLSA precedent: Anderson v. Mt. Clemens Pottery Co, 328 U.S. 680 (1946).
In Mt. Clemens, the Court had declared this: In FLSA cases, if plaintiff-employees can’t prove how much time they spent doing under-compensated work because their defendant-employer failed to keep FLSA-required records, so long as the employee has produced enough evidence that he did the under-compensated work and the “amount or extent” of that work “as a matter of just and reasonable inference,” the employer must produce evidence of “the precise amount of work performed” or evidence to “negative the reasonableness of the inference to be drawn from the employee’s evidence.”
Fast forward decades later to Tyson Foods. The plaintiffs there faced this problem: For FLSA overtime claims, a plaintiff-employee has to prove that he or she had worked for over 40 hours in a work week. But, because Tyson hadn’t kept proper records of employee donning and doffing time, the plaintiffs had no individualized work time records to prove their total hours worked. So, at trial, the plaintiffs submitted “representative evidence”—key among which was study in which an expert observed a sample of 744 employees, counted donning and doffing times for each, and calculated averages by the sampled employees’ departments (cut and retrim departments: 18 minutes; kill department: 21.25 minutes). With these averages, along with individual work time records that Tyson had kept, another expert concluded that all but 212 employees in the Rule 23 certified class worked more than 40 hours, and thus might be owed overtime pay. Tyson argued against this evidence to the jury, but the jury awarded about $2.9 million in unpaid wages.
In a post-verdict motion, and later on appeal, Tyson argued for decertifying the Rule 23 class and for dismantling the FLSA collective action: Given the inadequacy of plaintiffs’ “representative evidence,” some class or collective action members would be eligible for overtime pay even though they hadn’t worked over 40 hours in a work week---or as Tyson put it, even though they hadn’t been actually injured.
On this point, the plaintiffs pressed Mt. Clemens, and the Court agreed that, given Mt. Clemens, the plaintiff’s use of its sample of donning-and-doffing times was “a permissible method of proving classwide liability.” Had each Rule 23 class member sued individually, he or she could have relied on that sample, provided that it “could have sustained a reasonable jury finding as to hours worked in each employee’s individual action.” Here, as in Mt. Clemens, the plaintiffs submitted their donning-and-doffing sample
to fill an evidentiary gap created by the employer’s failure to keep adequate records. If the employees had proceeded with 3,344 individual lawsuits, each employee likely would have had to introduce [that sample] to prove the hours he or she worked. Rather than absolving the employees from proving individual injury, the representative evidence here was a permissible means of making that very showing. . . . [I]n this case each employee worked in the same facility, did similar work, and was paid under the same policy. As Mt. Clemens confirms, under these circumstances the experiences of a subset of employees can be probative as to the experiences of all of them.
In so reasoning, the Court added that representative evidence can’t support “just and reasonable” inferences under Mt. Clemens if that evidence is “statistically inadequate or based on implausible assumptions could not lead to a fair or accurate estimate of the uncompensated hours an employee has worked.” (Tyson hadn’t challenged the admissibility of plaintiffs’ expert opinions under Daubert.)
In dissent (and joined by Justice Alito), Justice Thomas describes Mt. Clemens as a precedent on “shaky foundations” that the Court fundamentally misread and has now effectively expanded. Although Mt. Clemens applies only if the defendant-employer fails to keep FLSA-required records of compensable work time, for Justice Thomas,
that limitation is illusory. FLSA cases often involve allegations that a particular activity is uncompensated work . . . The majority thus puts employers to an untenable choice. They must either track any time that might be the subject of an innovative lawsuit, or they must defend class actions against representative evidence that unfairly homogenizes an individual issue.
Justice Thomas’ reading of Mt. Clemens is worth reading in full—as arguments implicitly rejected by the Court majority or just as the path not taken.
Thursday, November 12, 2015
The Center for WorkLife Law at UC Hastings has launched a new resource called Pregnant@Work. The site has resources on pregnancy accommodation for a wide range of audiences – attorneys from both sides of the employment bar, pregnant women, their healthcare providers, and employers. The laws surrounding pregnancy accommodation have changed drastically over the last couple of years, and the site provides educational materials and practical tools to help various audiences understand these changes.
The materials the site provides or organizes for different audiences range from model policies, to forms, to ideas for accommodations that will work for both employers and pregnant workers who might need them. It's a great model for a kind of problem solving advocacy that we don't see very often. Check it out.
Wednesday, June 3, 2015
Those who have ever sat in a traffic jam or spent hours in the emergency room might take note of the Third Circuit’s recent decision in Bonkowski v. Oberg Indus., holding the time an individual is officially admitted to a hospital can make or break her FMLA claim. The question the court answered was what constitutes an “overnight stay” at a hospital, which would determine whether Bonkowski could bring an FMLA suit against his employer for his termination for trying to deal with his medical issues.
The outcome was a calendar day plus rule: an overnight stay is “a substantial period of time” from one calendar day to the next measured by the employee’s time of admission and discharge. Bonkowski v. Oberg Indus., Inc., No. 14-1239, at *19 (3d Cir. May 22, 2015) (2-1)
A little background is instructive. The definition of “overnight stay” is the final link in a chain of statutory interpretation to determine whether an employee has a serious health condition that qualifies for FMLA protection. The statute itself defines a serious health condition as one “that involves inpatient care…or continuing treatment by a health care provider.” 29 USCS § 2611. But the DOL regulations further define “inpatient” as involving “an overnight stay in a hospital, hospice, or residential medical care facility.” 29 CFR 825.114. The question of what constitutes an overnight stay is therefore often crucial to whether an employee has a serious health condition under the FMLA.
The Third Circuit’s ruling indicates that a matter of minutes can negate an employee’s claim. Bonkowski was an employee of Oberg, the defendant employer, prior to being admitted to Butler Memorial Hospital. On November 14, 2011 he left work after experiencing chest pains and was admitted to the hospital a few minutes after 12:00 midnight. The following day, Oberg terminated Bonkowski for walking off the job. Though his time in the hospital as an inpatient spanned approximately fourteen hours, most of them in what would have been darkness at that place and time of year, the Third Circuit dismissed his FMLA suit against Oberg because he did not stay from one calendar day to the next.
A purely temporal standard does not seem particularly apt considering that Bonkowski would probably have won if he were admitted at 11:59pm – fourteen hours (in a hospital at least!) is a substantial period in anybody’s view. The announced standard frustrates the remedial purpose of the FMLA by failing to account for the ways admission might be delayed that are irrelevant to the severity of the patient’s medical condition. Bonkowski, as Judge Fuentes argued in dissent, because admission could be delayed by traffic, the particular day of the week, the overall amount of patients, understaffing, geographic region, etc. It also has the absurd result of providing coverage for an employee admitted at 11:00pm and discharged at 1:00am – depending on what “substantial” means – while denying coverage to individuals like Bonkowski.
So what led to this conclusion? Surprisingly enough, the trial court had adopted an even more draconian “sunset to sunrise” approach, which would be a surprise about the meaning of “overnight’ to anyone whose kids had a sleepover. The Third Circuit reasoned that such a rule would yield erratic results because sunset and sunrise are seasonal and vary according to geographic location. But it also criticized Bonkowski’s alternative “totality of the circumstances” test as being litigation-fomenting because of its unpredictable nature. This is likely accurate, but the “totality of the circumstances” has merit nevertheless since courts could consider all relevant factors of an employee’s hospital stay such as length of time, admittance to a room, the extent of testing, and whether the employee spent at least a portion of traditional night hours in the hospital. The totality of circumstances approach appears an improvement over the calendar day rule, but its propensity for increased litigation and inconsistent outcomes is problematic.
Perhaps the best definition is one that can be grasped by a reasonable employee, and, from that perspective, the Third Circuit’s ruling has the same propensity for confusion as the “totality of the circumstances.” While “calendar day” is clear enough, the Third Circuit declined to expand on what would constitute a “substantial period of time” between one calendar day and the next, suggesting (but not committing to) a minimum of 8 hours. Id., at *47. At this point, none of the proposed methods seem to balance equity with a definitive standard.
The most puzzling aspect of this debate is that Bonkowski was admitted as inpatient, yet the hospital’s designation was not enough to move the court. The District Court deemed this fact unpersuasive because, even though the hospital’s designation meant Bonkowski’s condition required an overnight stay, that did not mean he actually stayed overnight. Bonkowski v. Oberg Indus., 992 F. Supp. 2d 501, 509 n.9 (W.D. Pa. 2014). In any event, the courts seem to have prioritized the DOL’s requirements over the statute's language by implying that an employee can be medically but not legally inpatient. That distinction far exceeds the ability of an ordinary, reasonable employee to understand, especially one who is likely to be in pain if not crisis at the time.
Maybe the problem is an overlooked Chevron issue. The District Court rejected the hospital designation because “inpatient care is defined in the regulations as an overnight stay, meaning a plaintiff must stay overnight to qualify as receiving inpatient care.” Yet the statute speaks of “inpatient” and it’s the regulations that add the “overnight” criterion. Arguably, when a hospital decides that a patient requires inpatient care, that should suffice to establish the severity of her condition, even if she was admitted a few minutes after midnight.
And then there’s the emergency room question. By speaking of “inpatient” care, the FMLA makes clear that a trip to the ER doesn’t suffice. But suppose a patient spends three or four hours in the ER and is then admitted inpatient. Does it follow that the time before formal admission is irrelevant to the question of coverage, or even to the question of what counts as overnight?
The bottom line is that employees should be able to discern whether or not they have FMLA coverage. For now, we’ll have to wait and see how the calendar day rule plays out.
Thanks to my research assistant, Samira Paydar, for her help on this.
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)
Friday, January 16, 2015
Today, the White House announced a set of new initiatives to expand paid family leave. Among the plans:
- Healthy Families Act: proposed legislation that would require employers to allow employees to earn up to 7 days of paid sick leave per year.
- A start-up fund to help states create their own paid leave plans for their employees.
- Improved data collection through the Department of Labor.
- Proposed legislation to create paid parental leave for federal employees.
- Expanding coverage of FMLA.
- Expanding tax credits and federal funding for child care costs.
- Increased funding for family care for elderly and disabled family members.
- Improving enforcement of equal pay laws
This is an aggressive set of proposals, some of which are obvious nonstarters in the current Congress. It's nice to see the President bringing attention to the issue though; however, I'd like more emphasis in the press on the limits of the FMLA that currently exists. For instance, few people seem to realize that it only applies to employers with 50 or more employees.
Thursday, October 2, 2014
The Supreme Court granted cert in a number of cases today as a result of its long conference, including EEOC v. Abercrombie & Fitch. The cert question is this:
Whether an employer can be liable under Title VII of the Civil Rights Act of 1964 for refusing to hire an applicant or discharging an employee based on a “religious observance and practice” only if the employer has actual knowledge that a religious accommodation was required and the employer's actual knowledge resulted from direct, explicit notice from the applicant or employee.
The district court had denied A & F's motion for summary judgment and granted the EEOC's, holding that, as a matter of law, A & F had failed to reasonably accommodate the religious practices of an applicant for employment. The Tenth Circuit reversed, remanding and ordering the district court to enter summary judgment for A & F. The applicant, a young Muslim woman, wore a hijab, a head covering, and although the store manager recommended she be hired, a district manager decided that because she wore the hijab, she should not. He determined that the hijab would not comply with the company's "Look Policy."
The Tenth Circuit held that summary judgment for A & F was proper because the applicant "never informed Abercrombie prior to its hiring decision that she wore her headscarf or 'hijab' for religious reasons and that she needed an accommodation for that practice, due to a conflict between the practice and Abercrombie’s clothing policy." Interestingly, the store manager assumed that the applicant wore her hijab for religious reasons and never raised the issue during the interview. She also did not suggest that there might be a conflict between that practice and the "Look Policy," which the applicant otherwise could easily comply with.
The Court also granted cert in another case that might have implications for employment discrimination. The question in Texas Dep't of Housing and Community Affairs v. The Inclusiveness Project is whether disparate impact claims are cognizable under the Fair Housing Act. The Fifth Circuit did not consider that question in the case. Instead, it followed its prior precedent that they were cognizable, and held that the legal standard to be used should be the regulations adopted by the Department of Housing and Urban Development.
So, overall, this term is shaping up to be another blockbuster for employment and labor. Here is a roundup.
Cases that directly deal with employment and labor questions:
- Department of Homeland Security v. MacLean, a whistleblower/retaliation case
- Integrity Staffing Solutions, Inc. v. Busk, whether time spent in security screenings is compensable under the FLSA as amended by the Portal to Portal Act.
- M&G Polymers v. Tackett, a case about presumptions related to interpretation of CBAs on retiree health benefits under the LMRA.
- Mach Mining v. EEOC, whether and to what extent the courts can enforce the EEOC's duty to conciliate before filing suit.
- Tibble v. Edison, Int'l, an ERISA case involving the duty of prudence and the limitations period for bringing claims.
- Young v. UPS, whether light duty accommodations only for on-the-job injuries violates Title VII as amended by the Pregnancy Discrimination Act.
And there is one additional case that might have implications for religious accommodations in the workplace. Holt v. Hobbs, which concerns whether a department of corrections policy that prohibits beards violates the Religious Land Use and Institutionalized Persons Act insofar as it prohibits a man from growing a one-half-inch beard in accordance with his religious beliefs.
October 2, 2014 in Beltway Developments, Employment Discrimination, Labor and Employment News, Labor Law, Labor/Employment History, Pension and Benefits, Public Employment Law, Religion, Wage & Hour, Worklife Issues | Permalink | Comments (0) | TrackBack (0)
Thursday, June 12, 2014
Just a friendly reminder from conference organizers, Melissa Hart and Scott Moss at the University of Colorado Law School, that the deadline to register to attend, and/or present a paper at, the 9th Annual Labor and Employment Scholars Colloquium is Friday, August 1, 2014. The Colloquium is scheduled in Boulder between September 11-13, 2014.
You can register and submit a paper proposal at this link:
June 12, 2014 in About This Blog, Arbitration, Conferences & Colloquia, Disability, Employment Common Law, Employment Discrimination, Faculty Presentations, International & Comparative L.E.L., Labor Law, Pension and Benefits, Public Employment Law, Religion, Scholarship, Teaching, Wage & Hour, Worklife Issues, Workplace Safety, Workplace Trends | Permalink | Comments (0) | TrackBack (0)
Thursday, April 24, 2014
From conference organizers Scott Moss and Melissa Hart, at the University of Colorado Law school comes word that registration is open for the Ninth Annual Colloquium on Labor and Employment Law Scholarship. The dates will be September 11th to the 13th in Boulder.
As many of you already know, this is a terrific opportunity to get to know colleagues in an informal setting and exchange ideas as we discuss works-in-progress. Past participants likely would agree that the friendly, low-key atmosphere and productive sessions, as well as the chance to socialize with our colleagues, make this gathering especially fun and valuable.
The Colloquium will follow the familiar format. We will workshop papers all day Friday through Saturday afternoon. Exact times TBD; check the event webpage for updates as the Colloquium approaches.
To register, click here.
April 24, 2014 in Conferences & Colloquia, Disability, Employment Common Law, Employment Discrimination, Faculty Presentations, International & Comparative L.E.L., Labor Law, Labor/Employment History, Pension and Benefits, Public Employment Law, Religion, Scholarship, Wage & Hour, Worklife Issues, Workplace Safety, Workplace Trends | Permalink | Comments (0) | TrackBack (0)
Thursday, April 10, 2014
Tuesday, April 8, 2014
(Photo credit The Individualist Feminist) Happy Equal Pay Day, the day that women's pay catches up to men's from last year. The gap is currently 77 cents for every dollar a man earns, but that does not account for racial differences. Black women only make 64 cents to every dollar a white man makes. For Latina women, it’s 54 cents. President Obama's new workplace orders are heartily applauded by those of us who think that something other than women's fully empowered and free choices are driving this gap.
Thursday, April 3, 2014
Monday, March 31, 2014
Brian Clarke (Charlotte) has a very thought provoking piece at Faculty Lounge on lawyers and mental health. The figures on lawyers and depression are particularly horrifying. This is just the first of a planned three-part series, and the second and third installations look to be as good as this one--and so far, even the comments are good. Perhaps law schools and the legal community ought to be more vocal about strategies of self care and its place in our professional lives.
(necklace above available from the Bloggess's online store)
Monday, March 17, 2014
Back in January, Maria Shriver's organization "A Woman's Nation" issued its third report on fundamental challenges facing women in the U.S.: A Woman's Nation Pushes Back from the Brink. I have not had a chance to read the whole report, which focuses on financial insecurity of women and the children who depend on them, and the impact of that financial insecurity on our country's institutions and econonic futures, but the parts I have read have been very thought provoking. For more, see the Shriver Report's home page.
In connection with that report, Shriver and HBO created a documentary, Paycheck to Paycheck: The Life and Times of Katrina Gilbert, to personalize the struggles of low wage workers, most of whom are women. The documentary is streaming free at HBO Docs YouTube page this week only.
March 17, 2014 in Commentary, Employment Discrimination, Labor and Employment News, Labor/Employment History, Pension and Benefits, Wage & Hour, Worklife Issues | Permalink | Comments (0) | TrackBack (0)
Tuesday, January 14, 2014
Deborah Widiss (Indiana-Bloomington) has posted on SSRN her new essay, forthcoming in the Indiana Law Journal: Leveling Up After DOMA.
Here is the abstract:
Even though the provision of the Defense of Marriage Act precluding federal recognition of same-sex marriages has been held unconstitutional, more than half of the nation’s same-sex couples remain ineligible for full federal marriage rights because they live in states that do not recognize same-sex marriage. The common response to this problem is to urge Congress to enact a uniform “place of celebration” rule under which any lawful marriage would be recognized as valid for federal purposes, and many federal agencies have adopted this rule in implementing discrete statutes that reference marriage. This approach mitigates the inequity of current policy, but it has significant weaknesses that have not been adequately considered. It requires same-sex couples to travel out-of-state — and often very significant distances — to marry simply to claim federal benefits, imposing an unfair burden on same-sex couples and one which will likely further exacerbate class-based variation in marriage rates. And it increases the risk that some same-sex couples will become trapped in unwanted marriages, because jurisdictional rules typically require couples divorce in their home state and many states refuse to recognize same-sex marriages even to dissolve them.
This invited essay challenges the underlying assumption that state-licensed marriages should continue to be the exclusive mechanism for accessing core federal rights. It advocates instead creation of a federal domestic partner or “marriage” registry available to (at least) same-sex couples wherever they live. This would effectively “level up” federal marriage policy to address the discrimination against same-sex couples left in DOMA’s wake. It also suggests that a federal domestic partner registry could be structured to make at least some federal marriage rights more generally available to unmarried same-sex and different-sex couples who meet specific criteria. Even if, at some point, same-sex couples are permitted to marry in all states and the problem of derivative federal discrimination disappears, broader trends suggest that cohabitation and non-marital childbearing rates will continue to rise. A domestic partner registry could be a vehicle for more fairly and effectively distributing government benefits, rights, and obligations among diverse family forms.
Although not a traditional employment law piece, its premises are very relevant for ERISA, FMLA, and other employment-related issues. A very thought provoking proposal by Deborah, and one that should be considered seriously by policy-makers.
Monday, December 16, 2013
Zak Kramer (Arizona State) has a new paper on SSRN that I can't wait to read. The New Sex Discrimination is an attempt to rationalize our view of sex discrimination, taking into account the reality that people perform their gender identities in different ways. From the abstract:
Sex discrimination law has not kept pace with the lived experience of discrimination. In the early years of Title VII of the Civil Rights Act, courts settled on idea of what sex discrimination looks like — formal practices that exclude employees based on their group membership. The problem is that sex discrimination has become highly individualized. Modern sex discrimination does not target all men or all women, nor does it target subgroups of men or women. The victims of modern sex discrimination are particular men and women who face discrimination because they do not or cannot conform to the norms of the workplace. These employees have been shut out of a sex discrimination regime that still expects employees to anchor their claims to a narrative of group subordination.
This paper proposes a new regime for sex discrimination law. The model for the new sex discrimination regime is religious discrimination law. Unlike other areas of employment discrimination law, religious discrimination law offers a dynamic conception of identity and a greater array of different theories of discrimination. Sex discrimination law can and should work this way, too. On a broader level, the paper recalibrates sex discrimination law’s vision of equality. Difference is universal; no two people are the same, and this is a good thing. Thus the central task of sex discrimination law should be to better recognize — and in turn protect — the distinctive ways in which employees express their maleness and femaleness. It is these differences, after all, that shape the way employees experience modern sex discrimination.
Provocative and timely.
Susan Bisom-Rapp (Thomas Jefferson) and Malcolm Sargeant (Middlesex U. Business School, UK) have just posted on SSRN a working draft of their new paper, It's Complicated: Age, Gender, and Lifetime Discrimination Against Working Women—The U.S. and the U.K. as Examples. Susan presented this at the 8th Annual Colloquium on Recent Labor and Employment Law Scholarship held by our friends at UNLV. From the abstract:
This paper 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 or older is nearly double that of their male counterparts. Older women of color are especially disadvantaged. The situation in the U.K. is comparable. One study, analyzing gender and age group, found that women in the U.K. were at a greater risk of poverty throughout their working lives. That study revealed a significant statistical difference in poverty risk between men and women under the age of 50, which decreased for the 50-64 age group, and then increased dramatically for those 65 and older, resulting in a poverty gap that was more than twice the average for the whole population in the UK.
To capture this phenomenon, this paper develops a model of "Lifetime Disadvantage," which considers the major factors producing 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.
An effective and comprehensive regulatory framework could help compensate for these gender-based disadvantages, which accumulate over a lifetime. Using the examples of the U.S. and the U.K., however, we demonstrate that regulatory schemes created by "disjointed incrementalism" (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.
Really interesting work.
Friday, December 13, 2013
Child abuse has traditionally been viewed as the exclusive province of the child welfare system and the police. But when child abuse accusations are made against an employee, such as a teacher or a childcare worker, it is also an employment law problem. The employer must decide how to respond to the accusations and whether to retain the employee accused of abuse. The employer's role becomes especially important when the child welfare system declines to take action following a report of abuse, or when the alleged conduct is insufficiently abusive to trigger a mandated report to the state.
Ignoring the employment law dimension of child abuse and mistreatment has proven problematic for employers, the accused employees, and the children in their care. Courts and labor arbitrators often inadvertently discourage employers from adopting better internal processes for preventing and mitigating child abuse and mistreatment. Employers who naively defer to child welfare determinations in their contracts and policies can find themselves hamstrung when they later find it necessary to discipline an employee notwithstanding state inaction. Passive employers also harm their employees by failing to provide notice and training on acceptable forms of workplace conduct.
A regulatory system that encourages employers to play a more active role could benefit children and their parents. Workplace-specific policies and practices can be crafted and updated in consultation with the preferences of their constituent parents. Children may be less likely to be harmed where an employer implements robust processes for preventing and addressing abuse and mistreatment.