Wednesday, September 18, 2013
Orly Lobel (San Diego) is about to release (on Sept. 30, 2013) her new book through Yale University Press: TALENT WANTS TO BE FREE: Why We Should Learn to Love Leaks, Raids, and Free-Riding (Amazon link where to find book).From the press release:In today’s fiercely competitive business environment, the “War for Talent” is one of the most significant organizational challenges of the decade. The term, coined by McKinsey & Company in 1997, describes an increasingly competitive landscape for recruiting and retaining talented employees in our innovation-driven economy. Today, the talent wars have become characterized by a singular factor: the control of human capital, or, people and the knowledge they carry. The belief is that if an organization can control these assets – that is, if Google, for example, can prevent its employees from defecting to Facebook, taking critical skills knowledge with them – it will acquire an advantage and become a top player in the industry.But in her new book, TALENT WANTS TO BE FREE: Why We Should Learn to Love Leaks, Raids, and Free-Riding (Yale University Press; hardcover; September 24, 2013), University of San Diego Law Professor Orly Lobel argues that we’ve got the logic all wrong. Far from promoting innovation, too much control of talent – through tactics such as harsh non-compete agreements and strict protection of trade secrets, patents, and copyright – backfires and ultimately stifles the very innovation that organizations so desperately seek. Drawing on original research into motivating employee creativity, analysis of recent litigation, and empirical data from economics, psychology, and network science, Lobel explores how the ways in which we fight over talent can either enhance or inhibit the innovative spirit of an organization. Based on her research, as well as well as her experiences consulting for businesses, inventors and entrepreneurs, Lobel offers leaders a new paradigm for managing people and their ideas in the 21st century.
Looks to be a great and timely read and makes a persuasive argument why restrictive covenants in employment may be squelching worker innovativation America needs to complete in the global economy of the 21st Century. Pick up a copy!
Tuesday, September 3, 2013
Brishen Rogers (Temple) has just posted on SSRN his new article entitled: Justice at Work: Minimum Wage Laws and Social Equality.
Here is the abstract:
This article develops a new normative defense of minimum wage laws. Existing legal academic debate asks how effectively such laws deliver resources to the working poor compared to transfer programs such as wage subsidies and negative income taxes. Such transfers have clear advantages in terms of redistribution, for they target the poor rather than all workers, and they do not cause unemployment. Legal scholars have therefore criticized minimum wage laws both on utilitarian grounds of aggregate wealth maximization and on liberal egalitarian grounds of fairness toward society’s worst-off.
Accepting for the sake of argument that minimum wage laws cause inefficiency and unemployment, this article nevertheless defends them. It draws upon philosophical arguments that a just state will not simply redistribute resources, but will also enable citizens to relate to one another as equals. Minimum wage laws advance this ideal of “social equality” in two ways: they symbolize the society’s commitment to low-wage workers, and they help reduce work-based class and status distinctions. Comparable tax-and-transfer programs are less effective on both fronts. Indeed, the fact that minimum wage laws increase unemployment can be a good thing, as the jobs lost will not always be worth saving. The article thus stands to enrich current increasingly urgent debates over whether to increase the minimum wage. It also recasts some longstanding questions of minimum wage doctrine, including exclusions from coverage and ambiguities regarding which parties are liable for violations.
As Congress will no doubt be debating the raising the minimum wage soon, Brishen provides an excellent argument for why the US should follow an approach that embraces both an increase in the minimum wage (to a level beyond poverty wages) and a wage subsidy in the form of the Earned Income Tax Credit (EITC) or something similar. As Robert Reich recently argued on YouTube, both a higher minimum wage and EITC are an essential part of rebuilding this nation's economy with better paying jobs. Brishen's article provides another important justification for raising the minimum wage.
Friday, May 31, 2013
In the first circuit court of appeals decision on the issue, the Fifth Circuit, in EEOC v. Houston Funding II held yesterday that discriminating against an employee because she is lactating or expressing milk is sex discrimination. The decision reversed summary judgment in favor of the employer and remanded the case to the district court. We reported on the district court decision here, and you might recall that the district court had held that lactation was not a condition related to pregnancy because it did not start until pregnancy had ended.
The Fifth Circuit's decision held that lactation was a medical condition related to pregnancy and childbirth because it was a physiological state caused by pregnancy and subsequent childbirth. It further relied on prior circuit precedent, which had held that menstruation, a normal part of female physiology, was a condition related to pregnancy and childbirth:
Menstruation is a normal aspect of female physiology, which is interrupted during pregnancy, but resumes shortly afterthe pregnancy concludes. Similarly, lactation is a normal aspect of female physiology that is initiated by pregnancy and concludes sometime thereafter. If an employer commits unlawful sex-based discrimination by instituting a policy revolving around a woman’s postpregnancy menstrual cycle, as in Harper, it is difficult to see how an employer who makes an employment decision based upon whether a woman is lactating can avoid such unlawful sex discrimination. And as both menstruation and lactation are aspects of female physiology that are affected by pregnancy, each seems readily to fit into a reasonable definition of “pregnancy, childbirth, or related medical conditions.”
In a footnote in this section, the court distinguished cases about whether a failure to accommodate an employee who wanted to express milk at work in a particular way violated Title VII. Title VII does not require accommodations for women affected by pregnancy, childbirth, or related conditions, just that those women be treated the same as other employees who may be similar in their ability or inability to work. So if the employer never allows employees to take breaks, it may not be required by Title VII to allow lactating women to take breaks, for example.
This case was not about whether the employer had to accommodate the employee's request to use her breast pump at work, or at least not yet. Instead, it was about whether she was fired just for saying that she had said was lactating and wanted to express milk at work. She hadn't asked for any special accommodation yet. The employer doesn't exactly deny that; instead, it contends that she was not fired at all and instead abandoned her job.
This decision is an important development in the area of sex discrimination in sex-specific contexts. The accommodation framing seems somewhat problematic, though. It seems too easy to see a request related to expressing milk as something special, disregarding the kinds of actions employees simply take without requesting or requests that employees make all of the time that aren't viewed as accommodating. For example, even workplaces with rigid requirements about where employees must be and for how long (think a factory production line or cash register at a store) often provide breaks for employees to go to the bathroom, get a drink of water, or just rest for a few minutes. If an employee uses one of these breaks for some other purpose, it seems problematic to suddenly frame it as an accommodation.
With the amendment of the FLSA to require that most employers provide reasonable breaks and facilities to allow lactating women to express milk, perhaps this issue will fade, but it still says a lot about what we view as the "norm" to talk about accommodating pregnant or lactating women, when we don't talk about accommodating people with full bladders.
h/t N. William Metke, @metkelaw
Wednesday, February 20, 2013
Deborah Widiss (Indiana--Bloomington) has posted a new article on SSRN: Gilbert Redux: The Interaction of the Pregnancy Discrimination Act and the Amended Americans with Disabilities Act. Here is the abstract:
Pregnancy -- a health condition that only affects women -- raises complicated questions regarding the interaction of employment policies addressing sex discrimination and those addressing disability. The Pregnancy Discrimination Act (PDA), enacted in 1978, mandates that employers “shall” treat pregnant employees “the same for all employment-related purposes” as other employees “similar in their ability or inability to work.” Despite the clarity of this language, courts regularly permit employers to treat pregnant employees less favorably than employees with other health conditions, so long as the employer does so pursuant to a “pregnancy-blind” policy such as accommodating only workplace injuries or disabilities protected under the Americans with Disabilities Act (ADA). Under this reasoning, recent amendments expanding the scope of disabilities covered by the ADA could have the perverse effect of decreasing employers’ obligations to pregnant employees. This Article argues that these decisions misinterpret the PDA. The same treatment clause creates a substantive, albeit comparative, accommodation mandate. Rather than focusing on the presence or absence of discriminatory intent, courts should simply assess whether the employer has, or under the ADA would be required to, accommodated limitations like those caused by pregnancy. This approach appropriately incorporates consideration of the costs that accommodations impose on employers but insulates that inquiry from still persistent misconceptions regarding pregnant women’s capacity and commitment to work.
This Article is the first to consider in depth how the 2008 amendments to the ADA interact with the PDA. In addition to providing textual analysis, the Article provides historical context that helps confirm that the PDA means what it says. Commentary on the PDA generally characterizes the statute’s same treatment language as a response to some feminists’ concerns that requiring “special” accommodations for pregnancy would increase the risk of discrimination or backlash against women generally. This Article contributes to the historical literature on the PDA by identifying a distinct — complementary but largely overlooked — benefit of the PDA’s same treatment language: it came on the heels of an extraordinary expansion of employer and government support for health conditions other than pregnancy. Thus, although the PDA does not itself require specific pregnancy accommodations, its enactment required many employers to provide far more robust support for pregnancy than they had previously. This historical context has direct relevance for contemporary doctrine, since it is closely analogous to the recent expansion of the ADA. The unduly narrow conception of comparators currently used by many courts interpreting the PDA risks relegating pregnancy once again to the basement.
Timely and important--particularly since the EEOC is currently evaluating its guidance on the interaction of Title VII, the ADA, and the FMLA.
Tuesday, February 5, 2013
Kenneth Shiotani (National Disability Rights Network) gives us the news that the Department of Labor will be publishing its final rule on the recent amendments to the FMLA that expanded coverage to flight crews and family members of those in the military--for a refresher on those expansions, see here, here and here.
February 5, 2013 in Beltway Developments, Disability, Employment Discrimination, Labor and Employment News, Pension and Benefits, Public Employment Law, Worklife Issues | Permalink | Comments (0) | TrackBack (0)
And for some reform links, from the add paid leave camp: National Partnership for Women and Families Agenda for the 113th Congress. And from the reform abuse of leave camp: The U.S. Chamber of Commerce's Absence abuse and Medical Leave.
Tuesday, September 25, 2012
This is going to be another one of those lists of things I've been meaning to post but haven't got around to yet kinds of posts. The good news is, though, there's actually a unifying theme, and that is sex discrimination.
- A couple of years ago, I ran across this study that suggested recommendation letters for women were written in different language than recommendation letters for men, and that these differences led to disparities for women applicants. The study looked at applicants for tenure track university teaching positions.
- But apparently, we've had yet another study reaffirm that it's not just the recommendation letters, it's sex all by itself that's a problem. The researchers did a randomized double blind study in which the same resume was evaluated, but sometimes the applicant had a male name, and sometimes a female name. Both women and men were likely to evaluate the female applicant lower on competence, hireability, or mentor-ability (would they be a good mentee) than the male applicant.
- Finally, also in an academic setting, it's apparently newsworthy that female professors have nipples--or at least one nipple. I speculated not blogging about this one because the main point of the professor involved was that breastfeeding a baby for a couple of minutes during a class -- a feminist anthropology class -- was not newsworthy. But then the professor went public with the story and her frustration about it all. The story is basically this. It was the first day of the new semester, the class had a new TA, the professor was untenured and a single parent, and the baby was sick. Given her own status, the unfairness of shifting the work to the TA, the unfairness to the students of cancelling, and the lack of other options, the professor brought her daughter, who had a slight fever, to class. During the class, the baby grew a bit fussy, and the professor nursed her for a minute or two, continuing to conduct the class. A reporter for the school paper asked the professor about it and pushed for additional comments, but the professor objected (over time) that the event wasn't newsworthy and shouldn't be covered.
The comments highlighted in the Washington Post story and that the professor herself reports show that people seem to be uncomfortable with the fact that she brought the baby at all. There are implications that she was not a good parent because she allowed the child to crawl around on the floor or even had her there in the first place. Certainly there is stronger discomfort over the notion of her feeding her child in this context, but that seems to be just a part of the same reaction to the concern about the baby being there at all.
The situation and its coverage raise a lot of interesting points, particularly because of the nature of the subject matter: it was a FEMINIST ANTHROPOLOGY course. I've been in situations where I've had to bring a baby or an older kid to class, and where I've had to nurse a baby in front of students (not in class, as it happened), so you might guess that I agree that this shouldn't be considered a big deal. At the same time, I would understand the dissonance students might feel in the stuffy context of law to see a professor be human. But even if it's not ok in other contexts, in the context of a course about the study of human behavior from a feminist perspective, it seems entirely appropriate.
The professor also resists taking any sort of political stand about breastfeeding, and in fact this denial of the political-ness seems to be what the student reporter and external reporters can't get their brains around. Finally, it highlights both the problems of the workplace and childcare options, that sometimes, there aren't any real (or really good) choices available when the slightest thing goes wrong.
All three of these stories show that we've got a lot to think about still whenever we think about sex equality in the workplace, and this doesn't even get into non-conforming gender-linked behaviors.
Thursday, September 6, 2012
- The California Senate passed AB 889 (Domestic Workers bill of rights) late last week. It goes to Governor Brown for signature. Then, of course, the workers have to know they have rights as New York is discovering.
- People stay in their jobs primarily because they like what they do and they feel connected to their coworkers and employer, according to the National Retention Survey.
- More on the EEOC's duty to conciliate from Molly DiBianca at the Delaware Employment Law Blog.
- Honest Tea ran an experiment on people's honesty across the country and have made the data available here. It's broken down in some very interesting ways: by geography, hair color, and more. Could/should employers use this information to make decisions about potential employees in hiring?
- Is business school culture to blame for sexual harassment in the workplace? Here and here.
- Women are more likely than men to see nuance in making decisions. Carol Gilligan made that point in moral judgments, but it's now backed up at an earlier stage of cognition: categorizing.
- It takes three kids to kill your career if you're a woman in Australia.
- Sometimes, it seems, women are paid less because they're women.
- Jerks make more money.
- The Seventh Circuit suggests that it may not show discrimination if a supervisor says that he (the supervisor ) got his job because he was white, calls a Hispanic employee a “gold-digger” when he asked for a raise, says “I’m white and I’m right”, yells at a Hispanic employee having a heart attack to “Get the hell out of my office. Go die somewhere else,” say on numerous occasions that he does not like Spanish people, and refer frequently to Hispanics as “dummies” and “stupid.” The "real trouble" comes when that supervisor stops hiring because only Hispanics are applying. Yay?
- Misrepresenting yourself on an insurance application doesn't allow an agency to find that you are what you said there when you said something different to the agency and where the agency has lots of evidence that the representation to it was accurate. Plus, employment immigration law is hard.
- Lawyers who contract with the federal government to provide general legal advice or other legal services are governed by federal executive orders requiring compliance with federal contractor reporting requirements -- and the OFCCP can come in and make you: Download OFCCP v. O'Melveny & Myers October 31, 2011 (h/t Patricia Schaeffer, EEOIMPACT LLC).
And if I don't start to get some balance between work and life (or cut down on work), I'm going to end up like this poor woman, who died at her desk, but no one noticed. Whew. To-do list cleared off for the moment. I feel better.
Friday, August 24, 2012
From PJH Law:
An interesting legacy of the Olympic Games may involve London working practices. Many employers, during the period of the Games, embraced flexible working practices to allow employees to watch the Games and to avoid problems travelling to and from work. London law firms were amongst these. Such practices proved to be so successful that the Law Society are now encouraging law firms to adopt flexible working practices beyond the Games and have produced a protocol to assist firms. This includes practical advice, checklists and case studies demonstrating the business benefits and may be of interest to any employers (not just law firms) thinking of adopting such practices. This may not have been a legacy originally envisaged by Team Coe/Beckham etc but will be of significant impact nonetheless.
Tuesday, August 21, 2012
Michael Z. Green (Texas Wesleyan University School of Law) has recently posted his new piece on SSRN: Against Employer Dumpster Diving for E-Mail. Here is the Abstract: Recent attorney-client privilege cases offer a modern understanding of reasonable expectations of employee privacy in the digital age. Employees have increasingly made electronic mail communications to their attorneys via employer-provided computers or other digital devices with an expectation of privacy and confidentiality. Historically, courts have summarily dispensed with these matters by finding that an employer’s policy establishing clear ownership of any communications made through employer-provided devices eliminates any employee expectation of privacy in the communications and waives any viable privacy challenges to employer review of those communications. Nevertheless, within the last couple of years, several cases involving employee assertions of attorney-client privilege protection in e-mails sent on employer-provided devices suggest new thoughts about reasonable workplace privacy expectations. As employees must communicate through employer-provided digital devices day and night, these attorney-client privilege cases help expose the fallacy of assuming employees cannot reasonably expect that e-mails will remain private if employer policies mandate the communications are not private. These new cases and related ethics opinions about privileged e-mail offer a modern lens through which one may now view employee privacy expectations under a new paradigm that replaces the façade of assuming employees have no expectation of privacy due to employer policies. Digital age expectations regarding employee use of smart cellular phones, portable laptops, and other employer-provided devices to make communications beyond standard work hours leaves little expectation or opportunity for employees to reasonably communicate privately and confidentially by any other means than through these employer-provided devices. As a result, this article asserts that employer efforts to mine their devices for employee e-mails after disputes ensue comprises a form of electronic dumpster diving that should not be tolerated by courts, legislatures, or attorney ethics committees. I have to say I agree wholeheartedly with Michael, though diving into dumpsters (at least without trash) does sound like fun. It is time to reconsider the paradigm that allows employers to dictate employee privacy interests in the workplace through some version of the "operational realities on the ground" test. I think Michael has taken an important first step in thinking of ways that we can do just that through consideration of these attorney-client cases. PS
Michael Z. Green (Texas Wesleyan University School of Law) has recently posted his new piece on SSRN: Against Employer Dumpster Diving for E-Mail.
Here is the Abstract:
Recent attorney-client privilege cases offer a modern understanding of reasonable expectations of employee privacy in the digital age. Employees have increasingly made electronic mail communications to their attorneys via employer-provided computers or other digital devices with an expectation of privacy and confidentiality. Historically, courts have summarily dispensed with these matters by finding that an employer’s policy establishing clear ownership of any communications made through employer-provided devices eliminates any employee expectation of privacy in the communications and waives any viable privacy challenges to employer review of those communications. Nevertheless, within the last couple of years, several cases involving employee assertions of attorney-client privilege protection in e-mails sent on employer-provided devices suggest new thoughts about reasonable workplace privacy expectations.
As employees must communicate through employer-provided digital devices day and night, these attorney-client privilege cases help expose the fallacy of assuming employees cannot reasonably expect that e-mails will remain private if employer policies mandate the communications are not private. These new cases and related ethics opinions about privileged e-mail offer a modern lens through which one may now view employee privacy expectations under a new paradigm that replaces the façade of assuming employees have no expectation of privacy due to employer policies.
Digital age expectations regarding employee use of smart cellular phones, portable laptops, and other employer-provided devices to make communications beyond standard work hours leaves little expectation or opportunity for employees to reasonably communicate privately and confidentially by any other means than through these employer-provided devices. As a result, this article asserts that employer efforts to mine their devices for employee e-mails after disputes ensue comprises a form of electronic dumpster diving that should not be tolerated by courts, legislatures, or attorney ethics committees.
I have to say I agree wholeheartedly with Michael, though diving into dumpsters (at least without trash) does sound like fun. It is time to reconsider the paradigm that allows employers to dictate employee privacy interests in the workplace through some version of the "operational realities on the ground" test. I think Michael has taken an important first step in thinking of ways that we can do just that through consideration of these attorney-client cases.
Monday, August 13, 2012
Duhl on Over the Borderline — A Review of Margaret Price’s Mad at School: Rhetorics of Mental Disability in Academic Life
With all the serious and timely discussion of job security in the law professiorate and what-not, it appears particularly appropriate to bring to blog readers' attention this essay by Greg Duhl (William Mitchell): Over the Borderline — A Review of Margaret Price’s Mad at School: Rhetorics of Mental Disability in Academic Life.
It is part book review, part narrative, and part analytical. Here is the abstract:
This essay is about “madness” in higher education. In Mad at School: Rhetorics of Mental Disability in Academic Life, Professor Price analyzes the rhetoric and discourse surrounding mental disabilities in academia. In this essay, I place Price’s work in a legal context, suggesting why the Americans with Disabilities Act fails those with mental illness and why reform is needed to protect them. My own narrative as a law professor with Borderline Personality Disorder frames my critique. Narratives of mental illness are important because they help connect those who are often stigmatized and isolated due to mental illness and provide a framework for them to overcome barriers limiting their equal participation in academic life.
I happy to help Greg to spread the message on the importance of integrating faculty with mental illness. I believe this should be of interest to many readers of this blog and hopefully will spur a serious discussion on this topic.
Wednesday, July 25, 2012
ClassCrit V Workshop: From Madison to Zuccotti Park: Confronting Class and Reclaiming the American Dream
I am excited to share with readers of the blog information about the forthcoming ClassCrit V Workshop: From Madison to Zuccotti Park: Confronting Class and Reclaiming the American Dream (hyperlink leads to conference website). The conference is scheduled to take place in Madison, Wisconsin at the University of Wisconsin School of Law on November 16-17, 2012. The audience participation sign-up deadline is October 15th.
More about the theme of the conference from its website:
This workshop, the fifth meeting of ClassCrits, takes on class and the American dream as its theme. The most quintessentially American trait may be our capacity to look past current misfortune and imagine a brighter future. Americans love a “rags to riches” story and have long believed that hard work and determination will pay off in the long run. Two years into a sluggish “recovery” from the Great Recession, however, many Americans have lost some of that earnest optimism. Faced with persistent unemployment, a nationwide foreclosure crisis, deep cuts to state and local budgets, and declining state support for public education, Americans are questioning the promise of upward mobility. Indeed falling backwards is now a recognized phenomenon affecting more and more of the “middle class,” arguably blurring the distinctions between the “middle class,” the “working classes” and “the poor.”
But, roused by economic insecurity and the political assault on workers’ rights, “ordinary” people from Madison to Zuccotti Park have taken to the streets to voice their dissent. Taking on the slogan “we are the 99%,” the protest movement has launched a national dialogue about income, wealth and structural inequality, race, gender and class divisions in society, and, fundamentally, what it will take to reclaim our vision of a good life. From Madison to Zuccotti Park: Confronting Class and Reclaiming the American Dream will therefore bring together scholars, economists, activists, policymakers, and others to critically examine both the relationships between and the complexities of class and inequality.
I am excited to be providing a paper on the Wisconsin Public Sector Labor Dispute of 2011 and its relationship to the demise of the Wagner Act model of labor and to recent, class-based movements like Occupy Wall Street. Other worklaw profs scheduled to present include: Brishen Rogers (Temple), Charlotte Garden (Seattle), Nancy Leong (Denver), Ken Casebeer (Miami), Matt Dimick (Buffalo), Jim Pope (Rutgers-Newark), and Ahmed White (Colorado).
This should really be a great conference, so be sure to attend if you will be in the area, or even if you need to jet-hop in!
Tuesday, July 17, 2012
Robin Runge (North Dakota School of Law) just had an article published in the Georgetown Journal on Poverty Law and Policy.
Here's the cite: Redefining Leave From Work, 19 GEO. J. ON POVERTY L. & POL’Y 445 (2012) (Westlaw Subscription required).
From the Introduction:
The concept of leave from work in the United States has been determined by a collection of social and cultural factors. Workplaces are manifestations of social and cultural beliefs about how work is done, what exceptions or modifications to those norms are acceptable, and how family life is to be conducted. Similarly, the justifiable reasons for taking leave and the qualifications necessary to access leave from work reinforce societal values regarding work and family.
The current leave-from-work laws and policies do not incorporate the work-life and non-work-life experiences of low-wage workers. As a result, the majority of low-wage workers do not have meaningful access to leave from work, and when they do, the leave is underutilized. In this way, the work and family lives of low income workers generally, and low-wage working women in particular, are devalued by effectively denying their existence in the workplace.
Although there has been extensive analysis of how to remedy work-family conflict and workplace discrimination against women as caregivers, there has been limited examination of the work-life experiences of low-wage workers outside their identity as caregivers. Framing low-income working women's issues as “work-family conflict” may not be appropriate or accurate to describe their experiences. Moreover, the focus on leave from work as a primary method for addressing gender equity without discussing employees' control over their work and family lives has ignored the work experience of many low-wage working women, thus rendering the efficacy of this tool less successful in achieving its goal of gender equity.
This Article contributes to this scholarship by incorporating an analysis of low-wage workers' experience with current leave from work laws and policies. This analysis demonstrates that current leave laws and policies have contributed to social and cultural norms about leave that result in inaccessibility and underutilization of leave from work by low-wage workers. Reasons for this underutilization include the lack of control low-wage workers have over their work and family lives, a lack of financial support or incentive to take leave from work, and the mismatch of the permissible reasons for taking leave from work with the lives of low-wage workers. By integrating the work and family life experiences of low-wage workers into leave from work laws and policies, they may become a more effective tool for addressing gender and class inequity in the workplace.
This is a very timely and important article at the intersection of employment, gender, and poverty law. Check it out!
Friday, April 13, 2012
Kenneth Shiotani (National Disability Rights Network) just informed us that the Department of Labor Wage & Hour Division has extended the deadline for submitting comments to FMLA proposed regulations. The new deadline is April 30.
Tuesday, March 20, 2012
The Supreme Court issued it's opinion in Coleman v. Md. Ct. App. today, holding that Congress lacked the power to abrogate state immunity from suits for damages for violations of the FMLA's self-care provisions. Here's the syllabus:
JUSTICE KENNEDY, joined by THE CHIEF JUSTICE, JUSTICE THOMAS, and JUSTICE ALITO, concluded that suits against States under the self-care provision are barred by sovereign immunity. Pp. 3−12.
(a) Under the federal system, States, as sovereigns, are immune from damages suits, unless they waive that defense. See, e.g., Kimel v. Florida Bd. of Regents, 528 U. S. 62, 72−73. Congress may also abrogate the States’ immunity pursuant to its powers under §5 of the Fourteenth Amendment, but it must make that intention “unmistakably clear in the language of the statute,” Hibbs, supra, at 726. It did so in the FMLA. Congress also “must tailor” legislation enacted under §5 “to remedy or prevent” “conduct transgressing the Fourteenth Amendment’s substantive provisions.” Florida Prepaid Postsecondary Ed. Expense Bd. v. College Savings Bank, 527 U. S. 627, 639. “There must be a congruence and proportionality between the injury to be prevented or remedied and the means adopted to that end.” City of Boerne v. Flores, 521 U. S. 507, 520. Pp. 3−5.
(b) The sex-based discrimination that supported allowing subparagraph (C) suits against States is absent with respect to the self-care provision. Petitioner’s three arguments to the contrary are unpersuasive. Pp. 5–12.
(1) Petitioner maintains that the self-care provision addresses sex discrimination and sex stereotyping. But the provision, standing alone, is not a valid abrogation of the States’ immunity from suit. At the time the FMLA was enacted, there was no evidence of such discrimination or stereotyping in sick-leave policies. Congress was concerned about the economic burdens imposed by illness-related job loss on employees and their families and about discrimination based on illness, not sex. Although the self-care provision offers some women a benefit by allowing them to take leave for pregnancy-related illnesses, the provision, as a remedy, is not congruent and proportional to any identified constitutional violations. When the FMLA was enacted, Congress had no evidence that States were excluding pregnancy-related illnesses from their leave policies. Pp. 6–7.
(2) Petitioner also argues that the self-care provision is a necessary adjunct to the family-care provision sustained in Hibbs. But his claim—that the provisions work in tandem to ensure the equal availability of total FMLA leave time to women and men despite their different leave-usage patterns―is unconvincing and does not comply with the requirements of City of Boerne. Also, there are no congressional findings of, or evidence on, how the self-care provision is necessary to the family-care provisions or how it reduces employer discrimination against women. Pp. 8–11.
(3) Finally, petitioner contends that the self-care provision helps single parents keep their jobs when they get ill. The fact that most single parents happen to be women demonstrates, at most, that the self-care provision was directed at remedying neutral leave restrictions that have a disparate effect on women. However, “[a]lthough disparate impact may be relevant evidence of . . . discrimination . . . such evidence is insufficient [to prove a constitutional violation] even where the Fourteenth Amendment subjects state action to strict scrutiny.” Board of Trustees of Univ. of Ala. v. Garrett, 531 U. S. 356, 373. Because it is unlikely that many of the neutral leave policies affected by the self-care provision are unconstitutional, the scope of the self-care provision is out of proportion to its supposed remedial or preventive objectives. Pp. 11−12.
JUSTICE SCALIA adhered to his view that the Court should abandon the “congruence and proportionality” approach in favor of one that is properly tied to the text of §5, which grants Congress the power “to enforce, by appropriate legislation,” the other provisions of the Fourteenth Amendment. Outside the context of racial discrimination, Congress’s §5 power should be limited to the regulation of conduct that itself violates the Fourteenth Amendment and thus would not reach a State’s failure to grant self-care leave to its employees. Pp. 1−2.
Justice Ginsberg, Breyer, Sotomayor, and Kagan would have held that the self-care provisions validly enforce the right to be free from gender discrimination.
I haven't had time to read the opinion carefully, but the result is not much of a surprise. One particularly interesting piece is that Justice Scalia seems to be continuing his drive to limit Congress's powers to enact anti-discrimination legislation that is in any way different from what the Fourteenth Amendment provides, although he does apparently see some wiggle room for race discrimination legislation.
Update: Michael Waterstone (Loyola L.A.) has some nice analysis at Prawfsblawg, and I've written several things about the 11th amendment issue and federalism, like this, this, and an article forthcoming in the Wisconsin Journal on Law, Gender and Society that I'll post on SSRN as soon as it's ready for prime time.
Tuesday, February 14, 2012
Kenneth Shiotani (National Disability Rights Network) gives us the heads-up that the DOL's Wage & Hour Divison will post in tomorrow's Federal Register a Notice of Proposed Rulemaking related to the Family Medical Leave Act. Here's a summary of what will be covered:
The Department of Labor’s Wage and Hour Division proposes to revise certain regulations of the Family and Medical Leave Act of 1993 (FMLA or the Act), primarily to implement recent statutory amendments to the Act. This Notice of Proposed Rulemaking (NPRM) proposes regulations to implement amendments to the military leave provisions of the FMLA made by the National Defense Authorization Act for Fiscal Year 2010, which extends the availability of FMLA leave to family members of members of the Regular Armed Forces for qualifying exigencies arising out of the servicemember’s deployment; defines those deployments covered under these provisions; and extends FMLA military caregiver leave to family members of certain veterans with serious injuries or illnesses. This NPRM also proposes to amend the regulations to implement the Airline Flight Crew Technical Corrections Act, which established new FMLA leave eligibility requirements for airline flight crewmembers and flight attendants. In addition, the proposal includes changes concerning the calculation of leave;reorganization of certain sections to enhance clarity; the removal of the forms from the regulations; and technical corrections of inadvertent drafting errors in the current regulations.
The EEOC will hold public hearings tomorrow on pregnancy and caregiver discrimination. From the press release,
The U.S. Equal Employment Opportunity Commission (EEOC) will hold a public meeting on the subject of pregnancy discrimination and caregiver issues at 9:30 a.m. (Eastern Time) Wednesday, Feb. 15, at agency headquarters, 131 M Street, N.E., Washington, D.C. In accordance with the Sunshine Act, the meeting is open for public observation of the Commission’s deliberations.
At the meeting, the Commission will examine recent trends in discrimination against pregnant workers and workers with caregiving responsibilities, examining these two forms of discrimination as a continuum. The Commission is scheduled to hear from the following invited panelists:
Panel 1: Understanding Pregnancy and Caregiver Discrimination in Today’s Workplace
- Dr. Stephen Benard, Professor of Sociology, Indiana University (via VTC from our Indianapolis District Office)
- Sharon Terman, Senior Staff Attorney, Gender Equity Program, The Legal Aid Society Employment Law Center
- Maryann Parker, Associate General Counsel, Service Employees International Union
- Lynn Friss Feinberg, Senior Strategic Policy Advisor, AARP Public Policy Institute
- Deane Ilukowicz, Vice President for Human Resources, Hypertherm
Panel 2: Statutory Framework and Enforcement Efforts
- EEOC’s General Counsel P. David Lopez will provide introductory remarks.
- Peggy Mastroianni, Legal Counsel, EEOC
- Melvina Ford, Senior Policy Advisor in the Office of the Administrator, Wage and Hour Division, U.S. Department of Labor
- Emily Martin, Vice President and General Counsel, National Women’s Law Center
Panel 3: The Way Forward: Implications for the Future
- Judy Lichtman, National Partnership for Women and Families
- Joan Williams, Distinguished Professor of Law, UC Hastings Foundation Chair, Director of the Center for WorkLife Law
Seating is limited and it is suggested that visitors arrive 30 minutes before the meeting in order to be processed through security and escorted to the meeting room.
Thursday, February 9, 2012
Earlier this month, the EEOC lost a sex discrimination case on summary judgment, EEOC v. Houston Funding. The employee in that case alleged that she was fired for asking to be able to pump breastmilk upon her return to work after giving birth. The district court judge held that even though discrimination on the basis of pregnancy, childbirth, or related medical conditions is a violation of Title VII, that once the employee gave birth, she had no more pregnancy-related conditions and that therefore firing someone on the basis of lactation or pumping breastmilk could not be sex discrimination, citing these other district court decisions in support: Puente v. Ridge, No. M-04.267, 2005 U.S. Dist. LEXIS 46624, at *1I-12 (S.D. Tex. July 6, 2005); Martinez v. NBC Inc., 49 F. Supp. 2d 305, 311 (S.D.N.Y. 1999); Jacobson v. Regent Assisted Living, Inc., No. CV-98-564-ST, 1999 U.S. Dist. LEXIS 7680, at *30 (D. Or. Apr. 9, 1999; Wallace v. Pyro Mining Co., 789 F . Supp. 867, 869 (W.D. Ky. 1990).
The judge did not address whether lactation was a condition related to childbirth, the noun that comes between pregnancy and the phrase "other medical conditions," which seems rather problematic for the judge's reasoning. I could see the argument that lactation is not necessarily a "medical" condition, because that suggests dysfunction rather than a natural consequence of pregnancy and childbirth, but that was not what the judge appeared to rely on. Joan Willams (U.C. Hastings) has a great counterargument to that in this news story summarizing the woman's claim. She links breastfeeding to transferring immunities from mother to child, and refers to the medical complications like mastitis that can arise when mothers cannot breastfeed or express milk.
Interestingly, the facts of the order read very differently from the facts that the employee is alleging (see the EEOC complaint here). While I can't find a copy of the summary judgment documents to be sure, it looks as if the judge has not viewed the facts in the light most favorable to the EEOC. I see an appeal on the horizon here.
Saturday, February 4, 2012
Marcy Karin (ASU) and Katie Onachila have just posted on SSRN their article (American U. LEL Forum, 2012) The Military's Workplace Flexibility Framework. Here's the abstract:
The return of combat troops from Iraq provides a valuable catalyst to take stock of the use of workplace flexibility in the U.S. military and for other employers supporting the military community. Workplace flexibility is a tool the military can use to support its operations, improve the recruitment and retention of military personnel, and fulfill its obligation to support veterans and military families. While the unique mission critical needs of the military are an inescapable variable when creating workplace flexibility policies, the military must meet the workplace flexibility needs of its services members and their families to maximize the effectiveness and efficiency of the Armed Forces. This article provides an overview of the legal framework for workplace flexibility for the military community, and observations about themes evolving from those laws.
Friday, February 3, 2012
Notice of Proposed Rulemaking to Implement Statutory Amendments to the Family and Medical Leave Act
The U.S. Department of Labor announced that the Wage and Hour Division intends to publish a Notice of Proposed Rulemaking (NPRM) to implement and interpret the statutory amendments to expand the military family leave provisions and to incorporate a special eligibility provision for airline flight crew employees and make some additional regulatory changes. The Family and Medical Leave Act (FMLA) was recently amended to expand the military family leave provisions and to incorporate a special eligibility provision for airline flight crew employees.
Upon publication, interested parties will be invited to submit written comments on the proposed rule at www.regulations.gov. Only comments received during the comment period identified in the Federal Register published version of the Notice of Proposed Rulemaking will be considered part of the rulemaking record.
More information is available at the Proposed Rule Website.
One of my colleagues here at SLU has his environmental law students draft and submit comments on proposed rules as a way to introduce them to administrative lawmaking and the regulations process. It also forces them to dig deeper into the statutes and the policies and practical implications of enforcement. Marcy has done this too in her classes and has loved the results. She has offered to be a resource to anyone interested it trying it. I am thinking of having my employment discrimination students do the same thing after this encouragement.