Tuesday, January 31, 2006

Another Blogger Bites the Dust: Fired by Newspaper For Rude Postings on Personal Weblog

From delaware online (from the Wilmington News Journal):

A reporter for the weekly Dover Post newspaper was fired Monday for offensive comments made on his personal weblog.

Matt Donegan, a copy editor and reporter for the newspaper, was fired by Dover Post Editor Don Flood after a reader reported the blog entries to Sussex County radio talk-show host Dan Gaffney.

"I looked at the site, and sure enough it was there. Immediately afterward I verified with [Donegan] that it was his site and this is what he had written," Flood said. "And at that point I fired him."

Flood said some of the blog entries were "extremely offensive and just contrary to what we believe here."

Of the more controversial postings on the site, Donegan wrote about being awoken at night by loud African-American neighbors:

"I bet James Earl Ray [King's assassin] was woken up by black people yelling pointlessly in the streets the night before he killed your civil rights leader."

In his defense, Donegan stated that his firing is "a freedom-of-speech issue, and I don't think I was treated fairly in this case . . . . What I wrote ... was rude, but it doesn't make it wrong."

Well, Matt, I'm all for First Amendment speech protections when relevant, but because you work for a private employer, there is no state action involved in your being fired and, thus, no constitutional issues.  On the other hand, you may be able to claim protection if your state has a statute that protects legal off-duty conduct of employees, but I'm not sure if Delaware has one of these laws yet.

Further, although it might help if Matt had some form of just cause protection beyond employment-at-will, even if he does, the newspaper may be able to claim that such just cause existed as it should not have to keep an employee which through his conduct placed the employer in a bad light in the community.  In other words, as long as the employer can show that the employee's off-duty activity adversely impacted legitimate employer concerns (such as community credibility as a newspaper), I think Donegan may just be out of luck.

Finally, even if Matt had been a public employee, he probably would not have fared much better because he does not appear to have spoken on a "matter of public concern" under Connick, and even if we assume that he did, the balancing of interests done under Pickering would probably lead to the conclusion that the substantial disruption to the newspaper caused by Donegan's off-duty conduct would cause the balance of interests to tip in favor of the public employer.

Query whether a case like this comes out differently, assuming Donegan was a private sector employee again, if he did not hold such a high profile job in the community as a newspaper reporter and, therefore, would not have been as likely to be seen as the "face of the employer" to the community.

Hat Tip: the raw story


January 31, 2006 in Employment Common Law | Permalink | Comments (2) | TrackBack (1)

Hawaiian Public Employment Residency Requirement Under Review

Hitheislands Last Update (2/3/06): A federal judge has ruled against the 27-year-old law banning out-of-state residents from applying for public jobs in Hawaii. The judge granted the American Civil Liberties Union an injunction to prohibit the state from enforcing the requirement.  (Employment Law Practice Center)

Further Update: Thanks to Mike Zimmer for pointing out that Saenz v. Rose (U.S. 1999) might also point to the fact that there are additional privilege and immunity interests in the 14th amdt context concerning the right to interstate travel which might also bear on the outcome of this case.

Update: OK, I think I have a better grasp of what is at issue here. The U.S. Supreme Court in State of New Hampshire  v. Piper (1985) found that the Privileges and Immunities clause of Article IV, sec. 2, does not preclude discrimination against nonresidents where there is substantial reason for difference in treatment and discrimination practiced against nonresidents bears a substantial relationship to  a state's objective.

Although the Piper Court struck down a New Hampshire law limiting bar admission to residents for lack of substantial reason, to be somewhat provocative, I think Hawaii can meet this test when it comes to its unique circumstances as a public employer (for the reasons discussed below) and show a substantial relationship to its objective through use of the residency requirement.

After a wonderful stint at the University of Hawaii Law School this past summer teaching labor law to a wonderful group of students (shout out to Nathaniel and Liam if you're out there!), I have tried to keep up with at least the labor and employment law goings on in the State of Hawaii.

Thus, it is hardly surprising that this controversy made its way on to my radar screen (through Howard at How Appealing).

Apparently, the State of Hawaii has a requirement that public employees must be residents of Hawaii. The policy underlying this law is that there are too many people who just move to Hawaii for the experience of paradise for a couple of years and then return to their home states.  Hawaiian government employers want more assurance they will have a stable workforce and use individuals' Hawaiian residency as a proxy for these assurances.

The ACLU and two residents of Florida have now challenged the Hawaiian residency law as unconstitutional.  And it appears that the District Judge hearing the case is at least sympathetic to the plaintiffs' viewpoint.  From the Honolulu Star Bulletin:

A federal judge said he is troubled by a state law that prohibits out-of-state residents from applying for public employment, suggesting that the state Legislature review it.

U.S. District Judge David Ezra is expected to rule by next week on the American Civil Liberties Union of Hawaii's motion seeking an injunction to prohibit the state from enforcing its pre-employment residency requirement, enacted in the 1970s under then-Gov. George Ariyoshi.

The ACLU and Honolulu attorneys Anne Williams and Michael Livingston, who filed suit on behalf of two Florida residents who were turned down when they tried to apply for government jobs here, contend the law is unconstitutional and discriminatory.

"It sends a message that nonresidents are not welcome," said Lois Perrin, legal director for the ACLU.

State attorneys disagree, saying it is constitutional and that the state has the right to require those who apply for public employment here to be residents before they apply.

Now, I'm no constitutional scholar and I'm going here on my recollections from con law classes I took some 10 years ago, but I do not think there is either a full faith and credit clause, dormant commerce clause, or right to interstate travel issue here.  This is because of the simple reason that non-residents can still come and work at Hawaii, just not at certain government employment (there are exemptions for some workers like University of Hawaii employees which is why I guess I never had to worry about this).

But even if there is some constitutional question lurking here, doesn't the State of Hawaii merely have to establish that "the Legislature when it passed it could have believed that it was rational and furthered a permissible purpose"?  In other words, I'm not seeing more than rational basis review here, and it would appear that Hawaii as a government employer has significant concerns relating to providing efficient and effective governmental services to the public through a stable government workforce and also conserving public money by not having to invest training in public employee who have no intention of making the island state their home for the long run.

Besides, residency requirements exist in other contexts throughout the mainland. I know for a fact of residency requirements that have been upheld in public school teacher and police officer scenarios

Of course, constitutional law novice that I am, I would appreciate if any readers out there could point me to some precedent which would suggest that Hawaii has a greater constitutional burden to meet in  a case of this type.

My kama'aina (Hawaiian native) status is on the line.



January 31, 2006 in Labor and Employment News | Permalink | Comments (6) | TrackBack (0)

Are Public Trust Funds the Way to Go on Spiraling Municipal Retiree Health Care Costs?

The New York Times is reporting:

Parting ways with political temptation, Mayor Michael R. Bloomberg sketched a proposed $52.2 billion budget today that would spend most of a $3.4 billion windfall in tax revenues not on politically popular programs, but on paying down debt and other long-term costs that threaten New York City's future financial stability.

Under the mayor's plan, half the surplus would be used to create a trust fund to pay for retiree health care, satisfying new accounting rules that more accurately reflect the burden of such costs, while another $500 million would be used as an immediate payment on the city's long-term debt.


Mr. Bloomberg mayor also said he would approach union leaders about curtailing spiraling pension costs, as such expenditures, along with other fringe benefits, now consume 62 percent of the total compensation for municipal employees.

The proposed budget drew fierce criticism from City Council leaders, who called for New York City to uses its huge surplus to improve the schools and other city services.

I know that in a number of recent posts, I have stated that I have been skeptical about a testing program or on new legislation, but count me skeptical again as far as this trust fund idea is concerned.

As much as I think providing additional moneys up front for NYC's retiree health obligations is a necessity given new accounting rules and spiraling costs, this cannot be the city's long term response to a profound systemic issue.

Although there is a surplus this year, inevitably there will be down years in which the current proposed trust fund will be depleted and eventually, exhausted. 

In place of this short-term, get-by proposal, the city and its unions need to sit down and hammer out a long term solution to out-of-control retiree health care (and pension) costs. Nothing less than out-of-the-box innovations are necessary to stem the fiscal bleeding, not a one-time band-aid.


January 31, 2006 in Pension and Benefits | Permalink | Comments (0) | TrackBack (0)

Suk on Antidiscrimination Law in the Administrative State

Sukweb1Julie Suk (Cardozo) has posted on SSRN: Antidiscrimination Law in the Administrative State, 2006 U. Ill. L. Rev. 101.

From the abstract:

Is the goal of antidiscrimination law to promote substantive ideals of equality, or is it limited to remedying wrongful acts of discrimination?


In the United States, antidiscrimination law is mainly enforced through quasi-tort lawsuits against alleged discriminators. Unlike administrative agencies enforcing other bodies of law in the United States, and also unlike administrative agencies enforcing antidiscrimination law in Britain, the U.S. Equal Employment Opportunity Commission (EEOC) does not exercise adjudicatory or rulemaking power in pursuit of policies promoting equality. If the goal of antidiscrimination law is to pursue a substantive vision of equality, greater regulation by the administrative state is warranted.

This article raises some important issues at the intersection of employment discrimination and administrative law.  Most importantly, should the EEOC seek to act more like a traditional administrative agency to fulfill its statutory mandate?

You can download this timely article here.


January 31, 2006 in Scholarship | Permalink | Comments (0) | TrackBack (0)

Child Labor Laws and High School Drop Out Rates

Interesting post by Latina Lista on whether there is a correlation between child labor laws and high school drop out rates.  From the post:

According to the U.S. Department of Labor, between 70 and 80 percent of all teenagers work for pay during their high school years.

They are as essential to our economy as immigrant labor is, but one Oklahoma lawmaker wants to make changes in his state's child labor laws to reduce the high school dropout rate.

The question is: If child labor laws are changed, would it impact the high school dropout rate?

I don't think so personally, as I think most high school dropouts are not related to work-related concerns, but more likely have to do with drugs, gangs, pregnancy, or just plain apathy.  Disallowing high schoolers to work on their spare time is also likely to take away those valuable experiences that high schoolers need to teach them about the value of money and about the self-esteem and sense of accomplishment they can get from a job.


January 31, 2006 in Commentary | Permalink | Comments (4) | TrackBack (0)

The Role of Personal Narrative in Advancing Disability Rights

Coelhosm Dinerstein_robert Emens Engel_david  Psmiller


An interdisciplinary group of experts will consider the role of personal narrative in advancing the cause of disability rights at a forthcoming conference at Ohio State  Moritz College of Law.  Disability, Narrative, and the Law will bring together researchers from law and the humanities to explore how themes of autonomy and dependency, “normal” and “abnormal,” innocence and fault, sameness and difference, all play out in legal discussions about disability and in the self-understanding of persons with disabilities.  Speakers include Tony Coelho, Chair of The Epilepsy Foundation, Robert Dinerstein (American), Liz Emmens (Columbia), David Engel (Buffalo), Martha Fineman (Emory), Paul Miller (U. Washington), and Frank Munger (New York L.S.).

January 31, 2006 in Conferences & Colloquia | Permalink | Comments (1) | TrackBack (0)

8th Cir: Wal-Mart Can Be Sued for Anti-Union Retaliation under ERISA; No NLRA Preemption

The Eighth Circuit Court of Appeals has found that a group of union adherents may sue Wal-Mart for anti-union retaliation.  In Lupiani, et al. v. Wal-Mart Stores, Inc., et al., No. 04-1392 (8th Cir., Jan. 19, 2006), the court found a group of Wal-Mart employees could pursue their claims that the retailer violated ERISA by excluding union-represented employees from coverage under its pension and welfare plans.

Specifically, Spencer Benefit Reports (Aspen Publishers) summarizes the case this way:

The 11 plaintiffs in the case are automotive service technicians employed by Wal-Mart’s Tire Lube Express in Kingman, Ariz. As Wal-Mart employees, the plaintiffs participated in the company’s profit-sharing plan, 401(k) plan, and health and welfare plan. All three plans include a provision specifying that “union-represented associates” are not eligible for coverage under the plans.

The dispute arose when the plaintiffs sought to form a union with the assistance of the United Food and Commercial Workers Union. The plaintiffs filed a petition with the National Labor Relations Board (NLRB), and an election was scheduled for Oct. 27, 2000. However, Wal-Mart strongly opposed any union representation for its associates, and the company sent a team of labor relations managers to discourage the unionization effort.

The election was not held because the plaintiffs brought charges against Wal-Mart alleging that the plans’ union exclusion clause undermined efforts to unionize Wal-Mart associates. The NLRB investigated and issued a complaint, and a hearing was held before an administrative law judge. The judge concluded that the union exclusion clause violated the National Labor Relations Act (NLRA) and ordered Wal-Mart to rescind the clause. Wal-Mart then filed exceptions to the judge’s decision, and those exceptions remain pending with the NLRB.


Meanwhile, the plaintiffs filed suit against Wal-Mart in the U.S. District Court for the Northern District of California, alleging 14 violations of ERISA. Specifically, the plaintiffs alleged that Wal-Mart’s summary plan descriptions (SPDs) violated ERISA because the SPDs were misleading and inaccurate in that the SPDs conflicted with the language in plan documents suggesting that union-represented employees’ benefits were subject to good faith negotiations. The plaintiffs further alleged that Wal-Mart’s actions interfered with their ability to obtain benefits in violation of ERISA Sec. 510. The case was transferred to the U.S. District Court for the Western District of Arkansas, which dismissed the case on the grounds that its jurisdiction over the matter was preempted by the primary jurisdiction of the NLRB. The plaintiffs appealed, and the Eighth Circuit reinstated their claims.


Turning to the facts of the case, the Eighth Circuit stated, “We need not decide whether the preemption doctrine is implicated because ERISA and the [NLRA] are not in conflict. As such, the federal courts have jurisdiction over the ERISA claims in this case."

You can read a more detailed summary here.


January 31, 2006 in Union News | Permalink | Comments (0) | TrackBack (0)

Enhancing the Strengths and Accommodating the Weaknesses of Learning-Disabled Students, Lawyers, and Workers

Jollyryan     Jennifer Jolly-Ryan (Chase) has just published an article likely to be of interest to law school teachers, practitioners interested in disability law, and law school/university administrators responsible for accommodating disabled students.  Her thesis is that students with learning disabilities often bring exceptional abilities into the law school classroom, and that these students would greatly benefit if professors would work to create a more inclusive learning environment accessible to many different learning styles.  She discusses several types of learning disabilities (dyslexia, ADD, Asperger’s syndrome, and non-verbal learning disability) in detail, and describes teaching styles particularly effective for each.  In doing so, she simultaneously provides a blueprint for the accommodations likely to be most effective for each type of learning disability.  Though the article focuses on the law school environment, many of her suggestions are equally applicable to university environments generally, to the legal workplace, and to other workplaces.
    The article is Disabilities to Exceptional Abilities: Law Students with Disabilities, Nontraditional Learners, and the Law Teacher as a Learner, 6 UNLV L. Rev. 116 (2005).


January 31, 2006 in Scholarship | Permalink | Comments (0) | TrackBack (0)

Monday, January 30, 2006

Does Implicit Bias Testing Have a Place at Work?

Stressed_out Update: You can take the test online at https://implicit.harvard.edu/implicit/ (thanks to Rick Bales for the pointer).

From Slate.com: "Screen Test: Why We Should Start Measuring Bias" by Jay Dixit:

How do you test internal bias? You can try asking people, but since most of us don't like to think of ourselves as biased, we won't necessarily admit to it on a questionnaire, even anonymously. But there's a test to detect the kind of bias people won't admit to and may not even be aware of themselves—a test that works. The psychologists who devised it, however, are squeamish about real-world uses of it. They shouldn't be. Though it shouldn't be used as the basis for hiring decisions, the test has its place.

In 2003, Mahzarin Banaji, Anthony G. Greenwald, and Brian Nosek published a paper detailing an experimental methodology they had developed called the Implicit Association Test, or IAT. Rather than asking subjects what they thought about different races (or what they thought they thought), Banaji and her colleagues decided to time them as they paired words and images.

In the test's most popular version, the Race IAT, subjects are shown a computer screen and asked to match positive words (love, wonderful, peace) or negative words (evil, horrible, failure) with faces of African-Americans or whites. Their responses are timed. If you tend to associate African-Americans with "bad" concepts, it will take you longer to group black faces with "good" concepts because you perceive them as incompatible. If you're consistently quicker at connecting positive words with whites and slower at connecting positive words with blacks—or quicker at connecting negative words with blacks and slower at connecting negative words with whites—you have an implicit bias for white faces over those of African-Americans. In other words, the time it takes you to pair the faces and words yields an empirical measure.


Yet the test's creators are extremely wary about unleashing the powerful tool they've created. Banaji has threatened to testify in court against efforts to use her test in real-world situations. Using the test to ferret out biased people, she argues, assumes that people who have high implicit bias scores will always behave in a biased way—which is not the case, since the tests don't predict behavior with 100 percent accuracy. Banaji also points out that some highly motivated subjects may be able to beat the test by focusing on "counter-stereotypes," for instance, by thinking about black heroes like Dr. Martin Luther King Jr. and Nelson Mandela just before taking the test.

Banaji is right: The test isn't a perfect predictor, and it may be possible to beat it. Those are good reasons to limit the test's uses. But they don't justify never using it at all.


Using the implicit bias test for employment screening, then, goes too far (and it's easy to imagine the legal challenges). But employers should be able to use the test to assess employees once they've been hired. Ideally, an employee's individual result would be revealed only to him or her (employers could get aggregate reports so they could better make decisions about how to reduce bias in the workplace).  

Count me among the skeptical. I think such test are more likely to alienate employees who will feel overly defensive once this test inevitably labels them as biased.  I can only imagine the impact such a test would have on the morale of employees.  And I'm just not convinced that such a test can predict who among an employer's employees will actually one day engage in biased decision-making.

Perhaps my larger issue with the test, however, is that it merely points out the obvious: we all are biased to some degree in some way. However, like the inventor of the test, I believe most of us do not act on these biases in a way that interferes with the workplace environment or that otherwise leads to unlawful employment practices. 

In short, I believe the harm caused to an otherwise healthy work environment by implicit bias testing substantially outweighs any speculative benefit in ridding the workplace of unlawful bias through such testing.

Hat Tip:  Dana Nguyen


January 30, 2006 in Labor and Employment News | Permalink | Comments (3) | TrackBack (0)

Survey: Most Workplace Violence By Customers or Clients, Not Co-Employees

From PlanSponsor.com:

VIOLENT TENDENCIES.  Nearly half of American workers are victims of workplace aggression - but most of this abuse comes not from co-workers, but from customers, clients, or patients, according to a new national survey. 

The survey found that more than 40% of American workers reported being the victims of psychological aggression, including being screamed at, insulted, or threatened with physical violence (6% said they've actually been slapped, kicked, or attacked with a weapon).  Nearly 25% of workers surveyed said they were victims of aggression from customers, clients, patients, or other members of the public; 15% experienced aggression from co-workers; and 13% reported that their bosses or supervisors were the culprits.

Seems to me that these survey results are even more disturbing than previous understandings about the nature of workplace violence.


January 30, 2006 in Labor and Employment News | Permalink | Comments (0) | TrackBack (0)

Big Paycheck

Images_3Edward Jay Epstein, of The Slate, has an interesting take on Disney's purchase of Pixar for $7.7 billion.  Noting that Disney already has a hefty share of distribution, licensing, and sequal rights to Pixar's past and next film(s), Epstein concludes that just about the only unique thing Disney gets from the deal is "[h]uman capital in the person of John Lasseter, Pixar's creative guru."  For Epstein's story, see The $6 Billion Man.  Thanks to Bill Sjostrom for cluing me in; for Bill's take on the story (Lasseter should negotiate a new employment contract with a hefty raise!), see Disney/Pixar Deal: $6 Billion for Lasseter


January 30, 2006 in Labor and Employment News | Permalink | Comments (0) | TrackBack (0)

Recently-Published Scholarship

Facultypic1862 Mc_mhaas Mc_bclifton Mc_jmartin

  • Stephen Plass, Reinforcing Title VII With Zero Tolerance Rules, 39 Suffolk U. L. Rev. 127 (2005).
  • Carole J. Buckner, Due Process in Class Arbitration, 58 Florida L. Rev. 185 (2006).
  • Shirley Lung (left), Overwork and Overtime, 39 Indiana L. Rev. 51 (2005).
  • Daniel B. Kohrman & Kimberly Berg, Reconciling Definitions of “Disability”: Six Years Later, Has Cleveland v. Policy Management Systems Lived Up to Its Initial Reviews As A Boost For Workers’ Rights?, 7 Marquette Elder’s Advisor 29 (2005).
  • Nathan A.Olin, In Defense of Charities: A Case For Maintaining the Massachusetts Damages Cap for Certain Employment Discrimination Claims, 28 W. New England L. Rev. 11 (2005).
  • W. Melvin Haas, III (middle-left); William M. Clifton, III (middle-right); & W. Jonathan Martin, II (right); Annual Survey of Georgia Labor & Employment Law, 57 Mercer L. Rev. 251 (2005).
  • Shannon D. Leger, Note, Here’s Looking At You: High Tech “Peeping” in the Workplace and the Role of Title VII, 28 W. New England L. Rev. 89 (2005).
  • Susannah P. Mroz, Note: True Believers?: Problems of Definition in Title VII Religious Discrimination Jurisprudence, 39 Indiana L. Rev. 145 (2005).
  • Gwen Forté, Note, Rethinking America’s Approach to Workplace Safety: A Model For Advancing Safety Issues in the Chemical Industry, 53 Cleveland St. L. Rev. 513 (2005-06).
  • Jamie C. Chanin, Comment: What Is It Good For?  Absolutely Nothing: Eliminating Disparate Treatment of Third Party Sexual Harassment and All Other Forms of Third Party Harassment, 33 Pepperdine L. Rev. 385 (2006).

January 30, 2006 in Scholarship | Permalink | Comments (0) | TrackBack (0)

Is there a Pension Double Standard?

From UPI:

Major corporations are doing away with costly employee pension plans, but not for executives, the Los Angeles Times reports.

Countrywide Financial Corp. of Calabasas, Calif., for example, will not offer lifetime income after retirement to employees hired since Jan. 1. But new Countrywide executives still qualify for a special executive pension -- one that will pay Chief Executive Angelo Mozilo up to $3 million a year for life.

Companies say cutting the executive plans would cause top executives to go to work for their rivals. Others view it as a double standard.

"These executives earn what an entire neighborhood of typical families make collectively," said Karen Friedman, policy director at the Pension Rights Center, a non-profit advocacy group. "They don't need this money for retirement. These plans are just outrageous."

Personally, I think the current version of the tax code does not do enough through its qualification  provisions in Section 401, and in particular its non-discrimination rules, to give incentive to employers to provide equally generous pension benefits to so-called non-highly compensated and non-key employees. 

In short, there are just too many exceptions from these non-discrimination rules, the most important being for executive top hat plans, which permit employers to provide non-qualified, lavish retirement plans for executives without worrying about running afoul of the non-discrimination rules.

In short, the current disparity between executive and non-executive pensions is not going to change until the tax code makes it more expensive from an ex ante perspective for employers to offer such generous pension benefits to its executives.


January 30, 2006 in Pension and Benefits | Permalink | Comments (0) | TrackBack (0)

Making Health Insurance Affordable for Small Employers: The Concept of Pooling

From a Tribune article posted on the Insurance Planet blog:

Small shops look for health insurance aid    

By JOSH FLORY of the Tribune’s staff

Published Sunday, January 29, 2006

State and federal lawmakers are working feverishly to address the concerns of entrepreneurs like Stonecipher-Fisher, and they’re increasingly focused on one idea in particular: encouraging small businesses to band together when buying insurance.

U.S. Sen. Jim Talent has long been an advocate of the idea and visited Tryathletics on Tuesday to stump for a federal measure that would allow small businesses to buy health insurance through national trade associations such as the Chamber of Commerce.

Missouri Gov. Matt Blunt called for "buying pools" in his recent State of the State speech, and the idea has attracted legislative proposals from both sides of the aisle.

The theory is simple:

If a business has eight employees and one of them has a serious health problem, insurance premiums for that company will probably be sky-high.

But if the company can buy insurance as part of a large association or buying pool, the impact of one employee’s sickness should have little effect on that company’s premiums.


January 30, 2006 in Pension and Benefits | Permalink | Comments (0) | TrackBack (0)

ABA Section of Dispute Resolution Spring Conference

Totenberg2037403_1 Grafstein


The 8th Annual American Bar Association Section of Dispute Resolution Spring Conference will be held April 5-8 in Atlanta, Georgia.  Presentations of particular interest to employment folks include:

  • Employment Arbitration Under Pre-Dispute Mandatory Clauses: Practical Issues and Challenges, by Amy Totenberg (Law Office of Amy Totenberg & JAMS, Atlanta) (left), Mairen Kelly (Fisher & Phillips LLP, Atlanta) (middle-left), Joan C. Grafstein (JAMS, Atlanta) (middle-right), and Edward D. Buckley (Buckley & Klein LLP, Atlanta) (right).
  • When Generations Collide in the Workplace: A Workshop for Managers of the 21st Century Workforce, by Kimberly Y. Beg (FMCS, D.C.) and Jennifer Ortiz (FMCS, D.C.).
  • But I Didn't Sign the Arbitration Agreement!, by Bruce Meyerson (Bruce Meyerson PLLC, Phoenix).


January 30, 2006 in Arbitration | Permalink | Comments (0) | TrackBack (0)

Sunday, January 29, 2006

Carbado, Gulati & Ramachandran on Makeup and Women at Work

Devon Carbado (UCLA) (pictured left), G. Mitu Gulati (Georgetown), and Gowri Ramachandran (Georgetown), have posted on SSRN: "Makeup and Women at Work" (forthcoming in the Harvard Civil Rights-Civil Liberties Law Review).

From the abstract:

This is a story about gender, makeup and the law. Darlene Jespersen, a bartender, was fired from her job of fifteen years at Harrah's Casino because she refused to wear makeup.

Because anti-discrimination law has been wedded to a biological conception of sex, it has not grappled well with sex discrimination cases that implicate makeup and grooming. This is particularly problematic in today's labor market because few contemporary employers are likely to exclude all women from their workplace; they are far more likely to engage in intra-gender screening based on whether a woman's self presentation is in accord with social scripts about gender normative behavior. Using Jespersen as a point of departure, we reveal how makeup is implicated in this screening process and explain why its regulation ought to be conceptualized as a form of discrimination on the basis of sex.

The article is available for download here.


January 29, 2006 in Scholarship | Permalink | Comments (1) | TrackBack (0)

Selmi and Cahn on Women in the Workplace

Michael Selmi (George Washington) and Naomi Cahn (George Washington) have posted on SSRN, "Women in the Workplace: Which Women, Which Agenda," 13 Duke J. Gen L. & Pol'y (forthcoming Spring 2006).

From the abstract:

Much of the work family literature that has blossomed over the last decade has focused on professional women and has emphasized policy changes that would be of less utility to many other working women and men. In this symposium contribution, we explore the recent data on working time to demonstrate that in today's economy more women are underemployed rather than overemployed.

We also demonstrate that although professional women tend to work the longest hours, they also tend to have the greatest means, both in income and workplace benefits, to support them in achieving a workable balance between their work and family demands. We discuss the most prominent policy proposals for helping attain this balance, including a greater emphasis on part-time work and shorter workweeks, and critique them for their failure to address the needs of most working women.

Finally, we suggest several alternative proposals, including lengthening school days, addressing domestic violence, and challenging the stubborn gender norms that prevent further progress for equality in both the workplace and the home.

You can download this worthwhile article through the link to the SSRN abstract page above.


January 29, 2006 in Scholarship | Permalink | Comments (0) | TrackBack (0)

Update on Walgreen Religious Pharmacists


A while back, I wrote about 4 Walgreen pharmacists who were suspended, and eventually left their jobs, because they refused to dispense "morning after" pills. They have now sued Walgreens under the Illinois Health Care Right of Conscience Act, which allows health care providers to opt out of procedures they object to on moral grounds.

The reason that this case came to a head is because although pharmacists are allowed to refuse to dispense certain medications based on moral objections under the law, under company policy, the pharmacist must refer the prescription to another employee who can arrange to fill the order swiftly. All four of these pharamacists were on the night shift at 24 hour stores and so they had no one else to refer to when they refused to fill the prescriptions.  As a result, the store suspended them and offered to find them jobs in different states, but they refused.

My take? Well, it is interesting they did not try to bring this claim under Title VII, or its Illinois anti-discrimination in employment analogue,  Probably smart given the de minimis line on religious reasonable accommodation since Hardison.  My thought is that this case is purely a matter of statutory interpretation and the case will succeed or fail based on statutory cannons of constructions, not on high-faluting matters of constitutional free exercise or Establishment.

You can read more about the lawsuit here from Reuters.


January 29, 2006 in Labor and Employment News | Permalink | Comments (0) | TrackBack (0)

Top-5 Employment / Labor SSRN Downloads

Top-5 Benefits, Compensation, & Pension SSRN Downloads