Workplace Prof Blog

Kalev, Dobbin & Kelly on Assessing the Efficacy of Corporate Affirmative Action and Diversity Policies

Alexandra Kalev (Berkeley), Frank Dobbin (Harvard), and Erin Kelly (Minnesota) have published in the American Sociological Review: Best Practices or Best Guesses? Assessing the Efficacy of Corporate Affirmative Action and Diversity Policies.  We previously highlighted this study as part of a post we did last November.

Here's the abstract:

Employers have experimented with three broad approaches to promoting diversity. Some programs are designed to establish organizational responsibility for diversity, others to
moderate managerial bias through training and feedback, and still others to reduce the social isolation of women and minority workers. These approaches find support in academic theories of how organizations achieve goals, how stereotyping shapes hiring and promotion, and how networks influence careers. This is the first systematic analysis of their efficacy.

The analyses rely on federal data describing the workforces of 708 private sector establishments from 1971 to 2002, coupled with survey data on their employment practices. Efforts to moderate managerial bias through diversity training and diversity evaluations are least effective at increasing the share of white women, black women, and black men in management. Efforts to attack social isolation through mentoring and networking show modest effects. Efforts to establish responsibility for diversity lead to the broadest increases in managerial diversity. Moreover, organizations that establish responsibility see better effects from diversity training and evaluations, networking, and mentoring. Employers subject to federal affirmative action edicts, who typically assign responsibility for compliance to a manager, also see stronger effects from some programs. This work lays the foundation for an institutional theory of the remediation of workplace inequality.

This is a timely and fascinating empirical study of the impact of diversity training at corporations.  Its counter-intuitive findings are sure to lead to some major re-thinks of how best to promote diversity in the workplace.

Hat Tip:  Nancy Levit

PS

EEOC Sues Vonage for Religious Discrimination

Catching up on some employment discrimination news reported this past week, the Houston Chronicle reported this past Tuesday:

The U.S. Equal Employment Opportunity Commission sued Vonage Holdings Corp. on Tuesday, alleging the company discriminated against a Jewish employee by failing to accommodate his need for religious observances.    

In a lawsuit filed in federal court in Newark, N.J., the EEOC alleges Vonage and its Vonage America Inc. unit didn't allow Mikhail Rozenberg, an Orthodox Jew, to participate in training because he had to miss time to observe Jewish holidays in fall 2005 and didn't accommodate his request for a schedule where he didn't work on Saturdays in order to observe the Sabbath ...

"Defendants' management representative told Rozenberg, 'You will not fit here,' and that when he stopped practicing his religion, he could come back," the lawsuit alleges.

Even under the de minimis test of Hardison for religious accommodation, if the allegations are true, Vonage may have a difficult time defending the actions of its managers.

Hat Tip:  Steve Sholk

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Merit Pay for Law Firm Associates

WSJ.COM, via Brian Leiter, reports that the international law firm of Howrey LLP is ditching lockstep compensation for its associates in favor of merit pay:

While associates will start at the market rate, their salary will them be determined by their perfomance rather than seniority, says the article.  Stars will be paid higher than market; slackers could make less.  One factor in an associate’s performance will be hours billed, . . . but it will be one factor of several.

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Massachusetts Discrimination Law Preempted by ERISA in Same-Sex Benefits Case

In the case of Partners Healthcare Sys. Inc. v. Sullivan, No. 06-11436 (D.Mass June 25, 2007), the federal district court in Massachusetts has found that the Massachusetts Commission Against Discrimination (MCAD) may not investigate a reverse sexual orientation discrimination claim that providing benefits to non-married same-sex couples, but not to non-married heterosexuals, is discriminatory under Massachusetts discrimination law because such a claim is preempted by ERISA.

There is an interesting and complex Younger abstention question tied up with this ERISA preemption analysis.  Under Younger abstention, a federal court must abstain from interfering with a state proceeding if (1) there is an ongoing state judicial proceeding involving the federal plaintiff that (2) implicates important state interests and (3) provides an adequate opportunity for the federal plaintiff to assert his federal claims. The Court noted that this is case is all about whether this case implicates important state interests:

Plaintiff argues that there can be no important state interest in adjudicating a dispute under a state law which is preempted by ERISA. The Supreme Court has noted that district courts should abstain where there is only a substantial claim of preemption, but the First Circuit has ruled that where there is a “facially conclusive” claim, abstention is inappropriate.

In this regard, the court concluded that the ERISA preemption claim was "facially conclusive" and that therefore MCAD should be enjoined from investigating the sexual orientation discrimination claim:

In other words, unlike generally applicable laws regulating “areas where ERISA has nothing to say," . . .  which we have upheld notwithstanding their incidental effect on ERISA plans, . . . this statute governs the payment of benefits, a central matter of plan administration . . . .

[A]pplying [the Massachusetts law] to Plaintiff's plan would in effect, specify who the plan must name as beneficiaries of the plan health insurance benefits. Plan administrators would be obligated to pay under state law, and not under their plan documents. In this way, such application of [the Massachusetts law] would govern the payment of benefits, and would clearly have a connection with, and directly relate to an ERISA plan.

This analysis seems right on as far as the current state of ERISA preemption law. The case was not dismissed entirely, however, because the MCAD's investigation would also be looking into employee benefits that may not be part of an ERISA plan.  Instead, the injunction for the time being was limited to declaring that MCAD may not proceed on a discrimination theory with respect to any ERISA-governed employee benefit plans.

Of course, although this case went against the non-married heterosexual couple, it also means that homosexual couples desiring the same equal benefits as non-married heterosexual couples will also not be able to bring a sexual orientation discrimination claim under Massachusetts state anti-discrimination law.  Instead, they will be left with a meaningless ERISA claim, based on a denial of benefits under Section 502(a)(1)(B).

For more on this interesting case at the intersection of employee benefits law, employment discrimination, and federal abstention doctrine, see Arthur Leonard's posts on Leonard Link here and here.  Arthur points out in discussing potential similar issues in New Jersey:

Thus, even if the state of New Jersey can confer all state law rights pertaining to marriage on civil union partners, those are merely STATE law rights, and in ERISA the federal government has apparently divested the states of the power to compel private employers to refrain from sexual orientation discrimination in the establishment and implementation of their employee benefit plans that are subject to ERISA.  (ERISA does not apply to the public sector, and certainly the state of New Jersey can legislate to require itself and its political subdivisions to provide such benefits...)

Is there a solution to this problem?  The Employment Non-Discrimination Act, H.R. 2015, now pending in Congress, provides the solution.

Not surprisingly, I agree with Arthur on this final point.

Hat Tip:  Jeff Hirsch

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Labored Relations at the NLRB

With apologies to Bill Gould for borrowing the title of his book, another chapter in the strained relationship between the NLRB and the unions representing its employees is unfolding.  NLRB General Counsel Meisburg has recently announced that he is challenging a FLRA decision that combined the NLRBU union employees into a unit including both General Counsel- and Board-side employees  Meisburg argues that:

General Counsel Meisburg’s decision not to bargain reflects his strongly held view that the FLRA’s consolidation decision . . . conflicts with the National Labor Relations Act (the Act), which is the legislation that establishes the 5-member Board and the position of General Counsel. Under the Act [Section 3(d)], the General Counsel serves as an independent prosecutor of labor cases before the Board, which serves as a “court” to hear those cases. The FLRA decision would put the General Counsel in the position of bargaining with the NLRBU regarding Board support staff, and the Board in the position of bargaining with the NLRBU regarding General Counsel field office support staff and professionals, including line attorneys who prosecute cases before the Board. . . .

In creating a single bargaining unit that includes both Board-side and General Counsel-side employees, the FLRA certification threatens the Section 3(d) independence of the General Counsel. This approach is contrary to both the intent of Congress and the express language of Section 3(d). On a practical level, this decision disrupts over 40 years of productive collective bargaining at the NLRB and places the independence of the General Counsel at risk.

This is a very weak argument.  The FLRA persuasively demonstrated that Section 3(d)'s grant of independence to the General Counsel to prosecute cases has nothing to do with the agency's own labor relations.  Moreover, the argument that the practical effects of joint General Counsel- and Board-side bargaining would be disruptive is absurd.  For years, headquarters employees--although technically within separate General Counsel- and Board-side units of the NLRBPA union--have bargained jointly.  Thus, the Board and General Counsel has already been doing exactly what the General Counsel claims to be so disruptive.

It is perhaps a well-known secret that labor relations between the Board and its employees have long been troubled.  When I worked there, negotiations over a new collective bargaining agreement got so bad that the union picketed in front of headquarters.  Admittedly, a group of picketing attorneys doesn't quite strike the same image as a phalanx of Teamsters, but it was enough to get some decent "man bites dog" stories about the Board's treatment of its own union.  The NLRBU is a much larger and stronger union than the NLRBPA and, although I don't know the story behind all of this, I feel certain that this is more of a power play by the General Counsel than anything else.

Hat Tip:  Rick Bales

-JH

Review of Public Comments to FMLA Request for Information Released

PlanSponsor.com reports this morning:

LEAVE "PEEVES."  The U.S. Department of Labor has released Family and Medical Leave Act Regulations: A Report on the Department of Labor's Request for Information, a comprehensive review of the thousands of public comments received in response to the departments December 1, 2006, Request for Information about the Family and Medical Leave Act regulations and their impact in the workplace.  The comments highlight the prevalence with which unscheduled intermittent leave is being taken in certain workplaces, the single most serious area of friction between employers and workers.  Another major area of concern, on the part of workers, employers and health care providers, is the medical certification process.

The PlanSponsor.com article goes on to point out:

The comments received by the DoL show the FMLA is generally working well and many employees and employers are not having noteworthy FMLA-related problems, according to a report summary. However, employees often expressed a desire for a greater leave entitlement, while employers voiced concern about their ability to manage business operations and attendance control issues.

There is also general dissatisfaction with the medical certification requirements under the FMLA:

A notable finding from the comments received was that none of the parties involved with the medical certification process are happy with the current system. Employees are concerned about the time and cost of visits to health care providers to obtain medical certifications and the potential for invasion of their privacy, while employers, especially when it comes to intermittent leave use, seek predictability in attendance and are frustrated with medical certifications that do not provide meaningful guidance. Health care providers complain they cannot predict how many times a flare-up of a particular condition will occur.

The full report is here and more comments, from the management perspective, can be found by Michael Fox at Jottings By An Employer's Lawyer.  As Mike points out, this whole process has led to more information about how the law is working, but no proposed regulations for the time being.  Mike also notes:

Senator Chris Dodd one of the original authors of FMLA is teaming with Senator Ted Stevens from Alaska to offer a proposal that would create an insurance fund to allow 8 weeks of FMLAFMLA leave would not result in considerable more use and a multiplication of current employer problems, is either not being realistic or honest, or both. leave to be paid.  Anyone who says that paid

I think any such amendments to the law or proposed regulations are more likely to come with a new administration in 2009, and those changes will reflect which party has been elected.

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The Benoit Tragedy and Working Conditions in a Disreputable Industry

Thanks to Paul and the gang here for letting me post this.

I’m probably one of the few law profs that follows professional wrestling.  But many who don’t have no doubt heard that a star performer in this business, Chris Benoit, was apparently the perpetrator of a double-murder/suicide over the weekend. According to police investigators, he killed his wife Nancy Benoit and his seven-year old son, Daniel, and then hung himself. Benoit’s co-workers have expressed shock and claim that he never exhibited signs or behavior indicating he was capable of such a thing; the news media seems quick to blame "roid rage."

I don’t know, and there’s a good chance nobody will ever know, exactly what psychological and/or pharmacological factors caused these horrid acts. Men with no connection to the wrestling world and its vices kill their wives and children. So as to this individual case, what follows is speculation.

Still, it must be noted that deaths and various types of physical and psychological damage are all too common in this line of work. Since 1985, fifty-five prominent pro wrestlers have died at age 45 or younger; twenty-six have died at age 36 or younger.

In interviews about the Benoit tragedy, performers in the industry have not just blamed steroids, but rather have talked about the job as a whole. Wrestlers work a brutal schedule.  They can be on the road over 300 days a year (there’s no "off season"). While the endings to "matches" are scripted, and the punches and kicks are not meant to land with full force, it is a physically dangerous job. Bumps, bruises and falls are routine; many workers suffer serious injuries, and most if not all live with constant aches and pains. Thus, they use and abuse painkillers, among other drugs. Size has always mattered, and the WWE has been especially partial to giving prime spots (and thus the highest incomes) to outlandishly large and unnaturally-muscled performers.  There is even more pressure on performers who are not tall -- and Benoit was not -- to be ultra-muscular.  Generally, while "sports entertainment" is a very big business, studies indicate that its management retains many elements from its early days as a carny sideshow.

There is little academic writing on the work relations in this major industry. There is less on pro wrestling than on pornography – another big business with a history of poor working conditions. Some have wondered if the lack of attention to pornography is in part because it is a disreputable industry, and I strongly suspect that helps explain the dearth of scholarship on pro wrestling. Whatever one thinks of "sports entertainment" – and I’ll admit it’s low-brow at best – real people work in it, and whatever actually happened to Chris Benoit, real people are destroyed by it. If nothing else comes out of this tragedy, I hope the message of the workers about their conditions is heard and addressed.

Joe Slater (JS)

Recently Published Scholarship

The Labor Lawyer
Volume 22, Number 3, Winter/Spring 2007

• Paul Grossman (left), Paul W. Cane, Jr. (second), & Ali Saad, "Lies, Damned Lies, and Statistics:" How "The Peter Principle" Warps Statistical Analysis of Age Discrimination Claims, p. 251.
• Allan G. King (third), “Gross Statistical Disparities" As Evidence of a Pattern and Practice of Discrimination: Statistical Versus Legal Significance, p. 271.
• Joan C. Williams (right) & Consuela A. Pinto, Family Responsibilities Discrimination: Don’t Get Caught Off Guard, p. 293.
• Anjetta McQueen, 2006 Student Writing Competition Winner: Security Blanket: The State Secrets Privilege Threat to Public Employment Rights, p. 329.

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Sexual Harassment Law in China

Thanks to Lesley Wexler at PrawfsBlawg for bringing to our attention some recent developments in Chinese employment discrimination law:

China has been importing many aspects of foreign legal systems in order to make itself more attractive for investment. Chinese cities and corporations are taking the latest step in this process by prohibiting sexual harassment. Although China banned sexual harassment in 2005, the amendment to the 1992 Law on the Protection of the Rights and Interests of Women failed to define the term.

As the Christian Science Monitor reports:

"Aware that many of the city's female residents have been victims of unwanted sexual advances, Shanghai has become the first city in China to define what constitutes sexual harassment. It is the latest in a series of moves by the central and local governments to update the legal system and provide a stronger foundation for the country's burgeoning economy. Protective of its position as one of the world's premier destinations for international business, Shanghai sees itself as a companion to New York, London, and Hong Kong and has decided that it needs the institutions to match."

Two thoughts: (1) it would be great if this type of legal improvement was done for more than the cynical reason of attracting investments; and (2) maybe China will also start enforcing its child labor laws in a more uniform and effective matter.

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WVU Law Symposium on Race and Labor in 21st Century Sports Law

Michael McCann (Miss. College Law) provides information on the Sports Law Blog on the WVU Law Symposium on Race and Labor in 21st Century Sports Law, which is scheduled for October 4th and 5th.

Mike writes:

On October 4th and 5th, the West Virginia University College of Law will host a symposium entitled "Reversing Field:  Examining Issues of Commercialization, Race and Labor in 21st Century Sports Law.”  I am honored to be speaking at this event, which is spearheaded by Sports Law Blog contributor and WVU law professor andre` douglas pond cummings and also includes blog contributors Joe Rosen and Andre Smith.

The symposium's sponsors--the WVU Law Sports and Entertainment Law Society, the Office of the President of WVU, and the WVU School of Physical Education--have assembled a terrific group of academics and practitioners to debate key issues related to the intersection of race and labor law in sports: commercialization of intercollegiate athletics, race issues in collegiate and professional sports, drug testing, gender equity, and economic weapons.

Sounds like a great conference.  You can get more information from Stacey Evans, who is President of the WVU Sports and Entertainment Law Society.

PS

Email

Joseph Grundfest (Stanford), commenting in yesterday's Wall Street Journal on the antitrust implications of an email sent by Whole Foods CEO John Mackey stating that Whole Foods wanted to acquire Wild Oats so it could "eliminat[e] a rival," described emails in a way equally applicable to much employment litigation:

It's remarkable how many corporate executives don't understand that the "e" in email stands for both evidence and eternal.  My only surprise here is that Mr. Mackey is surprised that the government got his email, read his email, and used his email against him.

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Recently Published Scholarship

William & Mary Journal of Women and the Law
Volume 13, Issue 3, Spring 2007

2006 Symposium on Current Developments in Gender and the Workplace

• Jayne W. Barnard (left),  More Women on Corporate Boards?  Not So Fast,  p. 703.
• B. Glenn George (right),  Theory and Practice: Employer Liability For Sexual Harassment,  p. 727.
• Julie S. Ashby, Michelle K. Ryan & S. Alexander Haslam,  Legal Work and the Glass Cliff: Evidence That Women Are Preferentially Selected to Lead Problematic Cases,  p. 775.

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Sex Discrimination by Religious Institutions

Cass Sunstein (Chicago) has just posted on SSRN his new working paper On the Tension between Sex Equality and Religious Freedom.  Here's the abstract:

When, if ever, is it legitimate for law to ban sex discrimination by religious institutions? It is best to approach this question by noticing that most of the time, ordinary civil and criminal law are legitimately applied to such institutions. For example, members of religious organizations cannot commit torts, even if the commission of torts is said to be part of their religious practices. Many people seem to accept what might be called an Asymmetry Thesis, which holds that sex equality principles may not be applied to religious institutions, whereas ordinary civil and criminal law may indeed be applied to them. This essay argues that the Asymmetry Thesis cannot be defended, and that much of the time, sex equality principles are properly applied to religious institutions. Discussion is also devoted to the controversial idea that facially neutral laws may be applied to religious institutions even if they have a severe adverse effect on religious practices.

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Ledbetter Pay Discrimination Bill Introduced in the House

Update:  The House Education and Labor Committee passed on a party-line vote (25-20) the Ledbetter Bill (H.R. 2831) late on June 27th.

CCH Work Week for June 25, 2007 has this update on the House's effort to oveturn the recent Supreme Court Ledbetter decision which would require plaintiffs to bring pay discrimination claims within 180/300 days of discrete, individual acts of pay discrimination.

CCH writes:

As promised, House labor committee chair George Miller (D-Cal) and other top House Democrats introduced the Lilly Ledbetter Fair Pay Act (H.R.2831) on June 22. The legislation would amend Title VII, the Age Discrimination in Employment Act, the ADA, and Rehabilitation Act to specify that a discriminatory pay decision or practice that starts the 180-day time period for filing a charge of discrimination with the EEOC (or 300-day period if the charge also is covered by a state or local law) occurs each time a discriminatory paycheck is issued. The bill would take effect retroactive to May 28, the day before the Supreme Court decision in Ledbetter v Goodyear Tire & Rubber Co, Inc., which held employees cannot bring Title VII disparate pay claims that allege discrimination occurring outside the 180-day time period even when a paycheck is received during that same period. The measure would apply to all disparate pay claims pending on or after that date.

Here is a copy of the proposed Lilly Ledbetter Fair Pay Act.

PS

Employee Free Choice Act Dead (For Now)

As many of you have probably heard by now, the Employee Free Choice Act (EFCA), which would have, among other things, allowed for unions to become the exclusive bargaining representative for employees through the use of authorization cards as opposed to secret ballot elections, has failed to garner enough votes today to survive a Republican filibuster.

Although 51 Senators voted to end debate on the measure, 60 votes were needed to invoke cloture and bring the bill to a vote.  To be clear, even if the bill had been voted up by the Senate, the EFCA faced a certain veto by the President and then would have needed 67 Senators and 2/3s of the House to override that veto.

Some progress was made on the EFCA this year, but without a Democratic president and 60 Senators to support this bill, the EFCA is going nowhere fast.

PS

Recently Published Scholarship

The University of Toledo Law Review
Volume 38, Number 3, Spring 2007

Selected articles from the Thirteenth Amendment Symposium

• Rebecca E. Zietlow (left) & James Gray Pope, The Toledo Auto-Lite Strike of 1934 and the Fight Against “Wage Slavery,” p. 839.
• Risa L. Goluboff, Race, Labor, and the Thirteenth Amendment in the 1940s Department of Justice, p. 883.
• Maria L. Ontiveros, Noncitizen Immigrant Labor and the Thirteenth Amendment: Challenging Guest Worker Programs, p. 923.
• Kathleen Kim, Psychological Coercion in the Context of Modern-Day Involuntary Labor: Revisiting United States v. Kozminski and Understanding Human Trafficking, p. 941.

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Denver Students Change Wage Payment Law

Students at the University of Denver, led by Visiting Clinical Professor Wendy Hickey, were the driving force behind a new state statute increasing penalties on employers who fail to pay wages on time.  The students drafted the language, testified at hearings, helped clients from the law clinic testify before House committees, and wrangled with lawmakers in the Capitol’s hallways.

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Recently Published Scholarship

University of Pennsylvania Journal of Labor and Employment Law
Volume 9, Number 3, Spring 2007

Articles

• Natalie Prescott (left), English Only at Work, Por Favor, p. 445.
• T. Leigh Anenson (second, at left) & Karen Eilers Lahey (third), The Crisis in Corporate America: Private Pension Liability and Proposals for Reform, p. 495.
• Lisa M. Durham Taylor (fourth), Adding Subjective Fuel to the Vague-Standard Fire: A Proposal for Congressional Intervention After Burlington Northern & Santa Fe Railway Co. v. White, p. 533.
• Anne Lawton (right), Between Scylla and Charybdis: The Perils of Reporting Sexual Harassment, p. 603.

Comments

• Clare Tower Putnam, When Can a Law Firm Discriminate Among Its Own Employees to Meet a Client’s Request?  Reflections on the ACC’s Call to Action, p. 657.
• Oliver J. McKinstry, We’d Better Treat Them Right: A Proposal for Occupational Cooperative Bargaining Associations of Sex Workers, p. 679.
• Anthony Ciolli, Grade Non-Disclosure Policies: An Analysis of Restrictions on M.B.A. Student  Speech to Employers, p. 709.

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Employment Empathy

Two articles on the front page of the Marketplace section of today's Wall Street Journal illustrate the importance of workplace managers having the capacity to empathize with employees.

The first article describes how managers frequently bungle discharges and layoffs:

"[T]here's an enormous gap between what managers know they should do and how they act on that knowledge," says Robert Sutton, professor of management science and engineering, Stanford University . . . .  Because the task is an unpleasant one, the biggest mistake managers make is waiting until the last possible moment to inform those being cut. Then once in the middle of the process, they become tongue-tied and fail to express any empathy or articulate what the company will provide in the way of severance and other benefits.

The second article describes how upper-echelon managers are increasingly stepping into the shoes of low-level workers to develop empathy for employees and customers.  "But such programs can increase cynicism among the rank and file, [Edward] Lawler [of U.S.C.] cautions. Executives' rare appearances in the trenches may suggest 'these people really are out of touch,' he says."

The articles are Carol Hymowitz, Though Now Routine, Bosses Still Stumble During Layoff Process; Joann S. Lublin, Top Brass Try Life in the Trenches (subscription required).

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Recently Published Scholarship

Articles

• Natalie Prescott (left), Employers on the Fence: A Guide to the Immigratory Workplace, 29 Campbell L. Rev. 181 (2007).
• Shana L. Burleson (second) & David R. Clouston (third), Light Dimmed by Johnson -- The Enforceability of Covenants Not to Compete Under Texas Law, 59 Baylor L. Rev. 287 (2007).
• David F. Johnson (fourth) & Peyton N. Smith (right), The First Step in Nonsubscriber Employee Injury Suits is Defining the Scope of the Employers' Duty -- It Affects Everything, 59 Baylor L. Rev. 381 (2007).
• John F. Lopez, Employment and the Law: A Discussion of the Arizona Supreme Court's 2005-06 Decisions, 39 Ariz. St. L.J. 681 (2007).
• Peter Blanck, Meera Adya, William N. Myhill, Deepti Samant, & Pei-Chun Chen, Employment of People with Disabilities: Twenty-Five Years Back and Ahead, 25 L. & Inequality 323 (2007).

Comments & Notes

• Lindsay Roshkind, Employment Law: An Adverse Action Against Employers: The Supreme Couret's Expansion of Title VII's Anti-Retaliation Provision, 59 Florida L. Rev. 707 (2007).

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