Friday, April 30, 2010

Plausible Pleading, Part V

New Image  4. Plausibly Pleading the Pervasiveness of Discrimination

A final approach to satisfying the more extreme possible implications of plausible pleading is itself more extreme but may be invited by the Court’s requirement that a plaintiff plead sufficient facts to make her claim “plausible.”

I propose that plaintiffs plead that the phenomenon of discrimination is more common than the courts might otherwise believe.  That is, plaintiffs should plead the mountain of social science research that documents discrimination, or at least documents attitudinal tendencies towards discrimination. I'm referring to the full gamut of social science research from field and laboratory experiments to the Implicit Attitude Test.

As Ed Hartnett develops so well in Taming Twombly, perceptions of "plausibility” ultimately turn on baseline assumptions about how the world works, and the TwIqbal "framework can be treated as an invitation to present information and argument designed to dislodge a judge's baseline assumptions about what is natural." 158 U. Pa. L. Rev. at 474-475. I think Ed had in mind more traditional ways of "presenting information and argument," such as briefs and oral argument in response to 12(b)(6) motions.

But my proposal is simpler and more direct: pleading the information that would would change the
baseline assumptions and relying on the command of the Court that facts plead must be accepted as true for purposes of a motion to dismiss.

I suspect many of my readers will find this too cute by half, and maybe they are right. 

Pleading is normally directed at "adjudicative facts," and I am suggesting something different entirely -- pleading what has been called in other contexts "legislative facts," "premise facts," or "evaluative facts."  Whatever the label, these kinds of facts are not the ones typically subject to courtroom proof under the adversary process (although the growing use of expertise has converted much of what used to be legislative facts into grist for court decisions). Plausible pleading, however,elevates baseline assumptions  above their role under traditional notice pleading, and it may be exactly the impetus we need to consider how to force judges to confront their own potential biases.

Maybe an example will help. Twombly itself was an antitrust case, and the Court found that the complaint did not plausibly plead a conspiracy because the identified parallel conduct could easily have occurred without agreement among the defendants. But this conclusion was less the result of  judicial "common sense" than a recognition of the extensive economic literature to that effect. Had a contrary literature existed, my argument is that the plaintiffs should have been able to plead it and, at least for purposes of a 12(b)(6) motion, that pleading should have been accepted as true.

There's one final potential implication of this which might easily be a downside of my suggestion. To date, and despite substantial discussion in the law reviews, there has been no definitive judicial answer to the question of whether implicit bias resulting in an adverse employment action violates Title VII. To the extent that a pleader plays the cognitive bias card in order to stave off a 12(b)(6) motion, we might have an answer in the short term. And it might not be to plaintiffs' liking.   


April 30, 2010 in Employment Discrimination | Permalink | Comments (0) | TrackBack (0)

More on Stolt

St On Wednesday, I posted on the Supreme Court's decision that day in Stolt-Nielsen v. AnimalFeeds, in which the Court held that arbitration agreements silent as to class actions should be interpreted as prohibiting class actions.  Several good comments follow the post.  Here are a couple of additional thoughts:

First, a reader wishing to remain anonymous sent me an email noting that the Stolt holding does not apply to employment cases, thanks to Section 7 of the NLRA.  Here's what he said:

The NLRA provides a ready made forum for blocking employment arbitration agreement rules prohibiting joinder of claims and class action claims.  There are already NLRB cases finding group lawsuits can constitute mutual aid or protection under Section 7.  It therefore stands to reason that an Employer could not enact a rule designed to prohibit the same, be it in the context of a court lawsuit concerning a term and condition of employment or the arbitral equivalent.  Since it is public information I can tell you there are two charges in separate regions concerning variations of this argument. 

Second, Paul Kirgis (St. John's) posted a note on the AALS-ADR listserve noting that the Court's public policy rationale may well open the floodgates to judicial challenges of arbitration awards.  Moreover, this could extend to labor arbitration awards, because as Jean Sternlight (UNLV) points out (also on the AALS-ADR listserve), the Court in Stolt conflated the judicial-review standards of the FAA and the LMRA.  Here's Paul's note:

... I cannot get over how extraordinary the [Stolt] decision is.  It challenges the theoretical basis for twenty-plus years of Supreme Court arbitration jurisprudence, and serves almost as a dare to Congress to call the Court’s bluff.

The case involves an attempt by a party to an arbitration agreement to manufacture a class arbitration (it is not a consumer case, incidentally).  The agreement was silent on class arbitration and the parties expressly stated to the panel that no agreement had been reached on class arbitration.  The panel concluded that there was no intent to preclude class arbitration, found that after Bazzle class arbitration had been allowed in a wide variety of settings, and thus concluded that the arbitration clause should be read to allow for class actions.

Writing for the conservative majority, Justice Alito concluded that the panel had “exceeded its powers” under FAA section 10(a)(4), because the panel decided to allow class arbitration based on its considerations of public policy instead of on the terms of the parties agreement.  The majority then held that “an implicit agreement to authorize class-action arbitration is not a term that the arbitrator may infer solely from the fact of the parties’ agreement to arbitrate.  This is so because class-action arbitration changes the nature of arbitration to such a degree that it cannot be presumed the parties consented to it by simply agreeing to submit their disputes to an arbitrator.”  Effectively the case holds that silence on the issue of class arbitration can only be read as precluding class arbitration.

To me, that is a remarkable holding.  For decades, the Court has held that courts have no business reviewing the decisions of arbitrators as long as the arbitrators are in fact interpreting the contract.  As we all know, most arbitration clauses are written in very general and broad terms, and arbitrators have been known to do all kinds of odd things.  No judicial review allowed.  Here, the contract is silent on the term—the parties stated that they had not reached agreement either way.  The arbitrators effectively supplied a term allowing class arbitration, reasoning that because class arbitrations were widely allowed, class arbitration should be permitted here.  That is the conclusion the Court rejects as being improperly based on public policy, declaring instead that the panel should have looked to applicable legal rules.  But is it the case that no party would want contract terms to be interpreted in light of public policy instead of legal rules?  If what this panel did does not constitute “interpreting the agreement”, then what other kinds of decisions by arbitrators will not constitute “interpreting the agreement”?  Is there a reason to single out judgments based on “public policy” as singularly inappropriate bases for supplying contract terms? 

I can’t imagine the Court would want the decision to be interpreted to allow lower courts to review the rationales arbitrators use to supply missing contract terms.  That would destabilize the entire arbitration edifice.  Even if the holding is limited to barring arbitrators from supplying terms based on public policy, it will open an avenue to judicial review that can only undercut the finality that the Court has always claimed is its arbitration lodestar.  So it is difficult to read the decision as anything but a an attempt to single out and eliminate class arbitration, except in cases where the parties explicitly provide for class arbitration (which will be never).  That’s where I see the challenge to Congress.  This case goes even beyond the concern, raised by Jean Sternlight and others, that companies will be able to check a box to exempt themselves from class actions.  Now they are automatically exempt as long as they include a silent arbitration clause.

Justice Ginsburg, in dissent, makes the point that this decision does not necessarily foreclose class arbitrations in consumer cases.  But it’s logic does not stop at complex commercial disputes.  As I said, I see this as an extraordinary decision.


April 30, 2010 in Arbitration | Permalink | Comments (0) | TrackBack (0)

Harassment Suit by Law Prof Set for Trial

Gmu Last year, we reported here about the sexual harassment lawsuit brought by former George Mason Law School professor Kyndra Rotunda (now at Chapman).  She alleges that Joseph Zengerle, director of the legal assistance clinic for military service members, was among other things "uncomfortably attentive".  The ABA Journal and Washington Times, via Adjunct Prof Blog, are reporting that the case is set for trial:

She says he sexually harassed her. He says he did nothing wrong.  And nearly a year of hard-fought federal litigation between George Mason University and the two former and current law professors doesn't seem to have come close to resolving the dispute. After the exchange of some 100,000 documents and 100 hours of depositions, however, the employment discrimination case is scheduled to go to trial in June.

A motion for summary judgment, however, apparently is pending.


April 30, 2010 in Employment Discrimination | Permalink | Comments (0) | TrackBack (0)

Grossman on Pregnancy, Work, and Equality

Grossman Joanna L. Grossman (Hofstra) has just posted on SSRN her articke (forthcoming Georgetown L.J.) Pregnancy, Work, and the Promise of Equal Citizenship.  Here's an excerpt from the abstract:

Can women capture the benefits of equal citizenship in a legal system that does not mandate necessary accommodations for pregnant workers? This article argues that current pregnancy discrimination law, which bases the right to work on full capacity, systematically deprives women of equal opportunity to make use of their innate capacities and talents in the workplace. This failure, in turn, compromises the quest for equal social citizenship - the right of equal access to paid work - that has been a cornerstone of the modern women’s movement.


April 30, 2010 in Employment Discrimination, Scholarship | Permalink | Comments (0) | TrackBack (0)

Thursday, April 29, 2010

Unclutterer Post on Career as Clutter

UncluttererIt's probably not too surprising, but I spend a little time each day doing productivity and tech kinds of reading. Reading about becoming organized is soothing enough that I don't actually have to become organized myself. One of the blogs I regularly read is Unclutterer, which recently had a post that I found interesting because it related to another big interest of mine, which is people's personal relationship with work. What do people want from work, what do they take from it, why do they need it, and what makes them leave it?

In this post, Erin Doland writes about a study of employment data in the UK by economists Richard Jones and Peter Sloane in the March 2009 issue of Applied Economics. The study found that workers in Wales had the highest job satisfaction in the UK, but the lowest wages. The authors made five conclusions based on this result:

  1. Because unemployment is higher in Wales than in other regions, people with jobs are simply happy to have jobs.
  2. Industrial relations between employers and workers is perceived by workers to be better than in other regions.
  3. Workers in Wales are less concerned about their income as it relates to overall job satisfaction.
  4. Dissatisfied workers tend to move out of Wales and move into the other regions.
  5. The culture of Wales trends toward happier workers.

Erin added her own thoughts about the result:

What I took from these findings is that the people of Wales tend to care about things beyond what they do for a job. Their working conditions are fine, they make enough to meet their needs, and their passions lie elsewhere. They are attached to their jobs only in the sense that they are glad that they have them.

It seems that there are some very important implications here for U.S. workers. A number of people have written about the centrality of work in identity in our culture, and the media has recently focused on the effects of that for the large numbers of people who have been laid off or had their hours reduced as a result of the recession. Maybe we'd be well served to rethink what work is to life in this country.


April 29, 2010 in Commentary, Worklife Issues | Permalink | Comments (2) | TrackBack (0)

Plausible Pleading, Part IV

New Image  3. Comparators.

In a recent article, The Phoenix from the Ash: Proving Discrimination by Comparators, 60 Ala. L. Rev. 191 (2009), I argued in favor of an alternative to the McDonnell Douglas proof scheme for many, if not most, individual disparate treatment cases. My point was that a plaintiff should be able to prevail merely by identifying a “comparator” (of another race, the opposite sex, etc.) who was treated better than she.  By definition, the more alike a putative comparator is to the plaintiff, except for, say, race, the fewer nonracial reasons exist to explain a particular decision. Of course, the point at which a co-worker is different enough from a plaintiff to cease to be a comparator will vary depending on perceptions of the relative likelihood of discrimination compared to other reasons for adverse actions

While Phoenix from the Ashthat article was directed at proof, not pleading, it also useful implications for  satisfying plausible pleading. Indeed, as Professor Hartnett suggests, without using the word,  Swierkiewicz can itself be read as what I have called a comparator case: rather than seeing the Court as accepting as true the allegation of discriminatory motive, Swierkiewiczcan be interpreted as accepting as adequate the plaintiff’s pleading that there existed a similarly situated comparator of a different national origin and younger age who was treated more favorably than the plaintiff. 158 U.Pa. L. Rev,  502 n.128. 

In the Alabama piece, I decried the tendency of courts to require comparators to be the near-twin of the plaintiff in order, on the basis of the comparison alone, to allow the case to go to the jury. Whatever the merits of that argument in the summary judgment context, reservations about how similar a comparator is to plaintiff seems largely misplaced in the pleading context.

In short, a plaintiff’s allegation that she is similarly situated to an identified person if a different race or the opposite sex should normally “nudge” her claims “across the line from conceivable to plausible.”  While one could imagine situations (the janitor naming the president of the company as a comparator in terms of salary discrimination), the fine distinctions courts have often drawn when the appropriateness of a comparator is raised in the summary judgment context should have little traction at this stage in the litigation process.  


April 29, 2010 in Employment Discrimination | Permalink | Comments (0) | TrackBack (0)

Wednesday, April 28, 2010

Immigration Status Irrelevant under Longshore and Harbor Workers' Compensation Act

GavelIn Bollinger Shipyards, Inc v. Director, Office of Worker's Compensation Programs, U.S. Dep't of Labor, the Fifth Circuit upheld the award of workers compensation benefits to an undocumented immigrant worker who was injured on the job as a pipefitter, joining the DC Circuit in holding that immigration status is irrelevant under the LHWCA. The employee had told Bollinger that he was a citizen and gave the company a false social security number. After he was injured on the job, the company paid some of his expenses and benefits but then stopped when it discovered that he was an undocumented immigrant. The primary question on appeal was whether an undocumented worker could be eligible for benefits under the act.

Analyzing the statute and cases from other statutes, the court held that the worker here was an employee within the meaning of the act and thus entitled to benefits. Bollinger argued that because the worker was not legally entitled to work, he could not be entitled to benefits. Here's how the court characterized the company's brief:

Bollinger contends that undocumented immigrants such as Rodriguez are per se ineligible to receive indemnity benefits under the LHWCA, as any such benefits “would be based on illegally obtained wages.” Bollinger reasons that Rodriguez’s injury caused him no loss of wage-earning capacity because he had no legal wage-earning capacity at the time he was injured. Bollinger histrionically compares the BRB’s ruling to “awarding benefits to a drug dealer based on ill-gotten ‘wages,’ [and] then telling the employer that it better find another illegal enterprise for the drug dealer, lest there be found a permanent loss of wage[-]earning capacity.” In the same melodramatic style, Bollinger compares awarding benefits to Rodriguez to “awarding benefits to a pirate or a Mafioso.”

Bollinger relied on the Hoffman Plastics line of NLRB cases, which made this distinction about whether wages could be paid legally in declining to award some types of relief under the NLRA in order to avoid conflict with the immigration laws, which prohibit the employment of aliens who enter or remain in the country illegally and which also criminalizes the use of false documentation to obtain work.

The court distinguished this line of cases for three reasons: (1) Unlike discretionary backpay under the NLRA, workers’ compensation under the LHWCA is a non-discretionary, statutory remedy; (2) unlike the NLRA, the LHWCA is a substitute for tort law, abrogating fault of either the employer or the employee; and (3) awarding death or disability benefits post hoc to an undocumented immigrant under the LHWCA does not “unduly trench upon” the IRCA, as Congress chose to include a provision in the LHWCA expressly authorizing the award of benefits “in the same amount” to nonresident aliens.

The court left open the possibility that an alien who was about to be deported or was sure to be deported might not be eligible for future lost wage benefits calculated as they would be earned in the US.


April 28, 2010 in Pension and Benefits, Workplace Safety | Permalink | Comments (2) | TrackBack (0)

Plausible Pleading, Part III

New Image 1. Pleading a Prima Facie Case

There are, of course, literally dozens of versions of the McDonnell Douglas prima facie case. And, at a high level of generality, some versions provide no guidance at all. For example, one court wrote that "a plaintiff establishes a prima facie case by showing that (1) he is a member of a protected class; (2) he is competent to perform the job or is performing his duties satisfactorily; (3) he suffered an adverse employment decision or action; and (4) the decision or action occurred under circumstances giving rise to an inference of discrimination based on his membership in the protected class." Dawson v. Bumble & Bumble, 398 F.3d 211, 216 (2d Cir. 2005). 

But I have in mind the more focused versions, such as found in McDonnell Douglas itself (where a failure to hire into a still-vacant position was concerned) and the formulations in the circuits for common situations of hiring discrimination or discrimination in individual discharges or reductions in force.

Evidence satisfying these elements creates a presumption in the proof process, and pleading the facts which would establish these elements ought to satisfy Iqbal's pleading standard. This seems like the simplest of responses to Iqbal, although as Swiekiewicz indicates, it may not always be possible, consistent with Rule 11, to plead facts that satisfy the circuit's requirements in the situation at issue.  

2. Pleading “Direct Evidence”

Without rehashing the saga of direct evidence fpr burden shifting purposes (we now know it’s not needed for that purpose under Title VII (Desert Palace) and not sufficient under the ADEA (Gross)), nevertheless pleading employer statements suggesting bias might well nudge a claim over Iqbal's plausibility threshold.

Further, the circuits' painfully narrow construction of “direct evidence” when the doctrine was used for burden-shifting is inapplicable in this context. Since the point of pleading is to plausibly suggest discrimination, much less “direct” statements  (maybe even “stray comments”) should suffice to get a plaintiff past a Rule 12(b)(6) hurdle.

One example is Carter v. Three Springs Residential Treatment, 132 F.3d 635, 642 (11th Cir. 1998) where there was testimony that the manager who denied the plaintiff’s promotion had said that she "identified [in herself] a bias against blacks and she found that they were difficult for her to trust or get along with." This was found not sufficiently direct evidence to shift the burden of persuasion because an inference was needed to conclude that the challenged action was taken for discriminatory reasons. Although one can correctly criticize Carter on its own terms, it's hard to believe even a skeptical court wouldn't find pleading of such statements sufficient for plausibility. 

Of course, this is scarcely a panacea -- even a relaxed definition of direct evidence will require more pre-suit investigation by plaintiff's attorney, which, often, will yield nothing helpful


April 28, 2010 in Employment Discrimination | Permalink | Comments (0) | TrackBack (0)

Tuesday, April 27, 2010

Supremes Decide Stolt on Class-Action Arbitration

Ct The Supreme Court just released Stolt-Nielsen v. AnimalFeeds.  Hat tip to Ross Runkel for the the blast-out.  Here's the critical part of the Court's syllabus.  I'll have a few thoughts of my own afterward.

(c) Imposing class arbitration here is inconsistent with the FAA.

(1) The FAA imposes rules of fundamental importance, including the basic precept that arbitration “is a matter of consent, not coercion.” Volt v. Board of Trustees of Leland Stanford Junior Univ., 489 U. S. 468, 479. The FAA requires that a “written provision in any maritime transaction” calling for the arbitration of a controversy arising out of such transaction “shall be valid, irrevocable, and enforceable, save upon such grounds as exist at law or in equity for the revocation of any contract,” 9 U. S. C. §2, and permits a party to an arbitration agreement to petition a federal district court for an order directing that arbitration proceed “in the manner provided for in such agreement,” §4. Thus, this Court has said that the FAA’s central purpose is to ensure that “private agreements to arbitrate are enforced according to their terms.” Volt, 489 U. S., at 479. Whether enforcing an agreement to arbitrate or construing an arbitration clause, courts and arbitrators must “give effect to the [parties’] contractual rights and expectations.” Ibid. The parties’ “intentions control,” Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth, Inc., 473 U. S. 614, 626, and the parties are “generally free to structure their arbitration agreements as they see fit,” Mastrobuono v. Shearson Lehman Hutton, Inc., 514 U. S. 52 , 57. They may agree to limit the issues arbitrated and may agree on rules under which an arbitration will proceed. They may also specify with whom they choose to arbitrate their disputes. See EEOC v. Waffle House, Inc., 534 U. S. 279, 289.

(2) It follows that a party may not be compelled under the FAA to submit to class arbitration unless there is a contractual basis for concluding that the party agreed to do so. Here, the arbitration panel imposed class arbitration despite the parties’ stipulation that they had reached “no agreement” on that issue. The panel’s conclusion is fundamentally at war with the foundational FAA principle that arbitration is a matter of consent. It may be appropriate to presume that parties to an arbitration agreement implicitly authorize the arbitrator to adopt those procedures necessary to give effect to the parties’ agreement. See Howsam v. Dean Witter Reynolds, Inc., 537 U. S. 79, 84. But an implicit agreement to authorize class action arbitration is not a term that the arbitrator may infer solely from the fact of an agreement to arbitrate. The differences between simple bilateral and complex class action arbitration are too great for such a presumption.

Here are my initial thoughts, based only on the syllabus:

First, I think it's significant that the Supreme Court focuses on the contractualist underpinning of the FAA.  No doubt Steve Ware is smiling.  That's well and good, but what about the Supreme Court's decision two years ago in Hall Street v. Mattel, in which the Court nuked bargained-for standards of judicial review?  That decision struck a decidedly anti-contractualist tone.  Is the Court using contractualism only when it likes the outcome that approach produces?

Second, how will this decision affect consumer arbitration agreements that are silent on the issue of class actions?  I'm thinking particularly of cases involving claims that are small individually but large in the aggregate, such as cell phone contracts.  If these claims cannot proceed as a class action, they cannot proceed at all.  If, as Stolt suggests, contractual silence as to class actions means the case cannot go forward as an arbitral class action, what does that mean?  (a) That consumers' only option is to proceed in individual arbitration hearings -- i.e., that they have no means of redress at all?  Or (b) that the arbitration clause is void because it makes it impossible to enforce a substantive right (an outcome that I like, but that is difficult to square with the last 25 years of Supreme Court precedent)?

Sarah Cole's take on Stolt is here at ADR Prof Blog.


April 27, 2010 in Arbitration | Permalink | Comments (2) | TrackBack (0)

FEPA Letter Does Not Start the Clock on Statute of Limitations for Federal Suit

CourtroomThe Tenth Circuit issued an opinion yesterday in Rodriguez v. Wet Ink, a case involving sex discrimination and the limitations period for filing an action in federal court. Patricia Rodriguez had filed charges with the Colorado Civil Rights Division (CCRD) and the EEOC. The two agencies had a work sharing agreement, and the CCRD took the lead on the investigation, concluded that the sex discrimination charges had merit (other claims in her charge, it found, did not), and referred the matter for mediation. Mediation was not successful, and Rodriguez requested right to sue notices from both agencies. The CCRD issued one promptly, but the EEOC did not issue one for two months. Rodriguez filed an action in federal court, pleading only violations of federal law within 90 days of the EEOC letter, but more than 90 days after the CCRD's letter. The district court dismissed her action as time barred.

The Tenth Circuit reversed for two reasons: 1. it held that Title VII requires discrimination claims to be filed within 90 days of the EEOC issuing a right to sue (the statute does not refer to state or local fair employment practices agencies); and 2. the worksharing agreement did not give the CCRD the power to issue a right to sue notice on behalf of the EEOC.

Importantly, the worksharing agreement here reserved power to the EEOC to make its own determination on whether reasonable cause existed to believe that discrimination had occurred and whether it even had jurisdiction over the matter. The agreement only allowed each agency to serve as the agent of the other for purposes of receiving and drafting charges, and provided that once the CCRD began an investigation, it would be allowed to conclude its investigation before the EEOC would make a determination. The EEOC determination would give weight to the CCRD conclusion, but that was the extent of it. In fact, it was this process of separately evaluating the conclusion that created the delay in the issuance of the right to sue letter by the EEOC.

This seems the right analysis, and perfectly consistent with a prior case that considered the converse situation--where the state right to sue notice is what starts the clock running on a state law cause of action (see here). The court left open the issue of whether the EEOC could delegate its authority to issue right to sue notices, and suggested that if it could, the notice would have to comply with federal regulations at the very least.


April 27, 2010 in Employment Discrimination | Permalink | Comments (1) | TrackBack (0)

Is Your Youthful Appearance Holding You Back?

GerberThe National Bureau of Economic Research has posted the abstract of an interesting working paper on appearance and compensation. The paper, A Corporate Beauty Contest, by John R. Graham, Campbell R. Harvey, and Manju Puri studied how people's perception of facial traits was linked to compensation. From the abstract:

We conduct beauty contest experiments, using close to 2,000 subjects to study the facial traits of CEOs. In one experiment we use pairs of photographs and find that subjects rate CEO faces as appearing more “competent” and less “likable” than non-CEO faces. Another experiment matches CEOs from large firms against CEOs from smaller firms and finds large-firm CEOs look more competent and likable. In a third experiment, subjects numerically rate the facial traits of CEOs. We find that executive compensation is linked to these perceived “competence” ratings. Our analysis explores these findings in more detail and shows that the facial-trait rating can be explained by a quantitative scoring of the “maturity” or “baby-facedness” of the CEO. That is, more mature looking CEOs are assigned higher “competence” scores. This finding is potentially worrisome because psychology research shows that baby-faced-looking people often possess qualities opposite to those projected by their facial traits. Accordingly, we find no evidence that the firms of competent looking CEOs perform better. Essentially, the "look" of competence says very little about effective competence. 

This is interesting research, particularly as it might relate to age discrimination if "competence" is measured by an appearance of "maturity." I wonder if at some point a person appears too mature? And I wonder too how this changes across race and sex--or whether people's perceptions change when they look at someone from a group that differs from theirs.

Hat tip: Daniel J.B. Mitchell


April 27, 2010 in Workplace Trends | Permalink | Comments (0) | TrackBack (0)

Wage & Hour Enforcement Data Go Online


The Department of Labor has created an online Enforcement Database that allows the public to search for enforcement actions against employers.

The Enforcement Database includes records from the department's Employee Benefits Security Administration (EBSA), Occupational Safety and Health Administration (OSHA), Office of Federal Contract Compliance Programs (OFCCP), Mine Safety and Health Administration (MSHA), and Wage and Hour Division (WHD).

In the case of the WHD, the database includes all concluded WHD compliance actions since fiscal year 2009. The results show whether any violations were found and the back wage amount, the number of employees due back wages, and the fines assessed. The data is updated quarterly.

The public can search the database by agency, state, zip code, North American Industry Classification System (NAICS) code, and Standard Industrial Classification code.

The WHD enforces the federal minimum wage, overtime pay, recordkeeping, and child labor requirements of the Fair Labor Standards Act. The division also enforces the Migrant and Seasonal Agricultural Worker Protection Act, the Employee Polygraph Protection Act, the Family and Medical Leave Act, wage garnishment provisions of the Consumer Credit Protection Act, and a number of employment standards and worker protections as provided in several immigration related statutes. 

Hat tip:, via Carol Furnish.


April 27, 2010 in Wage & Hour | Permalink | Comments (0) | TrackBack (0)

Plausible Pleading, Part II

New Image The critical question for employment discrimination after Iqbal is whether Swerkiewicz remains viable. Swierkiewicz was a 2002 unanimous decision by the Court holding that a plaintiff in a Title VII and ADEA case need not plead a McDonnell Douglas prima facie case to avoid dismissal under 12(b)(6).

There are, however, broader and narrower readings of Swierkiewicz. The broadest is that the plaintiff pleads sufficiently if he identifies the adverse employment action and alleges that that action was taken by the employer for racial (gender, age, etc.) reasons.  The narrower reading is that the plaintiff’s pleading in the case at hand (although not a prima facie case) was sufficiently suggestive of discrimination to survive. Key to this reading was the plaintiff’s allegations of what I have in another context called a comparator.

Although there is reason to believe that at least the narrower reading of Swierkiewicz survives, let’s assume the contrary and that the Court will approach an employment discrimination complaint as it indicated in Iqbal. There are a dizzying array of interpretations of Iqbal, not to mention efforts to tame it, see my colleague Ed. Hartnett's recent article.  but, consistent with my worst-case scenario theme, let’s take the most sweeping view: a complaint should be dismissed unless the plaintiff’s factual allegations, taken as true but ignoring mere formulaic conclusions, plausibly suggest a violation has occurred.

The  question then is, what “facts” does the plaintiff have to allege with regard to an adverse employment action that plausibly suggest that it was taken from biased motivations – especially given the innumerable nondiscriminatory reasons that might explain any particular employment decision? After all, federal judges don’t seem to think discrimination is very common in today’s America, which might make most suits “implausible in their minds.

I offer four answers -- some obvious, some not. First, plaintiff might avoid dismissal by alleging facts that would, if proven, constitute a prima facie case under the McDonnell Douglas standard. While Swierkiewicz held that alleging facts that constitute a prima facie case wasn’t necessary, there is not much reason to think that it wouldn’t be sufficient. Second, plaintiff could plead “direct evidence” of discrimination (if she can), and I argue that the kind of direct evidence that should suffice for pleading purposes is much broader than the evidence that shifted a burden of persuasion in the days of Price Waterhouse.  Third, at the risk of sounding like a broken record, I argue that plaintiff should be able to survive a motion to dismiss by pleading the existence of a comparator.

Fourth, and most radically, I propose that plaintiffs should plead (and the courts should accept as true for purposes of a Rule 12(b)(6) motion), not only “adjudicative facts” (those unique to the particular dispute that triggered the lawsuit) but also “legislative facts,” the kind of more generalized factual predicates that will ”nudge[] their claims across the line from conceivable to plausible”  as Twombly/Iqbal  require.

 I won’t waste space with how to plead a McDonnell Douglas prima facie case, but I'll develop my thoughts on how the other three methods might be deployed in subsequent posts.


April 27, 2010 in Employment Discrimination | Permalink | Comments (1) | TrackBack (0)

Monday, April 26, 2010

Big Win for Plaintiffs in Dukes v. Wal-Mart

Walmart_1 Looks like a big win for the plaintiffs in the gigantic employment discrimination class action in Dukes v. Wal-Mart (a group of some 2 million former and current female employees have sued over lack of promotion opportunities).  The 9th Circuit en banc, 6-5 with four separate opinions and 137 pages, affirmed class certification under Rule 23(b)(2) for some issues and remanded on others:

We affirm the district court’s certification of a Federal Rule of Civil Procedure 23(b)(2) class of current employees with respect to their claims for injunctive relief, declaratory relief, and back pay. With respect to the claims for punitive damages, we remand so that the district court may consider whether to certify the class under Rule 23(b)(2) or (b)(3). We also remand with respect to the claims of putative class members who no longer worked for Wal-Mart when the complaint was filed so that the district court may consider whether to certify an additional class or classes under Rule 23(b)(3).

The decision was written by Judge Hawkins, with a concurrence by Graber, one dissent by Ikuta and a separate dissent by Kozinski. The latter I am sure is fodder for a cert petition and I do believe this case is heading for a Supreme Court showdown.

Melissa Hart and I have written about how the social framework testimony of William Bielby was crucial, and properly admissible, in establishing the commonality and typicality prong for class certification.

UPDATE:  Paul was too modest to note that his article with Melissa Hart managed to get cited by both the majority and dissent--especially impressive because both cites were positive (although the dissent uses the article to stress that a Daubert inquiry should've been held).  -JH.

Hat Tip: Rebecca Hamburg


April 26, 2010 in Employment Discrimination | Permalink | Comments (0) | TrackBack (0)

Big Day at Supreme Court for Labor and Employment Law

4United States Supreme Court 112904 This morning, the Supreme Court is hearing argument in an ERISA attorney fees case, Hardt v. Reliance Standard Life Ins Co (US Supreme Ct oral argument 04/26/2010), and an employment arbitration case, Rent-A-Center West v. Jackson (US Supreme Ct oral argument 04/26/2010).

Thanks to Ross Runkel for providing these previews. As far as Hardt:

Hardt sued claiming that Reliance Standard violated the Employee Retirement Income Security Act (ERISA) by wrongfully denying her long-term disability benefits. The trial court remanded the matter to Reliance for reconsideration, and Reliance reversed its earlier decision and awarded Hardt full benefits. The trial court then awarded Hardt $39,149 in attorney fees. The 4th Circuit reversed . . . .

The 4th Circuit's holding was that (1) ERISA § 502(g)(1) provides a district court discretion to award attorney fees only to a prevailing party, and (2) Hardt was not a prevailing party because Hardt's only request for relief was the award of benefits, which the district court did not award.

Issue presented: Is Hardt a prevailing party under Section 502(g)(1) of ERISA?

As for Jackson:

Jackson sued under 42 USC Section 1981, claiming race discrimination and retaliation. The trial court granted the employer's motion to compel arbitration. The 9th Circuit (2-1) reversed . . . 

When he was hired, Jackson signed an agreement to arbitrate all future disputes. That agreement provided: "The Arbitrator, and not any federal, state, or local court or agency, shall have exclusive authority to resolve any dispute relating to the interpretation, applicability, enforceability or formation of this Agreement including, but not limited to any claim that all or any part of this Agreement is void or voidable."

Jackson argued that the arbitration agreement was unconscionable, and that the issue of unconscionability must be decided by a court rather than an arbitrator. The 9th Circuit held that "where, as here, a party challenges an arbitration agreement as unconscionable, and thus asserts that he could not meaningfully assent to the agreement, the threshold question of unconscionability is for the court."

Issue presented: Does the court or arbitrator decide whether an arbitration agreement is unconscionable?

We will write more about these cases after oral argument today.


April 26, 2010 in Arbitration, Pension and Benefits | Permalink | Comments (0) | TrackBack (0)

DOL Regulatory Agenda Hits the Federal Register

DolThe Department of Labor has posted its entire semi-annual regulatory agenda on its website, and in the federal register, 75 Fed. Reg.  21,824-21,838 (Apr. 26, 2010). You can also search and comment through the website (look here and scroll down to the agency you want). The Department has also scheduled a number of webchat Q & A sessions (see here for list with links).

And the agenda looks pretty packed. It's probably not too surprising, but safety, both OSHA and MSHA, are top priorities, but there are also some retirement and health-related things, as well as wage and hour prospects.

Hat tip: Pat Schaeffer


April 26, 2010 in Beltway Developments | Permalink | Comments (0) | TrackBack (0)

Plausibly Pleading Employment Discrimination

New Image The Supreme Court’s new plausible pleading regime under Twombly and Iqbal was greeted by the academy with much weeping and gnashing of teeth. Although I was one of the weepers/gnashers, I’ve been struck with how the prolific scholarship on the topic is developing along the lines of Kubler-Ross stages of grief.  While different scholars are at different stages (some still at denial in taking the Court at its word that the decisions did not interring notice pleading), the reactions map pretty well on Kubler-Ross’s five stages:

  • Denial
  • Anger
  • Bargaining
  • Depression
  • Acceptance

For example, post-Twomblyand pre-Iqbal, a number of scholars engaged in spirited denial (e.g., Twombly is only for antitrust cases), and especially after Iqbal, anger flared not only at the substance of the new approach but also at what many viewed as the Court’s illegitimate de facto amendment of Rule 8. After each case, scholars bargained with the Court, for example by offering narrowing interpretations of the opinions or trying to carve out islands of immunity, such as employment discrimination.  Depression is mostly exhibited in informal conversations in the hallways, but, more recently, there are even signs of acceptance. 

By acceptance, I don’t mean those who celebrate the new plausible pleading regime, although there are a few. Rather, I include those like me who’d much prefer the Conley v. Gibson dispensation but see little chance of a restoration happening any time soon (whether by Court reversal or  congressional override). Instead, we wonder whether there aren’t ways to take the Court at its word but nonetheless salvage much of notice pleading from the wreckage of plausible pleading.

I’ve been at work for a while on an article on this topic called Plausibly Pleading Employment Discrimination. While it isn’t ready for prime time yet, this and subsequent posts will sketch my thoughts. In this regard, I join Suja Thomas, Joe Seiner, and Suzette Malveaux who have looked at the application of “TwIqbal” to the employment arena.  I might have a somewhat different slant.

Anyhow, stay tuned for future installments.



April 26, 2010 in Employment Discrimination | Permalink | Comments (0) | TrackBack (0)

Recently Published Scholarship


  • Alex B. Long, Viva State Employment Law! State Law Retaliation Claims in a Post-Crawford/Burlington Northern World, 77 Tenn. L. Rev. 253 (2010).
  • Jordan F. Kaplan, Help is on the Way: A Recent Case Sheds Light on Workplace Bullying, 47 Houston L. Rev. 141 (2010).
  • Hillary K. Valderrama, Is the ADAAA a "Quick Fix" or Are We out of the Frying Pan and into the Fire?  How Requiring Parties to Participate in the Interactive Process Can Effect Congressional Intent Under the ADAAA, 47 Houston L. Rev. 175 (2010).
  • Darryn Cathryn Beckstron, Reconciling the Public Employee Speech Doctrine and Academic Speech After Garcetti v. Ceballos, 94 Minn. L. Rev. 1202 (2010).
  • Sarah Keates, Surviving Summary Judgment in Mixed-Motive Cases -- White v. Baxter Healthcare Corporation, 78 U. Cin. L. Rev. 785 (2009).

April 26, 2010 in Scholarship | Permalink | Comments (0) | TrackBack (0)

R.I.P. Willard Wirtz, Secretary of Labor for Kennedy and Johnson

Wirtz I regret to have to bring you the news of the passing of labor law titan, Willard Wirtz. Wirtz died this past Saturday at the age of 98.  He was the last living member of the Kennedy administration.

More from the Washington Post:

Willard Wirtz, a lawyer and longtime public servant who was secretary of labor under presidents John F. Kennedy and Lyndon B. Johnson, died April 24 at an assisted living facility in Washington . . . .

Regarded by admirers as an icon of liberalism, Mr. Wirtz took to heart the plight of those without work. "Maybe I do get emotional about the unemployment problem," he told an interviewer in 1962.

But, he said, "I think the situation is so deplorable in human terms that it warrants an indignant intolerance of any explanation for it in terms of any kind of economic analysis."

A gifted mediator, he was credited with a behind-the-scenes role in resolving many thorny labor-management disputes. 

Wirtz was also one of the original founders of the Labor Law Group and instrumental in the development of modern labor law in the United States.  Current Department of Labor Secretary Hilda Solis had this to say:

“There is a great story about the nation’s 10th U.S. secretary of labor that has been passed down from labor secretary to labor secretary:  During the Johnson Administration, Secretary Wirtz often visited school children around the country to talk about jobs and work.  After one of his presentations, a young girl came up to him and said, ‘I’m the labor secretary of the 4th grade.’  ‘That’s wonderful,’ Willard replied.  ‘What does the labor secretary of the 4th grade do?’  ‘Well,’ she said, ‘I clap the erasers, and wash the blackboard, and make sure we always have enough paper and crayons.  And at the end of the week, I put all the mess away.’  And then the girl asked, ‘What do you do?’  Willard replied, ‘Pretty much the same thing.’

“I asked him about that story last year, when I hosted a reception for him to celebrate his autobiography, which had been recently published.  We held the event in the department’s labor law library, named after him and his wife, Jane.  He thought back for just a few seconds, started to laugh, and admitted that the story was true.  Then he whispered to me, ‘I hope the job has gotten better.’  At the reception, we gathered about two dozen employees who started their careers with him and were still working at the department.  He was surprised to see so many still around but was even more excited about the number of young employees — economists, analysts, grants managers, attorneys, investigators — who turned out to hear him speak.  ‘To be a public servant . . . to be a Labor Department employee . . . it’s still a marvelous way to make a living,’ he remarked with great satisfaction in his voice.

Wirtz will be sorely missed, but his legacy will continue to serve as a beacon for those of us who continue to believe in worker rights as human rights and the need for constructive industrial relations and dialogue between workers and management.


April 26, 2010 in Labor and Employment News | Permalink | Comments (1) | TrackBack (0)

Sunday, April 25, 2010

Travis: Work/Life and the 4-Day Work Week

Travism Michelle A. Travis (U. San Francisco) has just posted on SSRN her article (forthcoming Connecticut L. Rev.) What a Difference a Day Makes, or Does It? Work/Family Balance and the Four-Day Work Week.  Here's the abstract:

This Article considers the growing reliance that four-day work week advocates have placed on work/family claims. It begins by analyzing whether a compressed work schedule may alleviate work/family conflicts, and more importantly, for whom such benefits are most likely to accrue. While studies consistently find that many workers experience lower levels of work/family conflict when working a compressed schedule, the research also suggests that workers with the most acute work/family conflicts may be the least likely either to obtain or to benefit from a four-day work week design.

Nevertheless, the political climate surrounding the four-day work week provides a unique opportunity for action. This Article therefore considers how legal regulation might be used to shape four-day work week initiatives as a work/family balance tool. In particular, the Article considers how reflexive law proposals might contribute to the four-day work week debate. While existing reflexive law models typically rely on the creation and exercise of procedural rights vested in individual workers, this Article explores an under-developed alternative that would instead vest procedural rights primarily in workers as a group. The Article uses California’s extensive four-day work week regulations and the Federal Employees Flexible and Compressed Work Schedules Act to illustrate this “collective reflexive” approach, and to explore what this type of regulatory model might offer advocates who are seeking to facilitate greater work/family balance for those who may need it the most.

April 25, 2010 in Scholarship, Wage & Hour, Worklife Issues | Permalink | Comments (0) | TrackBack (0)