Sunday, September 30, 2012

Bisom-Rapp & Sargeant on U.S. and U.K. Age Discrimination Law

Susan Bisom-Rapp and Malcolm SargeantSusan Bisom-Rapp (Thomas Jefferson) and Malcom Sargeant (Middlesex, UK) have just posted on SSRN their article, Diverging Doctrine, Converging Outcomes: Evaluating Age Discrimination Law in the United Kingdom and the United States, which will be published in the Loyola University Chicago Law Journal.  Teh abstract:

This article compares age discrimination law and practice in the United Kingdom (UK) and United States (US) to discern convergences and divergences in legal doctrine, the law's normative underpinnings, and societal outcomes. Each country at first blush appears to pursue age discrimination protection using a distinct model. Age bias law in Britain adheres to what might be termed the European approach. That approach, grounded in the EU's Framework Directive on Equal Treatment in Employment and Occupation, is relatively recent in Britain, dating to October 2006. One distinguishing characteristic of UK law is the possibility of employer-justified compulsory retirement.

In contrast to the UK, the legal prohibition of age discrimination in the US is over four decades old, embodied in the Age Discrimination in Employment Act of 1967 (ADEA). The American approach prohibits compulsory retirement programs in order to combat negative, age-based stereotypes about when and how older workers should exit the labor market. Over time, however, US Supreme Court decisions have greatly weakened the ADEA's protections, making it difficult for plaintiffs to make out a prima facie case of age discrimination, making it easier for employers to defend against suit, and complicating the government's enforcement efforts. Also, aggressive corporate downsizing, very laxly regulated in the US, increasingly affects older workers, leaving them without employment at a point in their lives when finding replacement work is most difficult or for some impossible.

Despite what may appear as great doctrinal contrasts, however, the age discrimination laws of the UK and the US converge in many respects. Both systems view age stereotyping as an ill to be cured. Both countries ultimately provide for inferior legal protections against age discrimination as compared to other forms of prohibited workplace bias. Finally, both approaches to age discrimination render workers vulnerable in their later working years even though each nation's laws arguably arrive there by a different route.

This article argues that the deficiencies plaguing both systems are traceable to the incursion of a distinct economic imperative, applicable only to older workers, on what should be a civil or human rights approach to their treatment. Putting age on an even footing with other forms of bias – for example, race and sex – is necessary if the law is to eliminate the harm it seeks to redress.

I saw Susan present this article at the recent annual colloquium and it was very interesting, so definitely check it out.


September 30, 2012 in Employment Discrimination, Scholarship | Permalink | Comments (0) | TrackBack (0)

Saturday, September 29, 2012

Health Care: Survey Says ...

EbriPaul Fronstin (EBRI) has just posted on SSRN his article 2012 Health Confidence Survey: Americans Remain Confident About Health Care, Concerned About Costs, Following Supreme Court Decision.  Here's an excerpt from the abstract:

... This paper examines public opinion with respect to health care reform and other aspects of health care both before and after the Supreme Court decision, using data from the 2012 EBRI/MGA Health Confidence Survey (HCS), as well as from previous waves of the survey. ... Confidence about various aspects of today’s health care system has remained fairly level before and after the passage of the PPACA, and has not apparently been impacted by the June 2012 Supreme Court decision. Asked to rate the health care system, Americans offer a diverse perspective: 28 percent consider it to be “good,” 28 percent say “fair,” and 26 percent rate it “poor,” while 12 percent rate it very good and 5 percent say it is “excellent.” However, the 2012 Health Confidence Survey finds that the percentage of Americans rating the health care system as poor doubled between 1998 and 2004 (rising from 15 percent to 30 percent). In contrast with the ratings for the health care system overall, Americans’ rating of their own health plans continues to be generally favorable -- more than half of those with health insurance are extremely or very satisfied with their current plans, and a third are somewhat satisfied. Dissatisfaction with the health system appears to be focused primarily on cost. Among those experiencing cost increases in their plans in the past year, 31 percent state they have decreased their contributions to retirement plans, and more than half have decreased their contributions to other savings as a result.


September 29, 2012 in Pension and Benefits, Scholarship | Permalink | Comments (0) | TrackBack (0)

Hass on DSM-5 & Employment Law

HaasDouglas Hass (Franczet Radelet) has just posted on SSRN his article (presented at the 2012 LEL Colloquium earlier this month in Chicago) Could the American Psychiatric Association Cause You Headaches? The Dangerous Interaction between the DSM-5 and Employment Law.  Here's the abstract:

Since its first publication in 1952, the American Psychiatric Association’s Diagnostic and Statistical Manual (DSM) has long served not only as the primary reference for mental health disorders for medical practitioners, but also as a primary authority for the legal community. In May 2013, for the first time in nearly 20 years, the American Psychiatric Association plans to publish an entirely new edition. As proposed, the DSM-5 would significantly expand a number of existing psychological disorders and add several new ones. The new Manual is still a work in progress, published only as proposed diagnostic criteria and assessment instruments on the DSM-5 website. However, the significant proposed revisions to a wide range of mental impairments mean that the legal community’s relationship with the DSM may be forced to change given the implications that changes in the DSM-5 may have for claims under laws like the Americans with Disabilities Act (claims of “disability,” requests for reasonable accommodations), Family Medical Leave Act (definitions of a “serious illness”), the Age Discrimination in Employment Act, and even state statutes and workers compensation laws (whether an illness is work related).

This paper discusses the major role that the DSM standards play for legal practitioners and the danger that overly expansive definitions of mental disorders could pose to employers and employees. First, the paper discusses the history and background of the DSM and its development into a de-facto legal treatise. In Part II, the paper highlights the strengths and weaknesses of the DSM-IV as a legal text. Next, the article explains the dangerous interaction between the ADA Amendments Act and the proposed DSM-5. In Part IV, the article highlights the challenges and difficulties that certain changes — from a proposed “Mild Neurocognitive Disorder” to the inclusion of deviant behavior in the definition of a mental disorder — could cause employers, employees, courts, and even federal agencies in applying employment and disability laws, and the ADA in particular. Finally, to reduce the possible unintended consequences of overly-expansive definitions, Part V summarizes specific approaches that courts, employers, employees, and legal practitioners should rely on to reduce the potential confusion and burdens caused by the impending release of the DSM-5.

Although the ADA and other employment statutes do not incorporate DSM (and indeed often define "disability" inconsistently with each other), as this article illustrates, the new DSM-5 widens even further the gulf between the APA and the ADA.


September 29, 2012 in Disability, Scholarship | Permalink | Comments (0) | TrackBack (0)

Friday, September 28, 2012

Recently Published Scholarship


  • Nancy Levit, Lawyers Suing Law Firms: The Limits on Attorney Employment Discrimination Claims and the Prospects for Creating Happy Lawyers, 73 U. Pitt. L. Rev. 65 (2012).
  • Anne Thibadeau, Pennsylvania Employees Protected Abroad: Extraterritorial Application of State Labor Law in Truman v. DeWolff and the Fair Labor Standards Act Foreign Work Exemption, 73 U. Pitt. L. Rev. 193 (2012).
  • Leonard M. Shulman, Revisiting Compensation for Collegiate Athletes: What Price Justice?, 11 Virginia Sports & Entertainment L.J. 417 (2012).


September 28, 2012 in Scholarship | Permalink | Comments (0) | TrackBack (0)

Thursday, September 27, 2012

Hart and Waterstone Elected to ALI

Hart WaterstoneMany congratulations to Melissa Hart (Colorado) and Michael Waterstone (Loyola-Los Angeles) who have both been elected to the American Law Institute (ALI) this past nomination cycle.

If any other readers of Workplace Prof Blog have been similarly elected, let me know so I can post the good news.

Melissa and Michael will now, among other things, help with the formulation of the ongoing Restatement on Employment Law Project.

Welcome aboard Melissa and Michael!


September 27, 2012 in Faculty News | Permalink | Comments (0) | TrackBack (0)

Employment Cause of Action Under CFAA

CfaaMichael Maslanka over at Work Matters discusses employment cases being brought by employers against former employees under the federal Computer Fraud and Abuse Act (CFAA).  A typical scenario: the employer alleges that an employee accessed its computer system, took confidential information, and later used it on a competitor’s behalf.


September 27, 2012 in Workplace Trends | Permalink | Comments (0) | TrackBack (0)

Hiring Managers Prefer "Mature" Workers Over Millenials


Workplace Diva reports:

Adecco Staffing US/Braun Research polled hiring managers and found they're three times more likely to hire a "mature" worker (defined as a worker over age 50) over a 20-something Millennial because mature workers have a work ethic, don't text the whole time you're trying to talk to them, and, in general, have the know-how and proper social graces to get the job done.


September 27, 2012 in Workplace Trends | Permalink | Comments (0) | TrackBack (0)

British Minimum Wage Increases Today

MwEffective today, the British minimum wage increases to the equivalent of $10.04/hour.  Meanwhile, the U.S. is still stuck at $7.25, where it has been since 2009.


September 27, 2012 in Wage & Hour | Permalink | Comments (0) | TrackBack (0)

Stone on "Stray" Remarks

StoneKerri Stone (FIU) has just posted on SSRN her article (77 Missouri L. Rev. (2012)) Taking in Strays: A Critique of the Stray Comment Doctrine in Employment Discrimination Law.  Here's an excerpt from the abstract; the full abstract follows the break.

This Article argues that the stray comments “doctrine” does more harm than good and that those courts wishing to grant a defendant summary judgment on a claim should have to do so by looking at the totality of the circumstances, rather than summarily using a single facet of a comment to dismiss it from consideration. It points out that the doctrine and its premises fail to comport with even a basic understanding of social science and how people foment, act upon, and reveal discriminatory bias. Interestingly, another judge-made doctrine built into employment discrimination law - the same actor inference - stands in stark asymmetry with the stray comments doctrine. The former presumes that attitudes evinced inhere within people for years at a time while the latter declares that no plausible nexus exists between expressed animus or other type of bias and an action taken mere days or weeks later.


Continue reading

September 27, 2012 in Employment Discrimination, Scholarship | Permalink | Comments (0) | TrackBack (0)

NFL Referee Lockout Over

NFLThe NFL and the union representing the referees have reached a tentative agreement.  Although the ratification vote by the union won't occur until Friday and Saturday, the NFL is lifting the lockout--meaning that the regular refs will start for tonight's game.  The main sticking point involved the NFL's desire to convert pensions from defined benefit to defined contribution; the compromise was to keep things as is for five years, freeze that plan, then switch all new contributions to a defined contribution plan.

No telling how much all the public pressure influenced the negotiations, but it certainly didn't seem to hurt.  Along those lines, check out yesterday's op-ed by E.J. Dionne, which elaborates (far more eloquently) on my recent comment about the political issues involved with this labor dispute.


September 27, 2012 in Labor and Employment News | Permalink | Comments (0) | TrackBack (0)

Tuesday, September 25, 2012

Sex Discrimination on the Brain

Pay gapThis is going to be another one of those lists of things I've been meaning to post but haven't got around to yet kinds of posts. The good news is, though, there's actually a unifying theme, and that is sex discrimination.

  • A couple of years ago, I ran across this study that suggested recommendation letters for women were written in different language than recommendation letters for men, and that these differences led to disparities for women applicants. The study looked at applicants for tenure track university teaching positions. 
  • But apparently, we've had yet another study reaffirm that it's not just the recommendation letters, it's sex all by itself that's a problem. The researchers did a randomized double blind study in which the same resume was evaluated, but sometimes the applicant had a male name, and sometimes a female name. Both women and men were likely to evaluate the female applicant lower on competence, hireability, or mentor-ability (would they be a good mentee) than the male applicant.
  • Finally, also in an academic setting, it's apparently newsworthy that female professors have nipples--or at least one nipple. I speculated not blogging about this one because the main point of the professor involved was that breastfeeding a baby for a couple of minutes during a class -- a feminist anthropology class -- was not newsworthy. But then the professor went public with the story and her frustration about it all. The story is basically this. It was the first day of the new semester, the class had a new TA, the professor was untenured and a single parent, and the baby was sick. Given her own status, the unfairness of shifting the work to the TA, the unfairness to the students of cancelling, and the lack of other options, the professor brought her daughter, who had a slight fever, to class. During the class, the baby grew a bit fussy, and the professor nursed her for a minute or two, continuing to conduct the class. A reporter for the school paper asked the professor about it and pushed for additional comments, but the professor objected (over time) that the event wasn't newsworthy and shouldn't be covered.

The comments highlighted in the Washington Post story and that the professor herself reports show that people seem to be uncomfortable with the fact that she brought the baby at all. There are implications that she was not a good parent because she allowed the child to crawl around on the floor or even had her there in the first place. Certainly there is stronger discomfort over the notion of her feeding her child in this context, but that seems to be just a part of the same reaction to the concern about the baby being there at all.

The situation and its coverage raise a lot of interesting points, particularly because of the nature of the subject matter: it was a FEMINIST ANTHROPOLOGY course. I've been in situations where I've had to bring a baby or an older kid to class, and where I've had to nurse a baby in front of students (not in class, as it happened), so you might guess that I agree that this shouldn't be considered a big deal. At the same time, I would understand the dissonance students might feel in the stuffy context of law to see a professor be human. But even if it's not ok in other contexts, in the context of a course about the study of human behavior from a feminist perspective, it seems entirely appropriate.

The professor also resists taking any sort of political stand about breastfeeding, and in fact this denial of the political-ness seems to be what the student reporter and external reporters can't get their brains around. Finally, it highlights both the problems of the workplace and childcare options, that sometimes, there aren't any real (or really good) choices available when the slightest thing goes wrong.

All three of these stories show that we've got a lot to think about still whenever we think about sex equality in the workplace, and this doesn't even get into non-conforming gender-linked behaviors.


September 25, 2012 in Employment Discrimination, Labor and Employment News, Worklife Issues | Permalink | Comments (1) | TrackBack (0)

Gov. Walker Supports Union

PackersIn a man-bites-dog story, Wisconsin's Gov. Walker--not know for his pro-union tendencies--has come out in support of union workers in a labor dispute.  What would make this happen?  Football, of course.  In particular, a highly questionable last second call by replacement referees that resulted in a Green Bay Packers loss.  Just a reminder that labor disputes often depends on whose ox is being gored.  Another reminder?  The recent move by public teacher unions to support more Republicans (or, possibly, punish unhelpful Democrats).


September 25, 2012 in Labor and Employment News | Permalink | Comments (1) | TrackBack (0)

Padis: Regulate Arbitration

NjustGeorge Padis (Texas 2012) has just posted on SSRN his Note (forthcoming Tex. L. Rev.) Arbitration Under Siege: Reforming Consumer and Employment Arbitration.  Here's the abstract:

In its recent terms, the U.S. Supreme Court has taken up the issue of arbitration - most notably in AT&T Mobility LLC v. Concepcion, Rent-A-Center West v. Jackson, and Stolt-Nielson S.A. v. AnimalFeeds International. All three decisions expanded the scope of federal arbitration in consumer and employment contexts in important and surprising ways. Scholars have been sharply critical of these decisions: For example, Concepcion prompted Dean Erwin Chemerinsky to remark in an op-ed in the L.A. Times that the decision is 'part of a disturbing trend of the five most conservative justices closing the courthouse doors to injured individuals . . . . [and] favoring the interests of businesses over consumers, employees and others suffering injuries.'

Meanwhile, cases like Jones v. Hallburton (portrayed in the HBO movie Hot Coffee) have cast a public spotlight on arbitration, and arbitration is under siege. Congress has enacted two measures to address this problem: The Consumer Financial Protection Bureau is empowered to address the issue of consumer arbitration and a defense appropriations rider in 2010 - portrayed in Hot Coffee - prohibits arbitration in employment contracts by defense contractors. A third proposal, the Arbitration Fairness Act, would ban arbitration in all consumer and employment contracts. This Article argues that the approach in the Supreme Court - broadly enforcing all arbitration agreements regardless of the specific nature of the dispute - is too broad and extends arbitration into areas where it presents serious problems, most notably the small-claim consumer class action context. But the congressional reforms banning arbitration in all consumer and employment contracts are also overly broad.This Article proposes a middle ground: Administrative regulations promulgated by the Consumer Financial Protection Bureau and the EEOC that provide dispute-specific guarantees for consumers and employees and safe harbors for companies.

Maybe.  But the EEOC has only procedural (not substantive) rulemaking authority under Title VII, and neither the CFPB nor the EEOC have rulemaking authority regarding the FAA.  Thus, this leaves the door open for the Court to say that the text of the FAA trumps the regs of the EEOC/CFPG; even if the text of the FAA really doesn't, cases like Stolt-Nielsen and Concepcion illustrate that the Supreme Court is all too willing to wilfully misread the plain language of the FAA in favor of the Court's policy preference for arbitration.  The solution, ultimately, is to get a new Court majority.


September 25, 2012 in Arbitration | Permalink | Comments (3) | TrackBack (0)

Monday, September 24, 2012

Doorey on The [Canadian] Charter and the Law of Work: A Beginner's Guide

D_dooreyDavid Doorey (York Univ. (Canada)) has just posted on SSRN an updated version of his paper entitled: The Charter and the Law of Work: A Beginner's Guide.

Here's the abstract:

This essay explains how the Supreme Court of Canada has interpreted and applied the Canadian Charter of Rights and Freedoms to the law of work. It is intended as an introduction to this complex legal field for an audience unfamiliar with the Charter. Beginning with an overview of the Charter review process, the paper then examines the Court’s application to work law of Section 2(d) freedom of association, Section 2(b) freedom of expression, and Section 15 equality rights. The paper is an updated version describing the law as of summer 2012.

The paper provides a great introductory overview of the development and current state of Canadian Charter law relating to work and employment, including freedom of association, freedom of expression, and right to equality.  David wrote it for an audience of new law students or non-law students being introduced to the Charter in the law of work, but it might also be a useful tool for scholars from the U.S. and abroad who are interested in a quick snapshot look at recent developments under the Canadian Charter. 

As an honorary Canuck (based on my many visits and trips to Canada), I wholly endorse the idea of American labor and employment lawyers becoming more familiar with the ideas that animate Canadian workplace law!


September 24, 2012 in International & Comparative L.E.L., Scholarship, Teaching | Permalink | Comments (1) | TrackBack (0)

New Articles on SSRN

Thursday, September 20, 2012

Low Wage Workers Survey

BooksRuben Garcia and Melissa Hart write to ask for input from labor and employment law teachers: 


September 20, 2012 in Books | Permalink | Comments (0) | TrackBack (0)

Greene on Categorical Discrimination

Doris-Wendy-Green-newWendy Greene (Cumberland) has posted on SSRN her new article, Categorical Discrimination. From the abstract:

Fairly recently, the Pew Research Center conducted a survey of 3000 people in which 18 percent of the respondents stated that they believed President Barack Obama to be Muslim even though repeatedly he has expressly declared that he is Christian. This misclassification of President Obama’s religious identity underscores a common occurrence arising in contemporary workplaces: misperceptions of an employee’s religious, ethnic, and racial identity. As a result of these misperceptions, employees are alleging that they have suffered what this Article deems “categorical discrimination” — invidious, differential treatment — on the basis of religion, race, ethnicity and color in violation of Title VII of the 1964 Civil Rights Act. However, this Article exposes an alarming, inconspicuous movement within antidiscrimination law: a band of federal district courts are denying such individuals Title VII protection. Per these courts, a plaintiff, for example, who self-identifies as Christian, yet who is misperceived as Muslim and is harassed or terminated because of her employer’s misperception and related animus, cannot assert an actionable discrimination claim under Title VII. Though Title VII expressly bars discrimination on the basis of religion among other traits, courts have held that such a plaintiff’s claim of “categorical discrimination” is beyond Title VII’s scope. Accordingly, Title VII protection would only be extended if she is “actually” Muslim or if she brings forth allegations of invidious, differential treatment based upon her “actual” Christian identity. This Article delineates that, in so holding, courts have imposed an onerous and puzzling “actuality requirement” in Title VII intentional discrimination cases which engenders the unfathomable: plaintiffs suffering invidious, differential treatment animated by either their self-ascribed or misperceived protected status will be denied statutory protection against and relief for discrimination if they fail to “prove” their “actual” religious, color, ethnic, racial or gender identity when challenged. 

With Title VII’s golden anniversary on the horizon, “Categorical Discrimination” is of great import, as it illustrates that courts’ imposition of an “actuality requirement” denotes the birth of an unorthodox interpretation of Title VII’s reach and meaning nearly 50 years after its enactment — an interpretative methodology this piece is first to describe as “anti-anticlassificationist.” This Article investigates the express as well underlying justifications for courts' idiosyncratic actuality requirement. Moreover, it highlights two unexamined, yet critically important implications of courts’ anti-anticlassificationist interpretation of Title VII: the emergence of a minimalist “actuality defense” for employers to appropriate and the reemergence of identity determination litigation in all intentional discrimination cases. "Categorical Discrimination" illuminates that courts’ excessively restrictive interpretation and attendant actuality requirement, indeed, resuscitate age-old trials of racial determination. Accordingly, this Article aims to quell the traction of courts’ actuality requirement in all cases of categorical discrimination and in doing so, breaks important ground by proffering intra-statutory support for the proposition that a showing of actuality is not required for Title VII plaintiffs to benefit from statutory protection. Notably, this Article also maintains that the Supreme Court’s recent opinion in Thompson v. North American Stainless, LP postulates a more cohesive conceptualization of Title VII protection for all individuals alleging categorical discrimination at the hands of covered employers on the basis of race, color, sex, national origin, and religion. Regardless of whether a plaintiff claims that the invidious, differential treatment suffered derives from her “actual” or “mistaken” religious, gender, ethnic, racial or color identity, Title VII protection and potential relief should be afforded. Either framing of an intentional discrimination claim unequivocally “falls within the zone of interests” Title VII seeks to protect. Moreover, a plaintiff under either circumstance is an “intended victim” of an employer’s invidious, differential treatment, and thus, is a “person aggrieved” by an employer’s alleged categorical discrimination on the basis of Title VII’s proscribed characteristics.

Timely and interesting!


September 20, 2012 in Commentary, Employment Discrimination, Scholarship | Permalink | Comments (0) | TrackBack (0)

Wednesday, September 19, 2012

Federal Whistleblower Protections Report

CrsJon Shimabukuro and Paige Whitaker, both legislative attorneys for the Congressional Research Service, have posted online Whistleblower Protections Under Federal Law: An Overview.  Here's the abstract:

Legal protections for employees who report illegal misconduct by their employers have increased dramatically since the late 1970s when such protections were first adopted for federal employees in the Civil Service Reform Act of 1978. Since that time, with the enactment of the Whistleblower Protection Act of 1989, Congress has expanded such protections for federal employees. Congress has also established whistleblower protections for individuals in certain private-sector employment through the adoption of whistleblower provisions in at least 18 federal statutes. Among these statutes is the Sarbanes-Oxley Act, the FDA Food Safety Modernization Act, and the Dodd-Frank Wall Street Reform and Consumer Protection Act (Dodd-Frank Act).

In general, claims for relief under the 18 federal statutes follow a similar pattern. Complaints are typically filed with the Secretary of Labor, and an investigation is conducted. Following the investigation, an order is issued by the Secretary, and a party aggrieved by the order is generally permitted to appeal the Secretary’s order to a federal court. However, because 18 different statutes are involved in prescribing whistleblower protections, some notable differences exist. For example, under the Department of Defense Authorization Act of 1987, individuals employed by defense contractors who engage in whistleblowing activities file complaints with the Inspector General rather than the Secretary of Labor. Under some of the statutes, including the Commercial Motor Vehicle Safety Act and the Dodd-Frank Act, the Secretary’s preliminary order will become a final order if no objections are filed within a prescribed time period.

This report provides an overview of key aspects of the 18 selected federal statutes applicable to individuals in certain private-sector industries. It focuses on the protections provided to employees who believe they have been subject to retaliation, rather than on how or where alleged misconduct should be disclosed. In addition, the report also includes an overview of the Whistleblower Protection Act. While state law may also provide whistleblower protections for employees, this report focuses only on the aforementioned federal statutory provisions.

Hat tip: Carol Furnish.


September 19, 2012 in Government Reports | Permalink | Comments (0) | TrackBack (0)

Tuesday, September 18, 2012

Gear Rich on Racial Commodification in the Era of Elective Race

Rich_Camille_10Camille Gear Rich (USC Gould School of Law) has posted on SSRN her new piece entitled: Racial Commodification in the Era of Elective Race: Affirmative Action and the Lesson of Elizabeth Warren.

Here is the abstract:

This Essay uses the current controversy over the racial self-identification decisions of former Harvard Law Professor Elizabeth Warren as an occasion to explore incipient cultural and legal anxieties about employers’ ability to define race under affirmative action programs. The Essay characterizes Warren’s racial self-identification decisions as proof of what I call “elective race,” a contemporary cultural trend encouraging individuals to place great emphasis on their “right” to racial self-identification and a related desire for public recognition of their complex racial identity claims. I argue that our failure to attend to the importance placed on racial self-identification by Americans today places persons with complex racial identity claims at special risk for racial commodification. The Essay further suggests that the Warren controversy gives us an opportunity to rethink the way we conceptualize racial diversity. I argue that we must shift away the current model, which conflates race and cultural difference, toward a model that assumes racial diversity initiatives are sampling for employees that can teach us about the diverse ways that race is actualized and experienced. The Essay suggests that diversity initiatives that stress race’s use value as a source of insight into the social process of racialization avoid the cultural commodification risks posed by current affirmative action programs, reorient employers away from thin concepts of diversity, and give employers a basis for making principled distinctions between employees’ racial identification claims. The Essay concludes by identifying and defending a three-part inquiry that can be used to identify proper beneficiaries of diversity-based affirmative action programs.

It would be hard to think of a more timely and relevant topic given that oral arguments in the Fisher U.S. Supreme Court affirmative action case are right around the corner.  Additionally, Camille's piece is a must-read for those interested in the future of affirmative action in the employnment law context in the United States.


September 18, 2012 in Employment Discrimination, Scholarship | Permalink | Comments (0) | TrackBack (0)

Call for Papers: NKLR Symposium on Labor/Employment Law & Informatics

InformThe Northern Kentucky Law Review and Salmon P. Chase College of Law seek submissions for the Law + Informatics Symposium on February 15, 2013. The focus of the conference is to provide an interdisciplinary review of issues involving privacy, data aggregation, security, communications, social media management, and related topics affecting the legal and business practices involving labor and employment law.

The symposium is an opportunity for academics, practitioners, consultants, and students to exchange ideas and explore emerging issues in informatics law as it applies to working conditions and employment practices. Interdisciplinary presentations are encouraged. Authors and presenters are invited to submit proposals on topics such as the following:


  • Application of the Americans with Disabilities Act
  • Federal/state employment regulations regarding privacy
  • HIPAA, FERPA, COPPA, GLBA & other sector-specific privacy issues
  • EU & global privacy laws & policies
  • Bioinformatics in the workplace
  • Data mining of employee information
  • Social media and political change

Collective Bargaining

  • Use of informatics tools for collective bargaining
  • Collective bargaining positions on internet usage, data aggregation and social media
  • Online dispute resolution
  • Ownership of databases & data
  • Contracting & enforcement of agreements over sharing of data
  • Assessment of significant commercial expansions of informatics practices affecting public expectations & norms

Social Media

  • Employee discipline for internet and social media use
  • NLRB responses to social media
  • Use of social media in employee screening
  • Implications for privacy and discrimination lawsuits

Training and Security

  • Gamification in training
  • Computer security
  • Data protection & obligations regarding data breaches
  • Data reliability, including people’s rights to review & correct collected data
  • Retraining and employee obsolecense

Other Issues

  • Discrimination and access to public and semi-public information
  • Employee ownership of intellectual property and data information
  • Post-termination obligations of employers and employees
  • Employee contracting and end user license agreements
  • Global issues for similarly situated employees in multiple jurisdictions

Submissions & Important Dates:

  • Please submit materials to [email protected]
  • Submission Deadline for Abstracts: October 1, 2012
  • Submission Deadline for Articles: February 1, 2013
  • Symposium Date: February 15, 2013

If you have any questions, feel free to drop me a note.


September 18, 2012 in Conferences & Colloquia, Scholarship, Workplace Trends | Permalink | Comments (0) | TrackBack (0)