Thursday, February 28, 2013

Volume 30, Issue 1 (Fall 2012) of the Hofstra Labor and Employment Law Journal

Hofstra-law-logoThe Hofstra Labor and Employment Law Journal just put out Issue 1 of Volume 30 (Fall 2012) and there are some really great articles.  Here is the Table of Contents:


North American Border Wars: The Role of Canadian and American Scholarship
in U.S. Labor Law Reform Debates    Michael J. Zimmer, Susan Bisom-Rapp    1

The Labor Law Jurisprudence of Wilma Liebman    David L. Gregory, Ian Hayes, Amanda Jaret    27
                                                                                                                                                                                                                                                                                                                            Beyond the Water Cooler: Speech and the Workplace in an Era of Social Media    Ann C. McGinley, Ryan P. McGinley-Stempel     75

Lactation Breaks in the Workplace: What Employers Need to Know About the
Nursing Mothers Amendment to the FLSA    Sarah Andrews    121

Affirmative Action for LGBT Applicants & Employees: A Proposed Regulatory
Scheme    Ryan H. Nelson    179


The First Prong’s Effect on the Docket: How the Second Circuit Should Modify
The McDonnell Douglas Framework in Title VII Reverse Discrimination Claims    Ryan Mainhardt, William Volet    219
                                                                                                                                                                                                                                                                                                                                  Drawing a Line in the Shifting Sand of Social Media: Attempting to Prevent
Teachers from “Liking” a Student Outside the Classroom    James R. Baez, Kerri E. Caulfield   263 

Enjoy all of these great articles.


February 28, 2013 in Scholarship | Permalink | Comments (0) | TrackBack (0)

Labor Relations Internships at ADAPT in Italy


From Michele Tiraboschi, ADAPT Scientific Coordinator:

ADAPT is pleased to announce that it will start the selection procedures for 3-to-6 month internships in Italy in the areas of labour law, industrial relations and HRM, which will be hosted by ADAPT or its partners.

If selected, interns will be provided full accommodation in a cosy apartment in the Upper Town of Bergamo (Italy) plus an allowance amounting to 400 Euros.

ADAPT is a non-profit organization set up by Marco Biagi in 2000 with the aim of promoting research in the field of Industrial and Labour Relations from a comparative and an international perspective. Our purpose is to encourage and implement a new approach to academic research, by establishing long-term relationships with other universities and advanced studies institutes, and promoting academic and scientific exchange programs with enterprises, institutions, foundations and associations.

Those interested in joining the ADAPT community through an internship might send their CV and a cover letter to [email protected]. A Brochure for ADAPT can be found here and the Brochure for International Doctoral School in Human Capital and Labour Relations can be found here.    


February 28, 2013 in International & Comparative L.E.L., International Contacts, Teaching | Permalink | Comments (0) | TrackBack (0)

Zimmer and Bisom-Rapp on The Role of Canadian and American Scholarship in U.S. Labor Law Reform Debates

BisomrappzimmerMike Zimmer (Loyola Chicago) and Susan Bisom-Rapp (Thomas Jefferson) have just posted on SSRN page proofs for their article, North American Border Wars: The Role of Canadian and American Scholarship in U.S. Labor Law Reform Debates (Hofstra Lab. & Emp. L.J., vol. 30, No. 1, 2012-13). 

Susan reports that the article will also shortly appear in Italian as a book chapter, S. Bisom-Rapp & M. Zimmer, La Guerra di Confine Nordamericana: il Ruolo della Ricerca Canadese e Americana nel Dibattito sulla Riforma del Diritto del Lavoro Statunitense, in REGOLE, POLITICHE E METODO: L’EREDITÀ DI MARCO BIAGI NELLE RELAZIONI DI LAVORO DI OGGI (F. Basenghi, L.E. Golzio (a cura di), con la collaborazione di A. Russo, O. Rymkevich, I. Senatori, C. Serra, Giappichelli, Torino, 2013).  Susan and Mike presented their paper March 19, 2012 at the Tenth Annual Marco Biagi Conference at the University of Modena, Italy. 

Here is the abstract:

The economies of Canada and the United States and the organization of their societies are deeply interrelated but significant differences exist. This article briefly traces the interaction between the two countries in the development of labor relations laws with a particular emphasis on the impact of scholarly work on U.S. labor law reform debates in the last two decades. Instructive for that purpose is the work of Professor Paul Weiler, a prominent figure in labor law policy discussions in both countries. A significant architect of labor law in Canada, Professor Weiler came to Harvard Law School in 1978 and brought his experience and insights with him, rapidly becoming one of the foremost labor law scholars in the United States. His influence in the 1990s, and hence the influence of Canadian ideas, on the ultimately unsuccessful labor law reform proposals of President Clinton’s Dunlop Commission is widely recognized.

Professor Weiler’s proposals were once again the basis for scholarly and policy debate during the Obama Administration. This time, however, Canadian ideas and experience prompted a scholarly border skirmish. Recently, when new legislation – the Employee Free Choice Act – was proposed to Congress to implement a number of reforms of the National Labor Relations Act based on the Canadian experience, several U.S. academics argued that the actual Canadian experience where these reforms were in place resulted in higher unemployment and slower economic growth. Canadian labor scholars, fearing the corrosive effects of such critiques on their own labor relations regime, responded with rejoinders challenging the work of the American scholars. Clearly, and notwithstanding American provincialism, Canadian-influenced labor law scholarship has played a central role in U.S. policy debates, creating a favorable intellectual environment for labor law convergence. Yet the opponents of U.S. labor law reform also deploy scholarship aimed at the Canadian experience in order reinforce the divergent paths of the two systems, as do Canadian scholars acting defensively to forestall greater convergence of the Canadian regime to the U.S. model.

Check it out! Looks very interesting.


February 28, 2013 in International & Comparative L.E.L., Scholarship | Permalink | Comments (0) | TrackBack (0)

Wednesday, February 27, 2013

Clarke on Causal Coherence In Disparate Treatment Doctrine

ClarkeBrian Clarke (Charlotte) has posted on SSRN his forthcoming piece in the Rutgers Law Review entitled: "A Better Route Through The Swamp: Causal Coherence In Disparate Treatment Doctrine."

Here is the abstract:

Disparate treatment doctrine has long been a swamp and it is getting deeper and murkier. The various judicially and legislatively created routes through the swamp – proof schemes – are poorly marked and, at best, imperfect. Critically, the routes through the swamp have become unmoored from the critical cause-in-fact inquiry they were ostensibly designed to illuminate.

Disparate treatment doctrine has long been a swamp and it is getting deeper and murkier. The various judicially and legislatively created routes through the swamp – proof schemes – are poorly marked and, at best, imperfect. Critically, the routes through the swamp have become unmoored from the critical cause-in-fact inquiry they were ostensibly designed to illuminate.

Focusing on cause-in-fact, this article seeks to establish causal coherence in disparate treatment doctrine by applying – for the first time – modern cause-in-fact theory, including the necessary element of a sufficient causal-set (“NESS”) standard articulated in the Restatement (Third) of Torts, across the various individual disparate treatment statutes and theories. In order to implement this new-found causal coherence, this article proposes a better route through the swamp in the form of a unified proof scheme for use in all individual disparate treatment cases regardless of statute or theory that is rooted in this conception of causal necessity based on the ubiquitous McDonnell Douglas proof scheme.

As Brian himself points out, there could hardly be a more relevant topic these days in employment discrimination law.  The issue of cause-in-fact in disparate treatment is again before the Supreme Court in UTSWMC v Nassar.  Brian's pieces touches on some of the broader issues that the Court should be looking at in Nassar – instead of just throwing around terms like “but for causation” without any conception of what that really means.

Check it out!


February 27, 2013 in Employment Discrimination, Scholarship | Permalink | Comments (0) | TrackBack (0)

Minding the Gap Conference Friday at FIU


Thanks to Howard Wasserman over at PrawfsBlawg for word that this Friday, FIU Law Review will host Minding the Gap: Reflections on the Achievement Gap between Men and Women in the Workplace in 2013. The conference is organized by Kerri Stone. Here is the stellar list of speakers:

  • Ann C. McGinley
  • Sandra F. Sperino
  • Nicole Porter
  • Michael J. Zimmer
  • Nancy Leong
  • Brenda Smith
  • Henry L. Chambers Jr.
  • Joyce Sterling
  • Nancy Reichman
  • Marcia L. McCormick
  • June Carbone
  • Naomi R. Cahn
  • Kingsley Browne
  • Wendy Greene
  • Lauren Sudeall Lucas


February 27, 2013 in Conferences & Colloquia, Employment Discrimination | Permalink | Comments (0) | TrackBack (0)

Friday, February 22, 2013

Recently Published Scholarship


  • V. Blair Druhan, Severe or Pervasive: An Analysis of Who, What and Where Matters When Determining Sexual Harassment, 66 Vanderbilt L. Rev. 355 (2013).


February 22, 2013 in Employment Discrimination | Permalink | Comments (0) | TrackBack (0)

Recently Published Scholarship: ABA JLEL

The Journal of the ABA Section of Labor & Employment Law
Volume 28, Number 1, Fall 2012

SYMPOSIUM: Employee Benefits in an Era of Retrenchment

  • Peter J. Wiedenbeck, The Editor's Page
  • Sean M. Anderson, ERISA Benefits Litigation: An Empirical Picture
  • Susan E. Cancelosi, The Quandary of Federal Intervention in Retiree Health Benefits
  • Jonathan Barry Forman, Optimal Distribution Rules for Defined Contribution Plans: What Can the United States Learn from Other Countries?
  • Kathryn L. Moore, Social Security in an Era of Retrenchment: What Would Happen if the Social Security Trust Funds Were Exhausted?
  • Dana M. Muir, Default Settings in Defined Contribution Plans: A Comparative Approach to Fiduciary Obligation and the Role of Markets
  • Radha A. Pathak & Brendan S. Maher, Health Insurance & Federalism-in-Fact
  • Paul M. Secunda, Lessons from the Ontario Expert Commission on Pensions for U.S. Policymakers
  • David L. Johnson, The Parameters of "Solicitation" in an Era of Non-Solicitation Covenants
  • Ian Hayes, The Unconstitutionality of Section 8(b)(4)(ii)(B) and the Supreme Court's Unique Treatment of Union Speech
  • Jonathan Reiner, Preserving Workers' Statutory Rights: An Analysis of the NLRB General Counsel's Proposed Post-Arbitration Deferral Policy


February 22, 2013 in Scholarship | Permalink | Comments (0) | TrackBack (0)

Thursday, February 21, 2013

Tiraboschi on Younger Workers in Recessionary Times, ADAPT, and E-Journal of International and Comparative Labour Studies

EJournalIn cooperation with Pietro Manzella, I am delighted to start a series of international and comparative labor law posts emanating from ADAPT, a non-profit labor and employment studies organization in Italy, and its E-Journal of International and Comparative Labor Studies.

First, today's featured paper from the E-Journal of International and Comparative Labor Studies is by Professor Michele Tiraboschi entitled: Young Workers in Recessionary Times: A Caveat (to continental Europe) to Reconstruct its Labour Law?

Here is the abstract:

The current debate taking place in continental Europe on the need to reform labour law to reduce the duality between labour market insiders and outsiders, thus giving new employment opportunities to young people seems to be, at its best, a consequence of the crisis, or at its worst, an excuse. The considerable emphasis placed on the power of legislation to reduce youth unemployment prevents real labour market problems from being clearly identified, thus reducing the scope to adopt more effective measures. Action is certainly required to help young people during the current crisis, yet interventions should not be exclusively directed towards increased flexibility and deregulation. This paper questions the “thaumaturgic power” wrongly attributed to legislative interventions and put forward a more holistic approach to solve the problem of youth employment, by focusing on the education systems, school-to-work transition and industrial relations. As a comparative analysis demonstrates, in order to effectively tackle the issue of youth employment, it is not enough to reform labour law. High quality education systems, apprenticeship schemes, efficient placement and employment services, cooperative industrial relations and flexible wage determination mechanisms are the key to success when it comes to youth employment, not only in times of recession.

Clearly a high relevant and interesting labor law article for all who care about youth employment opportunities throughout the globe.

As far as the E-Journal of International and Comparative Labour Studies, it is an open-access review promoted by ADAPT University Press and run by Malcolm Sargeant and Michele Tiraboschi. It is generally concerned with issues in employment relations, human resource management, health and safety, psychology, sociology, labour economics, politics, labour law and history. More info at [email protected] or

ADAPT is a non-profit organisation founded in 2000 by Professor Marco Biagi with the aim of promoting stud­ies and research in the field of labour law and industrial relations from an international and comparative per­spective. Their purpose is to encourage and implement a new approach to academic research, by establish­ing long-term relationships with other universities and advanced studies institutes, and promoting academic and scientific exchange programs with enterprises, in­stitutions, foundations and associations. More info is availabe at

We hope you enjoy the comning articles from this new collaboration between Workplace Prof Blog, ADAPT, and the E-Journal of International and Comparative Labour Studies.


February 21, 2013 in International & Comparative L.E.L., Labor Law | Permalink | Comments (0) | TrackBack (0)

Wednesday, February 20, 2013

Widiss on the PDA and ADA Interplay

WidissDeborah Widiss (Indiana--Bloomington) has posted a new article on SSRN: Gilbert Redux: The Interaction of the Pregnancy Discrimination Act and the Amended Americans with Disabilities Act. Here is the abstract:

Pregnancy -- a health condition that only affects women -- raises complicated questions regarding the interaction of employment policies addressing sex discrimination and those addressing disability. The Pregnancy Discrimination Act (PDA), enacted in 1978, mandates that employers “shall” treat pregnant employees “the same for all employment-related purposes” as other employees “similar in their ability or inability to work.” Despite the clarity of this language, courts regularly permit employers to treat pregnant employees less favorably than employees with other health conditions, so long as the employer does so pursuant to a “pregnancy-blind” policy such as accommodating only workplace injuries or disabilities protected under the Americans with Disabilities Act (ADA). Under this reasoning, recent amendments expanding the scope of disabilities covered by the ADA could have the perverse effect of decreasing employers’ obligations to pregnant employees. This Article argues that these decisions misinterpret the PDA. The same treatment clause creates a substantive, albeit comparative, accommodation mandate. Rather than focusing on the presence or absence of discriminatory intent, courts should simply assess whether the employer has, or under the ADA would be required to, accommodated limitations like those caused by pregnancy. This approach appropriately incorporates consideration of the costs that accommodations impose on employers but insulates that inquiry from still persistent misconceptions regarding pregnant women’s capacity and commitment to work.

This Article is the first to consider in depth how the 2008 amendments to the ADA interact with the PDA. In addition to providing textual analysis, the Article provides historical context that helps confirm that the PDA means what it says. Commentary on the PDA generally characterizes the statute’s same treatment language as a response to some feminists’ concerns that requiring “special” accommodations for pregnancy would increase the risk of discrimination or backlash against women generally. This Article contributes to the historical literature on the PDA by identifying a distinct — complementary but largely overlooked — benefit of the PDA’s same treatment language: it came on the heels of an extraordinary expansion of employer and government support for health conditions other than pregnancy. Thus, although the PDA does not itself require specific pregnancy accommodations, its enactment required many employers to provide far more robust support for pregnancy than they had previously. This historical context has direct relevance for contemporary doctrine, since it is closely analogous to the recent expansion of the ADA. The unduly narrow conception of comparators currently used by many courts interpreting the PDA risks relegating pregnancy once again to the basement.

Timely and important--particularly since the EEOC is currently evaluating its guidance on the interaction of Title VII, the ADA, and the FMLA.


February 20, 2013 in Employment Discrimination, Scholarship, Worklife Issues | Permalink | Comments (1) | TrackBack (0)

Stetson Law Review No Longer Symposium-Only

StetsonThis is a general notice rather than one specific to LEL, but because now is prime-time submission season, I thought it nonetheless pertinent.  Jason Bent (Stetson) informs us that Stetson Law Review, which has been a symposium-only journal, now is accepting non-symposium submissions via ExpressO.


February 20, 2013 in Scholarship | Permalink | Comments (0) | TrackBack (0)

Tuesday, February 19, 2013

Duff's New Workers' Compensation Textbook

DuffCongratulations to Michael Duff (Wyoming) on the publication of his new Carolina Academic Press textbook:  Workers' Compensation Law: A Context and Practice Casebook. The book's description:

The author wanted this book to serve as the perfect marriage between workers' compensation theory and practice. While the book covers most of the traditional areas of workers' compensation doctrine, it also dwells at strategic points to reflect upon the letter of the law. It dares to question doctrine and — more importantly — encourages even the beginning student of workers' compensation to do more than passively receive rules. The author draws on his real world experience as a former injured worker and workers' compensation attorney; and supplements that experience with his theoretical perspective as a teacher and scholar of administrative and employment law. The student is guided through cases by the use of probing introductory questions, reflection sections at the conclusion of many of the cases, and running commentary and ''interrogation'' by way of text boxes at critical junctures in the cases. The student becomes acquainted with a fictional injured worker — Ann Smith — early in the book and has the opportunity to reflect upon legally significant developments as her case becomes increasingly complex. In the final, problem-solving chapter titled ''In the Law Office,'' students are introduced to materials from actual cases demonstrating even more concretely how the principles they are learning are applied in practice. The resulting product is a natural fit with other titles in the Context and Practice Series. Students are introduced to a body of law through explicit engagement with it, and through exercises and commentary meant to refine their understanding through contextual interaction with black letter rules.

This sounds like a great choice for Workers' Comp classes.  Moreover, as one who recently discovered the amount of work required to merely co-author a first-edition textbook, I'm in awe of doing one solo.


February 19, 2013 in Scholarship | Permalink | Comments (1) | TrackBack (0)

Lobel & Lofaso Provide a Global Perspective on 8(a)(2)

Lobel LofasoOrly Lobel (San Diego) and Anne Lofaso (West Virginia) have just posted on SSRN their chapter Systems of Employee Representation: The US Report in Systems of Employee Representation at the Enterprise: A Comparative Study (Bulletin of Comparative Labour Relations Series, Roger Blanpain, Hiroya Nakakubo and Takashi Araki Editors) (Kluwer 2012).  This is a terrific addition to the 8(a)(2) literature.  Here's the abstract:

Although employee-representation systems coexist with a collective-bargaining framework in continental Europe for many years, US labor advocates have looked upon those representations systems with suspicion. The reasons for this suspicion are historical: US employee-representation systems have their roots in company-dominated unions that the National Labor Relations Act was designed to prohibit. The National Labor Relations Board, the independent agency created by the New Deal Congress to administer the NLRA, has interpreted that legislation’s prohibition to essentially make unlawful most, if not all, employer-initiated employee-representation systems and many other types of employee-representations systems. While Congress’s and the Board’s efforts to prohibit employer-dominated employee-representation systems have been noble and are grounded in values designed to preserve employees’ right to workplace participation to the greatest extent, these efforts have, in fact, muffled employee voice. The problem arises in part from differences in two competing values: employee voice and employee self-organization. The article, part of a comparative study of systems of employee representation around the world, argues that while at first blush, those values appear to be co-extensive, in reality, employee voice, which focuses on employee participation and industrial democracy, is a broader concept than self-organization, which focuses on employee autonomy. That section of the NLRA that prohibits company-dominated unions values self-organization, or worker autonomy, over employee voice, or participation. Other sections of the NLRA, such as its exclusivity principle, whereby the union that the majority selects or designates is the exclusive employee representative, further serve to stifle employee voice. Against a backdrop of understanding the instrumental and principled rationale for employee-representation systems, the article asks which types of systems function well within the US legal framework, which systems do not fit within this framework, and to what extent the framework needs to change to accommodate greater participation in contemporary markets.


February 19, 2013 in Labor Law, Scholarship | Permalink | Comments (1) | TrackBack (0)

Monday, February 18, 2013

Herbert on Social Media & Public Sector Labor Law

HerbertWilliam A. Herbert just posted on SSRN his article (presented at the NKU Chase Law & Informatics Symposium last week) Can't Escape from the Memory: Social Media and Public Sector Labor Law.  Here's the abstract:

The Web 2.0 communicative revolution is impacting many fields of law including labor and employment law. This article focuses upon the application and impact of statutory and constitutional doctrines on the use of social media in public employment in the United States. It examines social media under public sector labor law through a cross-sectoral analysis of two primary issues: the scope of protected social networking activities, and the contours of employer policies. The article compares and contrasts developments under the National Labor Relations Act with developments under collective bargaining laws and due process statutes in three states, and under the First Amendment. Through this comparative analysis, the article highlights the distinctions and similarities of public sector labor law and their implications for the future.


February 18, 2013 in Labor and Employment News, Labor Law, Public Employment Law, Scholarship | Permalink | Comments (0) | TrackBack (0)

Bernt on Employment Contracts

Lisa J. Bernt (visiting Northeastern) just posted on SSRN her article (Syracuse L. Rev.) Tailoring a Consent Inquiry to Fit Individual Employment Contracts.  Here's the abstract:

This article looks at the fundamental requirement of consent in contracts, and tailors the consent inquiry to fit the particular setting of individual employment contracts. It borrows from the approach some courts have used to assess the validity of waivers of various statutory rights. Those courts look to a non-exclusive set of factors to assess whether the waiver was knowing and voluntary. It also looks at the manner in which courts determine the validity of premarital agreements. Courts pay particular attention to whether the parties entered a premarital agreement knowingly and volun-tarily, and consider various factors, including the opportunity and ability to review and consider the agreement, external pressures on consent, the relative sophistication of the parties, and whether the parties had disclosed financial and other information to each other. Such a consent inquiry also needs to address the particular concerns that arise at various points along the employment relationship.


February 18, 2013 in Employment Common Law, Scholarship | Permalink | Comments (0) | TrackBack (0)

Recently Published Scholarship


  • Sandra F. Sperino, Discrimination Statutes, The Common Law, and Proximate Cause, 2013 Illinois L. Rev. 1.
  • Sandra F. Sperino, Revitalizing State Employment Discrimination Law, 20 George Mason L. Rev. 545 (2013).
  • Matthew P. Mooney, Between a Stone and a Hard Place: How the Hajj Can Restore the Spirit of Reasonable Accommodation to Title VII, 62 Duke L.J. 1029 (2013).
  • Alexander Volokh, Privatization and the Elusive Employee-Contractor Distinction, 46 UCDavis L. Rev. 133 (2012).
  • Beverly I. Moran, Islamic Law Meets ERISA: How America's Private Pension System Unintentionally Discriminates Against Muslims and What to Do About It, 46 UCDavis L. Rev. 209 (2012).


February 18, 2013 in Scholarship | Permalink | Comments (0) | TrackBack (0)

Wednesday, February 13, 2013

NLRB Members Renominated

NLRBToday, the White House renominated Sharon Block and Richard Griffin to the NLRB (as well as Richard Cordray to the Bureau of Consumer Financial Protection).  Those appointees, of course, were the subject of the D.C. Circuit's recent Noel Canning decision, which held that the President's power to make recess appointments is severely limited.  It's good to see an attempt to remove the cloud over those members' appointments, although I'd still like to see nominees for the other two empty seats.  I don't know whether the holdup on those is the White House or Republicans (who would normally play a large role in naming the appointees for those two, Republican, seats), but it's ridiculous that a federal agency constantly has to deal with not only being understaffed at its leadership level but having its ability to carry out its most basic functions constantly in doubt.

Speaking of which, the House Republican leadership and related committee chairs have sent the White House a letter urging appointees for all open Board seats, and citing the importance of having a full Board.  Although I have some doubts about their sincerity--especially because the main purpose of the letter is to emphasize their support for the Noel Canning limits on the President's appointment power, not to mention that House Republicans haven't shown much support for the NLRB in the past--the language stressing the Board's role in the workplace is nice.  Oh, and in case there's any doubt that they are more concerned with the appointments process than anything else, the same leaders also sent a letter to the Board urging them to stop issuing decisions until the Supreme Court decides the issue or the Senate confirms more members.  No word on whether the Republicans leaders sent their Senate counterparts a letter urging them to work on getting new members appointed.

Hat Tip:  Joshua Glick, Patrick Kavanagh, and others.


February 13, 2013 in Labor and Employment News, Labor Law | Permalink | Comments (2) | TrackBack (0)

LawAsia Employment Law Conference

SiemThe 8th Annual LawAsia Employment Law Conference will be held 24-25 May 2013 in Siem Reap, Cambodia.  The theme is Workplace Law in the Asia Pacific: The Issues and Challenges in 2013.  I'll be there, co-presenting on labor outsourcing with Pak Cornel Juniarto of Jakarta.


February 13, 2013 in Conferences & Colloquia | Permalink | Comments (0) | TrackBack (0)

Biagi Conference in Modena Italy

BiagiThe Eleventh Conference in commemoration of prof. Marco Biagi, organized by the Marco Biagi Foundation, will take place in Modena (Italy) on 18 and 19 March 2013. The Conference is entitled The Transnational Dimension of Labour Relations: a New Order in the Making?.


February 13, 2013 in Conferences & Colloquia | Permalink | Comments (0) | TrackBack (0)

Porter on Disability & Caregiving

PorterNicole Porter (Toledo; visiting Denver) has been busy -- she's just posted to SSRN her second article within a week.  Her newest is Mutual Marginalization: Individuals with Disabilities and Workers with Caregiving Responsibilities.  Here's the abstract:

This paper explores the marginalization of two groups of employees — individuals with disabilities and workers with caregiving responsibilities. One might argue that these two groups have little in common. In fact, however, while not perfectly aligned, these two groups of individuals have much in common in the workplace. First, these employees are unable to consistently meet their employers’ expectations of an “ideal worker.” Thus, they often must seek adjustments or modifications in the workplace to accommodate for their failure to conform to the ideal worker norm. This causes both groups of employees to suffer from “special treatment stigma,” which manifests itself in resentment by co-workers because of the special benefits these employees receive and in employers’ reluctance to hire individuals belonging to these groups because of the real or perceived increased costs of employing such individuals. Despite these similarities, the law has dealt with these two groups of employees very differently. Individuals with disabilities are entitled to broad protection in the workplace, including the rather unique reasonable accommodation provision in the Americans with Disabilities Act. On the other hand, despite some laws protecting some aspects of pregnancy and caregiving, workers with caregiving responsibilities do not enjoy the same broad protection as individuals with disabilities.

In this paper, I will explore why the law treats these groups of employees differently. I will address many of the concepts that are thought to distinguish individuals with disabilities and workers with caregiving responsibilities and are therefore used to justify their different treatment under the law. But I will ultimately conclude that these distinctions, once unpacked, do not justify the law’s different treatment of these two groups. Moreover, these differences are not as significant as the similarity that binds these two groups together — the special treatment stigma. Thus, I will explore whether a combined legal and theoretical approach to eliminating the special treatment stigma is feasible and defensible. Specifically, I seek to provide theoretical justification for the reasonable accommodation provision under the ADA and argue that the same justification can be used to support an accommodation mandate for workers with caregiving responsibilities.


February 13, 2013 in Disability, Employment Discrimination, Scholarship | Permalink | Comments (0) | TrackBack (0)

What Workplace Law Scholarship Do You Like Lots?

I wanted to conclude my guest blogging stint here at Workplace Prof Blog by opening up a thread I’ve always been interested in seeing here: specifically, a chance for contributors and readers of the blog to list particular workplace/anti-discrimination/labor law articles or books that they’ve particularly enjoyed (or that they think are particularly worthy of a read).  As a scholar who is relatively new to academia, I am acutely aware that there is much excellent scholarship that I have not yet read (because it is outside of my specific focus, or older, or not in the databases I ordinarily search), and I thought the collection of readers and contributors here would make for a particularly good crowdsourcing of good work. 

Think of it as JOTWELL lite – An opportunity to say what we like lots, without all of the work of writing an essay. 

To get us started, after the jump I list a few of my own all-time favorites (with the caveat that this is a dramatically under-inclusive list):

Continue reading

February 13, 2013 | Permalink | Comments (0) | TrackBack (0)