Workplace Prof Blog

Recently Published Scholarship

• Jessica L. Waters, Testing Hosanna-Tabor: The Implications for Pregnancy Discrimination Claims and Employees' Reproductive Rights, 9 Stanfard J. Civ. Rts. & Civ. Liberties 47 (2013).
• Jeanette Cox, Pregnancy as "Disability" and the Amended Americans with Disabilities Act, 53 B.C. L. Rev. 443 (2012).
• Dustin Stark, Just Say No: Foreclosing a Cause of Action for Employees Seeking Reasonable Accommodation Under the New Jersey Compassionate Use Medical Marijuana Act, 43 Seton Hall L. Rev. 409 (2013).

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Porter on Women and Unions

Nicole Porter (Toledo, visiting Denver) has just posted on SSRN her article Women, Unions, and Negotiation.  Here's the abstract:

Improving the working conditions of all American workers must include considering the voices of one group traditionally underrepresented in union ranks and leadership — women. In this paper, I explore the interrelationship between women, unions, and women’s willingness to negotiate. Despite the tumultuous history of women’s involvement in the unionized labor market, women’s participation in unions is increasing relative to men. Recent studies also reveal that women significantly benefit from union representation, even more significantly than men. One reason for this disparity is that many women have not been very successful in negotiating on their own behalf. For many reasons explored in this paper, many women have been socialized to be uncomfortable negotiating for what they deserve. Thus, women benefit by participating in unions, where the negotiation is done on their behalf, and we should be encouraging women’s involvement in unions. Furthermore, women are still grossly underrepresented in union leadership roles. Because studies show that women are more likely to join a union when there are more women leaders, increasing the number of female union leaders should lead to an increase in women’s participation in unions. More women in leadership roles also has the potential to improve the overall success of the union, garner more attention to issues important to women, and bring a new perspective to union/management negotiation. Even though the negotiation literature suggests that women are often unwilling to negotiate on their own behalf, this paper will demonstrate they are very willing to and effective at negotiating on behalf of others. Finally, I will demonstrate how effective women can be as leaders and advocates when they work together to reach a common goal.

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The EEOC on Lesbian/Gay Employees and Sex Discrimination

In my last post here, I discussed recent developments in the EEOC’s (and the courts’) treatment of sex discrimination claims by transgender workers under Title VII.  In this post, I want to take up the related issue of discrimination against lesbian and gay employees as a form of sex discrimination under Title VII.

Traditionally, sex discrimination claims brought by lesbian and gay employees under Title VII have not fared particularly well.  Courts have tended to be deeply skeptical of what they perceive as efforts to “bootstrap” anti-discrimination protections for sexual orientation into Title VII, and have granted dismissals (on both summary judgment and motions to dismiss) at very high rates.

Price Waterhouse v. Hopkins, 490 U.S. 228 (1989) improved things somewhat for lesbian and gay employees.  After Price Waterhouse, many courts recognized—at least in theory—that gender stereotyping claims should be available to lesbian and gay employees, where they are treated differently because of a perceived failure to conform to gender stereotypes.  Although courts have continued to dismiss the sex discrimination claims brought by lesbian and gay workers at fairly high rates, there has been a meaningful, if limited, expansion in the availability of sex discrimination claims to gay and lesbian workers post-Price Waterhouse.  See, e.g., Prowel v. Wise Business Forms, 579 F.3d 285 (3d Cir. 2009) (reversing award of summary judgment on a gay employee’s sex discrimination claim). 

Unlike in the gender identity context, however, these post-Price Waterhouse decisions in the sexual orientation context have generally stayed far away from any suggestion that sexual orientation may be per se sex discrimination.  Instead, courts have closely cabined the circumstances in which a successful sex discrimination case can be brought by lesbian and gay workers, allowing cases only where there is clear evidence that an employee was targeted because of classic gender stereotyping—behaving or appearing insufficiently masculine (as a man) or insufficiently feminine (as a woman).

Two recent EEOC decisions have taken a substantial step away from this limited approach and towards a per se rationale for treating sexual orientation discrimination as a form of sex discrimination.

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Denver Law Symposium on Ann Scales

The University of Denver Sturm College of Law is sponsoring a symposium: "On Having Fun & Raising Hell: Symposium Honoring the Work of Professor Ann Scales," on Saturday, March 30, 2013.

A flyer with links to the full agenda and online registration can be found here.

The symposium is being co-sponsored by the Workplace Law Center at Denver and a few employment law people are speaking at it (including Ann McGinley and Nicole Porter).  This ia great symposium for people with an overlapping interest in employment law and feminist legal theory.

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IALLJ Call for Papers

Steve Willborn, current president of the International Association of Labour Law Journals, writes to let us know about the IALLJ's call for papers for presentation at its upcoming meeting on June 6-7, in Bordeaux, France.  The topic is "Access to Justice" and the topics include both diversification and activation of social justice.  More info on the call for papers, as well as the tentative program for the meeting is available here (scroll down for the English section):   Download IALLJ Meeting.

If you're interested, note that the deadline for abstract submissions is March 1.

-JH

Goldberg on Noel Canning Recess Appointment Decision in Labor Notes

Michael Goldberg (Widener (Wilmington)) has posted a brief analysis in Labor Notes on the DC Circuit's recent decision in Noel Canning, which found the 2012 recess appointments to the NLRB by President Obama to be unlawful.

After discussing the decision, Michael points out that the combination of the lack of filibuster reform in the Senate and the narrow reading of what it means for there to be a "recess," means that the Board will have a exceedingly difficult time having its orders enforced until it has at least three Senate-confirmed members or the Noel Canning decision is overturned by en banc or US Supreme Court review.

This is because Section 10(f) of the NLRA allows any employer to appeal an adverse Board decision to the DC Circuit (which will find such orders to be null and void) and because it is unlikely that Senate Republicans will permit any NLRB nominee through, regardless of their merits, since they can effectively shut down a federal agency they have no love for by not confirming anyone. 

Labor relations law in the United States has reached Kafka-esque proportions.

In any event, read Michael's entire Labor Notes piece.

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Zimmer and Sperino Amicus Brief in Mixed Motives Retaliation Case

Michael Zimmer (Loyola-Chicago) and Sandra Sperino (Cincinnati) are currently drafting an amicus brief to be filed in University of Texas Southwestern Medical Center v. Nassar.  This case addresses mixed motive issues in Title VII retaliation cases, and it is a pretty important issue.  Michael and Sandra are interested in hearing from anyone who would like to comment on drafts of the amicus or who would be interested in signing or considering signing on to the finished brief.  Please email Sandra at [email protected] if interested.

MM

Final FMLA Rule on Military and Flight Crews Expansion to Be Published Tomorrow

Kenneth Shiotani (National Disability Rights Network) gives us the news that the Department of Labor will be publishing its final rule on the recent amendments to the FMLA that expanded coverage to flight crews and family members of those in the military--for a refresher on those expansions, see here, here and here.

And here is the final rule itself. 

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Happy 20th Anniversary FMLA

The Family and Medical Leave Act was signed into law twenty years ago today. In celebration, here are some interesting links for your lunch hour:

The Family and Medical Leave Act, An Overview (Cong'l Res. Serv.)

Women and Low-Skilled Workers, Other Countries' Practices (Gov't Accountability Office)

Family and Medical Leave Act Regulations: A Report on the Department of Labor's Request for Information (DOL)

And for some reform links, from the add paid leave camp: National Partnership for Women and Families Agenda for the 113th Congress. And from the reform abuse of leave camp: The U.S. Chamber of Commerce's Absence abuse and Medical Leave.

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Estreicher & Eigen on Employment Dispute Forums

Sam Estreicher and Zev Eigen have just had their chapter, "The Forum for Adjudication of Employment Disputes,"published in the book, Reseach Handbook on the Economics of Labor and Employment Law.  You can get the final chapter here ( Download Estreicher-Eigen Chapter ); the abstract from their earlier version on SSRN:

This chapter focuses on the appropriate design of the forum for adjudication of employment disputes. By the term “adjudication,” we refer to the resolution of “rights” disputes – disputes over the application of a contract or the application of a statutory or regulatory rule to a particular factual situation. We are not referring to “interests” disputes – disputes over the substantive content of an initial contract or renewal agreement. In considering the design question, we assume that all involved actors, (employees, employers, unions, etc.) retain whatever endowments they currently possess in terms of intelligence, energy, income, occupational status, access to resources, union representation, and statutory and contractual rights. Holding these endowments constant, we ask what institutional arrangements for adjudicating rights disputes would do the best job of resolving those disputes in a fair, efficient manner for workers, managers and the public generally. 

On the legislative front, we oppose current efforts in Congress to amend the Federal Arbitration Act to prohibit predispute arbitration agreements. At least if applied in the employment context, this is a case of throwing out the baby with the bath water. Employment arbitration, if it is properly structured and regulated, improves the likelihood that employees, and most especially those who are relatively low-paid, will be able to obtain an adjudication on the merits of their rights disputes with the employer. Abolition of employment arbitration simply relegates those employees to the courts to fare as best they can on their own in a complex, formal litigation environment. 

Based on what is practically and politically feasible as of this writing, employer-promulgated ADR should be the basis of an employment adjudication system that supplements the work of courts, administrative agencies and, in the union sector, the grievance and arbitration process. We say this because unless adequate resources are provided to administrative agency adjudicators or courts to handle responsibly the vast increase in self-represented employee claims – which we think unlikely – the appropriate legislative response, even for critics of employer-promulgated ADR, is to develop safeguards that help minimize their concerns without driving employers to abandon the process entirely. 

If we were starting from scratch, we would be inclined to consider a system similar to Great Britain’s. The UK approach started as a wrongful dismissal statute and over time also assumed adjudicatory authority over discrimination claims. The UK system mixes government-supplied mediation services with a tripartite government-funded, public adjudication. The system supersedes any common law cause of action for breach of the employment agreement and employment statutes; employment disputes that go to the regular civil courts are limited to libel and slander, certain torts and claims for injunctive relief for breach of restrictive covenants. Class actions are not authorized. 

There may be some institutional features of the UK approach that are difficult to replicate here. One such feature is the tripartite adjudicatory structure used in England. With our low union density in private companies and the fact that employers tend not to form representative associations in the employment law field, it will take some ingenuity to develop a regularized procedure for selecting employer- and employee-side adjudicators. 

The more difficult question is whether there is any political will to adopt something like the UK system. Lawyers representing employees would not necessarily oppose such legislation if they could remove all caps on recovery and retain their ability to bring lawsuits (including class actions) in the courts. Employers might support such legislation, if it did not include abolition of employment at-will and there was some institutional guarantee of modest awards of the UK variety. Most employees, we believe, would be best off under the UK approach but we cannot get there politically. Therein lies the dilemma for law reform. 

We do believe, however, that working with what is in place at many companies, much can be done to improve employer-promulgated ADR to pick up many of the desirable features of the UK approach but in an American flavor responsive to U.S. legal and popular culture.

This is obviously a major issue in employment law and both the authors have written extensively on it, so it's definitely worth a look.

-JH

Recently Published Scholarship

• Pnina Alon-Shenker, The Duty to Accommodate Senior Workers: Its Natuer, Scope and Limitations, 38 Queen's L.J. 165 (2012).
• Lisa M. Durham Taylor, The Pro-Employee Bent of the Roberts Court, 79 Tenn. L. Rev. 803 (2012).
• Jennifer K. Wagner, Sidelining GINA: The Impact of Personal Genomics and Collective Bargaining in Professional Sports, 12 Virginia Sports & Entertainment L.J. 81 (2012).
• Alexander C. Krueger-Wyman, Collective Bargaining and the Best Interests of Basketball, 12 Virginia Sports & Entertainment L.J. 171 (2012).

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Chamber Urges Employers to Appeal Prior Adverse Board Rulings

Jeff discussed in an earlier post the effect of Noel Canning, in which the D.C. Circuit held that recess appointments to the NLRB are unconstitutional.  Now Laura Cooper (Minnesota) sends word that the U.S. Chamber of Commerce is urging its members to use Noel Canning to challenge recent -- and even longstanding -- pro-employee Board decisions. 

Here's an excerpt from what appears to be a Wall Street Journal article reprinted by the Chamber [but check out the date on the document!]:

The U.S. Chamber of Commerce is advising companies to try to reverse rulings the National Labor Relations Board made against them in the past year, following a court decision that has undermined the federal panel.

The chamber's push, outlined in a memo the business trade group began distributing to its members Wednesday, is the latest fallout from last week's federal court ruling that voided President Barack Obama's three recess appointments to the five-slot labor board.

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NLRB General Counsel: NYC Bus Strike Not Unlawful

The NLRB's Office of General Counsel's Division of Advice just released a memo stating that it does not believe that the NYC bus driver strike violates the NLRA.  According to the memo:

The NLRB Office of General Counsel has found that a strike by union bus operators against a group of New York school bus companies does not violate the National Labor Relations Act because the union has a primary labor dispute with the employers.

In a charge filed with the NLRB Brooklyn office on January 16, the group of 20 bus companies alleged that a strike called by Local 1181-1061 of the Amalgamated Transit Union was unlawful because the union’s primary dispute was with the New York Department of Education, which contracts with the bus companies for service to area schools. The NLRA prohibits unions from striking secondary employers in order to pressure the employer with whom they have a dispute.

In an Advice Memorandum issued today, however, the Office of General Counsel found that the bus companies, which maintained collective bargaining agreements with the union for many years before they expired in December, are primary employers in the labor dispute, along with the Department of Education. “It is well established that more than one employer may be a primary employer” under the NLRA, the memo explained.

Accordingly, the Regional Office will dismiss the charge alleging an illegal secondary strike.

Good news for the striking drivers, although it's still not clear whether a resolution is in sight.

-JH

January Employment Data

The Department of Labor issued its January employment data today.  The big numbers:  157,000 jobs added, with the unemployment rate at 7.9% (from 7.8% the previous month).  But perhaps the more important figures from the report were revisions in previous months' data, with significant uptick.  The DOL revised its November data to show that 247,000 jobs were added in that month and 296,000 jobs in December--an additional 127,000 jobs than initially reported in those two months.  Most sectors saw job gains, with one of the exceptions being public-sector jobs, which continues to be a drag on employment.  The number of discouraged workers also dropped by 255,000 in a non-seasonally adjusted comparison to last year.  All in all, that's not bad, particularly the previous months' revisions.

-JH