Wednesday, April 30, 2014
The Sixth Circuit recently weighed in on whether physical presence is an essential function of a job under the Americans with Disabilities Act. E.E.O.C. v. Ford Motor Co., 2014 WL 1584674 (6th Cir. 2014). The district court had granted summary judgment in the employer’s favor, holding that the plaintiff could not establish a failure to accommodate claim under the ADA because of her absenteeism. The Sixth Circuit reversed the district court.
The decision is interesting on several levels, two of which I will discuss here. First, it separates the question of whether attendance is an essential function from the question of whether physical presence at a workplace is one. The Court noted that courts should consider that while physical presence is required for some jobs, it is not required for all positions. It reasoned:
When we first developed the principle that attendance is an essential requirement of most jobs, technology was such that the workplace and an employer's brick-and-mortar location were synonymous. However, as technology has advanced in the intervening decades, and an ever-greater number of employers and employees utilize remote work arrangements, attendance at the workplace can no longer be assumed to mean attendance at the employer's physical location. Instead, the law must respond to the advance of technology in the employment context, as it has in other areas of modern life, and recognize that the “workplace” is anywhere that an employee can perform her job duties. Thus, the vital question in this case is not whether “attendance” was an essential job function for a resale buyer, but whether physical presence at the Ford facilities was truly essential. Determining whether physical presence is essential to a particular job is a “highly fact specific” question.
Id. at *6.
Second, although the Court considered the business judgment of the employer (that face-to-face interaction is desirable for the job), it also considered evidence proffered by the plaintiff that her job did not require such face-to-face contact. The Court held there was a genuine issue of material fact about whether the plaintiff’s job required her to be physically present at the job.
The reach of the opinion is unclear. The Court also noted:
It is important, at this juncture, to clarify that we are not rejecting the long line of precedent recognizing predictable attendance as an essential function of most jobs. Nor are we claiming that, because technology has advanced, most modern jobs are amenable to remote work arrangements. As we discussed above, many jobs continue to require physical presence because the employee must interact directly with people or objects at the worksite. See, e.g., Melange, 482 F. App'x at 84 (custodian). We are merely recognizing that, given the state of modern technology, it is no longer the case that jobs suitable for telecommuting are “extraordinary” or “unusual.” Vande Zande, 44 F.3d at 545; Smith, 129 F.3d at 867–68. When we decided Smith in 1997, we responded to the world as it then existed; however, in the intervening years, communications technology has advanced to the point that it is no longer an “unusual case where an employee can effectively perform all work-related duties from home.”
Id. at *11.
While we wait for word on the EEOC v. Mach Mining cert petition, those interested in systemic or class relief in employment cases will want to keep an eye on another important cert petition, Allstate v. Jacobsen. This is not an employment law case, but rather a case about alleged unfair trade practices in adjusting insurance claims for automobile injuries. Yet, it has potentially huge ramifications for employment cases, as highlighted by the Equal Employment Advisory Council’s amicus brief.
Allstate petitioned for review of a decision by the Montana Supreme Court applying Montana’s version of Federal Rule 23 for class certification. Montana’s Rule 23 is textually identical to Federal Rule 23 in all relevant respects, and Montana has in the past found federal authority under Federal Rule 23 “instructive” when interpreting its own Rule 23.
The Montana Supreme Court certified a Rule 23(b)(2) class focusing on the question whether Allstate's claims adjusting policy violated Montana's unfair trade practices law. The potential class-wide relief included a declaratory judgment and a mandatory injunction ordering Allstate to provide notice to class members that they may re-open and re-adjust their claims. The court recognized that this type of declaratory and injunctive relief would "set the stage for later individual trials."
The propriety of certifying this type of mandatory 23(b)(2) class to resolve certain common questions, even where a later series of individual trials for damages will naturally follow, appears to have split state courts and lower federal courts. The Montana court relied on Judge Posner's decision in McReynolds v. Merrill Lynch, which permitted the certification under Federal Rule 23(b)(2) and 23(c)(4) of a class limited to resolving the question whether defendant's "teaming" and "account distribution" employment policies had an unlawful racially disparate impact. There, Judge Posner recognized that should the plaintiffs prevail on the class-wide issue of disparate impact, the "next stage of the litigation" would be "hundreds of separate suits for backpay . . ."
Allstate and several amici contend that certification of the mandatory 23(b)(2) class in Jacobsen's case violates the procedural due process protections of the 14th Amendment. Montana is, of course, free to interpret its own Rule 23 in a way that diverges from Wal-Mart's interpretation of Federal Rule 23. Indeed, the Montana court hinted that it may not follow Wal-Mart's guidance on the Rule 23(a)(2) commonality requirement in the future, but ultimately determined that it need not resolve that question in this case. But Allstate's argument to the Court seems to be that Wal-Mart set a constitutional floor - the minimum protections allowable under the 14th Amendment. In the unanimous portion of the Wal-Mart opinion, the Court rejected the use of 23(b)(2) for certification of class claims seeking monetary relief, "at least where . . . the monetary relief is not incidental to the injunctive or declaratory relief." But that holding was not firmly rooted in a constitutional interpretation. Although notice and opt out rights are constitutionally required in a class action "predominately for money damages," the Court only suggested the "serious possibility" that the same would be true for class actions in which money damages are at issue but do not predominate. And it is not at all clear that this constitutional limitation would apply to cases like Jacobsen or McReynolds, where the class action does not resolve money damages claims, but rather only resolves certain common issues to "set the stage" for later individual trials for monetary relief.
The petition is set to be considered at the Court's conference this Friday, and is listed on SCOTUSBlog's Petitions to Watch.
Monday, April 28, 2014
The Supreme Court heard oral argument today in Lane v. Franks (see here and here) today. The oral argument transcript is now available. It's a good read. The justices seemed pretty skeptical that the First Amendment would not protect a public employee testifying about information he learned at work, but at the same time, they were concerned that Eleventh Circuit precedent might be murky enough that the right was not clearly established enough at the time Lane was fired to overcome qualified immunity. For reporting on the argument, see here, here, and here.
A relatively rare thing is happening in St. Louis beginning today. A high profile sex discrimination trial begins. It's Katz v. Anheuser-Busch, which I posted about back in October of 2009 when the case was filed. Francine Katz, former Vice President of Communications and Consumer Affairs and part of the company's "Strategy Committee," is suing Anheuser-Busch for discrimination in compensation and support during her tenure at the company. She discovered that she was paid less than every man on the Strategy Committee when A-B was bought by InBev, an international company.
Katz has sued only under the Missouri Human Rights Act and not under Title VII. The MHRA has a standard more plaintiff friendly--protected status need only be a "contributing factor" to an employer's decision--and Missouri courts tend to let things get to trial more frequently. In fact, one of the reasons that this case has taken so long is because A-B sought to enforce an arbitration clause in Katz's contract. The Missouri Court of Appeals held that the arbitration provisions that A-B argued would apply were not in fact enforceable.
There has been more wrangling, including a request by local news to have a camera in the courtroom. As events unfold, I'll post any interesting developments and observations, but mostly I'm looking forward to getting to watch when my schedule permits.
Update: Local investigative reporters have been tweeting from the trial. Follow @leisazigman and @LisaBrownSTL if you are interested.
Steve Willborn has just posted on SSRN an article on football, Northwestern, and the "employee" conundrum. The abstract is pretty short:
This article discusses whether college athletes should be considered employees under a broad range of employment statutes. The central thesis is that, if college athletes are persistent, it is inevitable that some of them, somewhere, sometime, will be found to be employees. A major reason for this is that the basic rules for determining who is an employee lean in their favor across a broad range of employment statutes, including private- and public-sector collective bargaining laws and laws protecting individual employment rights. College athletes are also likely to be classified as employees at some point because there are literally hundreds of different employment statutes. College athletes will have many independent opportunities to present their claims. Finally, claims by the NCAA and its member institutions to a special exemption for coverage under all these statutes are weak. The analogy to antitrust law, where the NCAA has been treated favorably, is inapt. Moreover, the courts will be reluctant to create non-statutory exceptions to important state and federal labor protections where the legislature has failed to do so.
Steve and I have been sharing some thoughts about this piece (mostly on his side, my contributions being largely limited to a "football is different" theme), some of which are captured here:
I decided to do this article mostly to educate myself about the issues raised by the Kain Colter/Northwestern situation. I would say the main thrust of my article is that the specifics of that situation have soaked up too much of the oxygen on the college-athlete-as-employee issue. The Northwestern case is important but more limited than commonly understood. And there are many, many other opportunities for college athletes to forward the claim that they are employees.
I would say that the article makes four basic claims. First, the Northwestern case is much more limited than commonly understood. For example, by its terms, the Regional Director’s decision in the case means that the college athletes at more than 60% of all NCAA institutions are NOT employees. The Regional Director said athletes who didn’t have scholarships at Northwestern were not employees, so no Ivy League athletes and no athletes at NCAA Division III schools are employees under the ruling. (As far as I know, no one has commented on this important aspect of the decision.) Of course, people aren’t exercised about those schools. But the ruling also doesn’t apply to 90% of the institutions we tend to worry about – 90% of the institutions in the top 5 athletic conferences are public universities and not governed by the NLRA.
Second, some of the public-sector bargaining laws are incredibly favorable to claims by college athletes that they are employees. Florida provides constitutional protection for such claims; California is also quite favorable. Of course, in some states those claims would be non-starters. But college athletes at public universities in many major athletic markets would have a good chance of unionizing under public-sector bargaining laws.
Third, college athletes are even more likely to be successful in getting themselves classified as employees under laws protecting individual employee rights: there are literally thousands of statutes the claim could be made under (discrimination laws, unemployment, workers compensation, wage laws, etc.); college athletes could pick out favorable individual plaintiffs (such as one-and-done basketball players where the connection to academics is weakest); and the decision-makers in the cases are less subject to political influence (e.g., compared to the NLRB or its public-sector equivalents).
Fourth, the common claim that college athletes should be an exception to the normal rules determining employee status is weak. That claim is often backed up with reference to cases under the antitrust laws that do treat college athletics as different. But those cases are applying the normal antitrust laws in finding that sometimes college athletics requires collaboration that normally would be prohibited; the cases do not carve out an exception to the antitrust laws, they are applying them. In this case, universities are seeking an exception to the normal rules determining employee status. Procedurally, the courts should not be the ones making such exceptions; if there are to be exceptions, the legislatures should make them, not courts. Substantively, even if the claim has some force, it doesn’t justify a blanket exception. Maybe some exceptions from the wage-payment laws would make sense; exempting college athletes from the protection of the discrimination statutes seems unwise.
So my main conclusion is that college athletes will be classified as employees sometime, somewhere, for some purposes. They have so many arrows in their quiver that this seems inevitable. I don’t say much about what the NCAA should do in response to this, nor do I talk about whether it’s a good idea to classify athletes as employees. This is mostly a technocratic piece. But it’s interesting that right now the kinds of changes the NCAA is making (paying for parents to go on recruiting trips and to games, providing more food) cut in the direction of making college athletes more employee-like. So I view most of the current moves by the NCAA as providing more arrows, or better arrows, or something like that.
I won't ask why Steve didn't include this summary in his abstract, but I will attest that he educates all of us as well as himself in the process. It's well worth a read.
Friday, April 25, 2014
Another update on the Northwestern football case ahead of today's vote. The NLRB announced that it will review the ruling and accept amicus briefs on the issue of the players' status as employees. Details to follow. The vote today will still happen, but as we noted in yesterday's post, the ballots will not be opened until the NLRB rules.
On a related note, the NY Times has a story today on one of the major reasons for the drive to unionize college football players: better medical care. Expect to see the NCAA get more serious about this--at least as long as the threat of unionization remains.
Thursday, April 24, 2014
From conference organizers Scott Moss and Melissa Hart, at the University of Colorado Law school comes word that registration is open for the Ninth Annual Colloquium on Labor and Employment Law Scholarship. The dates will be September 11th to the 13th in Boulder.
As many of you already know, this is a terrific opportunity to get to know colleagues in an informal setting and exchange ideas as we discuss works-in-progress. Past participants likely would agree that the friendly, low-key atmosphere and productive sessions, as well as the chance to socialize with our colleagues, make this gathering especially fun and valuable.
The Colloquium will follow the familiar format. We will workshop papers all day Friday through Saturday afternoon. Exact times TBD; check the event webpage for updates as the Colloquium approaches.
To register, click here.
April 24, 2014 in Conferences & Colloquia, Disability, Employment Common Law, Employment Discrimination, Faculty Presentations, International & Comparative L.E.L., Labor Law, Labor/Employment History, Pension and Benefits, Public Employment Law, Religion, Scholarship, Wage & Hour, Worklife Issues, Workplace Safety, Workplace Trends | Permalink | Comments (0) | TrackBack (0)
In late June of 2013, the Supreme Court decided University of Texas Southwestern Medical Center v. Nassar, 133 S.Ct. 2517, 2530 (2013). The Court held that plaintiffs proceeding on a Title VII retaliation claim must establish their protected activity was the “but for” cause of an employment decision.
While Nassar focused on causation issues, two sentences hidden within the opinion resolve a central problem in employment discrimination law. Nassar clarifies that the lower courts are mistaken when they divide Title VII claims into single-motive and mixed-motive claims.
This organizational dichotomy, which has plagued the courts for more then two decades, created a host of difficulties in discrimination law that affected pleading, summary judgment, and jury instructions. Nassar represents a significant shift in how courts should perceive discrimination cases.
Even though the text of Title VII does not use the words single motive and mixed motive, courts often refer to 42 U.S.C. § 2000e-2(m) as establishing a “mixed motive” claim. Some courts distinguished these “mixed-motive” claims from what the courts called the “single-motive” claim provided under the statute’s main language in § 2000e-2(a). This organizational dichotomy had a host of practical consequences. In some cases, courts refused to instruct juries using the “motivating factor” language if a plaintiff did not refer to § 2000e-2(m) in her complaint. In some cases, courts refused to consider cases under the “motivating factor” standard if the plaintiff failed to make a mixed-motive argument at summary judgment. More importantly, the circuit courts have not been able to consistently resolve the interplay between the McDonnell-Douglas test and language in § 2000e-2(m). Many circuits have asserted single-motive claims and mixed-motive claims are distinct and require separate proof structures.
In two sentences, Nassar resolves most of this confusion. The Supreme Court provided: “For one thing, § 2000e–2(m) is not itself a substantive bar on discrimination. Rather, it is a rule that establishes the causation standard for proving a violation defined elsewhere in Title VII.” These sentences mean that there is no such thing as a “mixed-motive” claim or a “single-motive” claim. Courts and litigants are entitled to use the “motivating factor” definition of causation found in § 2000e–2(m) for all intentional discrimination claims.
These sentences significantly clarify the organizational structure of intentional discrimination and resolve several practical problems. It is now clear that plaintiffs are not required to invoke § 2000e–2(m) in their complaints to preserve the ability to later rely on the motivating factor standard. Courts can evaluate discrimination claims under this standard, even if the plaintiff does not specifically argue that her case is one of mixed motives. Courts can also avoid the practical problem of sorting out which cases are single-motive cases and which ones are mixed-motive cases, if the plaintiff wants to use the motivating factor standard.
While it may still be helpful for courts to use the language of single-motive and mixed-motive to describe the facts alleged by the parties or the underlying theories of their cases, it is no longer appropriate to use these words to describe separate claims.
Nassar does not resolve what to do about the multiple existing proof structures. The McDonnell-Douglas structure has remained persistent, despite repeated declarations of its death. It is likely that McDonnell-Douglas still remains as an alternate way to establish discrimination. Nassar does clarify that it is no longer appropriate to force single-motive factual scenarios based on circumstantial evidence solely into the McDonnell-Douglas mold. These plaintiffs have access to the motivating factor framework. This move is important because it answers a key question about how to conceptually organize discrimination law.
Gillian Lester, currently Acting Dean at Berkeley, has just been named Dean at Columbia. She'll start January 1, 2015; here's the press release. Congrats, Gillian, and I look forward to seeing you on the dean's circuit!
The scholarship players for Northwestern's football team will be voting Friday whether to unionize. As the NY Times reports, Northwestern has been fighting hard for the players to vote against the union. Many readers will recognize these anti-union tactics as common during a campaign. Indeed, the facts, which could easily be the basis for a challenge to the election if the union loses, looks like something I'd write for a Labor Law exam: for example, the coach engaging in one-one meetings (or "interrogations"?) with players; predictions (or threats?) of negative consequences if there is a union; and giving players new iPads and bowling parties (pre-planned or improper provision of gifts?). No matter the outcome of the vote, which we likely won't know for a while, this will probably drag on for some time. One upside is that the publicity given to this case will provide a good example to explain the issues surrounding the NLRB-election process. Just in time for new election rules from the NLRB!
In addition to issues under the NLRA, I would expect to see claims brought by players under other statutes. The FLSA (hello minimum wage and overtime), Title VII, OSHA, and other statutes all have definitions of "employee" as broad, or broader, than the NLRA. And those statutes will pull in public schools as well. I'd be surprised if we don't see some of these claims soon, especially if the NCAA doesn't make significant changes (e.g., the NCAA just removed restrictions on player meals after Shabazz Napier's "I go to bed starving" comment). This isn't a novel argument either. In the 1970s, an Indiana State football player unsuccessfully sought status as an employee to get workers compensation benefits after becoming a parapalegic because of an injury suffered during practice.
- The lone holdout among major U.S. airlines has now joined the club. Pilots for JetBlue just voted by almost 75% to unionize.
- The case against Apple, Google, and other Silicon Valley employers for their agreement not to recruit each others' employees is proceeding. Some views on the case from the Washington Post.
- The Washington Post editorializes on the Silicon Valley case and other issues involving wage theft.
- An NYU Law trustee's company subpoenas two NYU law students for their actions criticizing the company's labor practices. As an NYU alum, I'm happy to see that the law school is supporting the students, including paying any legal expenses.
- Mitchell Rubinstein at Adjunct Prof Blog reports on a NY Court of Appeal decision to reject a duty of fair representation case against a union for not taking a dismissal case to arbitration. The basis of the holding was a common law rule requiring all union members to ratify a decision before holding the union liable, a matter that Mitchell discusses in a cited article.
- Michael Goldberg submitted an amicus brief to the NLRB for its reconsideration of its arbitration deferral policies.
- An Op-Ed suggesting that the White House should pay its interns. It's an interesting issue. I know the policy reasons for giving government and non-profits employers more leeway with unpaid interns, although I've never been able to reconcile that with the FLSA's coverage of those employers. Although I might be biased because my wife used to be an unpaid White House intern in the 1990s (no, not that one, although they she was there soon after).
Hat Tip: Michael Duff, Patrick Kavanagh, and Lynn Dancy Hirsch
Wednesday, April 23, 2014
The Sixth Circuit just handed a resounding defeat to the EEOC in its disparate impact challenge to Kaplan Higher Education Corp.'s use of credit history to select employees, including those who will have access to student financial information. The opening paragraph signals the result by noting that the EEOC itself "runs credit checks on applicants for 64 of the agency's 97 positions." Apparently, hypocrisy isn't an asset for a federal enforcement agency.
But that point, however interesting, isn't the most provocative aspect. That honor goes to the court's treatment of the expert report upon which the EEOC based its claim that use of credit checks screen out African American applicants at a greater rate than whites. Upholding the district court's findings that the expert report was inadmissible under Daubert, the Sixth Circuit affirmed the lower court's dismissal of the EEOC complaint: without the report, the EEOC couldn't prove the requisite disparity of impact.
As the case was presented, the Commission seemed to have data on all applicants screened by one of Kaplan's vendors, so it was a simple matter to identify the exclusionary effect of the credit checks by name of applicant. The catch was, of course, that the data did not identify race, which meant that racial impact remained to be proved.
The EEOC subpoenaed state driving license records. Eleven states identified the race of license holders, but 36 states responded by providing color copies of photographs of license holders. This is where expert Murphy (or maybe I should now call him non-expert Murphy) came in. He set up a procedure for "race rating" by five raters who were experienced in "multicultural, multiracial, treatment outcome research." If 4 of the 5 agreed on a particular race for each applicant, he or she was so classified. The raters were unable to reach such a 4/5's consensus on 11.7% of the photographs, but the remainder were rated.
Now there were some technical problems with the expert report. For example, Murphy provided applicant names to the raters, which could obviously have influenced their ratings. And the racially-identified individuals were drawn from only a sample of those subjected to credit checks by one vendor, which meant that other vendors' checks were simply excluded. Add to that, there was some objective reason to doubt that the sample was in fact representative -- although Murphy did do limited "anecdotal" cross-checking of his raters' identifications with racial data provided by a state DMV, finding a 95.7% agreement.
The Sixth Circuit, however, focused not only on these kinds of problems by finding neither peer review of the technique or theory Murphy employed nor standards controlling the technique's operation. The latter referred to Murphy's failure to provide the raters with any particular standard: "they just eyeballed the DMV photos." Since the Daubert test was failed, Murphy's report was excluded, and with him went the EEOC's disparate impact case.
While it's possible to dismiss the case as another EEOC litigation failure, that's too easy a reaction. Practically speaking, the disparate impact theory obviously depends on proof of impact on different races, which means that there has to be some way to identify the races of those affected. Putting aside genetic testing (which has its own conceptual problems not to mention being clearly infeasible), the only obvious ways are self-identification or appearance.
The 11 states that provided racial data were almost certainly providing self-identified race. I suppose the EEOC could have written to all the applicants in the other states and asked them what race they were. Not likely to get much of a response -- other than predictable howls of outrage.
In any event, if those states having racial identity data didn't generate enough cases to reach statistical significance, the EEOC's "race rating" technique seems not implausible, the problems with Murphy's study aside.
But this takes us to deeper questions as to who counts as black (or white or any other race). There's been some interesting scholarship on "regarded as" discrimination, and I concur with most of the writers (albeit not all courts) that, for purposes of Title VII disparate treatment liability, what matters is the perception of the putative discriminator, not the "real" race of the victim.
But we're talking about disparate impact, and regarded as analysis seems inapposite: no one is regarding anyone as of any race is a pure impact case. The only question is whether the challenged practice falls more heavily on one racial group than another. It would seem, then, that we'd need to figure out who belongs in which group, and, for that purpose, appearance is the obvious marker. It remains to be seen whether Kaplan will be an outlier or a precursor for what has rarely been a problem in the past: who counts as what for purposes of impact analysis.
Tuesday, April 22, 2014
Thank you to the regular bloggers at Workplace Prof Blog for allowing me to guest post this month. With their blessing, I will often be cross-posting from my new blog, Friend of the Court, available at http://friendofthecourtblog.wordpress.com/. Friend of the Court will explore cutting edge and emerging issues in employment discrimination law. It will provide in-depth, substantive commentary on each topic and discuss history, theory, doctrine and policy implications. The goal of the blog is to assist courts, lawyers, and policymakers as they navigate complex discrimination issues.
This blog's inspiration comes in part from Larry Solum's Legal Theory Blog and from Scott Moss' article, "Bad Briefs, Bad Law, Bad Markets: Documenting the Poor Quality of Plaintiffs' Briefs, Its Impact on the Law, and the Market Failure It Reflects." Their work has convinced me of the need for substantive, online resources and the potential of the blog platform.
Given the sophisticated audience of Workplace Prof Blog, I am hoping readers can provide me with their top picks for cutting edge issues. What issues would you like to read about? I look forward to reading your comments.
Welcome to guest blogger Sandra Sperino. Sandra teaches Civil Procedure, Employment Discrimination, and Torts at the University of Cincinnati College of Law. From her faculty bio page:
Professor Sperino teaches in the areas of civil procedure, torts, and employment law. She served as Chair for the AALS Section on Employment Discrimination Law and is a contributing editor to several employment law books published by the American Bar Association.
Professor Sperino’s scholarship focuses on employment discrimination, and her recent work focuses on the intersection of tort and discrimination law. She is a co-author (with Grover and Gonzalez) of Employment Discrimination: Cases and Materials, an employment discrimination casebook. Her article, The Tort Label, was selected for the Harvard/Stanford/Yale Faculty Forum. Her recent articles are published in the Michigan Law Review, the University of Illinois Law Review, the George Mason Law Review, and the Notre Dame Law Review.
Prior to joining the UC Law faculty, she served on the faculty at Temple University Beasley School of Law. She also was a visiting professor at the University of Illinois College of Law and the St. Louis University School of Law.
Professor Sperino was in private practice as an attorney for the litigation and labor and employment departments at Lewis, Rice & Fingersh in St. Louis. There she co-authored the successful petition for writ of certiorari and the brief argued before the U.S. Supreme Court in United States v. Sell.
Professor Sperino received her J.D. from the University of Illinois College of Law, where she was editor-in-chief of the University of Illinois Law Review, and a M.S. in Journalism from the University of Illinois. After law school, she clerked for the Hon. Donald J. Stohr of the U.S. District Court, Eastern District of Missouri.
A couple of her recent articles include,
The Tort Label (forthcoming U. Fla. L. Rev.)
Discrimination Statutes, the Common Law, and Proximate Cause (U. Ill. L. Rev.)
Welsome aboard, Sandra!
Monday, April 21, 2014
In a bit of a surprise, the UAW announced today that it will drop its challenge against its recent election loss at VW-Chattanooga. The UAW cited the prospect of delay while going through the NLRB challenge process. That's certainly a legitimate concern, but I don't think I'm going on a limb by suggesting the other factors are at play here. As Ken Dau-Schmidt noted in the linked article, by dropping the challenge, the UAW could seek another vote earlier. Moreover, the subject of some of the alleged threats--a new production line--may already be in place soon and will therefore no longer remain as a viable point of pressure.
I will admit that I'm disappointed, if only at the loss of a possible ruling relying heavily on the comments of lawmakers. Some of the government pressure that has come to light, if true, is really quite amazing. Of course, the prospect of such a Board ruling--and the significant backlash that would come with it--was likely an issue in the decision as well.
Hat Tip: Too many to count, so thanks to you all.
Ninth Annual Seton Hall Employment & Labor Law Scholars' Forum
Seton Hall Law School, Friday, October 24, 2014
Building on the successes of the last eight years, the Seton Hall Employment & Labor Law Scholars’ Forum will continue to provide junior scholars with commentary and critique by their more senior colleagues in the legal academy while offering senior scholars an opportunity to understand and appreciate new scholarly currents.
For the Scholars’ Forum, three relatively junior scholars (untenured, newly tenured, or prospective professors) will be selected to present papers from among the proposals submitted. Selections will reflect a wide spectrum of sub-disciplines within the field of Employment and Labor Law.
The event will be held at Seton Hall Law School, Friday, October 24, 2014. As is our tradition, leading senior scholars from the legal academy will provide commentary on each of the featured papers in an intimate and collegial atmosphere. Seton Hall will pay transportation and accommodation expenses, and will host a dinner on Friday evening.
Junior scholars are invited to submit paper proposals, 3-5 pages in length, by Friday, June 20, 2014.
Proposals should be submitted to:
Professor Charles Sullivan, Seton Hall Law School, One Newark Center, Newark, NJ 07102 or email@example.com.
Electronic submissions are preferred. Papers will be selected to ensure a range of topics. Selected presenters must have a distribution draft available for circulation to other forum participants by September 26, 2014.
Wednesday, April 16, 2014
I'm sorry to report that John E. (Jack) Dunsford passed away earlier this week. Jack was emeritus at SLU, and the entire community here will miss him greatly. Jack was a beloved colleague, a wonderful teacher, and a preeminent scholar and arbitrator. This is from his faculty page here:
John Dunsford is one of the nation's foremost arbitrators and labor law scholars. For more than four decades, labor unions and companies have entrusted him to settle their differences.
"I view the selection to arbitrate as a privilege," says Professor Dunsford. "One of the highest compliments you can receive is to be asked by parties with adverse interests to consider their differences and offer solutions. It's very rewarding."
Dunsford was a young college professor when the legendary scholar and arbitrator Leo Brown, SJ, tapped him in the early 1960s to be an apprentice.
""Among the many things Fr. Brown taught me was to try to understand the underlying problem of whatever case is given to you,"" Dunsford remembers. "Sometimes it's not apparent and other times you have to dig for it, but if you can help the parties resolve their dispute and do something to help their relationship along the way then you've done a lot."
As Professor Dunsford's reputation as a thoughtful and unbiased arbitrator grew, so did his client list. Over the span of his career, Dunsford has arbitrated nearly 1,000 disputes for groups such as U.S. Steel and the United Steelworkers of America and the National Football League and the Bert Bell Retirement and Pension Plan\; Southwestern Bell and the Communications Workers of America\; the International Revenue Service and the National Treasury Employees Union. He has arbitrated for virtually all of the U.S. airlines and their unions. Most recently, he participated in an interest arbitration between Alaska Airlines and the Transport Workers Union to set rates during the difficult economic times following 9/11. He is a permanent arbitrator for John Deere & Company and the United Auto Workers.
Professor Dunsford has held several leadership positions with the prestigious National Academy of Arbitrators, including serving as president in 1984-1985. In 2000, he was named a fellow in the College of Labor and Employment Lawyers. From 1987-1994, he directed the School's Wefel Center for Employment Law and remains a senior consultant. He was the McDonnell Professor of Justice in American Society from 1982-1987.
Except for a two-year break in the late 1970s when he practiced arbitration full time, Professor Dunsford has been teaching labor law at the School of Law since the early 1960s. In addition to a book, individuals and Unions, he has written numerous articles and chapters on labor law, arbitration, and the U.S. Constitution and personal freedom. Currently, his research interest is in the area of church-state relations, specifically tuition vouchers that allow parents the option of using state money to send their children to the schools of their choice.
Scott Bauries (Kentucky) has posted two new papers on TWEN. the first is Individual Academic Freedom: An Ordinary Concern of the First Amendment, which Scott says he views as Part I of what he sees as a three-part series directed at identifying a better constitutional “home” for academic freedom than the First Amendment. It is forthcoming in the Mississippi Law Journal, and here is the abstract:
This contribution to the Mississippi Law Journal's symposium on education law makes the case that individual academic freedom is not a "special concern of the First Amendment," as the Supreme Court has often said it is. The article tracks the academic freedom case law in the Court and establishes that, while the Court has often extolled the value and virtues of individual academic freedom in its opinion rhetoric, no case it has ever decided has depended for its resolution on a "special" individual right to speech or association that inheres only in academics. The article then fleshes out the implications of this claim for the speech rights of publicly employeed academics following the Court's decision in Garcetti v. Ceballos, concluding both that the decision is here to stay, and that recent efforts to craft exceptions to it are unavailing due to the underlying doctrinal structure of the First Amendment.
The second article is a short review of the labor and employment cases the Supreme Court decided in the last term that Scott did for the Louisville Law Review as a follow-up to his presentation on the same topic at the Warns Institute at Louisville this past June. It's entitled, Procedural Predictability and the Employer as Litigator: The Supreme Court's 2012-2013 Term, and here is its abstract:
In this contribution to the University of Louisville Law Review’s Annual Carl A. Warns Labor and Employment Institute issue, I examine the Supreme Court’s labor and employment-related decisions from the October Term 2012 (OT 2012). I argue that the Court’s decisions assisted employers as litigators — as repeat players in the employment dispute resolution system — in two ways. First, the Court established simple contract drafting strategies that employers may use to limit their exposure to employment claims. Second, the Court adopted bright-line interpretations of employment statutes. Both forms of assistance served a formalist interest in what I term “procedural predictability” — enhanced employer predictability and control of both the duration and costs of resolving employment disputes.
Great work, Scott!
CALL FOR PROPOSALS
ASSOCIATION OF AMERICAN LAW SCHOOLS (AALS)
SECTION ON CONTRACTS
2015 ANNUAL MEETING
JANUARY 2-5, 2015
MIND THE GAP! – CONTRACTS, TECHNOLOGY AND LEGAL GAPS
The AALS Contracts Section solicits proposals for presentations at the Section’s Annual Meeting program, Mind the Gap! - Contracts, Technology and Legal Gaps, to be held in Washington, D.C. on January 2-January 5, 2015.
Technological innovation has created new challenges for the law. New technologies often create legal and ethical questions in areas such as privacy, employment, reproduction and intellectual property. Who owns the data collected by embedded medical devices? Can employers wipe departing employees’ phone data? To what extent are companies liable for harms created by their inventions, such as driverless cars? Who owns crowd sourced content?
Courts and legislatures are often slow to respond to these issues. To fill this legal gap created by rapid advancements in technology, businesses and individuals attempt to reduce their risk and uncertainty through private ordering. They limit their liability and allocate rights through contractual provisions. Technology affects the way contracts are used as well. Employers may have employees agree to remote phone wiping policies in their employment agreement or through click wrap agreements that pop up when they connect to the network server. Through contracts, businesses establish norms that can be hard to undo. The norm of licensing instead of selling software, for example, was established through contract and has become entrenched as a business practice. The collection of online personal information through online contracts is another example.
The Section seeks two or three speakers to join our panel of invited experts to discuss how technology has affected the use of contracts. How have parties used contracts to address the risks created by technologies? In what ways have contracts been used to privately legislate in the gap created by technological advancements? What concerns are raised when private ordering is used to fill the legal gap created by technology? What are, or should be, the limits of consent and contracting where emerging technologies are involved?
Drafts and completed papers are welcome though not required, and must be accompanied by an abstract. Preference will be given to proposals that are substantially complete. Please indicate whether the paper has been published or accepted for publication (and if so, provide the anticipated or actual date of publication). There is no publication requirement, but preference will be given to papers that will not have been published by the date of the Annual Meeting.
We particularly encourage submissions from contracts scholars who have been active in the field for ten years or less, especially those who are pre-tenured, as well as more senior scholars whose work may not be widely known to members of the Contracts Section. We will give some preference to those who have not recently participated in the Section’s annual meeting program.
DEADLINE: August 15, 2014. Please e-mail an abstract or proposal to section chair, Nancy Kim (firstname.lastname@example.org) with “AALS Submission” in the title line by 5:00pm (Pacific Time) August 15, 2014. Submissions must be in Word or PDF format.
Tuesday, April 15, 2014
Michelle Travis (San Francisco) has just posted on SSRN her article (forthcoming Denver L. Rev.) Disabling the Gender Pay Gap: Lessons from the Social Model of Disability. Here's the abstract:
As we celebrate the fiftieth anniversary of Title VII’s prohibition against sex-based compensation discrimination in the workplace, the gender wage gap remains robust and progress toward gender pay equity has stalled. This article reveals the role that causal narratives play in undermining the law’s potential for reducing the gender pay gap. The most recent causal narrative is illustrated by the "women don’t ask" and "lean in" storylines, which reveal our society’s entrenched view that women themselves are responsible for their own pay inequality. This causal narrative has also embedded itself in subtle but pernicious ways in antidiscrimination doctrine, which helps shield employers from legal liability for gender pay disparities.
The disability civil rights movement faced a similar challenge, however, and their [sic] response provides a potential path forward on gender pay issues. The causal narrative that erected barriers for disability rights was engrained in the medical model of disability, which also identified internal deficits as the source of individuals’ own limitations. The disability rights movement responded with a reconceptualized "social model," which explains disability instead as the result of the environment in which an individual’s characteristics interact. The social model of disability is an alternative causal narrative: one that shifts focus onto the role played by employer practices and organizational norms in producing inequality. This article explores how a social model approach to women’s compensation could help shift the causal focus away from the manner in which women negotiate, and onto the institutional practices that produce unequal results. In doing so, the social model may help resuscitate Title VII’s disparate impact theory to allow challenges to employment practices that base compensation on employees’ individual demands, thereby moving us toward more effective structural solutions to the gender pay divide.