Workplace Prof Blog

EEOC Issues Retaliation Guidance

The EEOC just issued its final enforcement guidance on issues related to retaliation (after a public input period).  The guidance replaces the information in the 1998 compliance manual on the topic.  It also addresses the "indifference" provision of the ADA.  From the EEOC's press release:

"The guidance addresses retaliation under each of the statutes enforced by EEOC, including Title VII of the Civil Rights Act of 1964, the Age Discrimination in Employment Act (ADEA), Title V of the Americans with Disabilities Act (ADA), Section 501 of the Rehabilitation Act, the Equal Pay Act (EPA) and Title II of the Genetic Information Nondiscrimination Act (GINA).  Topics explained in the new guidance include:

• The scope of employee activity protected by the law.
• Legal analysis to be used to determine if evidence supports a claim of retaliation.
• Remedies available for retaliation.
• Rules against interference with the exercise of rights under the ADA.
• Detailed examples of employer actions that may constitute retaliation."

As we are all aware, retaliation is a key component of many workplace discrimination claims.  This guidance can be extremely useful in litigating these cases, and I highly recommend taking a look if you are researching this topic.

- Joe Seiner

Chong on Hollywood's Blinding Whiteness

Chrissy Shu Jien Chong (San Francisco) has just posted on SSRN her article (21 Asian Pacific American L.J. (2016)) Where are the Asians in Hollywood? Can §1981, Title VII, Colorblind Pitches, and Understanding Biases Break the Bamboo Ceiling? Here's an excerpted abstract:

Despite America's recent diversity craze, the bamboo ceiling appears stronger than ever in Hollywood. The entertainment industry's lack of racial diversity is disappointing, but the legal system's failure to protect minorities from Hollywood's discriminatory hiring practices is even more depressing. ... [W]hites hold 84% of on-screen acting roles and 94% of behind-the-cameras positions. Asian Pacific Americans only held 3% of on-screen acting roles and 0.8% of behind-the-cameras positions.

[This article] argues that the dramatic under-representation of Asian Pacific Americans in Hollywood is caused by racially discriminatory practices that are fueled by implicit and explicit biases. ... [The article] discusses an array of industry solutions, such as diversity and debiasing programs, colorblind pitches and casting, more Asians in the arts, self regulation, and organizing with other minorities. But the article ultimately determines the best solution to Hollywood's diversity problem is legislative action.

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Call for papers from the Center for Applied Feminism & Intersectionality

The Center for Applied Feminism (Baltimore) has a call for papers that will be of interest to some of our readers:

CALL FOR PAPERS

APPLIED FEMINISM AND INTERSECTIONALITY: 

EXAMINING LAW THROUGH THE LENS OF MULTIPLE IDENTITIES

The Center on Applied Feminism at the University of Baltimore School of Law seeks paper proposals for the Tenth Anniversary of the Feminist Legal Theory Conference.  We hope you will join us for this exciting celebration on March 30-31, 2017.

This year, the conference will explore how intersecting identities inform -- or should inform -- feminist legal theory and justice-oriented legal practice, legal systems, legal policy, and legal activism. Beginning in 1989, Kimberlé Crenshaw identified the need for law to recognize persons as representing multiple intersecting identities, not only one identity (such as female) to the exclusion of another (such as African American). Intersectionality theory unmasks how social systems oppress people in different ways.  While its origins are in exploring the intersection of race and gender, intersectionality theory now encompasses all intersecting identities including religion, ethnicity, citizenship, class, disability, and sexual orientation. Today, intersectionality theory is an important part of the Black Lives Matter and #SayHerName movements. For more information, see https://www.washingtonpost.com/news/in-theory/wp/2015/09/24/why-intersectionality-cant-wait/. 

We seek submissions of papers that focus on the topic of applied feminism and intersecting identities.  This conference aims to explore the following questions: What impact has intersectionality theory had on feminist legal theory?  How has it changed law and social policy? How does intersectionality help us understand and challenge different forms of oppression?  What is its transformative potential? What legal challenges are best suited to an intersectionality approach? How has intersectionality  theory changed over time and where might it go in the future?

We welcome proposals that consider these questions from a variety of substantive disciplines and perspectives. As always, the Center’s conference will serve as a forum for scholars, practitioners and activists to share ideas about applied feminism, focusing on connections between theory and practice to effectuate social change. The conference will be open to the public and will feature a keynote speaker. Past keynote speakers have included Nobel Laureate Toni Morrison, Dr. Maya Angelou, Gloria Steinem, Senators Barbara Mikulski and Amy Klobuchar, NOW President Terry O’Neill, EEOC Commissioner Chai Feldblum, and U.S. District Judge Nancy Gertner.

To submit a paper proposal, please submit an abstract by Friday October 28, 2016 to [email protected]. Your abstract must contain your full contact information and professional affiliation, as well as an email, phone number, and mailing address. In the “Re” line, please state: CAF Conference 2017. Abstracts should be no longer than one page. We will notify presenters of selected papers in November. About half the presenter slots will be reserved for authors who commit to publishing in the annual symposium volume of the University of Baltimore Law Review. Thus, please indicate at the bottom of your abstract whether you are submitting (1) solely to present or (2) to present and publish in the symposium volume. Authors who are interested in publishing in the Law Review will be strongly considered for publication. For all presenters, working drafts of papers will be due no later than March 3, 2017. Presenters are responsible for their own travel costs; the conference will provide a discounted hotel rate as well as meals.

We look forward to your submissions. If you have further questions, please contact Prof. Margaret Johnson at [email protected]. For additional information about the conference, please visit law.ubalt.edu/caf.

MM

NLRB Decides that Gradate Students can be Covered by NLRA

Today, the NLRB issued its long-awaited decision in Columbia University. As expected, the Board--in a 3-1 decision--reversed Brown University (which was just the latest in a number of cases flip-flopping on this issue) to conclude that graduate students can be "employees" under the NLRA, as long as they had a common-law employment relationship.  According to the NLRB's announcement:

 The National Labor Relations Board issued a 3-1 decision in Columbia University that student assistants working at private colleges and universities are statutory employees covered by the National Labor Relations Act. The Graduate Workers of Columbia-GWC, UAW filed an election petition seeking to represent both graduate and undergraduate teaching assistants, along with graduate and departmental research assistants at the university in December 2014. The majority reversed Brown University (342 NLRB 483) saying it “deprived an entire category of workers of the protections of the Act without a convincing justification.”

For 45 years, the National Labor Relations Board has exercised jurisdiction over private, nonprofit universities such as Columbia. In that time, the Board has had frequent cause to apply the Act to faculty in the university setting, which has been upheld by the Supreme Court.

Federal courts have made clear that the authority to define the term “employee” rests primarily with the Board absent an exception enumerated within the National Labor Relations Act. The Act contains no clear language prohibiting student assistants from its coverage. The majority found no compelling reason to exclude student assistants from the protections of the Act.

Chairman Mark Gaston Pearce was joined by Members Kent Y. Hirozawa and Lauren McFerran in the majority opinion. Member Philip A. Miscimarra dissented in the case.

Brown had focused on a test whether the grad students were primarily students or primarily employees and, to my mind, the most important aspect of Columbia was the NLRB's rejection of that test and return to the common-law test for employment. I had always thought that Brown's refusal to use the common-law test flew in the face of Supreme Court law.

-JH

Ontiveros on the Exploitation of High-Skilled Tech Workers

Maria Ontiveros (San Francisco) has just posted on SSRN her article (forthcoming BJELL) H-1B Visas, Outsourcing and Body Shops: A Continuum of Exploitation for High Tech Workers. Here's the abstract:

This article analyzes the exploitation of immigrant workers under the H-1B visa program. It analyzes pure H-1B workers that work directly for the company that sponsor the visa; outsourced H-1B workers that work on a visa sponsored by an outsourcing vendor; and body shop workers who work on a visa sponsored by a labor contractor that operates outside the legal boundaries of the law. The article provides a comprehensive survey of lawsuits brought under the visa laws for prevailing wage violations, wage theft, benching, and liquidated damages. It also discusses lawsuits brought as independent causes of action under state tort and contract law; the TVPA; RICO; and employment discrimination statutes. The article argues that even perfect enforcement of existing law will not eliminate H-1B worker exploitation because the program includes systemic inequalities and subordinating structures that are modern manifestations of involuntary servitude, debt bondage and unfree labor. The unfree system of labor created by the guest worker program is based in the ways in which threats of deportation and liquidated damages prevent workers from complaining or quitting; the way in which the visa sponsor's control of the guest worker's labor parallels antebellum slave codes; the commodification of immigrant workers as part of the human supply chain; and the lack of citizenship rights guaranteed to these guest workers.

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The Positive Aspects of EEOC v. R.G & G.R. Funeral Homes

This is a follow-up to Marcia's post immediately below. Christine Duffy (Senior Staff Attorney, ProBono Partnership, photo left) posted a comment to Marcia's post that I found particularly enlightening, so I phoned her yesterday and asked if I could copy the comment to the blog as a guest post. As we spoke, she indicated that there was more she'd like to add, so I suggested she do so and then I would turn that into a guest post. So ... here it is. Many thanks to Christine for this.

Although I concur with Marcia McCormick’s observation that the August 2016 opinion in EEOC v. R.G & G.R. Funeral Homes, Inc. is an interesting decision and will be appealed to the Sixth Circuit, I’m not as disheartened by it.  The decision has a number of very positive aspects. 

I already knew from an April 2015 opinion that the district court judge had rejected the reasoning of the EEOC’s Macy decision, which held that discrimination based on gender identity or transgender status is sex discrimination.  So reading that again in the latest opinion was not unexpected. 

Both district court opinions wrongly state that the EEOC is trying to expand Title VII to include gender identity and transgender status as protected classes. Rather, the EEOC and a number of courts have come to understand that discrimination based gender identity or transgender status (or sexual orientation for that matter) inherently involves sex discrimination.

Continue reading

District Court holds RFRA trumps Title VII in gender identity case

The District Court for the Eastern District of Michigan issued a decision today on cross motions for summary judgment in EEOC v. R.G & G.R. Funeral Homes, Inc., granting summary judgment for the funeral home. The funeral home terminated an employee after that employee announced an intention to transition to female. The transwoman employee intended to abide by the the funeral home's dress code for women, which was that women wear skirt suits. Men were required to wear pantsuits (and if that sounds weird to you, too it's because this gender norm is so entrenched, we only call women's clothing pantsuits). The funeral home also provided men with a clothing allowance, but did not provide the same for women. The court held that enforcing Title VII was not the least restrictive means to reach the argued-for compelling governmental interest of prohibiting sex discrimination in the form of sex stereotyping.

The opinion is long and an interesting mashup of sex stereotyping, dress codes, LGBTQIA discrimination, RFRA, and Hobby Lobby. I haven't thoroughly analyzed it yet, but it seems a very troubling decision for a wide variety of reasons, not least of which is that it seems to import a sort of ministerial exemption on steroids into the private sector. The sense I get from my first read of the opinion is that the court reasoned to get to this point primarily because it disagreed with one of the claims made by the EEOC, which was that gender identity is sex for purposes of Title VII. That proposition has been accepted by a number of courts, but had been rejected by this judge. 

This case is one to watch because it's certain to be appealed to the 6th Circuit.

MM

New domestic worker protections in Illinois

Illinois became the sixth state to adopt a Domestic Workers Bill of Rights when Governor Rauner signed the bill last Friday. Domestic workers there will be covered by the state minimum wage laws, guaranteed rest periods, meals, and one day off a week, protected from discrimination including harassment, and protected from being paid "an oppressive and unreasonable wage." These protections are especially important because domestic workers are excluded from federal protections under the FLSA, the NLRA, OSHA, and other laws. Moreover working conditions for childcare workers contribute to poverty and may impair the care those workers can give. According to the National Domestic Workers Alliance, Illinois joins New York, Hawaii, California, Massachusetts, and Oregon. Connecticut also has extended some protections to domestic workers, although not passed the full-blown model bill of rights.  The Illinois law will take effect Jan. 1, 2017.

MM

Donuts & Harassment

While claims of sexual harassment have always been pervasive in the workplace, there seem to have been a number of high profile claims in the news recently.  The EEOC recently settled such a case with very egregious allegations involving Dunkin' Donuts for $150,000.  From the EEOC news release:

"According to EEOC's lawsuit, [a franchise company] violated federal law by subjecting female employees, some of whom were in their teens at the time, to sexual harassment by a store manager at one of its Dunkin' Donuts locations. For example, EEOC said, the store manager talked about his genitals, tried to kiss a female worker who was 20 years old at the time, and pressured her to have sex. The manager hit her, cursed and yelled at her regularly due to being rejected by her. When she contacted the police, she was fired in retaliation for resisting his advances, EEOC said."

This case is an important reminder for employers to remain cognizant of sexual harassment in the workplace at all times and to actively make efforts to prevent this form of discrimination.

- Joe Seiner

 

 

Davidov's New Labour Book

Guy Davidov's book A Purposive Approach to Labour Law (Oxford Univ. Press) is now available in the U.S. The analysis is not specific to any legal system and relies on examples from various jurisdictions, including the US.

Per the publisher's notes, this book examines the crisis of labour law through a study of the policy aims informing legislation and the means used to achieve them; explores the societal goals behind labour laws and analyses what actions are required to change or improve the laws themselves in order to better advance the goals; draws on multiple jurisdictions, including Israel, United Kingdom, Canada, and the United States; and provides suggestions for labour law reform through purposive interpretation as well as legislative changes.

Guy notes that if you're interested in purchasing a copy, you can write him to get a discount code.

Congrats, Guy!

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Companies Hoisted by Arbitral Petards in Consumer Cases

A petard was a primitive bomb used to breach a wall. A bell-shaped iron casing would be filled with gunpowder and then affixed to the wall; a soldier would light the fuse, and the casing would direct the force of the blast toward the wall. Apparently, petards often exploded before the soldier could run away, hoisting (lifting) the soldier in the blast. Thus, the phrase "to hoist with his own petard" (Hamlet) means "to be harmed by one's plan to harm someone else".

That's an apt description for what seems to be happening now to many companies that have adopted consumer-arbitration clauses coupled with class-action waivers. A former student, now working at a large defense firm, describes how it's happening. Take a claim that's only marginally colorable and at face value worth only a few dollars, and file for arbitration. AAA rules impose on the company a $3400 arbitration fee plus attorneys fees. Settle for $3k. Repeat ad infinitum, thanks to the class-action bar contained in the company's arbitration clause. Company gets hoisted on its own petard.

Dennis Nolan and Marty Malin predicted several years back that something like this would happen, but this is the first report from the field I've heard. Dennis points out that companies may try work-arounds -- they might stop settling (which would force the hands of plaintiff mills, but wouldn't work on cases with claims that are low-dollar but at least colorably meritorious) or they might find an arbitral service provider cheaper than AAA (but courts might be reluctant to enforce arbitration clauses specifying arbitral service providers with close ties to the company -- see Hooters v. Phillips).

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Gender and Wage & Hour Violations

    Women tend to suffer significantly more wage and hour law violations than men. That's a conclusion of a recent paper: Miruna Petrescu-Prahova and Michael W. Spiller, "Women’s Wage Theft: Explaining Gender Differences in Violations of Wage and Hour Laws", Work and Occupations (published online July 2016). Here's the abstract:

In this study, the authors identify and analyze a distinct and understudied source of gender inequality: gender differences in violations of wage-related workplace laws. The authors find that women have significantly higher rates of minimum wage and overtime violations than men and also lose more of their earnings to wage theft than men. In the case of minimum wage violations, the authors also find that nativity and immigration status strongly mediate this gender difference. Multivariate analysis suggests that demand-side characteristics—occupation and measures of nonstandard work and informality—account for more of the gender difference in minimum wage violations than do worker characteristics.

In particular, the authors find "no significant gender difference in minimum wage violations among U.S.-born workers; the gender gap is concentrated among immigrants, especially those who are undocumented." (p. 21). The study's findings are based on the 2008 Unregulated Worker Survey, a representative survey of 4,387 frontline workers (that is, not manager, professional or technical workers) in low-wage industries and occupations in Chicago, Los Angeles, and New York City.

 

---Sachin Pandya

The EEOC & National Origin Discrimination

As we are all well aware, discrimination on the basis of one's national origin has been an active topic in the news.  In light of recent events, the EEOC has published a summary document that is helpful in providing a nice overview of this issue.  That summary, which can be found here, notes that:

"Recent tragic events at home and abroad have increased tensions with certain communities, particularly those who are, or are perceived to be, Muslim or Middle Eastern.  EEOC urges employers and employees to be mindful of instances of harassment, intimidation, or discrimination in the workplace and to take actions to prevent or correct this behavior."

This type of document can be quite helpful in allowing others to more quickly get up to speed on the law, enforcement, and regulations in this area.

- Joe Seiner