Wednesday, September 28, 2016
While big data offers society many potential benefits, it also comes with serious risks. This Essay focuses on the concern that big data will lead to increased employment discrimination. It develops the novel argument that the Americans with Disabilities Act (ADA) should be amended in response to the big data phenomenon in order to protect individuals who are perceived as likely to develop physical or mental impairments in the future. Employers can obtain medical data about employees not only through the traditional means of medical examinations and inquiries, but also through the non-traditional mechanisms of social media, wellness programs, and data brokers. Information about workers’ habits, behaviors, or attributes that is derived from big data can be used to create profiles of undesirable employees. It can also be used to exclude healthy and qualified individuals whom employers regard as vulnerable to future medical problems. The ADA, which now protects only individuals with current or past disabilities and those who are perceived as having existing impairments, can no longer ignore the discrimination threats posed by predictive health data. The Essay analyzes these risks and propose a detailed statutory response to them.
Katherine Stone (UCLA) just had her essay What Hillary Should Say published in The Huffington Post. The essay argues that Hillary Clinton should respond to Trump's critique of free trade by adopting any of several proposals to help American workers deal with discontinuities in their careers. Stone reviews several alternatives, and proposes one of her own:
My proposal is for what I call a workplace sabbatical — a program that would enable workers to accumulate time in the labor market – whether for one employer or multiple ones – that they could use to take paid time away off in order to improve their position in the labor market. They could use their time sabbatical to engage in training, entrepreneurial activity, changing jobs, public service work, or careworkfor dependents. It could also help cushion a bout of involuntary unemployment. The workplace sabbatical would be a right that the individual could invoke on an optional basis to navigate career transitions, thereby giving flexibility and security in an era of uncertainty.
Tuesday, September 27, 2016
Earlier today, the EEOC initiated an online resource center for small businesses. The resource is targeted specifically toward small businesses, with an eye toward helping them comply with federal anti-discrimination laws, which can often seem daunting and complex to new and small employers. The resource includes tips, videos, answers to frequently asked questions, and other information on these laws. From the EEOC press release on this new resource:
"The Small Business Resource Center (SBRC) . . . provides a user-friendly one-stop source for information on federal employment anti-discrimination laws. The Resource Center was designed for the busy small business owner who needs information both quickly and in a format that is easy to understand. In addition to providing general information on EEOC's laws and ways in which EEOC can assist small businesses, there are also answers to frequently asked questions, guidance in making employment decisions and tips for small businesses on a variety of potential workplace discrimination issues.
EEOC is also launching the first in a series of short videos for small business owners on frequently asked compliance questions. The videos feature EEOC employees from across the country addressing topics, such as responding to an EEOC discrimination charge, and many helpful strategies for small businesses to follow when they start the hiring process."
This appears to be a great resource for small businesses, and will hopefully lead to greater compliance with federal anti-discrimination law.
Thursday, September 22, 2016
A recent federal lawsuit brought by the EEOC looks at the extent to which a company's wellness program falls within the insurance safe harbor provision of the ADA. A federal district court in Wisconsin rejected the employer's motion for summary judgment in the case, and ruled that the program was subject to review. From the government's press release:
"In the Orion lawsuit (EEOC v. Orion Energy Systems, Inc., No. 14-CV-1019 (E.D. WI)), EEOC argued that Orion required [the employee] to submit to medical testing as part of a wellness program or pay 100 percent of the premium for the employer-provided health insurance... The district court rejected Orion's safe harbor argument, and held that the plan was subject to ADA review. The court concluded that EEOC's recently issued regulations on the ADA's safe harbor provision were within EEOC's authority, and further held that the safe harbor provision did not apply even without regard to the new regulations. However, the court found that the wellness plan was lawful under the ADA because it concluded that the employee's decision whether to participate was voluntary under that statute. . . The court also held that there were issues of fact regarding whether [the employee] was fired because of her opposition to the wellness plan, and indicated that the case would be set for trial."
The case provides an interesting perspective on the applicability of the ADA to wellness programs, and it will be interesting to see if other courts rule the same way on this issue.
-- Joe Seiner
Wednesday, September 21, 2016
Congratulations to our friend Susan Bisom-Rapp (Thomas Jefferson) whose book (with Malcolm Sargeant, Middlesex Univ., London), Lifetime Disadvantage, Discrimination and the Gendered Work Force is available to pre-order from Cambridge University Press. It will be out September 30. From the press release:
In many countries, including the United States, women are significantly more likely to fall into poverty in retirement than are men. Understanding why this is so and what can be done about it is the aim of this new book.
"Susan Bisom-Rapp's scholarship tackles some of the most pressing real world challenges facing the modern workplace," said Thomas Jefferson School of Law Dean and President Thomas F. Guernsey. "I am delighted about the publication of her latest book."
Beginning in girlhood and ending in advanced age, "Lifetime Disadvantage, Discrimination and the Gendered Workforce" examines each stage of the lifecycle and considers how law attempts to address the problems that inhibit women's labor force participation. Using their model of lifetime disadvantage, Professor Bisom-Rapp and her British co-author Malcolm Sargeant show how the law adopts a piecemeal and disjointed approach to resolving challenges with adverse effects that cumulate over time.
"The problem unfolds over the working lives of women," said Bisom-Rapp. "Women's experiences with education, stereotyping, characteristics other than gender like race and age, caregiving, glass ceilings, occupational segregation, pay inequality, part-time work, and career breaks over a lifetime make it difficult to amass the resources necessary for a dignified retirement."
In order to achieve true gender equality, Bisom-Rapp and her co-author recommend a more holistic approach. Employing the concept of resiliency from vulnerability theory, the authors advocate changes to workplace law and policy, which acknowledge yet transcend gender, improving conditions for women as well as men.
"One must know the end goal – decent work and dignified retirement – and monitor progress towards it in order effectively address the problem," noted Bisom-Rapp.
The book is the culmination of nearly a decade of collaboration between Professor Bisom-Rapp and Professor Sargeant, who teaches at Middlesex University Business School in London. Beginning with a project that examined the plight of older workers during the global economic crisis, they have been struck by differences in workplace law and protections in their respective countries; the United Kingdom is far more protective.
Equally noticeable, however, are similarities in outcomes, including women's economic disadvantages in retirement. By examining why more protective law in one country coexists with comparable outcomes to the other country, the book reveals lessons for understanding a problem that is global in nature. At a time in which an aging population makes a retirement crisis a distinct possibility, and employment has become increasingly insecure, they recommend a regulatory approach that would enhance work life and retirement for all.
Susan and Malcolm have published a few articles related to these topics in the last few years in the Employee Rights Employment Policy Journal, the Elder Law Journal, and the Loyola University Chicago Law Journal. I can't wait to read more of their work.
September 21, 2016 in Books, Employment Common Law, Employment Discrimination, International & Comparative L.E.L., Labor Law, Pension and Benefits, Scholarship, Wage & Hour, Worklife Issues | Permalink | Comments (0)
Tuesday, September 20, 2016
I just uploaded my most recent article, Transnational Employment Trends in Four Pacific Rim Countries, 34 UCLA Pacific Basin Law Journal ___ (forthcoming 2017) (co-authored with Lia Alizia, Masako Banno, Maria Jockel, Melissa Pang, and Catherine Tso). I mention this not because this is a groundbreaking work of legal scholarship, but instead to encourage others to consider co-authoring scholarship with non-American faculty members and practitioners. This article, for example, had its genesis in a panel I served on at a LawAsia Employment Conference. I find it rewarding to bring together a disparate group of folks to pool their interest and expertise in topics related to labor/employment law, and a huge side benefit is creating relationships that can far outlast a specific project.
Friday, September 16, 2016
Congratulations to friend of the blog, Wendy Greene (Samford) whose article, Title VII: What’s Hair (and Other Race-Based Characteristics) Got to Do With It? was cited today by the Eleventh Circuit in EEOC v.Catastrophe Management Solutions. Wendy's article was cited for its discussion of the socially constructed nature of race.
Wendy describes the case:
In this case, CMS, an insurance processing company in Mobile, Alabama, rescinded an African American woman’s job offer to handle phone calls related to customer service support because she refused to cut off her locked hairstyle. Essentially, the employer made "no locks" a condition of employment for the applicant, though she was deemed qualified, interviewed and was offered the job with the hairstyle. And, apparently CMS’ human resources manager considered her hair well-groomed at the time of hire, yet remarked that the applicant’s locks might eventually become “messy.” The HR manager told the applicant she would be unable to hire her if she did not cut off her hair; the applicant refused do so, returned her initial paperwork as requested, and left the premises. The Birmingham office of the EEOC filed a Title VII intentional race discrimination case against CMS. In doing so, the EEOC attempted to overturn over 30 years of legal precedent affirming the legality of natural hairstyle bans (except those involving afros). Largely drawing upon legal scholarship of U.S. employment discrimination and race and law scholars, one of the EEOC's primary arguments centered around the immutability doctrine; the EEOC advanced that a biological notion of race, which treats race as an “immutable” characteristic, should no longer be employed when interpreting Title VII’s prohibitions against race discrimination. Rather, the notion of race should be expanded to include both immutable and mutable characteristics. Thus, a grooming policy prohibiting natural hairstyles, like locks, braids, twists, etc., which are associated with African descendants—in law and society—constitutes unlawful race discrimination.
Ultimately, the 11th Circuit declined to abolish the immutability doctrine in EEOC v. Catastrophe Management Solutions and held that CMS’ “no locks” mandate did not violate Title VII, as the EEOC would be unable to produce evidence that all individuals who adorn locks are Black or that only individuals who adorn locks are Black. Though the court did not rule in the EEOC’s favor, it did engage in a fairly lengthy dialogue about the meaning of race and competing arguments of notable race and law scholars. Aside from the exploration of race, this opinion may be of interest to proceduralists and those interested in the application of the Supreme Court’s decision in Young v. UPS, the (purported) demarcation between disparate treatment and disparate impact theories of liability, and statutory interpretation more generally.
The opinion relied very heavily on legal scholarship for its analysis. In addition to citing Wendy, the opinion cites Ian Haney Lopez, Camille Gear Rich, Sharona Hoffman, Barbara Flagg, Richard Ford, Annelise Riles, Kenji Yoshino, Juan Perea, and Rhonda Magee Andrews in its discussion of what race is. Ultimately the court relied on what it believed Congress thought race was in 1964--a set of immutable physical characteristics--and its prior precedent. But the court's analysis went a bit further, too, considering the legal scholarship. The opinion expressed some concern about including cultural or behavioral practices as part of the identity protected by Title VII because those practices might vary by individual and change over time. The court was very uncomfortable with the idea that courts would have to decide what was an "authentic" part of a racial group's culture and what was not. Despite the court's reluctance to agree with many of the scholars it cited, the fact that the opinion considers this work so carefully is heartening.
Thursday, September 15, 2016
The ex-dean of UC-Berkeley’s law school has accused the university of racial bias in its aggressive response to sexual harassment allegations once they were aired publicly.
In a federal lawsuit filed Thursday in Oakland, lawyers for Sujit Choudhry argue that Berkeley has a long history of letting sexual harassment slide when white professors were involved. By contrast, the university has made Choudhry a “pariah” on campus, the suit alleges.
“By targeting Professor Choudhry, who is of South Asian descent and a non-U.S. citizen, the university hopes to deflect attention from its failure to meaningfully punish Caucasian faculty and administrators who were found to have committed appalling sexual misconduct,” the complaint says.
Fellow blogger, David Doorey (http://lawofwork.ca) has just posted on SSRN a new article, A Law of Just Transitions: Putting Labor Law to Work on Climate Change. The abstract:
Climate change will dramatically affect labor markets, but labor law scholars have mostly ignored it. Environmental law scholars are concerned with climate change, but they lack expertise in the complexities of regulating the labor relationship. Neither legal field is equipped to deal adequately with the challenge of governing the effects of climate change on labor markets, employers, and workers. This essay argues that a legal field organized around the concept of a 'just transition' to a lower carbon economy could bring together environmental law, labor law, and environment justice scholars in interesting and valuable ways. "Just transitions" is a concept originally developed by the North American labor movement, but has since been endorsed by important global institutions including the International Labour Organization and the U.N. Environmental Program. However, the prescriptions that would guide a policy of just transition have been under-explored in the legal literature. This paper marks an important early contribution to this challenge. It explores the factual and normative boundaries of a legal field called Just Transitions Law and questions whether such a field would offer any new, valuable insights into the challenge of regulating a response to climate change.
This is definitely an intersection that we haven't heard much about, but as we can see from the politics surrounding trade and climate agreements, it's clearly one that it's important.
Wednesday, September 14, 2016
Joey Fishkin & Joe Mastrosimone are co-chairing the labor and employment AALS sections this year and write to seek information for the joint annual newsletter. As someone who has had the pleasure of helping with this effort in the past, let me put in a plea on their behalf--please help out! The newsletter is only as good as the info provided for it, so at a minimum, fill them in on any relevant news for the year. Also, the case/legislation briefs are really helpful to readers, so please consider doing one of those as well. Joe & Joey write:
It is time once again for the preparation of a joint annual newsletter for the AALS Section on Employment Discrimination and the Section on Labor Relations and Employment Law, and we need your help as readers and section members. Please forward this message to any and all people you know who teach or write in the Employment Discrimination, Labor Law, and Employment Law fields.
First, if you have news of any faculty visits, lateral moves, entry-level hires, or promotions and please e-mail that news to Joseph Mastrosimone at Joseph.Mastrosimone@washburn.edu.
Second, please also e-mail Joseph Mastrosimone with any information about conference announcements and calls for papers, employment or fellowship opportunities, honors and awards, and reports on recent conferences or other events of interest to the two Sections’ members.
Third, we want to include a list of relevant employment or labor law-related publications published in 2016. These publications can be books, articles, and chapters. We are working on compiling a list, but it would help us make sure not to miss your publications if you would send them to us! So, please send an email with your relevant 2016 publications to Ms. Penny Fell at Penny.Fell@washburn.edu; use the subject line “Publications for AALS Newsletter”. (Note: please hold your forthcoming 2017 publications for next year’s newsletter. We’re looking for 2016 publications.)
Fourth and finally, we want to solicit anyone who would be interested in writing a brief description of a recent important labor and employment case or any significant new labor or employment legislation. Your subject could be a recent Supreme Court decision (including Fisher v. University of Texas, Heffernan v. City of Paterson, Tyson Foods, Inc. v. Bouaphakeo, Green v. Brennan, etc.), a significant NLRB decision (including Columbia University, Miller & Anderson, Inc., Piedmont Gardens, etc.), a significant circuit court decision or emerging circuit split, a state supreme court decision, or an innovative and potentially influential new federal, state, or local law. The description should be fairly short — it need not be more than a couple of paragraphs, and should definitely be under 2 pages. If you're looking for an easy way to get your name out there or want a quick outlet for your ruminations about a case or new law, this could be a good opportunity. Please let us know what you are interested in writing about — if you would like to do this, please email Joey Fishkin at firstname.lastname@example.org by October 15 to indicate your interest and say what you’d like to write about.
Thank you very much for your help!
Joe & Joey
The Washburn Law Journal and the Center for Law and Government are hosting a symposium on the “Future of Labor and Employment Law: Power, Policies, and Politics” to be held on February 23, 2017 at Washburn University. From the call:
With Congress gridlocked, federal agencies are increasingly at the forefront of regulatory change in labor and employment law. Supporters of these administrative initiatives defend them as both necessary and commendable. Meanwhile, critics challenge the form, scope, and substance of these agency actions. This symposium bridges these competing viewpoints across a variety of cutting-edge labor and employment law issues.
The symposium will feature a keynote address and three panel discussions comprised of nationally recognized experts in the field. The three panels will cover:
- The EEOC's Expansion of Title VII to Include Sexual Orientation Discrimination
- Religious Freedom and Accommodation Issues Arising from Regulatory Expansions
- The Stubborn Problem of Unpaid, Unregulated, and Illegal Labor
More information about the event and the panels can be found at: http://washburnlaw.edu/futureoflaborlaw. The Law Journal is eagerly seeking panelists for this event. Speakers have the opportunity to publish articles based on their presentation in the Summer 2017 issue of the Washburn Law Journal. Articles from Journal’s 2013 labor and employment law focused symposium can be found at: http://washburnlaw.edu/publications/wlj/issues/52-3.html. Proposals should be sent to Cristen Hintze, Editor-in-Chief, at email@example.com. The Journal will consider proposals on a rolling basis.
This looks to be a very interesting event, so check it out.
Tuesday, September 13, 2016
I just learned that Friend-of-Blog and employment law scholar Bradley Areheart (Tennessee) has posted on SSRN his wonderful new paper, The Symmetry Principle, which provides a unique look at symmetry (or lack-there-of) in the many antidiscrimination laws. From the abstract:
Antidiscrimination principles have been studied and written about for decades. Surprisingly, the question of how some laws protect symmetrically, while others protect asymmetrically, has received little attention. Even more surprising is the fact that legal scholars have not provided any systemic account of symmetry’s function in antidiscrimination law. Title VII, for example, makes it illegal to discriminate against both blacks and whites, against both men and women. In contrast, the Age Discrimination in Employment Act’s scope is asymmetrical in that it protects only those over the age of forty. This Article proposes “the symmetry principle” as a major normative theory for considering the design of antidiscrimination laws. When antidiscrimination laws are symmetrical they have the capacity to harness a unique mix of strengths—while minimizing weaknesses—from previous normative theories regarding the means and ends of antidiscrimination law. The symmetry principle is thus a design compromise, somewhere between the poles of particularism and universalism, in fashioning laws to prevent and rectify subordination.
This is a great paper which provides a much needed look at this important issue. I highly recommend taking a look if you research or teach in this area.
Friday, September 9, 2016
Terry Smith (DePaul) has a thoughtful piece at Huffington Post on the dissonance between the sexual harassment claims of some of the women and Fox News and their commentary in the past about discrimination against white men and race more broadly. As he notes, their claims are only recognized as legal harms because harassment was recognized as a form of discrimination in the race context first. He urges them and all of us to have greater empathy for victims of discrimination to make the law more fair.
If you have not been keeping up with the allegations and want to read more about the harassment claim brought by Gretchen Carlson against Roger Ailes, which was settled when Fox News apologized and paid her about half of what it paid Ailes to leave, you might read this and this. If you want to know more about the toxic environment there, read just about any of these articles by Gabriel Sherman at New York Magazine. Finally, if you are wondering what "feminist hero Susan Estrich [is] doing representing Roger Ailes," you are not alone.
Jon Harkavy (Patterson Harkavy) has just posted on SSRN his annual (30th?) review of the Supreme Court's work in the employment area. The article will be presented at a seminar in late October at the Grove Park Inn in Asheville, NC. Here's the abstract:
This article, the author's longstanding annual review of the Supreme Court's work in the employment area, examines in detail every decision of the 2015-2016 term relating to employment and labor law, with commentary on each case and additional observations about the Court's work in this term and the upcoming one. In particular, the author uses the latest term's decisions as a lens for examining broader aspects of the Court's jurisprudence, particularly in light of disruptive changes in the nature of the employment relationship and in the composition of the Court itself.
Sunday, September 4, 2016
Sam Estreicher (NYU) has posted on SSRN his article Achieving Antidiscrimination Objectives through 'Safe Harbor' Rules. Kudos to Sam proposing something designed to create job opportunities for the heretofore nearly unemployable; I hope this helps move the discussion forward. Here's Sam's abstract:
This paper urges government agencies responsible for enforcing antidiscrimination laws to use existing authority to promulgate “safe harbor” rules to encourage employment of individuals who are unlikely to obtain employment because of the risks to employers of an erroneous hiring, coupled with the improbability of enforcement. Such perennially frustrated job seekers include individuals aged 65 and over, individuals with obvious disabilities whose employment entails significant accommodation costs, and individuals convicted of serious crimes.
Without detracting from traditional education and enforcement activities, the responsible administrative agencies should promulgate “safe harbors” for employers willing to hire individuals from these categories of high employment risk. The safe harbor would be in the form of a regulation, promulgated after notice and opportunity for public comment, that individuals from these categories may be hired as probationary employees for a defined, say three-year, period, during which they may be discharged without cause or consequence for the employer. (Other provisions of the antidiscrimination laws would be unchanged). If such employees are retained beyond the probationary period, they would be treated the same as other employees in all respects, including the full force of the antidiscrimination laws.
The benefit of the safe-harbor approach is that it directly addresses the concerns that motivate the employer’s non-hiring decision. The employer is given a relatively cost-free opportunity to evaluate whether engaging the employee from the high-risk category will in fact entail the predicted risks or whether an employee’s actual performance will belie the predicted concern.
This is a preliminary look at the potential benefits of a “safe harbor” approach to antidiscrimination goals. Creation of carefully cabined regulatory safe harbors for hiring employees from high-risk categories has the potential to spur improved utilization of such employees with limited harm to the moral force of the antidiscrimination regime.