Tuesday, October 22, 2019
Thanks to Tequila Brooks for forwarding an announcement from Desiree (LeClercq) Ganz about this upcoming symposium at American University - Washington College of Law. The symposium, on International Trade, Development, and Worker Rights, will be on Tuesday, November 12, 2019, and will include as speakers high-level officials from the ILO, World Trade Organization, and World Bank, among others. Here's the symposium brochure.
Guest Post by Jack Harrison: Oral Argument in Title VII LGBT Cases Offers Few Clues on How SCOTUS Might Rule
Thanks to Jack Harrison (NKU-Chase) this terrific guest post:
Aimee Stephens, a transgender woman who worked as a funeral director, began her employment at Harris Funeral Home presenting as male, the sex she to which she was assigned at birth. However, in 2013, Stephens informed her supervisor, Thomas Rost, that she had been diagnosed with a gender identity disorder and that she intended to transition. In response to this disclosure, Rost promptly terminated her. Rost later testified that he terminated Stephens because “he was no longer going to represent himself as a man,” and because Rost believed that gender transition “violat[es] God’s commands” because “a person’s sex is an immutable God-given fit.” The EEOC sued on Stephens’ behalf, alleging that the acts of the funeral home constituted unlawful sex discrimination under Title VII.
In EEOC, et. al v. R.G. & G.R. Harris Funeral Homes, the district court held that Stephens had been subjected to sex discrimination in violation of Title VII because, consistent with Price Waterhouse v. Hopkins, she was subjected to impermissible sex stereotypes. However, the district court then concluded that even though Stephens had been the victim of sex discrimination, the funeral home had a right to terminate her under Religious Freedom Restoration Act (“RFRA”), holding that RFRA protected personal religious beliefs, even when those beliefs resulted in otherwise unlawful sex discrimination.
In 2018, the United States Court of Appeals for the Sixth Circuit reversed this decision. In its decision, the Court of Appeals moved beyond the sex stereotyping rationale of Hopkins, holding that Title VII specifically outlaws employment discrimination against transgender persons.
On Tuesday, October 8, 2019, the United States Supreme Court heard oral argument in Harris Funeral Home, addressing the question of whether Title VII’s prohibition against discrimination because of sex encompasses a prohibition against discrimination based on gender identity. On the same day, the Court also heard arguments in two other cases, one from the Second Circuit, Altitude Express v. Zarda, and one from the Eleventh Circuit, Bostock v. Clayton County, addressing the issue of whether Title VII’s prohibition against discrimination because of sex includes a prohibition against discrimination based on sexual orientation.
Before the Supreme Court, David Cole of the ACLU presented the argument on behalf of Aimee Stephens. In the opening of his argument to the Court, Cole broke the case down into its simplest terms, stating:
Aimee Stephens is a transgender woman. She was a valued employee of Harris Funeral Homes for six years, until she told her boss that she was going to live and identify as a woman.
When Harris Homes responded by firing her, it discriminated against her because of her sex for three reasons. First, in firing her for failing to conform to its owner's explicitly stated stereotypes about how men and women should behave, it discriminated against her in the same way that Price Waterhouse discriminated against Ann Hopkins for failing to walk and talk more femininely. It can't be that Ann Hopkins would lose her case on the same facts were she transgender.
As Cole pointed out in his argument, Stephens was fired for “identifying as a woman only because she was assigned a male sex at birth.” In firing her for this reason, Harris “fired her for contravening a sex-specific expectation that applies only to people assigned male sex at birth; namely, that they live and identify as a man for their entire lives.”
While the Justices focused many questions on the issues of restrooms and athletes, neither of which were before the Court in this case, Justice Gorsuch acknowledged that, on this question, the text of Title VII was “close.” However, Justice Gorsuch raised the following concern:
At the end of the day, should he or she [the judge] take into consideration the massive social upheaval that would be entailed in such a decision, and the possibility that --that Congress didn't think about it.
Yet, as David Cole pointed out in response to Justice Gorsuch, “federal courts of appeals have been recognizing that discrimination against transgender people is sex discrimination for 20 years” and “[t]here's been no upheaval.”
In Zarda and Bostock, argued the same day as Harris Funeral Home, the Court addressed the claims of two men who asserted that they were fired from their jobs because they were gay in violation of Title VII. Donald Zarda (who died in 2014 in a base-jumping accident in Switzerland) had been working as an instructor for a skydiving company now known as Altitude Express, while Gerald Bostock had worked as a child-welfare-services coordinator in Clayton County, Georgia.
In arguing on behalf of the two men, Stanford professor Pamela Karlan also faced a number of questions by the justices regarding restrooms and dress codes, issues that were not before the Court in these cases either. In responding to these questions, Karlan pointed out that Title VII specifically addresses the situation regarding restrooms, with the central question being whether providing same-sex bathrooms denies someone an employment opportunity. As to the issue of dress codes, Karlan indicated that the justices would be forced to address the issue in future cases, no matter how they rule in these cases.
However, the primary issue raised during the oral argument in Zarda and Bostock was whether, in passing Title VII in 1964, Congress intended to bar discrimination based on sexual orientation and whether, from a textual interpretive perspective, that mattered at all. As Karlan pointed out, the Supreme Court has recognized many other claims under Title VII that Congress could not have contemplated in 1964, including both opposite-gender and same-gender sexual harassment and claims based on sex stereotyping.
Justice Gorsuch was very active in the Zarda and Bostock oral arguments, challenging arguments by counsel for the employers, Jeffrey Harris, attempting to draw a clear line between definitions of “sex” and “sexual orientation” as the basis for the termination of the employees. For example, Justice Gorsuch pushed Harris on this point:
Your response to Justice Kagan was, I need to focus on sexual orientation because that's the sole or primary causal factor here for the firing.
And I think the response from the other side is: But the statute has a more generous causal formulation, a but-for causal formulation, so perhaps you're right that, at some level, sexual orientation is surely in -- in play here. But isn't sex also in play here because of the change of the first variable? And isn't that enough? It -- you know, the statute talks about a material causal factor or some formulation like that, not the sole cause, not the proximate cause, but a cause. And one –o ne would -- in what -- in what linguistic formulation would one -- would one say that sex, biological gender, has nothing to do with what happened in this case?
Justice Gorsuch returned to this theme during the argument of U.S. Solicitor General Noel Francisco, who appeared on behalf of the federal government as a “friend of the court” supporting the employers in this case. When the Solicitor General attempted to draw a line between the meanings of sex and sexual orientation, Gorsuch again responded that at least one contributing cause of the plaintiffs’ firings here does appear to be sex.
In concluding his argument in all three cases, the Solicitor General argued that a ruling for the employees in these cases would ignore the issue of religious objections employers might have to hiring LGBT employees, while, at the same time, greatly expanding the rights of LGBTQ employees. For this reason, among others, the Solicitor General argued that this decision should be left to Congress to resolve.
Following the oral arguments in these cases, it is difficult to predict whether five votes exist for holding that Title VII’s prohibition against discrimination because of sex encompasses sexual orientation and gender identity. Based on the oral argument, it would seem that Justice Gorsuch vote might well be at play, given his acknowledgement that the text of Title VII made this a close call. This confirms the strategic decision by those who submitted briefs and amici on behalf of the employees to focus on the text of Title VII itself.
While many Americans currently believe that federal law prohibits discrimination because of sexual orientation and gender identity in the workplace, these cases make clear how far from reality that actually is. Currently LGBT employees are largely unprotected from employment discrimination. The protections that do exist are under an unpredictable patchwork of laws and policies, consisting of presidential executive orders, private employer initiatives, city and county ordinances, gubernatorial executive orders, and state legislation. Thus, discrimination in the workforce remains a constant in the lived experience of LGBT persons.
Monday, October 21, 2019
Multinational corporations based in Europe have accelerated their foreign direct investment in the Southern states of the United States in the past quarter-century. Some companies honor workers’ freedom of association, respect workers’ organizing rights and engage in good-faith collective bargaining when workers choose trade union representation. Other firms have interfered with freedom of association, launched aggressive campaigns against employees’ organizing attempts and failed to bargain in good faith when workers choose union representation.
Today, the AFL-CIO is releasing a report by international labor law expert Lance Compa. The report examines European companies’ choices on workers’ rights with documented case studies in several American Southern states. In their home countries, European companies investing in the American South generally respect workers’ organizing and bargaining rights. They commit themselves to International Labor Organization core labor standards, Organization for Economic Co-operation and Development Guidelines, UN Guiding Principles, the UN Global Compact, and other international norms on freedom of association and collective bargaining. But they do not always live up to these global standards in their Southern U.S. operations.
Case studies on well-known companies like VW, Airbus, IKEA and large but lesser known ones like Fresenius and Skanska provide examples of companies that have followed a lower standard in their operations in the southern states where the region’s legacy of racial injustice and social inequality open the door to a low-road way of doing business. The report also makes clear that companies always have a choice and could choose to respect workers human rights.
César Rosado writes to tell us about an upcoming symposium at Chicago-Kent on Thursday, November 14, 2019: Alt-Labor Law: The State of the Law of the New Labor Movement. Here's a schedule of the symposium; here's a description:
This proposed symposium will bring together a group of highly accomplished scholars who have been writing about nontraditional labor organizing and other ways to break and redistribute economic power to describe the current state of the law pertaining to “alt-labor,” or what the volume will refer to as “alt-labor law.” Parts of alt-labor law lie within traditional labor and employment law, but a lot of it does not. Alt-labor law includes first amendment protections used by non-employee labor unions and worker centers, laws regulating non-for-profit associations, state laws dealing with industry wide-minimum wage setting and voluntary dues deduction, and anti-trust laws that impinge on the rights of independent contractor unions, among others.
This proposed volume of the Chicago-Kent Law Review volume will serve as a research tool for academics, policy makers, and legal practitioners. They will have, in one place, the state of the law of this fledgling legal field. The live discussion at Chicago-Kent will help these scholars learn about the disparate and discreet pieces of the law of alt-labor to enrich the final drafts of their articles. It will also attract a public interested in alt-labor, not least in Chicago, home of many very active alt-labor groups.
Saturday, October 19, 2019
More self-promotion. Just posted on SSRN:
Retaliation and Requesting Religion Accommodation
A recent Eighth Circuit Court of Appeals decision on an issue of first impression suggests that requests for reasonable accommodation of religious practices or observances are generally not protected conduct within the scope of § 704, Title VII’s antiretaliation provision. The court reasoned that such a request fell did not fall within the “opposition” clause of the provision since it did not “oppose” anything the employee could have reasonably believed was discriminatory.
This counterintuitive holding has the potential to frustrate Title VII’s command that employers reasonably accommodate believers by suggesting to employees that requests for accommodation are perilous. It is true that Supreme Court precedent protects an employee when the accommodation must be granted because it is reasonable and not an undue hardship on the employer. In such cases, retaliating against the employee is viewed as core religious discrimination, prohibited under § 703, and so there is no need to invoke § 704.
But what if the accommodation is not legally required under Title VII? That is a very common scenario given the Supreme Court’s longstanding and extraordinarily narrow reading of the duty of accommodation under the statute. And if the Eighth Circuit’s view were to be generally adopted, employers would seem to be largely free not merely to deny the request but also take adverse employment actions against those foolish enough to ask for it.
This Article analyses the complicated interaction between the accommodation command of § 703 and the retaliation prohibition of § 704. In the process it rejects the “no harm, no foul” argument sometimes made, which is that denying employment or firing a worker who seeks an “unreasonable accommodation” is not actionable because the worker will not perform the job requirements in any event. Such a view is predicated on a false notion that employees can seek accommodations only when they are faced with the choice between their religion and their job. In many cases, believers seek accommodations when their religion encourages (or discourages) but does not mandate (or prohibit) the conduct in question, a point that is often unappreciated.
The Article concludes that the Eighth Circuit is wrong in its reading of § 704 as applied to requests for accommodation. Further, it argues that, regardless of the correct reading of that provision, taking adverse action against a worker whose accommodation request was legitimately denied may violate § 703’s prohibition of status discrimination, a question not answered by the Eighth Circuit.
The full article can be found here.
Saturday, October 12, 2019
Some readers might be interested in a symposium the Seton Hall Law Review is sponsoring about my work. Scheduled for November 1, it really has a star-studded collection of scholars discussing various aspects of the topics I've written on for lo these many years. In short, there's something for almost everyone in the employment law universe and all are welcome.
And, no, this doesn't mean I'm retiring either from scholarship or Seton Hall!
A Symposium in Honor of the Work of Charles A. Sullivan
November 1, 2019
8:15 am: Registration & Continental Breakfast
9:00-9:15 am: Welcome
Daniel F. Carola, Symposium Editor, Seton Hall Law Review, Seton Hall University School of Law
Kathleen M. Boozang, Dean and Professor of Law, Seton Hall University School of Law
9:15-9:30 am: Overview
Timothy P. Glynn, Seton Hall University School of Law
9:30-11:00 am: Panel One: Faithless Servants, Employment Contracts, and the Sullivan Perspective
Rachel S. Arnow-Richman, University of Denver Sturm School of Law, Faithless Servants, Neglected Children: Revisiting Sullivan’s Work on Employee Competition with a 2020 Vision
Matthew T. Bodie, St. Louis University School of Law, Taking Employment Contracts Seriously
Samuel Estreicher, New York University School of Law, Duty of Loyalty, Faithless Servants, and the Restatement of Employment Law
11:00-11:15 am: Break
11:15-12:45 pm: Panel Two: Antidiscrimination Insights: Causation, the Cat’s Paw, and Age Discrimination
William R. Corbett, Louisiana State University Law Center, Explorations with Charlie Sullivan: Theorizing a Larger Universe of Employment Discrimination Law
Sandra F. Sperino, University of Cincinnati College of Law, Charlie Sullivan Kills the Cat's Paw
Rebecca Hanner White, University of Georgia School of Law, Aging on Air
12:45-1:45 pm: Lunch
1:45 – 3:15 pm: Panel Three: Social Change and Workplace Law
Michael Z. Green, Texas A&M University School of Law, Mediating Mental Illness as a Workplace Accommodation
Ann C. McGinley, UNLV William S. Boyd School of Law, MeToo Backlash or Common Sense?: It’s Complicated
Sachin S. Pandya, University of Connecticut School of Law, On Evidence of Social Networks in Employment Law: Conjectures From Charlie Sullivan’s Shoulders
3:15-3:30 pm: Break
3:30-5:00 pm: Panel Four: Disparate Impact and the Future of Workplace Justice
Tristin K. Green, University of San Francisco School of Law, The Juxtaposition Turn: Watson v. Fort Worth Bank
Michael Selmi, Arizona State University Sandra Day O’Connor College of Law, Bending Towards Workplace Justice
Steven L. Willborn, Nebraska College of Law, Two Takes on Charlie’s Disparate Impact
5:00 pm: Closing Remarks
Tatiana S. Laing, Editor-in-Chief, Seton Hall Law Review, Seton Hall University School of Law
Thursday, October 10, 2019
The Southeastern Association of Law Schools is now accepting panel proposals for its 2020 conference. For anyone who typically goes to SEALS, you know that there are typically several labor and employment law panels, in large part thanks to the work of Michael Green. Iif you're planning on attending this summer or are just thinking about it (and if you are, you should go--email me and I can tell you why), I'm writing to encourage you to let me know if you're interested in participating in panels or--even better--putting together one. The process is very easy and discussion groups leave a lot of room for flexibility on both topics and participants.
So, email me at email@example.com if you have any interest--no need to commit fully yet. And while I look forward to hearing from people who come regularly, I'd also love to hear from newcomers, especially more junior academics.
Wednesday, October 9, 2019
Ifeoma Ajunwa (Cornell I.L.R.) published an op-ed in yesterday's New York Times about the discriminatory use of algorithms in the hiring process. Ifeoma has done a ton of great work on algorithmic discrimination -- it's great that she's taking it to an even wider audience. Here's a brief excerpt:
Algorithms make many important decisions for us, like our creditworthiness, best romantic prospects and whether we are qualified for a job. Employers are increasingly using them during the hiring process out of the belief they’re both more convenient and less biased than humans. However, as I describe in a new paper, this is misguided.
In the past, a job applicant could walk into a clothing store, fill out an application and even hand it straight to the hiring manager. Nowadays, her application must make it through an obstacle course of online hiring algorithms before it might be considered. This is especially true for low-wage and hourly workers.
The situation applies to white-collar jobs too. People applying to be summer interns and first-year analysts at Goldman Sachs have their résumés digitally scanned for keywords that can predict success at the company. And the company has now embraced automated interviewing.
The problem is that automated hiring can create a closed-loop system. Advertisements created by algorithms encourage certain people to send in their résumés. After the résumés have undergone automated culling, a lucky few are hired and then subjected to automated evaluation, the results of which are looped back to establish criteria for future job advertisements and selections. This system operates with no transparency or accountability built in to check that the criteria are fair to all job applicants.
The op-ed is Beware of Automated Hiring.