Monday, January 27, 2020
Thanks to Jon Harkavy for word that the Clean Slate for Worker Power project has issued its final report A Clean Slate for Worker Power: Building a Just Economy and Democracy. Here's a brief excerpted description from Kelsey Griffin:
An initiative of Harvard Law School’s Labor and Worklife Program — called Clean Slate for Worker Power — released its final report Thursday calling to overhaul American labor laws and increase workers’ collective bargaining power. Law School Faculty members Sharon Block and Benjamin I. Sachs led the project. The initiative brought together leading activists and scholars to recommend policies aimed at empowering working people.
The report claims that an extreme concentration of wealth in the hands of few people has created economic and political inequality in the United States. It argues that current labor laws have fostered systematic racial and gender oppression. It also asserts that labor laws exclude vulnerable workers from vital labor protections and devalue the work performed by these workers.
Block and Sachs said they believe addressing this economic and political inequality would require a completely new system of labor law, rather than simply adjusting current policies. The report recommends that labor laws better enable working people to build collective organizations to increase their leverage with employers and in the political system. The policy recommendations aim to increase worker representation and inclusion by expanding the coverage of labor laws for independent contractors, as well as undocumented, incarcerated, and disabled workers. The report lays out an array of options for alternative worker representation in addition to labor unions, such as work monitors — employees who would ensure compliance with federal labor regulations.
Louis Menand (Harvard Arts & Sciences; degree from Harvard Law) published a great essay in last week's The New Yorker on affirmative action: Integration by Parts. I'm posting the take-away below, but the entire essay is well worth reading, not least for its historical description of the concept.
The whole history of affirmative action shows ... that when the programs are shut down minority representation drops. Diversity, however we define it, is politically constructed and politically maintained. It doesn’t just happen. It’s a choice we make as a society.
It is possible to understand the opposition to affirmative action of white conservatives, like Ronald Reagan, who regard civil-rights laws as federal overreach and affirmative action as enshrining the un-American notion of group rights. And it is possible to understand the opposition of black conservatives, like Clarence Thomas, who see it as patronizing to African-Americans.
But it is hard to understand the opposition, often diehard, of many white liberals that has persisted since the nineteen-seventies. Did these people really imagine that passing a law against discrimination would reset race relations overnight? Do they really think that white Americans, wherever they work or go to college, do not carry a lifelong advantage because of the color of their skin? Do they really believe that there should be no sacrifice to make or price to pay for the systematic damage done to the lives of millions of American citizens and the men and women who are their ancestors?
Thursday, January 23, 2020
By Sandra Sperino
During Supreme Court oral argument in Babb v. Wilkie, Solicitor General Francisco tried to explain causation through an analogy to a person making an eggless cake. He imagined a scenario in which a statute demanded that a person make an eggless cake. If the person got tired, whipped up some eggs, but did not put them in the cake, the cake would still be an eggless cake. Babb Transcript
Although the analogy is a bit hard to follow, the Solicitor General appears to argue that the person wanting to make the eggless cake is the employer who wants to make decisions without taking protected traits into account. Following the analogy, someone (here the analogy breaks down a bit), considers the protected trait (puts eggs in a bowl), but then no traces of the protected trait appear in the final decision (because the eggs are dumped out before they go in the batter). In this scenario, the Solicitor General argues that there is no causation and the employee cannot prevail.
This blog post is a plea to the Supreme Court. Please, Supreme Court, do not import the idea of the eggless cake into discrimination law. Employment discrimination jurisprudence is confusing enough already. We do not need another analogy in the jurisprudence. Think of the distractions already caused by concepts like “cat’s paw.”
The eggless cake is a particularly bad analogy for several reasons, three of which I want to highlight. First, it imagines only one actor: the person making the cake. This actor knows what it is trying to accomplish (and is trying to follow the statute) and is the only actor involved in accomplishing it. In employment discrimination cases, there are often many actors: the employer, the people who work for the employer and who are involved in making decisions, and the worker who is affected by those decisions. Some employment decisions involve outside actors, like customers. In real life, the people charged with making the eggless cake are separate entities from the employer. That separateness can results in many disconnects between the employer and its employees. For example, those employees may not know the employer wants them to make an eggless cake; they may know it but want to make a cake with eggs; or they might be trying to make an eggless cake, but fail to realize that they used eggs. Likewise, the employer itself may be trying to follow the statute, may want to discriminate, or may be indifferent to whether it does.
Second, in real life, there are often multiple people impacting an outcome, and each one may be inserting eggs (consideration of a protected trait) into the outcome, with or without the other people knowing about it. For an example of this, see the facts of Price Waterhouse v. Hopkins, which highlight how the combined opinions of various actors can coalesce into a decision. The analogy would at least need to recognize that multiple people might be putting eggs into the batter.
Third, eggs are a terrible ingredient to include in the analogy. Anyone who has put an egg in a bowl knows that it is nearly impossible to get all of the egg out without completely washing the bowl. Some of the residue of the egg clings to the side. And this is the key question in discrimination cases. Once a protected trait is introduced into the process, whose responsibility is it to prove that the protected trait did not play a role in the outcome? During oral argument, Justice Alito wondered whether “but for” cause would exist if a little bit of the egg made it into the batter. (Transcript, p. 45).
Thursday, January 16, 2020
My Akron colleague Mike Gentithes gives us yet another reason to hate the Janus decision -- the way it undermines stare decisis generally, with potentially dire consequences for abortion rights, civil liberties, labor/employment rights generally, etc. etc. The article is Janus-Faced Judging: How the Supreme Court is Radically Weakening Stare Decisis; it is a depressing but persuasive read. Here's the abstract:
Drastic changes in Supreme Court doctrine require citizens to reorder their affairs rapidly and undermine trust in the judiciary. Stare decisis has traditionally limited the pace of such change on the Court, acting as a bulwark to wholesale jurisprudential reversals by the Justices. Yet in recent years, the stare decisis doctrine itself has come under threat.
With little public or scholarly notice, the Supreme Court has radically weakened stare decisis. The Court has long suggested that a precedent, regardless of the quality of its reasoning, should stand unless there is some special, practical justification to overrule it. But in several recent decisions, the Court has suggested that “poor reasoning” in a prior decision both triggers stare decisis analysis and justifies overruling cases. This presents a grave threat to legal stability. Justices can always find reasoning they believe is “poor” in prior decisions. Stare decisis under this formulation provides little restraint against changing course. It also opens the door to “wave theories” of stare decisis, whereby new Justices seeking rapid change can claim fidelity to a weak version of stare decisis early in their careers, only to suggest a stronger version later to protect their own decisions.
This weakened version of stare decisis has deep analytical flaws that would allow perpetual changes to legal doctrine based simply on the current Justices’ policy preferences. The Court must not accept the alarming effects such a weak version of stare decisis would have on legal stability, consistency, and judicial legitimacy.
Wednesday, January 15, 2020
The Supreme Court heard oral argument today in Babb v. Wilkie. The Court considered whether the federal sector provision of the ADEA requires the plaintiff to establish “but-for” cause. The ADEA (29 U.S.C. §633a(a)) provides that personnel actions affecting agency employees aged 40 years or older shall be made free of any discrimination based on age.
Overall, there were not many surprises in today’s argument. There were very few questions related to Gross and Nassar, and many of the Justices seemed reluctant to apply the analysis from those cases onto language in the ADEA federal sector provision that is clearly different than the main ADEA language. There was very little discussion by the Justices about tort law and its role in discrimination law.
Here are highlights from today’s oral argument:
Chief Justice Roberts drops an “OK, Boomer” reference at page 20 of the transcript.
The Justices seemed concerned about understanding the types of situations in which a plaintiff could prevail, but would not be able to prove “but for” cause. Several of the Justices posed questions related to when a final decision was not based on age, but the process leading up to the decision was tainted by improper consideration of age. Solicitor General Francisco made an analogy to a person making an eggless cake. If the person whipped up some eggs, but did not put them in the cake, the cake was still an eggless cake. Justice Alito wondered whether “but for” cause would exist if a little bit of the egg made it into the batter. (Transcript, p. 45).
Chief Justice Roberts cryptically asked whether the petitioner’s standard would improperly regulate speech in the workplace in violation of the First Amendment. (Transcript, p. 22)
Petitioner agreed with Justice Breyer that applying the Title VII motivating factor standard would be appropriate. (Transcript, p. 24)
Justice Kavanaugh seems to argue that the ADEA’s language regarding “otherwise discriminate” is fairly broad. (Transcript, p. 33)
The government relied heavily on the incorrect idea that there is a canon of construction requiring the plaintiff to prove “but for” causation, unless a statute provides otherwise.
The government argued that when looking at statutory language, it is appropriate to look at the entire body of law related to the statute, including later-enacted statutes. (Transcript, p. 37).
Justices Sotomayor, Ginsburg, and Kagan focused on why Congress chose to use different language in the main portion of the ADEA and the federal sector provision. (starting at Transcript, p. 41). Justice Kavanaugh also asks about the different text. (Transcript, p. 47).
Justice Breyer embraced using a “but for” standard as part of remedial principles. (Transcript, p. 49). He also stated that the federal government should be a model employer. It might have obligations to go beyond other employers in prohibiting discrimination. Earlier in the argument, Justice Kavanaugh asked about why “but for” principles would be relevant at the remedial stage of litigation, but not the liability stage. (Transcript, p. 6)
Sunday, January 5, 2020