Monday, June 29, 2020
A twofer from Michael Duff (Wyoming). He's got two papers published on SSRN, both particularly relevant in the current pandemic economy.
One is New Labor Viscerality? Work Stoppages in the 'New Work,' Non-Union Economy, which is forthcoming in the St. Louis Univ. Public Law Rev. The abstract:
The COVID-19 work stoppages involving employees refusing to work because they are fearful of contracting coronavirus provides a dramatic opportunity for newer workplace law observers to grasp a well-established legal rule: both unionized and non-union employees possess rights to engage in work stoppages under the National Labor Relations Act. This article explains that employees engaging in concerted work stoppages, in good faith reaction to health and safety dangers, are prima facie protected from discharge. The article carefully distinguishes between Section 7 and Section 502 work stoppages. Crucially, and contrary to Section 502 work stoppages, the health and safety-related work stoppages of non-union employees, protected by Section 7, are not subject to an “objective reasonableness” test.
Having analyzed the general legal protection of non-union work stoppages, and noting that work stoppages have been on the increase during the last two years, the article considers when legal protection may be withdrawn from such concerted activities because employees repeatedly and unpredictably engage in them—so called “unprotected intermittent strikes.” Discussing a recent NLRB decision, the article argues for an explicit and strengthened presumption of work stoppage protection for employees who are wholly unaffiliated with a union, even when those employees engage in repeated work stoppages in response to discrete workplace disputes or dangers.
Next, the article grapples with looming work stoppage issues emerging from expansion of the Gig economy. When workers are not “employees,” peaceful work stoppages may become increasingly subject to federal court injunction. The Norris-LaGuardia Act (the venerable 1932 federal anti-injunction law) does not by its terms apply to non-employees, possibly including putative non-employee Gig workers, raising the specter of a new era of “Government by Injunction.” Under existing antitrust law, non-employee workers may be viewed as “independent businesspeople” colluding through work stoppages to “fix prices.” The article argues that First Amendment avoidance principles should guide Sherman Act interpretation when non-employee worker activity does not resemble price fixing; and that, consistent with liability principles articulated in the Supreme Court’s recent opinion in Sessions v. Dimaya, antitrust law’s severe penalties should not be applied to Gig workers given the ambiguities in federal and state law employee definitions.
Finally, the article considers the potential for non-union private arbitration agreements exercising restraints on the NLRA rights of employees to engage in work stoppages in light of the Supreme Court’s labor law-diminishing opinion in Epic Systems.
The second paper, co-authored with Thomas McGarity (Texas) and Sidney Shapiro (Wake Forest), is Center for Progressive Reform Report: Protecting Workers In A Pandemic--What The Federal Government Should Be Doing. The abstract:
The "re-opening" of the American economy while the coronavirus that causes COVID-19 is still circulating puts workers at heightened risk of contracting the deadly virus. In some blue-collar industries, the risk is particularly acute because of the inherent nature of the work itself and of the workplaces in which it is conducted. And the risk, for a variety of reasons, falls disproportionately on people of color and low-income workers. With governors stay-at-home orders and other pandemic safety restrictions, Center for Progressive Reform Member Scholars Thomas McGarity, Michael Duff, and Sidney Shapiro examine the federal government's many missed opportunities to stem the spread of the virus in the nation's workplaces, and make recommendations for what needs to happen next to protect employees on the job.
Both are well worth the read!
Wednesday, June 24, 2020
James E. Bessen, Chen Meng, & Erich Denk, all of the Boston U. Technology & Policy Research Initiative, have just posted on SSRN their important empirical article Perpetuating Inequality: What Salary History Bans Reveal About Wages. Here's the abstract:
Pay gaps for women and minorities have persisted after accounting for observable differences. Why? If employers can access applicants’ salary histories while bargaining over wages, they can take advantage of past inequities, perpetuating inequality. Recently, a dozen US states have banned employer access to salary histories. We analyze the effects of these salary history bans (SHBs) on employer wage posting and on the pay of job changers in a difference-in-differences design. Following SHBs, employers posted wages more often and increased pay for job changers by about 5%, with larger increases for women (8%) and African-Americans (13%). Salary histories appear to account for much of the persistence of residual wage gaps.
Monday, June 22, 2020
Ariana Levinson (Louisville) writes to tell us:
Please register for the 15th Annual Colloquium on Scholarship in Employment and Labor Law (COSELL). The University of Louisville Brandeis School of Law will host the conference Thursday- Saturday, October 8-10, 2020. The conference will be online. Register at this event page http://louisville.edu/law/cosell2020. We will be making determinations about what platforms to use and online logistics in the near future, and will provide an update when we have more information. We look forward to “seeing” everyone in October!
Major League Baseball implemented a temporary rule limiting signing bonuses for new players as a cost-saving measure when teams are bringing in no revenue. One result: teams with a history of treating their workers well are attracting talent they otherwise would have had little chance of luring. Here's the take-away:
The Royals jumped to the top of many players’ lists because of their demonstrated commitment to their minor leaguers. While most of Kansas City’s competitors wavered on paying minor leaguers at all this summer—and then released scores of them—only the Royals and Minnesota Twins said they would keep every prospect. Royals general manager Dayton Moore justified that action by telling reporters, “The minor-league players, the players you’ll never know about, the players that never get out of rookie ball or High-A, those players have as much impact on the growth of our game as 10-year or 15-year veteran players.”
In saying that, the Royals positioned themselves to take advantage of a very simple market inefficiency: not treating your lowest-paid employees like garbage.
Jared Diamond, The Royals Are Taking Advantage of a New Market Inefficiency Wall St. J. (June 19, 2020).
Friday, June 19, 2020
Craig Senn (Loyola Los Angeles) has just posted on SSRN his article Accommodating Good-Faith Employers in Title VII Disparate Impact Cases (94 Tulane L. Rev. forthcoming fall 2020). Here's the abstract:
This article argues that good-faith employers who adopt honest and reasonable job policies or criteria should be more broadly accommodated in Title VII disparate impact cases. These cases arise under Title VII (and the ADEA and ADA) when an employer’s facially neutral job policy or criterion inadvertently but disproportionately affects individuals based on sex, race, color, national origin, religion, age, or disability.
Unfortunately, our federal employment discrimination laws do not provide comparable defenses or accommodations for good-faith employers in these disparate impact (and related) cases. First, Title VII provides a “business necessity” defense. This complete defense is a narrow accommodation available only for a smaller subset of these good-faith employers – namely, those that can show that their job policy or criterion was related to successful performance of the job.
Next, the ADEA provides a “reasonable factors other than age” defense. This complete defense is a broad accommodation generally available for all good-faith employers that can show that their job policy or criterion stemmed from reasonable, non-age considerations.
Finally, the ADA provides not only a business necessity defense in disparate impact cases but also a supplemental “good-faith efforts” defense in closely related reasonable accommodation cases. This latter, partial defense is another broad accommodation generally available for all good-faith employers that make such efforts to adjust their policy or criterion for (or otherwise accommodate) a disabled individual.
Addressing this unique asymmetry, this article makes two new contributions to existing employment discrimination literature. First, it proposes a partial “Good-Faith Defense” for such employers in Title VII disparate impact cases – a defense that reduces (rather than eliminates) employer liability. Second, this article uses a comprehensive, cross-contextual argument that explores fourteen different examples of good-faith accommodations (by Congress and the Supreme Court) under eight different federal employment laws. Ultimately, these multiple examples evidence a clear legislative and judicial “Good-Faith Accommodation Philosophy” that lies at the heart of the Good-Faith Defense.
Tuesday, June 16, 2020
In Bostock and its companion cases, the Supreme Court held that Title VII prohibits discrimination because of gender identity and sexual orientation. The case is worth reading for a number of reasons, but there is a surprising reason to read it: causation.
The Bostock opinion extensively discussed what “but for” cause means.
In the majority opinion, Justice Gorsuch noted that “but for” cause is sweeping. He emphasized that there can be more than one “but for” cause of an outcome. The majority opinion noted that there are “often” multiple, “but for” causes. Justice Gorsuch reiterated that “but for” cause does not mean sole cause. Even more importantly, Justice Gorsuch noted that a “but for” cause does not even need to be the primary cause.
The majority cited Burrage v. U.S., 571 U.S. 204 (2014). Even though Burrage is not a discrimination case, it is a must read for all discrimination practitioners because of its discussion of causation.
Bostock clarified much of the uncertainty about the “but for” standard lingering from this term’s Comcast opinion and prior cases such as Gross and Nassar. Bostock’s discussion of “but for” cause is especially surprising because the underlying case was a Title VII discrimination case. Title VII discrimination cases do not require the plaintiff to establish “but for” cause. Instead, the plaintiff may prevail under a motivating factor causal standard.
The Bostock opinion is available here: https://d2qwohl8lx5mh1.cloudfront.net/8hVHe52Cq4sPdF0wEaTaCQ/content
Monday, June 15, 2020
We'll no doubt have more of analysis soon, but given the delays in uploading the Court's decision in Bostock (thanks to widespread interest and a bunch of uncompressed images in the opinion), I thought it would be helpful to post the syllabus:
BOSTOCK v. CLAYTON COUNTY, GEORGIA CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR
THE ELEVENTH CIRCUIT
No. 17–1618. Argued October 8, 2019—Decided June 15, 2020*
In each of these cases, an employer allegedly fired a long-time employee simply for being homosexual or transgender. Clayton County, Georgia, fired Gerald Bostock for conduct “unbecoming” a county employee shortly after he began participating in a gay recreational softball league. Altitude Express fired Donald Zarda days after he mentioned being gay. And R. G. & G. R. Harris Funeral Homes fired Aimee Ste- phens, who presented as a male when she was hired, after she informed her employer that she planned to “live and work full-time as a woman.” Each employee sued, alleging sex discrimination under Title VII of the Civil Rights Act of 1964. The Eleventh Circuit held that Title VII does not prohibit employers from firing employees for being gay and so Mr. Bostock’s suit could be dismissed as a matter of law. The Second and Sixth Circuits, however, allowed the claims of Mr. Zarda and Ms. Stephens, respectively, to proceed.
Held: An employer who fires an individual merely for being gay or transgender violates Title VII. Pp. 4–33.
(a) Title VII makes it “unlawful . . . for an employer to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual . . . because of such individual’s race, color, re- ligion, sex, or national origin.” 42 U. S. C. §2000e–2(a)(1). The straightforward application of Title VII’s terms interpreted in accord with their ordinary public meaning at the time of their enactment re- solves these cases. Pp. 4–12.
(1) The parties concede that the term “sex” in 1964 referred to the biological distinctions between male and female. And “the ordinary meaning of ‘because of’ is ‘by reason of’ or ‘on account of,’ ” University of Tex. Southwestern Medical Center v. Nassar, 570 U. S. 338, 350. That term incorporates the but-for causation standard, id., at 346, 360, which, for Title VII, means that a defendant cannot avoid liability just by citing some other factor that contributed to its challenged employ- ment action. The term “discriminate” meant “[t]o make a difference in treatment or favor (of one as compared with others).” Webster’s New International Dictionary 745. In so-called “disparate treatment” cases, this Court has held that the difference in treatment based on sex must be intentional. See, e.g., Watson v. Fort Worth Bank & Trust, 487 U. S. 977, 986. And the statute’s repeated use of the term “indi- vidual” means that the focus is on “[a] particular being as distin- guished from a class.” Webster’s New International Dictionary, at 1267. Pp. 4–9.
(2) These terms generate the following rule: An employer violates Title VII when it intentionally fires an individual employee based in part on sex. It makes no difference if other factors besides the plain- tiff’s sex contributed to the decision or that the employer treated women as a group the same when compared to men as a group. A statutory violation occurs if an employer intentionally relies in part on an individual employee’s sex when deciding to discharge the employee. Because discrimination on the basis of homosexuality or transgender status requires an employer to intentionally treat individual employ- ees differently because of their sex, an employer who intentionally pe- nalizes an employee for being homosexual or transgender also violates Title VII. There is no escaping the role intent plays: Just as sex is necessarily a but-for cause when an employer discriminates against homosexual or transgender employees, an employer who discriminates on these grounds inescapably intends to rely on sex in its decisionmak- ing. Pp. 9–12.
(b) Three leading precedents confirm what the statute’s plain terms suggest. In Phillips v. Martin Marietta Corp., 400 U. S. 542, a com- pany was held to have violated Title VII by refusing to hire women with young children, despite the fact that the discrimination also de- pended on being a parent of young children and the fact that the com- pany favored hiring women over men. In Los Angeles Dept. of Water and Power v. Manhart, 435 U. S. 702, an employer’s policy of requiring women to make larger pension fund contributions than men because women tend to live longer was held to violate Title VII, notwithstand- ing the policy’s evenhandedness between men and women as groups. And in Oncale v. Sundowner Offshore Services, Inc., 523 U. S. 75, a male plaintiff alleged a triable Title VII claim for sexual harassment by co-workers who were members of the same sex.
The lessons these cases hold are instructive here. First, it is irrele- vant what an employer might call its discriminatory practice, how oth- ers might label it, or what else might motivate it. In Manhart, the employer might have called its rule a “life expectancy” adjustment, and in Phillips, the employer could have accurately spoken of its policy as one based on “motherhood.” But such labels and additional intentions or motivations did not make a difference there, and they cannot make a difference here. When an employer fires an employee for being ho- mosexual or transgender, it necessarily intentionally discriminates against that individual in part because of sex. Second, the plaintiff’s sex need not be the sole or primary cause of the employer’s adverse action. In Phillips, Manhart, and Oncale, the employer easily could have pointed to some other, nonprotected trait and insisted it was the more important factor in the adverse employment outcome. Here, too, it is of no significance if another factor, such as the plaintiff’s attrac- tion to the same sex or presentation as a different sex from the one assigned at birth, might also be at work, or even play a more important role in the employer’s decision. Finally, an employer cannot escape liability by demonstrating that it treats males and females comparably as groups. Manhart is instructive here. An employer who intention- ally fires an individual homosexual or transgender employee in part because of that individual’s sex violates the law even if the employer is willing to subject all male and female homosexual or transgender employees to the same rule. Pp. 12–15.
(c) The employers do not dispute that they fired their employees for being homosexual or transgender. Rather, they contend that even in- tentional discrimination against employees based on their homosexual or transgender status is not a basis for Title VII liability. But their statutory text arguments have already been rejected by this Court’s precedents. And none of their other contentions about what they think the law was meant to do, or should do, allow for ignoring the law as it is. Pp. 15–33.
(1) The employers assert that it should make a difference that plaintiffs would likely respond in conversation that they were fired for being gay or transgender and not because of sex. But conversational conventions do not control Title VII’s legal analysis, which asks simply whether sex is a but-for cause. Nor is it a defense to insist that inten- tional discrimination based on homosexuality or transgender status is not intentional discrimination based on sex. An employer who discrim- inates against homosexual or transgender employees necessarily and intentionally applies sex-based rules. Nor does it make a difference that an employer could refuse to hire a gay or transgender individual without learning that person’s sex. By intentionally setting out a rule that makes hiring turn on sex, the employer violates the law, whatever he might know or not know about individual applicants. The employ- ers also stress that homosexuality and transgender status are distinct concepts from sex, and that if Congress wanted to address these mat- ters in Title VII, it would have referenced them specifically. But when Congress chooses not to include any exceptions to a broad rule, this Court applies the broad rule. Finally, the employers suggest that be- cause the policies at issue have the same adverse consequences for men and women, a stricter causation test should apply. That argu- ment unavoidably comes down to a suggestion that sex must be the sole or primary cause of an adverse employment action under Title VII, a suggestion at odds with the statute. Pp. 16–23.
(2) The employers contend that few in 1964 would have expected Title VII to apply to discrimination against homosexual and transgender persons. But legislative history has no bearing here, where no ambiguity exists about how Title VII’s terms apply to the facts. See Milner v. Department of Navy, 562 U. S. 562, 574. While it is possible that a statutory term that means one thing today or in one context might have meant something else at the time of its adoption or might mean something different in another context, the employers do not seek to use historical sources to illustrate that the meaning of any of Title VII’s language has changed since 1964 or that the statute’s terms ordinarily carried some missed message. Instead, they seem to say when a new application is both unexpected and important, even if it is clearly commanded by existing law, the Court should merely point out the question, refer the subject back to Congress, and decline to en- force the law’s plain terms in the meantime. This Court has long re- jected that sort of reasoning. And the employers’ new framing may only add new problems and leave the Court with more than a little law to overturn. Finally, the employers turn to naked policy appeals, sug- gesting that the Court proceed without the law’s guidance to do what it thinks best. That is an invitation that no court should ever take up. Pp. 23–33.
No. 17–1618, 723 Fed. Appx. 964, reversed and remanded; No. 17–1623, 883 F. 3d 100, and No. 18–107, 884 F. 3d 560, affirmed.
GORSUCH, J., delivered the opinion of the Court, in which ROBERTS, C. J., and GINSBURG, BREYER, SOTOMAYOR, and KAGAN, JJ., joined. ALITO, J., filed a dissenting opinion, in which THOMAS, J., joined. KAVANAUGH, J., filed a dissenting opinion.
Friday, June 12, 2020
In March 2020, many states imposed stay-at-home orders because of the covid-19 pandemic. Most labor arbitration hearings were postponed. However, as it became clear that the pandemic would not be going away quickly, arbitrators and parties began to consider online hearings. A consensus quickly emerged that Zoom would be the online platform of choice because it, unlike most other platforms, has the functionality to create breakout rooms. The National Academy of Arbitrators (NAA) and Federal Mediation and Conciliation Service (FMCS) quickly organized a series of online tutorials for arbitrators on how to schedule and run a Zoom hearing.
One issue that quickly arose was whether an arbitrator could require a hearing to be conducted online over the objection of one of the parties. The position of the American Arbitration Association currently is that such a decision should be left to the discretion of the arbitrator. The NAA has provided this guidance in Opinion No. 26 (April 1, 2020):
In the absence of a collective bargaining agreement or an ad hoc agreement of the parties prohibiting such an arrangement, an arbitrator in exceptional circumstances, without violating the Code [of Professional Responsibility for Arbitrators of Labor-Management Disputes], may order that a matter proceed by way of video hearing in whole or in part without mutual consent and over the objection of a party. In doing so, the arbitrator must determine that a video hearing is necessary in order to provide a fair and effective hearing. * * *
When the issue arises, the arbitrator’s first recourse should be to assist the parties in reaching a mutually acceptable resolution in the prehearing process. * * *
If agreement is not reached and it is necessary for the arbitrator to decide the issue of whether a matter will proceed by way of a video hearing over an objection, the arbitrator must consider the applicable circumstances and context of the request. Where, for example, a global pandemic makes it virtually impossible for an in-person hearing to be safely conducted, that factor may weigh in favor of the video hearing option, particularly if the hearing has been postponed previously, a party in opposition is non-responsive or declines to provide a reasonable explanation, and/or the case involves continuing liability or time sensitive matters, such as an emergency health and safety issue. Government travel restrictions and family and health considerations of counsel or witnesses may also weigh in the arbitrator’s decision to order or not order a video hearing. The factors favoring a video hearing may, in the arbitrator’s judgment, be offset by countervailing factors, such as a party’s lack of necessary equipment, difficulty in preparing and marshaling witnesses, or other limiting considerations. Further, the substance of the grievance might suggest to the arbitrator that a delay to allow for an in-person hearing does not seriously prejudice the rights of the parties.
As a practical matter, labor arbitrators have been reluctant to order online arbitration hearings over the objection of a party absent a showing that delay would result in significant prejudice. However, it is not yet clear whether this trend will continue. Some states have almost completely re-opened. Even in these states, however, arbitrators, advocates, parties or witnesses may be older or immunocompromised and therefore reluctant to meet in person. Many courts have postponed civil hearings and trials or moved them online, and arbitrators sometimes follow the practice of local courts. But if there is a new surge in cases, parties may become frustrated with further delay and more amenable to online hearings.
It also is not yet clear whether any move toward online hearings will be permanent or merely a temporary response to what we hope will be a short-lived pandemic. Most arbitrators and advocates still seem to strongly prefer in-person hearings, believing that such hearings give the advocates and witnesses a better opportunity than online hearings to “tell their story”. However, as arbitrators and advocates become more proficient with the technology, and experience firsthand the cost savings (especially in reduced travel) and convenience of online hearings, such hearings likely will become much more common than they were before the pandemic even if in-person hearings remain the norm.
Tuesday, June 9, 2020
Each year, I read every single U.S. Supreme Court, federal appellate court, and state Supreme Court opinion citing McDonnell Douglas, as well as all legal scholarship discussing the test. Here are the significant McDonnell Douglas developments from May of 2019 until now.
- The Seventh Circuit continues to be on fire with another must-read opinion about McDonnell Douglas. In Joll v. Valparaiso Cmty. Sch., 953 F.3d 923, 929 (7th Cir. 2020), the court again tried to put McDonnell Douglas in perspective and to accurately describe it. The court emphasized that in many discrimination cases, the primary question is causation: “whether a statutorily proscribed factor caused” the challenged outcome. The court emphasized that both direct and circumstantial evidence can be used to support a discrimination claim. The Seventh Circuit emphasized that a litigant, may, but is not required to, enlist McDonnell Douglas to prove the plaintiff’s claim. If the plaintiff does not enlist McDonnell Douglas, the plaintiff may provide either direct or circumstantial evidence that supports an inference of discrimination. A court is required to view all of the plaintiff’s evidence in its totality. Joll follows the Seventh Circuit’s other significant McDonnell Douglas cases: Ortiz v. Werner Enterprises, Inc., 834 F.3d 760 (7th Cir. 2016) and Judge Wood’s concurring opinion in Coleman v. Donahoe, 667 F.3d 835, 863 (7th Cir. 2012).
- Last year, I mentioned Katie Eyer’s excellent article, The Return of the Technical McDonnell Douglas Paradigm. In that article, Professor Eyer argues that appellate courts have created an overly technical version of McDonnell Douglas that contradicts multiple Supreme Court cases. That article is now available at 94 Wash. L. Rev. 967 (2019).
- Courts continue to struggle with how to incorporate “but for” cause into the McDonnell Douglas construct for ADEA claims, retaliation claims (and now Section 1981 claims). Most courts place “but for” cause in the pretext prong of the test. Some strangely place it in the prima facie case. If the plaintiff proves that her protected trait or protected activity was the “but for” cause of an outcome in the prima facie case, it is unclear why the court would need to proceed through the rest of the McDonnell Douglas test, as the plaintiff proved a violation of the federal discrimination statutes. Garcia v. Prof’l Contract Servs., Inc., 938 F.3d 236, 242 (5th Cir. 2019), extensively discusses this issue in a False Claims Act case.
- In Babb v. Wilkie, 140 S. Ct. 1168 (2020), the Supreme Court held that plaintiffs proceeding under the ADEA’s federal sector provision are not required to establish “but for” cause to establish liability. Litigants proceeding on such claims should be allowed to prove their cases through McDonnell Douglas; however, it is too early to determine how or whether courts will modify the framework given the lower causal standard.
- Bruce N. Cameron and Blaine L. Hutchison wrote an interesting article discussing how the courts have failed to reconcile McDonnell Douglas and religious discrimination cases post-Abercrombie. Thinking Slow About Abercrombie & Fitch: Straightening Out the Judicial Confusion in the Lower Courts, 46 L. Rev. 471 (2019) (analyzing how McDonnell Douglas intersects with Abercrombie and noting that second step may require employer to bear both burden of production and persuasion on undue hardship).
- In a prior blog post, I discussed the Supreme Court’s opinion in Comcast v. National Association of African-American Owned Media and McDonnell Douglas. https://lawprofessors.typepad.com/laborprof_blog/2020/03/comcast-and-mcdonnell-douglas.html
Comprehensive coverage of all things McDonnell Douglas is available in McDonnell Douglas: The Most Important Case in Discrimination Law (Bloomberg 2018) (updated annually). This book is available free to law students and law professors with a Bloomberg subscription here: https://www.bloomberglaw.com/page/books_treatises_home