Saturday, August 29, 2020
Jonathan Harris has a twofer of new pieces posted on SSRN, both of which are definitely worth checking out.
The first, Unconscionability in Contracting for Worker Training, 72 ALA. L. REV. __ (forthcoming 2021), provides a really interesting take on worker training--with the added bonus of contract law thrown in! He did a great presentation on this at SEALS recently, and for those of you on appointments committees it's also his job talk. The abstract:
Despite urgent calls for retraining and upskilling workers amidst the threat automation poses to many existing jobs, a forty-year-long reduction in public and private worker training programs means that some firms offer training only with contractual strings attached. This Article exposes the dangers of these conditional training contracts and proposes the law of unconscionability as a more effective framework for legal challenges than the statutory-based claims more commonly advanced by plaintiffs.
The coronavirus crisis has led to the unemployment of millions of workers and exposed a labor market that is full of poor-quality jobs. Policymakers intuitively resort to upgrading worker skills as a workforce response to the pandemic; however, the problem isn’t with retraining. The nation’s workforce development system is in shambles. It lacks appropriate accountability mechanisms to ensure workers are matched to decent work and instead steers training for any in-demand job including those that offer low pay and poor working conditions. Enabling the changes needed requires a new legal regime that establishes a right to training for a quality job.
Thursday, August 27, 2020
Dallan Flake (ONU) has just posted on SSRN his article Protecting Professional Athletes from Spectator Harassment. I had the pleasure of reading an earlier draft and highly recommend it. Here's the abstract:
Instances of spectators harassing professional athletes because of their race, color, religion, sex, or national origin are well documented. This is not a new problem, but it is becoming worse in this age of emboldened bigotry. Fans are sometimes punished for such behavior, as are players who retaliate in response. Meanwhile, the teams and leagues that allow it to occur face no repercussions. This must change for there to be any hope of eradicating this egregious form of discrimination. The logical starting point is Title VII of the Civil Rights Act of 1964, under which employers can be liable for harassment perpetuated against employees on the basis of certain protected traits. This statute is rarely utilized in the context of spectator harassment, in no small part because the standard for holding a team or league liable for the conduct of fans may seem impossibly high. This Article argues there is room within the extant legal framework for an athlete to prevail on such a claim and provides a blueprint for how to do so. Specifically, it asserts that (1) an athlete is entitled to a presumption that spectator harassment is unwelcome; (2) spectator harassment is sufficiently severe to be actionable because it is publicly humiliating, causes far-reaching harm, and is specifically intended to undermine job performance; and (3) spectator harassment is imputable to teams and leagues because they have the resources to implement more effective measures to protect athletes but choose not to. Holding sports organizations to account is necessary to bring about changes that will better safeguard athletes from this demeaning and degrading type of abuse.
Tuesday, August 18, 2020
Given all of the attention that UNC-Chapel Hill has received recently, it was suggested to me that readers might be interested in a view from the ground (not sure whether or not to thank Rick Bales for suggesting that I rehash this). I don't think UNC's experience is necessarily unique, but being a high-profile state flagship school with a recent eye-catching student paper editorial has kept us in the news.
While I was involved with plans at the law school level, I'll note that I was very much out-of-the loop at the campus level. There were some interesting dynamics going on, including the university system Board of Governors (whose members are 100% from one political party) asserting that they alone had the power make the final call on closing UNC campuses. At Chapel Hill, it seemed early in the process that there was going to be a push to have in-person classes, including--most crucially to my mind--on-campus housing. As a former Associate Dean, I'm quite sympathetic to the position that administrators were in. Quite literally a no-win situation. However, from what I'd been hearing, there wasn't enough attention to dealing with the inevitabilities involved with bringing a bunch of undergrads onto campus. As a result, the disappointing but expected reports of unsafe parties quickly came. And soon after that, COVID clusters in four dorms in less than a week. Then closure for all undergrad classes. I don't pretend to know what the best path would've been, but the school's refusal to test returning students and constantly using FERPA to restrict info about COVID outbreaks were a couple of swing-and-misses that came to my mind (e.g., they said FERPA prevented them from saying how many students tested positive in these clusters, which doesn't make any sense to me). One of my colleagues who serves on the Faculty Executive Council had also, among other things, unsuccessfully agitated for an ethicist to join the reopening discussions with all the medical researchers and scientists, which in retrospect might've saved a lot of turmoil.
At the law school, things were somewhat different, especially given that we don't have university housing and are much smaller than the undergrad schools. I was part of a group that worked throughout the summer to prepare for fall classes, although I'm compelled to recognize that a lot of our staff and our Associate Dean for Academic Affairs did a tremendous amount of work that got us off to as good a start of the semester as one could have expected. And the administration overall was quite good at listening to and accommodating faculty and staff wishes and concerns. In the end, most of our classes were all-remote, but we did have some in-person. For example, some upper-level courses met, especially those where in-person was especially important. Moreover, we surveyed all incoming 1Ls, 25% of whom chose all-remote; 75% wanted in-person. Because their schedules were easier to control, we put those 75% in what were essentially pods. Some, but not all, of their classes were in-person (including my Contracts class). I won't go into all of the details, but I felt quite comfortable with the safety measures. Masks were required of everyone all the time, and not a single student came to school without wearing one. The students stayed in a single classroom way below its capacity and their professors simply changed between class (I think, at most, there were two in-person classes a day for any given student). To keep the classroom numbers low, a third of students were remote every day, which was a bit awkward, but was working out fine. And, to my knowledge, no law student had tested positive for COVID since the semester started.
Despite the law school being in good shape and the university allowing us to stay open, our Dean decided to go all remote yesterday. While I was personally bummed about this--I really liked being able to see my students in person--I think it was the right call. Of interest to readers of this blog, once of the Dean's primary motivations was the health of our staff. To quote part of his announcement:
Given the developments of recent days in the Chapel Hill, Carrboro and Orange County communities ... the risks of continuing this valiant effort are simply too great. We cannot justify risking the health of any of our students, faculty or staff unnecessarily when we know that we are capable of providing legal education of outstanding quality via remote technology. I feel this is best decision for our community under all the circumstances.
In an emergency meeting yesterday in which the Dean told us this was coming, it was clear that the impact on staff weighed particularly heavy on him, as he was well aware that having any in-person classes required several people to regularly come into the building to help make that happen. And given what was going on elsewhere on campus, it was a risk he didn't want to force them to take. A concern that you like to see from the head of an organization and, from what I can tell, most everyone at the law school understands and supports.
Everyone teaching in-person, of course, had prepared for this possibility, so the transition to all-remote for the law school will go smoothly. The undergrads, I'm less sure about. Many students are quite angry, for understandable reasons. And they now have to figure out their living arrangements at the last minute while classes are still happening. So we shall see. In the meantime, as a resident of Chapel Hill, I'm not sorry to see fewer students and their families in town. While many were wearing masks and acting safe, many were not. It has been disturbing to see the shocking number of parents and students who were out with no masks or social distancing. There's plenty of blame to go around here, but many of the undergrad students and parents who are upset now share some of it. The folks I feel sorry for are those who did what they were supposed to, but had the rug pulled from under them by others who did not.
Monday, August 17, 2020
I'm pleased to let everyone know that West has just published (online) the Teacher's Manual to ADR in the Workplace (4th ed.), downloadable here. This is not a traditional teacher's manual. Instead, it's full of simulation problems -- CBA negotiations, mediations, arbitrations, employment/discrimination problems, etc. etc. etc. They run the gamut from simulations that can be completed in about an hour and a half to ones that are suitable for use throughout a full semester. We have updated the original problems that Laura Cooper and others created, and added some new ones this time around. Kudos to Steve Befort, Lise Gelerrnter, and Michael Green who I was privileged to work with on this new edition of both the casebook and the Teacher's Manual. Enjoy!
Saturday, August 15, 2020
Jon Harkavy (Patterson Harkavy) sends word of two recent important cases from the Fourth Circuit. The first, which Jon says was issued from a particularly conservative panel, is Wilcox v. Carroll County. In that case, the court ruled that a pure retaliation claim under section 1983 is not cognizable under the Equal Protection Clause. Jon suggests that the case might not survive en banc review, but may go up on certiorari regardless. The second case, Stegemann v. Quatrone, is an ERISA case involving the duties of prudence and diversification.
Monday, August 10, 2020
I know I’m consumed with causation (there’s probably help available for that), but one of the many interesting things about Bostock is Justice Gorsuch’s focus on “but-for” causation. Some of what follows was triggered by an email from Steve Willborn, an unkind act given he’s well aware of my fixation.
Bostock, of course, recognizes that Title VII uses a “more forgiving standard” of motivating factor” under which “liability can sometimes follow even if sex wasn’t a but-for cause of the employer’s challenged decision.” (emphasis in original). But then the opinion goes back to but-for: “because nothing in our analysis depends on the motivating factor test, we focus on the more traditional but-for causation standard that continues to afford a viable, if no longer exclusive, path to relief under Title VII.”
Why did Justice Gorsuch choose the seeming harder causal hill to climb?
One possibility is obvious but seems unlikely: Title VII has the most permissive causation standard around, so focusing on motivating factor would limit the impact of the opinion as applied to the other 100 federal statutes barring “sex” discrimination so helpfully listed by Justice Alito’s dissent. Under that view, Justice Gorsuch wanted this opinion to control most if not all of these decisions. However, that possibility is inconsistent with the Justice’s later declaration that the Court was deciding only the Title VII question: “none of these other laws are before us; we have not had the benefit of adversarial testing about the meaning of their terms, and we do not prejudge any such question today.” It also seems inconsistent with the Gorsuch jurisprudence so far as it has emerged from his short time on the Court.
Another possibility worth thinking about is that, although motivating factor is supposed to require less causal clout than but-for, perhaps Gorsuch thought that but-for was satisfied in the cases before him but motivating factor maybe not.
This seems odd, but might be explained by the Alito dissent’s insistence that discrimination on the basis of sexual orientation or transgender status isn’t sex discrimination because an employer can act on that basis without knowing the sex of the employee. For Alito, that would be the end of the matter (not that he doesn’t have other arguments), because disparate treatment requires intent to discriminate and intent requires knowledge of the protected trait: “An employer cannot intentionally discriminate on the basis of a characteristic of which the employer has no knowledge.”
Alito’s on pretty solid ground with respect to disparate treatment cases, but not (somewhat oddly for a committed textualist) in terms of the statute, which speaks only in terms of causation (“because”), not in terms of intent.
So is Gorsuch (who, recall, wrote for a six-Justice majority) bringing the Court around to what is arguably a pretty radical but clearly textualist position that might blur the law’s historic bifurcation of liability into disparate treatment (intent based) and disparate impact (effects based). Presumably, both theories would remain intact but plaintiffs may now have available a third option: proving that sex was a but-for cause of an adverse decision without the need to show knowledge/intent or adverse impact.
Implicit bias comes to mind, but, more generally, loosening the requirements for proving intent might be very helpful in instances in which the employer arguably lacks the requisite knowledge to satisfy Justice Alito. That would perhaps allow challenges to “big data” hiring practices that don’t seem to be susceptible to attack under current models.
In which case, Bostock might not only resolve the sexual orientation debate but also reframe our basic paradigm.
Wednesday, August 5, 2020
Jeff Vogt (Solidarity Center, Rule of Law Dept.) sends word of this call for papers:
The ILAW Network is excited to be publishing a new law journal – the Global Labour Rights Reporter. The journal intends to be a forum primarily for labour and employment law practitioners globally to grapple with the legal and practical issues that directly affect workers and their organizations today. We see the strength of the journal being its comparative approach, given the worldwide composition of ILAW’s membership. Each issue of the journal will be organized thematically and will highlight notable cases and judicial opinions, trends in the regulation of labour, and analytical pieces which help to envision how practitioners can expand the protection of law, enhance accountability and obtain full and effective remedies. We intend for the journal to be published bi-annually, summer and winter, with the possibility of additional articles or contributions being posted on the journal’s website between issues. The journal will run editions in English, Spanish and French. Here's the full ILAW Journal Call for Papers.