Workplace Prof Blog

EEOC and New Data Tool

The EEOC just posted news of its new data query and mapping tool, EEOC Explore.

From the press release:

Today, the U.S. Equal Employment Opportunity Commission (EEOC) launched EEOC Explore, a new interactive data query and mapping tool that gives users access to the most current, granular, and privacy protected aggregate EEO-1 data publicly available. EEOC Explore allows users to analyze aggregate data associated with more than 56 million employees and 73,000 employers nationwide. The user-friendly tool enables stakeholders to explore and compare data trends across a number of categories, including location, sex, race and ethnicity, and industry sector without the need for experience in computer programming or statistical analysis.

As part of its mandate under Title VII of the Civil Rights Act of 1964, as amended, public and private employers, as well as local referral unions are required to submit to the EEOC periodic reports which indicate the composition of their workforces by sex and race/ethnicity. EEOC Explore visualizes these aggregate data in ways that are more intuitive and efficient than previous methods.

EEOC Explore uses aggregate information from employer EEO-1 reports which include data such as employee demographics, which are collected annually from private employers with 100 or more employees and federal contractors with 50 or more employees. EEOC Explore also allows users to dive down to county-level details, surpassing the previously available static tabular format available on the EEOC’s public website.

The tool is available at this address:  https://www.eeoc.gov/statistics/employment/jobpatterns/eeo1.

-Sandra Sperino

Veterans, USERRA, and War Powers Abrogation

Forgive me for a bit of self-promotion, but I wanted to flag an amicus brief that a group affiliated with UNC Law filed with the Supreme Court supporting a petition for cert. by the Plaintiff in Torres v. Texas Department of Public Safety. The question centers on war powers abrogation, specifically whether state employers retain sovereign immunity in the face of congressional war powers legislation. In Torres, that legislation is USERRA, which prohibits employment discrimination based on military service and provides leave and other benefits for servicemembers called to active duty or attending training for, e.g., National Guard. Given the huge number of active and reserve servicemembers, this is an important statute even in normal times. But it's especially so now in a year that saw the greatest mobilization of National Guard troops since Wold War II.

Le Roy Torres was a Texas State Trooper who was called into active duty in Iraq. While there, he continually breathed toxic ash that made him, in addition to thousands of other veterans, very ill. So ill, he was unable to perform his usual trooper duties when he came home. According to Torres’ claim, the Texas Dept. of Safety refused to accommodate him with a desk job, instead forcing him to resign. Torres sued under USERRA, but his employer has argued that courts can’t even hear the claim because of state sovereign immunity. The Texas courts, like several other states, have agreed with this defense. But as I’ve argued in my research, which this and an earlier amicus draws on, these courts are wrong.

I actually first wrote on this topic when I was on the entry-level market. At the time, I argued that despite dicta saying that Article I can’t ever abrogate state immunity, the Court’s historical analysis leaves the door open for certain Article I powers to allow suits against states. Under this analysis, state sovereign immunity is determined by the “plan of the [Constitutional] Convention. In my earlier article, I argued that war powers should be an exception to the “no Article I abrogation” dicta. The Court has recognized that there are exceptions to state immunity; therefore, in what might be the unofficial theme of my research, “if not war powers, then what?” In other words, if there are areas in which states lack immunity, no area has a stronger claim than war powers. Indeed, subsequent to that article, the Court held in Katz that states lacked immunity when it comes to Article I’s Bankruptcy Clause. Which leads one to ask if the Bankruptcy Clause allows suits against states, then surely war powers does too.

Prompted by an earlier Torres amicus brief I wrote while the case was being considered for cert. by the Texas Supreme Court, I revisited this issue post-Katz in my new article, War Powers Abrogation, forthcoming in the George Washington Law Review. In this article, I thoroughly examined the history of the War Powers Clauses from the Articles of Confederation period, through the Constitutional Convention and text, and then the Ratification debates. The article provides the details, but the story is crystal clear: the only reasonable reading of the “plan of the Convention” is that the Founders and states adopted the Constitution fully knowing and intending states NOT to have any sovereignty when it comes to war powers. Instead, a central feature of the Constitution was assuring that the federal government was in charge of the nation’s security, free from state interference. In short, no one during that period—even those who objected to the Constitution—thought that states could interfere with the federal government’s war powers actions, including legislation like USERRA. So far, state courts (which currently have sole jurisdiction of USERRA claims against state employers) have failed to even address this history, instead siding with state immunity claims based on outdated dicta or superficial distinguishing of Katz. Our hope is that the Supreme Court will take up the issue to correct that error. So stay tuned.

Finally, I want to thank those who have helped with this brief and research (and, fingers crossed, one supporting the merits to come). This includes my research assistant, Kemper Patton, staff on the George Washington Law Review, and the several people who helped write the amicus: Elizabeth Fisher (Wiley), Rachel Grossman (UNC Law), Andy Hessick (UNC Law); and Rick Simpson (Wiley). Also thanks to the Torres’ ever-helpful counsel, including Brian Lawler (Pilot Law) and Andrew Tutt (Arnold and Porter). And, last but not least, thanks to Le Roy Torres, his wife, and the other veterans who are trying to simply get their day in court to exercise their rights under USERRA.

Jeff Hirsch

A Radio Story of United Steelworkers v. Weber

For employment discrimination law in the U.S., United Steelworkers v. Weber, 443 U.S. 193 (1979), remains a key U.S. Supreme Court ruling on how Title VII of the Civil Rights Act of 1964 applies to an employer’s voluntary affirmative action plan. On the details and context of the Weber litigation, there are a lot of good secondary sources (e.g., Malamud 2006). Add to that list a recent radio story from WNPR’s United States of Anxiety and reporter Marianne McCune.

Come for the interviews with Dennis English (in charge of labor relations at Kaiser Aluminum), the son of Jim Nailor (selected for Kaiser’s training program), and Brian Weber himself. Stay for the oral argument exchange between Weber’s lawyer and Thurgood Marshall, plus commentary by Hina Shah.

–Sachin Pandya

References

Malamud, Deborah. 2006. “The Story of United Steelworkers of America v. Weber.” In Employment Discrimination Stories, edited by Joel Wm. Friedman. New York: Foundation Press.

CFP: Work and Employment Relations in the Middle East and North Africa

Desiree LeClerq sends word that Cornell's ILR Review has issued a call for proposals for a virtual workshop and subsequent publication on Labor Transformation and Regime Transition: Lessons from the Middle East and North Africa. Here's the detailed CFP; here's a brief description:

Scholars interested in participating should submit an abstract of up to 500 words to the conference organizers by January 22, 2021. Authors whose abstracts are accepted will be invited to present a paper at a virtual workshop co-sponsored by the School of Industrial and Labor Relations at Cornell University and the Project on Middle East Political Science, to be held on April 29–30, 2021. Papers presented at this workshop should be substantially completed, but invited participants will have the opportunity to receive feedback from scholars of industrial relations and the politics of the Middle East and North Africa (MENA) at the workshop. Based on this workshop, a subset of authors will be asked to submit their paper to the ILR Review to be considered for part of a special themed section in a future issue of the journal.

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New Book: Worldwide Labor-Related Responses to COVID

Legal Responses to COVID-19 Around the World surveys the labor-related responses of 50 countries to the COVID-19 pandemic. The book currently is available only on kindle, but will be available in hard copy within a week or so. Beyond the book's content, the table of contents provides a really nice list of labor scholars throughout the world.

Here's the complete cite: Legal Responses to Covid-19 Around the World, Cláudio Jannotti da Rocha, Flávia Fragale Martins Pepino, & Rafael Lara Martins, eds. (Lex-Magister [Brazil], 2020) . Disclosure: I contributed the U.S. chapter.

Here's the publisher's description:

This is a collection of papers from 50 countries (6 continents) about the effects of the Covid-19 pandemic on the economy, employment, contracts, business, people’s income, health, courts and dispute resolution systems. The book’s purpose is to allow current and future generations to find, in one place, information about the legal responses to Covid-19 around the world.

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Final Respects to Bob Covington

I'm sadly reporting the news, from Alvin Goldman via Jeff Hirsch, that labor law legend Bob Covington died November 29 at the age of 84. Below is his bio from Vanderbilt, where he taught for 46 years. Please feel free to use the comment section to recall your memories of Bob.

Bob Covington joined the law school faculty immediately after his graduation from Vanderbilt Law School in 1961. During his 46-year tenure at Vanderbilt, Professor Covington established himself as a wide-ranging scholar and teacher, with a recognized expertise in labor law. In addition to his scholarship in labor law, over the course of his distinguished career, Professor Covington published books and articles on evidence, insurance, legal method and legal education. He has recently published the third edition of Employment Law in a Nutshell (Thomson West, 2009) and will publish a fourth edition of Legal Protection for the Individual Employee in late 2010 (Thomson West, forthcoming 2010, with Kenneth G. Dau-Schmidt, Clyde W. Summers, Alvin L. Goldman and Matthew W. Finkin). In recognition of his extraordinary contributions to the university, he received the University's Thomas Jefferson Award in 1992. Professor Covington was a visiting professor at a number of prominent law schools, including Michigan, Texas, and California. He retired from Vanderbilt's law faculty in 2007.

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Union Representation of NFL Players

DC LERA is hosting Understanding Union Representation for Professional Football Players: Mark Hyman in Conversation with Adam Richelieu of the NFLPA. It will be held Wednesday, December 16, 2020, 12:00 pm – 1:00 pm Eastern. There is no fee, but registration is required. Here's a description:

Join DC LERA for a conversation between Mark Hyman, Director of the Shirley Povich Center for Sports Journalism at the University of Maryland, and Adam Richelieu of the NFL Players Association – and one of the sport's leading experts on player compensation under the collective bargaining agreement – about Adam’s work behind the scenes to support players' rights. Adam will also tell a personal story, explaining his path from GWU graduate student to his current position.

Thanks to Tequila Brooks for sending this.

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Cherry's JOTWELL Review of Harris' Unconsionability in Contracting for Worker Training

Miriam Cherry just published on JOTWELL her piece, "Income Sharing Arrangements and Coding Bootcamps: Boom or Bust for the Blue Collar Breadwinner?" This is a review of of Jonathan Harris' forthcoming Alabama Law Review article, Unconscionability in Contracting for Worker Training? The review came out this week. An excerpt:

In his forthcoming article, Unconscionability in Contracting for Worker Training, Jonathan Harris explores the contractual issues that arise when workers or job applicants are asked to pay for their training outside of traditional educational structures. This could arise through a training repayment agreement (TRA), which requires an existing employee to repay the employer a fixed sum expended on training if the worker quits or is fired during a set period of time. This Jot, however, will focus on the other setting in which these non-traditional training arrangements are arising, and which Harris discusses at some length in the second part of his article. These are the so-called Income Sharing Agreements (ISAs), which for-profit code academies use. ISAs are contracts that require the trainee to repay a set percentage of future income in exchange for the tuition that enables them to attend a computer coding academy or bootcamp. ...

Ultimately, in Contracting for Worker Training, Jonathan Harris shines a light on novel TRA and ISA contracts. ISA contracts could help some workers upgrade their skills. Unfortunately, as Harris notes, the ISAs could also take advantage of anxious jobseekers. Harris’s article is an illuminating and worthwhile read for those interested in the future of work and a novel application of the unconscionability doctrine.

Check out the full piece, and congrats to both Miriam and Jonathan.

Jeff Hirsch

 

 

Bornstein on Pregnancy Discrimination & the Meaning of Equaltiy

Stephanie Bornstein has just posted on SSRN her article The Politics of Pregnancy Accommodation, 14 Harv. Law & Policy Rev. 293 (2020). It's a great description of the history -- and likely future -- of the meaning of "equality" in the context of pregnancy. Here's the abstract:

How can antidiscrimination law treat men and women “equally” when it comes to the issue of pregnancy? The development of U.S. law on pregnancy accommodation in the workplace tells a story of both legal disagreements about the meaning of “equality” and political disagreements about how best to achieve “equality” at work for women. Federal law has prohibited sex discrimination in the workplace for over five decades. Yet, due to long held gender stereotypes separating work and motherhood, the idea that prohibiting sex discrimination requires a duty to accommodate pregnant workers is a relatively recent phenomenon—and still only partially required by federal law.

This Article documents how decades of internal political conflict about what was best for working women resulted in tortured Supreme Court precedent on, and divergent legislative approaches to, accommodating pregnancy at work. While a diverse feminist movement took a variety of strategies to support pregnant workers, this Article focuses on one core debate in antidiscrimination law: the struggle between a formal or “sameness” and a substantive or “difference” approach to gender equality around pregnancy. It then documents how a third, “reconstructive” approach helped modern advocates move beyond comparing women to men as workers and toward critiquing gendered workplace structures. Striking a hopeful tone, the Article proposes that gender advocates’ legal and political gains have now set the stage for U.S. law to close the remaining gaps in pregnancy accommodation—to fully reflect the fact that pregnant women work and that a significant portion of workers become pregnant.

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Ajunwa on COVID-Immunity Work Requirements and Economic Inequility

Ifeoma Ajunwa (my soon-to-be new colleague!) has just published a short piece in Harvard's Bill of Health, "OVID-19 Immunity as Passport to Work Will Increase Economic Inequality."  Some excerpts:

As scientists develop increasingly accurate tests for COVID-19 immunity, we must be on guard as to potential inequities arising from their use, particularly with respect to their potential application as a prerequisite for returning to the workplace.

A focus on immunity as a yardstick for return to work will only serve to widen the gulf of economic inequality, especially in countries like the U.S., which has severe racial health care disparities and uneven access to effective healthcare. This focus could also serve to diminish societal support for further understanding and curtailing the disease....

History has shown that immunity to disease as passport to work can draw a dividing line based on both socio-economic factors and racial group memberships. Writing for Slate, Rebecca Onion notes that “[w]hen yellow fever ravaged 19^th-century New Orleans, wealthy white people who ‘acclimated’ [i.e., developed immunity] were rewarded.” White people who had survived yellow fever benefited from “immunoprivilege,” while others suffered social and economic repercussions. In the 21^stcentury, a focus on coronavirus immunity rather than prevention of infection could play out similarly.

To acquire immunity, an individual must first survive the disease. Surviving the disease necessities adequate healthcare. Yet, access to healthcare services in the U.S. is unequal. While some COVID-19 patients, like President Trump, are able to receive high levels of healthcare (and even experimental drugs), others lower on the socio-economic spectrum do not have health insurance and can only receive emergency care. Thus, immunity as passport to work would only serve to increase inequality as it would reward those who could afford the care needed to survive.

It is also worth noting that people of color are generally more likely to die of the disease than their white counterparts. Could this lead to a social (even if not scientifically proven) view that white people have greater immunity to the disease than others? If so, imagine how this social view could play out in racial employment discrimination as businesses re-open. Past research shows that racial minorities have had to contend with genetic discrimination in the workplace. ...

It's definitely worth reading the entire piece, so check it out!

Jeff Hirsch