Workplace Prof Blog

Stone on Osaka & the ADA

Kerri Stone (FIU) has a terrific post over at PrawfsBlawg using Naqomi Osaka's withdrawal from the French Open to analyze the issue of "what would happen if someone who claim[ed] that depression, anxiety, or another mental impairment rendered them disabled within the meaning of the Americans with Disabilities Act (“ADA”), were to be fired from a job or excluded from an event after they refused to participate in a requirement that they deemed too corrosive to their mental health"?

I thought about excerpting Kerri's post here, but her post is so dense and well-written that there's nothing I would omit. So ... I strongly recommend following the link above and reading it in full.

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Fisk to Deliver Genest Lecture at York-Osgoode

Sara Slinn (York-Osgoode Hall) informs us that Catherine Fisk (Berkeley) will be delivering the Pierre Genest Memorial Lecture October 6th at 4pm EDT, entitled "Protection by Law, Repression by Law: Bringing Labor Back Into Law and Social Movement Studies". Registration is here.

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Stone on Neo-Feudalism

Katherine Stone has a piece in the April issue of The American Prospect magazine, called The Rise of Neo-Feudalism. Together with her co-author, Robert Kuttner, the article argues that "Western democracies are not simply embracing neoliberalism in the sense of deregulating the economy. Elites are pursuing something aptly described as a new form of feudalism, in which entire realms of public law, public property, due process, and citizen rights revert to unaccountable control by private business." Among other examples, the article discusses the proliferation and expansion of arbitration as private judicial systems that operate to eliminate hard-won worker rights.

In addition, Katherine Stone discussed the article, and the ramifications for worker rights, on NPR's show, Background Briefing. The segment is posted online here and here.

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Doorey's New Blog: Canadian Law of Work Forum

David Doorey (York University) has launched a new collaborative law blog called Canadian Law of Work Forum. The blog accepts contributions from scholars, practitioners, and students on topics related to work law and labour policy and will be a great resources for U.S. scholars interested in keeping an eye on Canadian developments. David is also encouraging posts from non-Canadian scholars on comparative law issues. Please visit the blog and consider submitting pieces to David ([email protected]). Great move, David!

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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.

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Ajunwa in NYT on Algorithmic Discrimination

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.

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The Worm Turns

I've been playing the law review submission game for more years than I care to remember, and I thought I'd seen it all. But it turns out there is something new under the sun.

Last week I received an offer from a law review. As per usual, it provided me with about a week to respond. I immediately thanked the editor and went about other business. The offer was received at 11:27. At 12:59, it was revoked.

No, the journal hadn't discovered some problem with the piece in that hour and a half.  When I went back to the original offer, I discovered that I had not (shame on me) read the whole message:

Please be advised that we can only accept one more article for publication in [the specified issue] We reserve the right to revoke our offer prior to its expiration if another author accepts our publication offer before you make your decision.

So I had fair warning that some hungrier academic might preempt me by accepting before I did. I had, it seems, only myself to blame in losing this particular race to publication.

I admit to, nevertheless, being a little irritated. The norm is to provide authors the specified time to consider the offer (read "expedite to a higher ranked journal"), and the norm was being discarded. But on reflection, it's hard to get too upset: the expedite game plays journals off against each other and this strategy tries to play authors off against each other.

Still, it will make things much more complicated going forward if broadly adopted. As for whether it will be, I have only two additional data points. First, a colleague got a similar message from another law journal this submission season (hers hasn't yet been revoked) and in October 2015 another blog reported a couple of instances of  the same thing. Maybe it should be reassuring that the practice apparently hasn't become commonplace in the last four years! And it may be that the strategy is being deployed only in the August window where journals are scurrying to fill their last slots.

If you're worried about my placement, however, you can rest easy. In the interval between being accepted and rejected by that journal, I was fortunate enough to get another offer. That one gave me two weeks, and I breathed a sigh of relief.

Until I remembered a fundamental principle of contracts law: promises to keep offers open for a specified period of time are unenforceable without consideration; thus, such offers are always revocable! 

CAS 

Myanmar

Three-quarters of our clothes are mass-produced within a one-country radius of here, but local artisans still use pedal-powered singer-type sewing machines to produce clothes for the local market.

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Sperino & Thomas NYT Op-Ed on Harassment

In the flood of harassment news the last few weeks, one of the themes that has emerged is that the guys involved got away with bad behavior for a really long time. For at least some of them, the lecherous behavior was something of an open secret in their workplaces or communities. There are a number of reasons that this conduct went on for so long, but one that isn't being addressed as much is how the legal threshold for actionable harassment leaves room for so much bad conduct. This is why the fantastic editorial in the New York Times, Boss Grab your Breasts? That's Not (Legally) Harassment by Sandra Sperino (Cincinnati) and Suja Thomas (Illinois) is so important and timely.

Sandra and Suja trace the development of the severe or pervasive standard the Court adopted in  Meritor Savings Bank v. Vinson, through the lower courts, noting the margins--what is clearly actionable and what is clearly inactionable--leave a large middle ground. In that middle ground, courts lean towards dismissal. This is just one more important way that Sandra and Suja are documenting how the legal rules governing discrimination claims have moved to systematically disadvantage workers.

MM

Stone: Globalization Necessitates Redistributional Policies

Last night Kathy Stone (UCLA) served on a panel (moderated by Steven Greenhouse) at the Zocalo Public Forum in downtown Los Angeles on the Topic: Does Globalization Only Serve the Elites? She took the position that globalization as currently structured primarily helps elites, and that here in the U.S., we need to introduce redistributional social policies to ensure that working people and other disadvantaged groups share in globalization’s benefits.  The event was taped and will air on C-Span in the near future.

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Secunda Guest Post: Uber Retirement

In case you did not see it yesterday at On Labor, Paul Secunda, WPB editor emeritus has this excellent guest post, which he allowed us to cross-post here (MM):

Although by no means a new question regarding retirement, the noteworthy growth of gig companies in the sharing economy has renewed concerns that even more American workers will lack access to employment-based retirement plans.  Although some argue that the gig economy offers workers advantages including more independence and flexibility, company-sponsored retirement saving is not one of them.  This is a dangerous state of affairs, as employment-based retirement plans make up a critical part of an individual’s strategy for retirement security.

Such retirement plans, like the nearly-ubiquitous 401(k) plans, provide a necessary bulwark against destitution in old age, especially given that Social Security provides only partial income replacement and few Americans have put away much in private savings.  Yet, independent contractors, which is how most gig companies classify their workers, are approximately two-thirds less likely than standard employees to have access to an employer-provided retirement plan.

Much academic and judicial ink has already been spilt over whether Uber drivers and other members of the sharing economy are members of the so-called “contingent” workforce or “precariat” (part-time, leased, temporary, and per diem workers), not entitled to receive retirement benefits as part of their employment.  Whether these employees are statutory employees is of utmost importance because it largely determines whether gig workers are covered by employment laws, as most such laws center on the employer-employment relationship.

What all these jobs have in common is that the work activity is happening outside of the traditional safety net of employment and are highly unstable.  Whereas statutory employees are covered in the United States by numerous labor and employment law statues that provide security and protection in the workplace, workers in these alternative work arrangements are not.  Once stable employment relationships have given way to relationships that are much more arms-length, regardless of whether it is a contractor situation, temporary employment, or a one-time encounter.

 

Into the breach, a number of proposals have emerged to provide independent workers or independent contractors, who work for gig companies (see a recent law introduced in New York), with some form of portable, occupational retirement benefit.  For instance, it has been proposed that retirement coverage be offered in the same way as health coverage has been under the ACA.  An expanded Social Security could play the role of Medicaid for low income workers, employers could still offer retirement plans, but employees who lack access could purchase retirement plans on a “federal backstop plan.”  The biggest problem with this approach is that it does not necessarily require workers to receive retirement benefits through their employer and therefore, such workers would not be employees entitled to the consumer protections of ERISA.

A different set of proposals involves private-sector companies stepping up to provide retirement programs on their own or in cooperation with gig companies.  For instance, private internet companies, like Peers, Honest Dollar, and Betterment, are offering to provide retirement benefits, as well as other benefits and human resource services, to gig companies.  However, if gig workers are offered retirement benefits by their employers under this model, such benefits are a mere gratuity, something that the employer has no responsibility for maintaining or administering as a fiduciary.

It is therefore essential that individuals who work in the sharing economy be considered common-law employees for retirement purposes under the control test established in Nationwide Mutual Insurance Co. v. Darden, 503 U.S. 318 (1992), so as to qualify for consumer protections under the Employee Retirement Income Security Act of 1974 (ERISA).  Indeed, the crux of ERISA relies upon the fact that plan assets are held in trust and those that discretionarily operate, manage, or administer them are fiduciaries and/or trustees of the plan.  Such fiduciary status means that plan fiduciaries must put their own self-interest aside, and act for the sole interest of plan participants and beneficiaries.

The good news is that there is an increasing trend of finding gig workers to be employees under ERISA.  Although not directly under ERISA, employing a similar control test in the United Kingdom, two Uber drivers were recently found to be employees for purposes of British minimum wage laws.  In Switzerland, a Swiss insurance agency found an Uber driver to be an employee for whom the company must pay social security contributions.  Similarly, in the United States, a recent decision from the California Employment Development Department, found an Uber driver to be an employee for purposes of eligibility for unemployment law.  As these laws rely on similar factors as the control test under ERISA, there is good reason to believe that workers, especially those that receive a majority or their exclusive income from gig companies and work full-time hours, will also be considered employees and qualify for ERISA protections.  In any case, and this issue is far from being definitively decided, there is at least a reasonable argument that some gig workers, including Uber drivers, qualify as employees under the common-law control test of Darden.

Assuming for the sake of argument that some gig workers will qualify for protection under ERISA as common-law employees, the best mechanism for providing these employment-based retirement benefits is through open multiple employee pensions (“open MEPs”).  These open MEPs would allow unaffiliated employers to pool their resources and offer retirement plans to their employees under the statutory protections of ERISA.  More specifically, open MEPs permit two or more unrelated private employers to adopt a defined contribution pooled employer plan (PEP) as long as the PEP has a pooled plan provider (PPP) as the named fiduciary to the plan.  The only fiduciary duty that members of the PEP would retain would be to prudently select, and then monitor, the PPP, thus limiting their exposure to potential fiduciary liability.  Additionally, the price tag of permitting the formation of these organizations is relatively low: 3.2 billion dollars over 10 years from loss of tax revenue from the additional tax deduction for employers and tax-exempt status for employee contributions.

Open MEPs are gaining traction legislatively.  Senator Orrin Hatch introduced the Retirement Enhancement and Savings Act of 2016, which would have permitted open MEPs for private sector employees and allow multiple employers to pool retirement funds into a single 401k retirement plan starting in 2020.  Under current law, independent employers who wish to pool funds for retirement plan purposes must demonstrate a common interest.  Moreover, another difficulty under current law is the so-called one-bad-apple rule, that disqualifies the entire MEP from favorable tax treatment if one employer does not meet the applicable tax rules.

Senator Hatch’s open MEP proposal would remove the common interest requirement and the one-bad-apple rule.  In the recent past, this proposed model has had wide bipartisan support.  Unfortunately, Hatch’s bill was not enacted in 2016, yet it is not too far-fetched, given current legislative developments, that the open MEP bill will be reintroduced during the coming Trump presidency and will soon be available for multiple employers in the private sector.

As Senator Elizabeth Warren perceptively recognized during hearings on Hatch’s bill, this new approach is well-suited for gig employees.  The bill would allow various gig companies to pool their contributions to a common 401k retirement plan, with all the advantages that come with belonging to a large fund.  Most importantly, such funds would have the advantages of providing participating employees diversification, low costs, reporting and disclosure requirements, and fiduciary protections based on the trust-based status of such 401k plans.

I explore the topic and proposal in greater depth in a recently-published paper available via SSRN.

Sperino on the Karlo ADEA Case

On her blog, Friend of the Court, Sandra Sperino discusses the new Third Circuit decision in Karlo v. Pittsburgh Glass Works. In that case, the Third Circuit held that the ADEA permits "subgroup" disparate impact claims--that is, claims that an employer policy creates an unlawful disparate impact against a certain subgroup of a protected class.

Check it out, definitely worth a read.

-Jeff Hirsch

Smith on Comey's Memo to Congress

FBI Director James Comey's decision to send a letter to Congress notifying it that he had been informed that emails that might be relevant to the investigation into Hillary Clinton's use of a private server while Secretary of State had been discovered in an unrelated investigation invoked a firestorm. Renewed (and overblown given the content of the letter and the source of the emails) charges of wrongdoing came from Republican candidates. Democrats pitched the issue as a partisan act, and suggestions by people from both parties have been made that Comey's actions may have broken the law or internal agency policies.

So what does this have to do with the workplace, you might ask? Terry Smith (DePaul) has a piece at Huffington Post looking at Comey's actions through an employment lens to explain How Every American Knows what Comey Did Was Wrong. It's a great piece on the unfairness connected with vague negative statements and their effects on hiring decisions that I think many of us can relate to. 

MM

Smith on empathy and the women at Fox News

Terry Smith (DePaul) has a thoughtful piece at Huffington Post on the dissonance between the sexual harassment claims of some of the women and Fox News and their commentary in the past about discrimination against white men and race more broadly. As he notes, their claims are only recognized as legal harms because harassment was recognized as a form of discrimination in the race context first. He urges them and all of us to have greater empathy for victims of discrimination to make the law more fair.

If you have not been keeping up with the allegations and want to read more about the harassment claim brought by Gretchen Carlson against Roger Ailes, which was settled when Fox News apologized and paid her about half of what it paid Ailes to leave, you might read this and this. If you want to know more about the toxic environment there, read just about any of these articles by Gabriel Sherman at New York Magazine. Finally, if you are wondering what "feminist hero Susan Estrich [is] doing representing Roger Ailes," you are not alone.

MM

Secunda and Hertel-Fernandez on Workplace Political Intimidation

As the primary season transitions more solidly into the presidential election, our thoughts in the labor and employment world naturally turn to workplace captive audience speeches. WPB emeritus Paul Secunda (Marquette) is probably the country's expert on the subject. He has an important piece out in the UCLA Law Review Discourse with Alexander Hertel-Fernandez (doctoral candidate in government and social policy, Harvard), who has been engaged in empirical work to study the scope of employer political intimidation. The article, Citizens Coerced: A Legislative Fix for Workplace Political Intimidation Post-Citizens United summarizes some of Hertel-Fernandez's empirical findings and recommends that Congress amend Title VII to prohibit discrimination on the basis of political affiliation or belief.

The article lays out a compelling case and a workable solution. It finishes with this powerful exhortation:

As the country enters into a highly-contested and polarizing presidential election cycle, it is imperative that Congress act quickly to end political coercion in the workplace.  Consistent with longstanding principles of freedom of speech, expression, association, and political affiliation, private-sector employees, just as much as their public-sector counterparts, have the right to engage (or not engage) in political activities without fear of retribution or disadvantage from their employer.  It is one thing to provide corporations with expanded free speech rights in the electoral process.  It is quite another to permit companies to coerce workers in their political expression.  We should not tolerate the latter encroachment on worker autonomy.

The article is a great read, and I highly recommend it.

MM 

Reading the Disparate Impact Tea Leaves: Texas Dep't of Housing v. Inclusive Communities Project

While everyone else in the country was reading the Supreme Court's opinion on health care subsidies, I had a chance to look at the other opinion issued today: Texas Department of Housing and Community Affairs v. The Inclusive Communities Project. This case was about whether disparate impact claims are cognizable under the Fair Housing Act. Given how negative the Court's opinions seem to have been when it comes to disparate impact -- or even any theory of liability other than for fully self-aware motive -- pretty much since Griggs v. Duke Power Co., with the partial exception of Smith v. City of Jackson, no one expected the Court to rule that they were. That's why the last two FHA disparate impact cases the Court granted cert on settled before the Court could decide them.

Somewhat surprisingly, the Court held that disparate impact claims were cognizable in an 5-4 opinion written by Justice Kennedy. Essentially, the Court based its decision on the statutory language, the history of the Act, and the Act's purpose. Although the FHA does not have language like Title VII or the ADEA that focuses on actions that would "tend to deprive" people of housing opportunities, the FHA does prohibit "otherwise mak[ing] unavailable" housing opportunities because of a person's protected status. That "otherwise" language was key.

It's not all great news for the plaintiffs here or for disparate impact under Title VII, though. Much of the opinion was devoted to discussing how the proof structure limits the claim. The plaintiff must point to a particular practice that causes a disparity, and the defendant has the opportunity to show that the practice is "necessary to achieve a valid [government] interest." The Court suggested that would be difficult in this case, especially where a single housing decision might not be evidence of any policy that would produce a disparity. Finally, the Court cautioned that the relief ordered be very narrowly tailored to the specific practice that was arbitrary, so that government discretion was not cabined more than necessary.

Of special interest in the employment context was this odd statement about the employment cases: 

These cases also teach that disparate impact liability must be limited so employers and other regulated entities are able to make the practical business choices and profit-related decisions that sustain a vibrant and dynamic free-enterprise system. And before rejecting a business justification—or, in the case of a governmental entity, an analogous public interest—a court must determine that a plaintiff has shown that there is “an available alternative . . . practice that has less disparate impact and serves the [entity’s] legitimate needs.” Ricci, supra, at 578. The cases interpreting Title VII and the ADEA provide essential background and instruction in the case now before the Court.

Even though the Court refers to the employment cases, in which the defendant bears the burden to prove that its practice is a business necessity, the statement about needing the plaintiff to prove an alternative practice before a court can reject a business justification, seems to put more of a burden on the plaintiff. Also, the test for business necessity itself is unclear. Congress, in the Civil Rights Act of 1991, stated that the standard should be what it had been the day before the Court decided Wards Cove v. Atonio, which had altered the standard to make it simply a legitimate business reason. But the only case since the CRA to discuss the business necessity standard was Ricci v. DeStefano, which didn't really do a full disparate impact analysis and seemed to interpret business necessity more like the Wards Cove reasonableness standard. My guess is that this will not help the lower courts much, although it may encourage them to use a reasonableness or business judgment type rule to assess the business necessity defense in the future.

There were two dissents. Justice Thomas dissented, essentially arguing that "because of" could only mean an intent to discriminate, which in turn requires that protected class be the motive for the decision. His dissent is interesting for those of us who study the history of Title VII and the EEOC because of its description of the influence of Alfred Blumrosen, who helped create the EEOC and served as its first Chief of Conciliations and Director of Federal-State relations. Justice Thomas was also worried about how this theory will frustrate the creation and maintenance of low-income housing, especially in places like Houston, which is a minority-majority city.

Justice Alito also dissented and was joined by the Chief Justice as well as Justices Scalia and Thomas. Justice Alito agreed that "because of" required that protected status be the decisionmaker's reason for the decision. He also disagreed with the Court's reading of Congress's intent and the history of the statute. He further disagreed that Griggs's rationale should be imported to the FHA, and implicitly disagreed that Griggs was supportable or even really about anything but sneaky disparate treatment. Finally, Justice Alito worried about how the theory would work in the housing context, which he sees as much more complicated than a relatively simple policy choice at a single employer.

In the end, those who think that disparate impact is a necessary tool in the fight against inequality can breathe some sigh of relief--it's not completely dead. At the same time, though, its viability seems very limited, and the standard for liability is not at all clear.

MM

The N-Word at Work: Jury Trial Edition

Those of us who study race and social movements have had a lot to think about lately. The video of the white police officer in McKinney, Texas using force to subdue a black teenager and threaten others at a pool party, debate over Rachel Dolezal's identity, the racially motivated murders in Charleston and the ensuing calls to remove displays of the confederate battle flag, the Supreme Court's holding that Texas could refuse to issue a specialty license plate with the confederate battle flag on it, and the debate over President Obama's use of the n-word on Marc Maron's podcast have really sparked a prolonged national discussion. Fitting right in to the mix, a federal jury last week issued a defense verdict in Burlington v. News Corp. (civil action no. 09-1908 E.D. Pa) for an employer that  had fired an anchor for using the n-word in an editorial meeting. (h/t Leora Eisenstadt (Temple Business))

The case has a lot of interesting pieces. The white anchor used the term in an editorial meeting and several people at that meeting, some black and some white, were offended even though they did not perceive that he meant it then as a racial slur. Burlington's claim was, essentially, that he was only fired for using the word because he was white and that a black person would not have been. He also used a cat's paw theory, alleging that his co-anchor, who was black, was behind the firing. She allegedly told him "[b]ecause you’re white you can never understand what it’s like to be called a n***** and . . . you cannot use the word . . . ."

The case made it past summary judgment, and the court's opinion is worth a read. It has something for everyone. Not only are the allegations detailed more fully, but the court analyzes whether Title VII should take into account public perceptions about the use of the n-word in the context of the race of the speaker and also struggles with how to merge Staub v. Proctor Hosp.'s cat's paw holding with Vance v. Ball State's ruling on who counts as a supervisor.  You can also read more about the court's discussion of the context and use of the n-word in this ruling on motions in limine right before trial began.

And if you are looking for more commentary on Title VII, context, and use of the n-word at work, you should read Leora Eisenstadt's article, The N-Word at Work: Contextualizing Language in the Workplace--previously posted about here--which grew out of her work on the case when she was in practice. A couple of other interesting pieces by Gregory Parks (Wake Forest) and Shayne Jones (S. Fla. Criminology) here and here, are also thought provoking.

MM

Secunda on Right to Work laws

With right to work on the agenda and in the public eye in Wisconsin, it only makes sense that Milwaukee's NPR affiliate WUWM would turn to Paul Secunda, our friend and blogger emeritus. Paul was a guest on "Lake Effect," with this introduction:  "As a potential debate over right-to-work laws looms in Wisconsin, we get some historical perspective on such legislation, and more insight into the impact it could have on labor and politics in the Badger State." Follow the link to listen to the whole thing, or find just Paul's segment on this page. Nice work, Paul!

MM

Bauries, Sutherland, and Legare Amicus in Eleventh Circuit Teacher Evaluation Case

Scott Bauries (Kentucky) writes to tell us about an amicus brief he, Brian Sutherland, and Cheryl Legare (both from the Buckley Law Firm) filed on behalf of Professors of Education Law and Educational Measurement. 

From the abstract on SSRN: 

This appeal, to be decided by the United States Court of Appeals for the 11th Circuit, challenges two egregious misuses of "value-added modeling," a controversial teacher evaluation method that attempts to isolate the affect of one teacher on the learning gains of that teacher's students, as derived from annual standardized test scores. With the approval of the State Appellees, the School District Appellees used the test scores of students who took the Florida Comprehensive Assessment Test in reading and math to evaluate the teaching performance of teachers who either did not teach these students at all, or did not teach them the tested curriculum. Amici, who are experts in education, education law, and educational measurement, file this brief to assist the Court in understanding how irrational these uses of value-added modeling are. The uses challenged here contradict the very purpose of using value-added modeling in the first place. In addition, they completely lack scholarly support, and they undermine, rather than further, the state's avowed purpose in evaluating its teachers -- to incentivize the evaluated teachers to improve their teaching, and thereby improve student achievement.

Or in plainer terms as Scott wrote in an email,

The basic goal of amici was to educate the court about the many problems with value-added modeling as an employee performance evaluation tool, to better illustrate the ridiculousness (and therefore constitutional irrationality) of the uses to which it was put in these districts.  In brief, the districts used the test score data of one teacher’s students on a test in one subject area to judge the performance of teachers who either did not teach the students who took the test at all (e.g. kindergarten teachers, when testing begins in third grade), or did not teach them the tested curriculum (e.g., fourth grade music teachers). 

Very interesting read.

MM

RIP Dan Markel

Usually when we note the passing of someone, it's a person who has made an impact on the field of labor and employment law, but expressing dismay at the tragic death of Dan Markel seems an appropriate exception. Even though Dan's scholarly work was in retributive justice, we shared many connections. Dan cast a net for critique of his work widely beyond his field, and likewise was always ready to comment and help on others' works, including ours. He was committed to being part of a scholarly conversation and urged others to that same goal, whether they had been writing for years or just starting out. As the founder of Prawfsblawg, Dan brought together people of many fields to write on whatever they wished and to promote their work; he did this in real life, too, organizing social events and workshops wherever he went.

Dan was so very full of life, love for his boys and friends, and generosity towards all of us that his death feels unreal. We express our heartfelt condolences to his family, friends, FSU and Tallahassee community, and the broader community we too are a part of. In his memory, it seems appropriate to link to one of his last posts, Thoughts on Work-Life Imbalance from Those Left Behind.