Thursday, February 13, 2020
Suja Thomas (Illinois) has just posted on SSRN yet another blockbuster (and highly disturbing) article, The Customer Caste: Lawful Discrimination by Public Businesses. Here's the article:
It is legal to follow and watch people in retail stores based on their race, give inferior service to restaurant customers based on their race, and place patrons in certain hotel rooms because of their race. Congress enacted Title II of the Civil Rights Act of 1964 to protect black and other people of color from discrimination and segregation in public accommodations—places where people receive goods, food, services, and lodging. Scholarship has not analyzed how well Title II and Section 1981 of the Civil Rights Act of 1866 have functioned in this arena. An examination of this caselaw shows that courts find numerous discriminatory and segregatory actions by places of public accommodation legal. An assessment of the legislative history and text of the laws, in addition to the interpretation of similar laws demonstrate that the judiciary has incorrectly constrained the law by, among other actions, adopting the heavily-criticized employment discrimination caselaw and requiring a common law-like contractual relationship. Jim Crow laws ceased to exist in the 1960s, but these interpretations have created “the customer caste,” whereby people of color are subject to legal, daily discrimination in retail stores, restaurants, gas stations, hotels, banks, and airplanes.
Hopefully this article sparks change.
Monday, January 27, 2020
Thanks to Jon Harkavy for word that the Clean Slate for Worker Power project has issued its final report A Clean Slate for Worker Power: Building a Just Economy and Democracy. Here's a brief excerpted description from Kelsey Griffin:
An initiative of Harvard Law School’s Labor and Worklife Program — called Clean Slate for Worker Power — released its final report Thursday calling to overhaul American labor laws and increase workers’ collective bargaining power. Law School Faculty members Sharon Block and Benjamin I. Sachs led the project. The initiative brought together leading activists and scholars to recommend policies aimed at empowering working people.
The report claims that an extreme concentration of wealth in the hands of few people has created economic and political inequality in the United States. It argues that current labor laws have fostered systematic racial and gender oppression. It also asserts that labor laws exclude vulnerable workers from vital labor protections and devalue the work performed by these workers.
Block and Sachs said they believe addressing this economic and political inequality would require a completely new system of labor law, rather than simply adjusting current policies. The report recommends that labor laws better enable working people to build collective organizations to increase their leverage with employers and in the political system. The policy recommendations aim to increase worker representation and inclusion by expanding the coverage of labor laws for independent contractors, as well as undocumented, incarcerated, and disabled workers. The report lays out an array of options for alternative worker representation in addition to labor unions, such as work monitors — employees who would ensure compliance with federal labor regulations.
Louis Menand (Harvard Arts & Sciences; degree from Harvard Law) published a great essay in last week's The New Yorker on affirmative action: Integration by Parts. I'm posting the take-away below, but the entire essay is well worth reading, not least for its historical description of the concept.
The whole history of affirmative action shows ... that when the programs are shut down minority representation drops. Diversity, however we define it, is politically constructed and politically maintained. It doesn’t just happen. It’s a choice we make as a society.
It is possible to understand the opposition to affirmative action of white conservatives, like Ronald Reagan, who regard civil-rights laws as federal overreach and affirmative action as enshrining the un-American notion of group rights. And it is possible to understand the opposition of black conservatives, like Clarence Thomas, who see it as patronizing to African-Americans.
But it is hard to understand the opposition, often diehard, of many white liberals that has persisted since the nineteen-seventies. Did these people really imagine that passing a law against discrimination would reset race relations overnight? Do they really think that white Americans, wherever they work or go to college, do not carry a lifelong advantage because of the color of their skin? Do they really believe that there should be no sacrifice to make or price to pay for the systematic damage done to the lives of millions of American citizens and the men and women who are their ancestors?
Monday, December 2, 2019
Zach Harned (Stanford student) and Hanna Wallach (Microsoft Research) have just posted on SSRN an interesting article entitled Stretching Human Laws to Apply to Machines: The Dangers of a 'Colorblind' Computer (forthcoming Florida L. Rev.). Here's the abstract:
Automated decision making has become widespread in recent years, largely due to advances in machine learning. As a result of this trend, machine learning systems are increasingly used to make decisions in high-stakes domains, such as employment or university admissions. The weightiness of these decisions has prompted the realization that, like humans, machines must also comply with the law. But human decision-making processes are quite different from automated decision-making processes, which creates a mismatch between laws and the decision makers to which they are intended to apply. In turn, this mismatch can lead to counterproductive outcomes.
We take antidiscrimination laws in employment as a case study, with a particular focus on Title VII of the Civil Rights Act of 1964. A common strategy for mitigating bias in employment decisions is to “blind” human decision makers to the sensitive attributes of the applicants, such as race. The same strategy can also be used in an automated decision-making context by blinding the machine learning system to the race of the applicants (strategy 1). This strategy seems to comply with Title VII, but it does not necessarily mitigate bias because machine learning systems are adroit at using proxies for race if available. An alternative strategy is to not blind the system to race (strategy 2), thereby allowing it to use this information to mitigate bias. However, although preferable from a machine learning perspective, this strategy appears to violate Title VII.
We contend that this conflict between strategies 1 and 2 highlights a broader legal and policy challenge, namely, that laws designed to regulate human behavior may not be appropriate when stretched to apply to machines. Indeed, they may even be detrimental to the very people that they were designed to protect. Although scholars have explored legal arguments in an attempt to press strategy 2 into compliance with Title VII, we believe there lies a middle ground between strategies 1 and 2 that involves partial blinding—that is, blinding the system to race only during deployment and not during training (strategy 3). We present strategy 3 as a “Goldilocks” solution for discrimination in employment decisions (as well as other domains), because it allows for the mitigation of bias while still complying with Title VII. Ultimately, any solution to the general problem of stretching human laws to apply to machines must be sociotechnical in nature, drawing on work in both machine learning and the law. This is borne out in strategy 3, which involves innovative work in machine learning (viz. the development of disparate learning processes) and creative legal analysis (viz. analogizing strategy 3 to legally accepted auditing procedures).
Tuesday, October 22, 2019
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.
Monday, October 21, 2019
Multinational corporations based in Europe have accelerated their foreign direct investment in the Southern states of the United States in the past quarter-century. Some companies honor workers’ freedom of association, respect workers’ organizing rights and engage in good-faith collective bargaining when workers choose trade union representation. Other firms have interfered with freedom of association, launched aggressive campaigns against employees’ organizing attempts and failed to bargain in good faith when workers choose union representation.
Today, the AFL-CIO is releasing a report by international labor law expert Lance Compa. The report examines European companies’ choices on workers’ rights with documented case studies in several American Southern states. In their home countries, European companies investing in the American South generally respect workers’ organizing and bargaining rights. They commit themselves to International Labor Organization core labor standards, Organization for Economic Co-operation and Development Guidelines, UN Guiding Principles, the UN Global Compact, and other international norms on freedom of association and collective bargaining. But they do not always live up to these global standards in their Southern U.S. operations.
Case studies on well-known companies like VW, Airbus, IKEA and large but lesser known ones like Fresenius and Skanska provide examples of companies that have followed a lower standard in their operations in the southern states where the region’s legacy of racial injustice and social inequality open the door to a low-road way of doing business. The report also makes clear that companies always have a choice and could choose to respect workers human rights.
Saturday, October 19, 2019
More self-promotion. Just posted on SSRN:
Retaliation and Requesting Religion Accommodation
A recent Eighth Circuit Court of Appeals decision on an issue of first impression suggests that requests for reasonable accommodation of religious practices or observances are generally not protected conduct within the scope of § 704, Title VII’s antiretaliation provision. The court reasoned that such a request fell did not fall within the “opposition” clause of the provision since it did not “oppose” anything the employee could have reasonably believed was discriminatory.
This counterintuitive holding has the potential to frustrate Title VII’s command that employers reasonably accommodate believers by suggesting to employees that requests for accommodation are perilous. It is true that Supreme Court precedent protects an employee when the accommodation must be granted because it is reasonable and not an undue hardship on the employer. In such cases, retaliating against the employee is viewed as core religious discrimination, prohibited under § 703, and so there is no need to invoke § 704.
But what if the accommodation is not legally required under Title VII? That is a very common scenario given the Supreme Court’s longstanding and extraordinarily narrow reading of the duty of accommodation under the statute. And if the Eighth Circuit’s view were to be generally adopted, employers would seem to be largely free not merely to deny the request but also take adverse employment actions against those foolish enough to ask for it.
This Article analyses the complicated interaction between the accommodation command of § 703 and the retaliation prohibition of § 704. In the process it rejects the “no harm, no foul” argument sometimes made, which is that denying employment or firing a worker who seeks an “unreasonable accommodation” is not actionable because the worker will not perform the job requirements in any event. Such a view is predicated on a false notion that employees can seek accommodations only when they are faced with the choice between their religion and their job. In many cases, believers seek accommodations when their religion encourages (or discourages) but does not mandate (or prohibit) the conduct in question, a point that is often unappreciated.
The Article concludes that the Eighth Circuit is wrong in its reading of § 704 as applied to requests for accommodation. Further, it argues that, regardless of the correct reading of that provision, taking adverse action against a worker whose accommodation request was legitimately denied may violate § 703’s prohibition of status discrimination, a question not answered by the Eighth Circuit.
The full article can be found here.
Wednesday, October 9, 2019
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.
Saturday, September 21, 2019
My colleague Dallan Flake (ONU) has just posted on SSRN his article Religious Accommodation in the Age of Whole-Self Employment. Here's the abstract:
For decades, litigants and legislators alike have attempted unsuccessfully to overturn Trans World Airlines v. Hardison, the 1977 Supreme Court decision holding an employer does not have to provide a religious accommodation to an employee if the accommodation would impose more than de minimis cost on the employer. This effectively gutted Title VII’s religious accommodation requirement by enabling employers to avoid accommodating employees for almost any reason at all. This Article does not advocate for a change in the law, as others have, but instead proposes a new way forward. It makes the case that employers should voluntarily provide religious accommodations beyond what the law requires. This is because we now live in the age of whole-self employment, wherein emp
rbloyees are no longer content to check their personal lives at the workplace door, but instead expect to be able to bring their entire selves—including their religious beliefs and practices—with them to work. Accommodation facilitates whole-self employment by allowing religious employees to express a fundamental dimension of themselves in the workplace. Empirical research overwhelmingly confirms employees who are allowed to express their authentic selves at work are happier, harder working, and more loyal to their employers. Research also shows that a content workforce is a productive workforce. Thus, employers should approach religious accommodations not as a burden but as an investment—an opportunity to allow employees to display a part of themselves that will make them better workers. While employers would incur upfront costs in voluntarily accommodating employees, the potential return on this investment justifies its expense.
Thursday, September 19, 2019
Jonathan Harkavy (Patterson Harkavy) has just posted on SSRN two articles. First is his annual review of Supreme Court employment and labor decisions and cert grants. Second is a briefer article that offers a blueprint for lawyers representing workers and unions during fraught political times - e.g., right now. The articles and abstracts are below.
This article summarizes in detail all decisions of the Supreme Court of the United States from its October 2018 Term (2018-2019) that affect employment law, labor relations, employment arbitration and the employment relationship generally. The article also provides commentary on each of the decisions and on the Supreme Court's regulation of the employment relationship. The article also summarizes briefly the grants of certiorari in employment-related cases for the October 2019 Term and concludes with brief commentary on justice in the American workplace.
This article suggests approaches to dealing with the current anti-union climate in the American workplace. Building on examples of what union-side lawyers did when faced with the challenge of representing labor unions in Southern textile mills, the article makes a number of specific suggestions to counter what observers have termed a relentless assault on labor involving unchecked corporate power accompanied by income inequality and a decline in the well-being of working Americans. The article recommends, among other things, imposition of employer fiduciary responsibility for workers, a more clarion collective voice in the Supreme Court for working people, and increased use of state laws and federal antitrust laws to combat inequities in the workplace.
Monday, September 9, 2019
Christine Michelle Duffy (Director, New Jersey Program, Pro Bono Partnership) sends us the following guest post:
It Will Not Be 'Game-Set-Match' for Women's Sports
Earlier this month, The National Law Journal (NLJ) published an op-ed piece by Jennifer Braceras and Anita Milanovich that argues that if the U.S. Supreme Court rules in favor of the gender-affirmed plaintiff, Aimee Stephens, in R.G. & G.R. Harris Funeral Homes Inc. v. EEOC, female athletes will lose the opportunity to compete because “male-to-female transgender athletes” will suddenly flood into women’s sports. Oral argument in that case will be held on October 8.
It’s simply not true that there will be a loss in opportunities. “Male-to-female transgender athletes” have been competing in women’s sports for some time, and there is no significant evidence that “the number of opportunities for biological women and girls” has diminished or that they have an unfair advantage. (The foregoing quoted statements come directly from Braceras and Milanovich’s op-ed.) Moreover, leading medical organizations now recognize gender-affirmed people to be of the sex that matches their gender identity.
The NLJ commissioned a counter-piece to the op-ed, written by Jennifer Pizer, Law and Policy Director for Lambda Legal. Pizer does a terrific job debunking the arguments put forward by Braceras and Milanovich. As Pizer notes, “Their leaps of logic are long indeed, but they won’t win any medals. They mistake the facts, the law and who is at risk.” Though, as your will read below, I do take issue with Pizer, something I rarely do.
Braceras and Milanovich’s thesis is wrong for a number of reasons. Here are three of them.
Thursday, August 15, 2019
Several discrimination claims against law firms have made the news recently, but this complaint filed against Jones Day on August 13 is a doozy. It involves a married woman and man (to each other) who were both discriminated against on the basis of sex in different ways, in part connected with the firm's parental leave policy. There are facts about intersectional sex and race discrimination as well. At the very least, it's a fact pattern made for a final exam. For an entertaining read in a nutshell, read this thread on Twitter by @gokpkd. For a more nuanced one, see Melissa Murray's (NYU). Jones Day has also responded.
Wednesday, August 14, 2019
The Department of Labor's Office of Federal Compliance Programs announced today that it will be issuing a proposed rule tomorrow on discrimination by religious organizations. The OFCCP enforces antidiscrimination rules (pursuant to Executive Order 11246) against federal contractors and has more affirmative power, by, for example doing audits, than the EEOC.
The proposed rule will come as no surprise to those who have had a chance to keep up with things like the DOJ's memo on religious liberty, issued in late 2017, or the DOJ's positions on whether Title VII prohibits discrimination on the basis of sexual orientation and gender identity. The proposed rule currently posted addresses a number of things related to religious organizations.
First, it makes clear that religious organizations can discriminate on the basis of religion and that religion is not just belief but also religious practices. So religious organizations can require employees to conform their behavior to the organization's religiously motivated rules. In defining religion, the proposed rule draws on Title VII and adopts definitions from the Religious Freedom Restoration Act and Religious Land Use and Institutionalized Persons Act.
Second, it defines what counts as a "religious corporation, association, educational institution, or society." The key changes are to what counts as a religious corporation. The EEOC's guidance has long provided that for-profit entities cannot be religious organizations for purposes of Title VII, taking the definition from court decisions. The proposed rule removes that limitation, citing the Hobby Lobby case and suggesting that Hobby Lobby would be considered a religious corporation--despite the fact that the question in Hobby Lobby was whether corporations were persons for purposes of the Religious Freedom Restoration Act. Title VII does not use "person," so the logic does not necessarily apply. Now, a religious organization will be any entity including a for-profit corporation that:
- is organized for a religious purpose;
- holds itself out to the public as carrying out a religious purpose; and
- exercises religion consistent with and in furtherance of a religious purpose.
One limitation in the proposed rule is this sentence: "With that said, OFCCP does not see a scenario in which an entity’s single religiously motivated employment action, standing alone, would be sufficient to satisfy [the third] element of the definition, if that were the only religiously motivated action the entity could identify. "
The proposed rule states that this does not allow federal contractors to discriminate on bases other than religion, but then says "where a contractor that is entitled to the religious exemption claims that its challenged employment action was based on religion, OFCCP will find a violation of Executive Order 11246 only if it can prove by a preponderance of the evidence that a protected characteristic other than religion was a but-for cause of the adverse action," citing Nassar and Gross.
This certainly tees up conflicts with protection against sex discrimination versus religious beliefs of employers, particularly when it comes to pregnancy and sexual minorities.
Tuesday, July 2, 2019
New Jersey recently passed a law declaring nondisclosure agreements “with the purpose or effect of concealing the details relating to a claim of discrimination, harassment, or retaliation” to be against public policy and therefore unenforceable against the employee. N.J.S.A. § 10:5-12:8(a). According to state Senate Majority Leader Loretta Weinberg, the law aims to allow victims of such abuse “to speak out about their experiences if they so choose.” While a parallel promise by the employer would generally remain enforceable against it, the employer would be permitted to respond if the employee goes public. The law explicitly excludes noncompete agreements or NDAs intended to protect trade secrets.
An outgrowth of the national #MeToo movement, New Jersey’s law will be a test case for competing predictions about the effects of preventing victims from bargaining away their right to speak out. While no one seems to doubt that gag clauses have enabled serial harassers to continue their predations, the defenders of such provision include not only employer-side counsel but many plaintiff-side attorneys who fear that victims will be deprived of one of their more valuable bargaining chips and therefore disadvantage the employees it intended to protect.
In any event, the prospective effects of the new law will largely depend on how employers in the state will respond. For them, settlement agreements are a transactional means of protecting their reputations from the large-scale backlash that has made the Me-Too movement so palpable. Nothing about New Jersey’s new stance changes this reality.
But the new law doesn’t allow them much wiggle room. Two possibilities for creative avoidance are possible, but neither seems likely to be successful. The first is for employers to seek to recover in restitution amounts paid for a now-unenforceable promise once the employee goes public. But § 197 of the Restatement Second of Contracts tells us that courts will normally leave parties as it finds them in such cases, even if this may result in one party retaining a benefit it received as a result of a transaction based on an unenforceable promise. Employers thus have no claim in restitution for payments rendered in return (in part) for the unenforceable promise of their employee’s silence. The Restatement recognizes an exception for “disproportionate forfeiture,” but it seems unlikely to apply here, especially given the strong statutory language disapproving such agreements.
A second possible way for employers to try to work around the statute would be to structure settlement agreements to space out payments over time to create a financial incentive for employees to remain silent. The agreement would be drafted such that the employee does not promise nondisclosure but her silence is a condition on the employer’s promise to make future payments. In other words, there’s never an employee promise to enforce to begin with.
Clever, but probably no cigar in a state whose supreme court has a tendency to read statutes – especially employment regulations – to achieve their purposes regardless of the technical language. In any event, the statute deems any contract or settlement against public policy if it has the “purpose or effect” of concealing discrimination, harassment, or retaliation. Clearly, the legislature’s intent in passing this law was to enable victims to speak publicly about their experiences to guard against serial harassers. By conditioning future payments on silence, such a settlement could certainly have the effect (not to mention the purpose) of concealing discrimination, at least temporarily, by creating a strong financial incentive for the employee to be silent.
A few other points. First, the bar on nondisclosure agreements is only a part of a statute that, on its face, might be read to bar mandatory arbitration agreements. So read, that provision would almost certainly be preempted by the Federal Arbitration Act, and a reviewing court would have to decide whether the ban of nondisclosure agreements could be severed to could survive such invalidation. Second, while the focus of #MeToo and the commentary on this law has been on disclosure of sexual harassment claims, the statute also bars gag rules for discrimination and retaliation claims, which substantially increases its reach. Third, the statute bars retaliation for refusing to enter into an agreement that would be unenforceable under it, but, given that such an agreement is unenforceable, one wonders why a well-advised employee would refuse to sign it in the first place.
Hat tip to Luke Dodge, Seton Hall class of 2021, for his help with this post.
UPDATE: The statute is not retroactive, and this post has been modified to correct a mistake as to that in the original.
Thursday, June 6, 2019
Kevin M. Barry (Quinnipiac) and Jennifer Levi (Western New England) have just posted on SSRN their article (forthcoming 35 Touro L. Rev.) The Future of Disability Rights Protections for Transgender People. Here's the abstract:
The Americans with Disabilities Act and its predecessor, Section 504 of the Rehabilitation Act of 1973 (“Section 504”), protect people from discrimination based on disability, but not if that disability happens to be one of three archaic medical conditions associated with transgender people: “transvestism,” “transsexualism,” and “gender identity disorders not resulting from physical impairments.” This Article tells the story of how this transgender exclusion came to be, why a growing number of federal courts say it does not apply to gender dysphoria, a new and distinct medical diagnosis, and the future of disability rights protections for transgender people.
Thursday, May 23, 2019
Sandra Sperino (Cincinnati) just posted on friendofthecourt blog on the top five recent developments in McDonnell Douglas cases. Here, with permission, is her post:
For those interested in McDonnell Douglas, here are the top 5 developments over the last year.
- The second step of the test (employer articulates a legitimate, non-discriminatory reason) is often ignored. One appellate court recently engaged in a lengthy discussion and review of appellate cases related to the required specificity. Figueroa v. Pompeo, No. 18-5064, 2019 WL 2063562, at *5-10 (D.C. Cir. May 10, 2019). The court noted, “When the reason involves subjective criteria, the evidence must provide fair notice as to how the employer applied the standards to the employee’s own circumstances. Failing to provide such detail—that is, offering a vague reason—is the equivalent of offering no reason at all.” The court rejected an employer’s evidence that the plaintiff was ranked in the middle of the available candidates because the evidence did not explain why the employer ranked him that way. The court explained that the worker could not respond to the employer’s evidence because the employer supposedly ranked the plaintiff along 12 criteria, but the evidence did not explain which criteria caused the plaintiff’s mid-level ranking.
“A rush to the third prong may deprive the employee of McDonnell Douglas’s unrebutted presumption of discrimination created by the prima facie case.” This court stated that a court should determine whether the evidence presented by the employer has four attributes: it is admissible; that, if believed, the factfinder could find that the employer acted for a non-discriminatory reason; it must be legitimate (or facially credible); and be clear and reasonably specific.
- The debate over comparator evidence continues. The Eleventh Circuit (en banc) has rejected the Seventh Circuit standard, while also noting that its own prior standard regarding “similarly situated” was a mess. Lewis v. City of Union City, Georgia, 918 F.3d 1213 (11th Cir. 2019). The circuit stated that a meaningful comparator analysis is required in the prima facie case and that the plaintiff must show that she was similarly situated to her comparators in all material respects. The court rejected an “identical” standard, noting that in workplaces, “doppelgangers are like unicorns—they do not exist.” For an excellent discussion of the stakes of comparator evidence, read the dissent in Lewis.
- A district court interpreting Young v. UPS has held that a plaintiff proceeding on a failure to accommodate/disparate treatment claim based on pregnancy is not required to establish an adverse action. Thomas v. Fla. Pars. Juvenile Justice Comm'n, No. CV 18-2921, 2019 WL 118011, at *8 (E.D. La. Jan. 7, 2019) (plaintiff could establish harm by showing she was required to go on a 1.5 mile run despite doctor’s note restricting activity).
- A great new article about the test is Katie R. Eyer, The Return of the Technical McDonnell Douglas Paradigm (forthcoming Washington Law Review) (available at https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3362529).
- Finally, the unrecognized intracircuit splits continue. Different panels of the same circuit continue to articulate the test in ways that appear to contradict one another. Some courts are beginning to differentiate the level of comparator evidence and causation evidence required in the prima facie case. Some courts will state that the plaintiff is required to show minimal causal evidence in the prima facie case. Some courts will state that a plaintiff relying on similarly situated comparator evidence has a lesser burden at the prima facie stage than in stage three.
Thursday, May 9, 2019
The conventional wisdom on Zarda and the other two related cases on which SCOTUS recently granted certiorari is that the new conservative majority on the Court will hold that Title VII does not protect employees on the basis of LGBT status. I predict the Court will hold that Title VII does protect these employees – and that the vote will be 6-3.
Here’s my reasoning: Roberts appears to be very cognizant of the institutional damage the Court is suffering as it becomes increasingly clear that its decisions are politically motivated. He doesn’t want to be the Chief Justice on whose watch the Court loses the prestige it has built over the last nearly 250 years, and as the Sebelius (Obamacare) case demonstrates, he is willing to at least occasionally change his vote to avoid that. Moreover, there is no better case to “prove” the Court is apolitical – and to draw attention away from all the pro-business cases (e.g., arbitration) and perhaps pro-Republican cases the Court is likely to decide in the near future – than a case the outcome of which he knows will be reported on the front page of nearly every newspaper in the country.
I believe Kavanaugh will be the other conservative defector. Voting for Title VII protection of LGBT status might salvage a bit of his reputation after his less-than-stellar (and hyper-political) confirmation proceedings, and would be consistent with the judicial philosophy he claims to espouse favoring judicial empathy (see Wasserman and Horwitz).
Both Roberts and Kavanaugh will cloak themselves in Scalia’s holding in Oncale that the plain language of Title VII protects men from same-sex harassment. They will quote his statement in that case that "statutory prohibitions often go beyond the principal evil to cover reasonably comparable evils, and it is ultimately the provisions of our laws rather than the principal concerns of our legislators by which we are governed." Their conservative friends will not desert them – it’s hard to question the conservative bona fides of someone who favorably quotes Scalia.
Plus, if both Roberts and Kavanaugh flip, each will give the other cover, and Roberts will avoid the 5-4 decision that would occur if only one or neither of them flipped. I doubt Roberts wants a 5-4 vote on this divisive public issue.
I hope I’m right about this particular outcome, though this should not be taken for optimism about the Court’s future business and political cases.
Monday, April 22, 2019
The Supreme Court has just granted cert. in three cases to determine whether Title VII prohibits discrimination based on sexual orientation and gender identity. We've covered this issue for years, as the answer has gone from largely a uniform "no"; to the EEOC and DOJ saying "yes," while the circuits courts said "no"; to the current situation where some courts say "yes," others say "no," the EEOC says "yes," and the DOJ says "no." You get the idea--maybe the perfect storm of the classic split that attracts Supreme Court attention.
To say that I'm not optimistic about the Court holding that LGBT status is covered by Title VII is an understatement. I can probably best summarize my prediction by saying that I'd have more hope if Justice Scalia was still on the Court, as he would occasionally argue for strong deferral to the EEOC, even when he likely disagreed personally with the result (showing his past as an administrative law professor). The issue is really interesting from a legal perspective. It involve congressional purpose and history, statutory interpretation, and policy consequences that can go in different directions depending on its application in other cases--and that can result in political outcomes that advocates may not always like. The oral arguments in these cases will definitely have some fireworks, and the sure-to-be split decision will likely be quite heated. So hold on tight . . . .
Thursday, April 11, 2019
This book provides comprehensive treatment of the major federal employment discrimination statutes, focusing on Title VII, the ADEA, the ADA, and Section 1981. It discusses who is liable for discrimination and the people the statutes protect from discrimination. The book offers an extensive discussion of the frameworks for analyzing discrimination, including frameworks for individual disparate treatment, pattern or practice, harassment, disparate impact, and retaliation. One chapter focuses on religious accommodation and another chapter focuses on disability accommodation. The book also contains separate treatment of affirmative action. It also explores defenses to discrimination claims, the procedure for pursuing claims, and remedies. The book provides extensive discussion of canonical cases.
Friday, April 5, 2019
Liz Tippett (Oregon) and Ann Hodges (Richmond, emerita) have each posted on SSRN terrific articles on unrelated labor/employment topics; both have been or will be published in the Employee Rights & Employment Policy Journal. Liz's article is Opportunity Discrimination: A Hidden Liability Employers Can Fix; here's an excerpt from the abstract:
This article applies a model of workplace advancement where big employment decisions — like promotions and pay raises — are influenced in part by the disparate distribution of smaller opportunities over time. These smaller opportunities generally do not qualify as “adverse employment actions” for the purpose of a discrimination claim under Title VII of the Civil Rights Act. However, their legal significance has been underestimated. The disparate denial of smaller opportunities has been successfully used as evidence of disparate treatment when plaintiffs are later denied a big opportunity.
This article argues that employers should identify and address disparities at the opportunity level to advance workplace equality. Drawing from social science research on discrimination in school discipline, employers could identify the particular decision points and contextual factors that drive disparities and use that information to address the problem. Such undertakings would also be compatible with existing internal employment structures.
Ann's article is Employee Voice in Arbitration; here's the abstract:
The Supreme Court’s 2018 decision in Epic Systems v. Lewis allows employers to force employees to agree to individual arbitration of any claims against the employer, removing their ability to bring class and collective actions. These unilaterally imposed arbitration agreements deprive employees of any voice in this important term of employment.
If arbitration is to serve its intended function of a mutually agreeable forum to resolve disputes, Congress should require employers who desire to use arbitration to negotiate the terms of the agreement with a representative of their affected employees. Such a requirement would reduce some of the adverse effects of employment arbitration, making it more like labor arbitration, which has functioned as an effective dispute resolution mechanism under collective bargaining agreements for many years.
A negotiation requirement would insure that employees have notice of the arbitration provision and input into its terms. The National Labor Relations Board could use its existing election machinery to facilitate employee choice of representative which could be an individual, a group of employees, an attorney, a labor union, or another workers’ rights organization. In addition to providing employee voice, requiring negotiation would discourage arbitration where the employer’s only goal is to reduce employee rights and might also spur employee participation in the workplace and the community.