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.
Tuesday, April 2, 2019
Online reputation systems enable the providers and consumers of a product or service to rate one another and also allow others to rely upon those reputation scores in deciding whether to engage with a particular provider or consumer. Reputation systems are an intrinsic feature of the platform workplace, in which a platform operator, such as Uber or TaskRabbit, intermediates between the provider of a service and the consumer of that service. Operators typically rely upon consumer ratings of providers in rewarding and penalizing providers. Thus, these reputation systems allow an operator to achieve enormous scale while maintaining quality control and user trust without employing supervisors to manage the vast number of providers who engage consumers on the operator’s platform. At the same time, an increasing number of commentators have expressed concerns that the invidious biases of raters impact these reputation systems.
This Article considers how best to mitigate reputation systems bias in the platform workplace. After reviewing and rejecting both a hands-off approach and the anti-exceptionalism approach to regulation of the platform economy, this Article argues in favor of applying what the author labels a “structural-purposive” analysis to regulation of reputation systems discrimination in the platform workplace. A structural-purposive analysis seeks to ensure that regulation is informed by the goals and structure of the existing workplace regulation scheme but also is consistent with the inherent characteristics of the platform economy. Thus, this approach facilitates the screening out of proposed regulation that would be inimical to the inherent characteristics of the platform economy and aids in the framing of regulatory proposals that would leverage those characteristics. This Article then demonstrates the merits of a structural-purposive approach in the context of a regulatory framework addressing reputation systems discrimination in the platform workplace. Applying this approach, the Article derives several principles that should guide regulatory efforts to ameliorate the prevalence and effects of reputation systems bias in the platform workplace and outlines a proposed regulatory framework grounded in those principles.
Wednesday, March 27, 2019
Marcy Karin (UDC) sends word that on March 29th, the UDC Law Review is hosting its annual symposium, Disability Rights: Past, Present, and Future. The focus of the symposium will be on protecting and improving disability rights in today’s challenging environment and tomorrow’s uncertain future. Chai Feldblum, former Commissioner of the U.S. Equal Employment Opportunity Commission, will be the keynote speaker. A number of friends of the blog are speaking on a range of topics, including: The ADAAA at 10; Disability and the #MeToo Movement; Disability, Police Interactions, and the Criminal Justice System; Disability and Education; Disability, Leave, and Caregiving; and Disability Beyond the Workplace.
Anyone in the DMV area – or who wants to see the cherry blossoms and come to the DMV area—is welcome to join for any part of the day-long dialogue about disability rights. Registration (and a full panel/speaker list) is available at bit.ly/DisabilitySymposium. The Law Review’s related call for papers is here: Download UDC Law Review Call for Papers - Disability Rights.
In addition to the symposium, UDC is hosting a reception at Arent Fox at 6pm on March 28th to kick-off the symposium and launch The ADA Project, a new public education resource from the UDC Legislation Clinic and Quinnipiac University Civil Justice Clinic. Registration for the reception is available at bit.ly/TheADAProject.
This looks great!
Monday, March 25, 2019
This streamlined, straightforward casebook offers a fresh perspective on employment discrimination law, presenting a procedural-based approach with interactive materials. While still providing traditional coverage, Employment Discrimination: Procedure, Principles, and Practice, Second Edition (Seiner, Wolters Kluwer, 2019) emphasizes the importance of procedural issues in workplace cases. It includes a unique “best practices” chapter, which discusses the most effective ways to address workplace discrimination from both a theoretical and legal perspective. Numerous exercises and problems foster classroom discussion. Practice tips situate students in the role of a practicing lawyer. Modern, cutting-edge cases demonstrate the importance of employment discrimination law. Text boxes within cases, historical notes, and news events effectively help bring the material to life. New to the Second Edition: a renewed focus on sexual harassment and a robust discussion of the #metoo movement; an examination of sexual orientation and a review of the conflicting federal appellate cases on whether it is protected by anti-discrimination laws; a new focus on appearance discrimination and the recent case law related to this issue; a discussion of how issues evolving in the gig economy can impact workplace discrimination.
Friday, March 22, 2019
Liz Morris (U.C.-Hastings Center for WorkLife Law), Jessica Lee (U.C.-Hastings Center for WorkLife Law), and Joan Williams (U.C.-Hastings) have posted on SSRN their report Exposed: Discrimination Against Breastfeeding Workers. Here's the abstract:
Due to the medical consensus that breastfeeding reduces major health risks to both babies and mothers, the United States is waging an ongoing struggle to improve breastfeeding duration rates. Yet legal protections for breastfeeding parents in the workplace have not kept pace with the U.S.’s public health goals. Based on a review of workplace breastfeeding legal cases from the last decade, an analysis of all federal and state workplace laws protecting breastfeeding workers including coverage statistics, and interviews with women who faced workplace discrimination, this report documents the anemic legal landscape of breastfeeding rights at work. Discrimination against breastfeeding workers often forces them to stop breastfeeding or lose their jobs, at a devastating cost to their families. Almost three-fourths of breastfeeding discrimination cases studied involved economic loss, and nearly two-thirds ended in job loss. The legal tools to prevent and respond to such discrimination are lacking in both efficacy and scope. The report offers policy solutions to fix the gaps in our patchwork of laws to protect breastfeeding workers.
Friday, March 8, 2019
Today--International Women's Day--every current player on the U.S. Women's Soccer team filed a sex discrimination suit against the U.S. Soccer Federation. The suit is also seeking class status that would cover players as far back as 2015. This is essentially the next step in an earlier complaint filed by players with the EEOC in 2016. The violations claimed are under the Equal Pay Act (paying women players less than male players for substantially the same work) and sex discrimination under Title VII (based on disparate wages and treatment in comparison to male players). The Washington Post summarizes some of the factual allegations listed:
In the lawsuit, the women claim that in 2016, U.S. Soccer made more than $17 million in unexpected profits thanks largely to the women’s team, while paying the women players substantially less than their male counterparts. According to the lawsuit, a comparison of pay schedules for the two teams shows that if each team played 20 exhibition games in one year, members of the men’s team could earn an average of $263,320 each, while women’s players could earn a maximum of $99,000.
The lawsuit also highlights differences in World Cup bonuses for the two teams. After 2014 World Cup, U.S. Soccer paid out a total of $5.375 million in bonuses to the men’s team, which lost in the round of 16. In 2015, U.S.Soccer paid out $1.725 million in bonuses to the women, who won their World Cup, the lawsuit states.
One interesting element is that many of these conditions are rooted in a 2017 collective-bargaining agreement, which U.S. Soccer is sure to cite. However, traditionally, there was an expectation that unions can't waive Title VII and similar rights. Of course, there also used to be the same expectation when it came to mandatory arbitration clauses covering Title VII and similar claims, which the Court later abandoned. So stay tuned.
Friday, February 15, 2019
I normally try to avoid too much self-promotion on the blog, but I wanted to post a new draft article of mine. Hopefully the topic is of interest, but I post it mainly because I'd love comments and thoughts, which you can send me directly (I'm going through the journal submission process now, but still need to work on some things, especially citations). The article is called Future Work and is available on SSRN. The abstract:
The Industrial Revolution. The Digital Age. These revolutions radically altered the workplace and society. We may be on the cusp of a new era—one that will rival or even surpass these historic disruptions. Technology such as artificial intelligence, robotics, virtual reality, and cutting-edge monitoring devices are developing at a rapid pace. These technologies have already begun to infiltrate the workplace and will continue to do so at ever increasing speed and breadth.
This Article addresses the impact of these emerging technologies on the workplace of the present and the future. Drawing upon interviews with leading technologists, the Article explains the basics of these technologies, describes their current applications in the workplace, and predicts how they are likely to develop in the future. It then examines the legal and policy issues implicated by the adoption of technology in the workplace—most notably job losses, employee classification, privacy intrusions, discrimination, safety and health, and impacts on disabled workers. These changes will surely strain a workplace regulatory system that is ill-equipped to handle them. What is unclear is whether the strain will be so great that the system breaks, resulting in a new paradigm of work.
Whether or not we are on the brink of a workplace revolution or a more modest evolution, emerging technology will exacerbate the inadequacies of our current workplace laws. This Article discusses possible legislative and judicial reforms designed to ameliorate these problems and stave off the possibility of a collapse that would leave a critical mass of workers without any meaningful protection, power, or voice. The most far-reaching of these options is a proposed “Law of Work” that would address the wide-ranging and interrelated issues posed by these new technologies via a centralized regulatory scheme. This proposal, as well as other more narrowly focused reforms, highlight the major impacts of technology on our workplace laws, underscore both the current and future shortcomings of those laws, and serve as a foundation for further research and discussion on the future of work.
February 15, 2019 in Employment Discrimination, Labor and Employment News, Pension and Benefits, Public Employment Law, Scholarship, Wage & Hour, Worklife Issues, Workplace Safety, Workplace Trends | Permalink | Comments (0)
Wednesday, January 9, 2019
This Article argues employers should be required to engage in the same interactive process with employees seeking religious accommodations as they are with employees seeking disability accommodations. The interactive process generally obligates the employer and employee to work together in good faith to determine whether the employee can be reasonably accommodated. Neither the Americans with Disability Act nor Title VII of the Civil Rights Act explicitly mandates the interactive process, yet courts routinely read this requirement into the former statute but not the latter. The practical effect of this distinction is that religious accommodations generally are more difficult to obtain, and employees seeking such accommodations have less control over the process and outcome. Consequently, employees may be forced to choose between their jobs and their religious beliefs—the very conundrum Title VII seeks to avoid.
The legal justification for mandating the interactive process for disability accommodations but not religious accommodations is uncompelling, prompting a handful of courts to require the interactive process for both types of accommodations. More courts should follow suit. There is considerable upside, and virtually no downside, to extending the interactive-process requirement to religious accommodations. It benefits employees and employers alike by increasing the odds of a mutually agreeable accommodation, which in turn reduces the risk of litigation. Moreover, good-faith participation in the interactive process better positions a party to prevail when litigation does ensue. The interactive process also benefits courts, not only by lightening dockets through reduced litigation, but also by providing a straightforward, highly adaptable, and familiar framework through which to more effectively evaluate accommodation claims. As religious-accommodation requests increase, both in number and types, the interactive process can help reduce conflict by ensuring employers and employees work together to determine whether a reasonable accommodation is possible.
Friday, December 21, 2018
Today our employment law provides workers with far more protection than once existed with respect to hiring, firing, salary, and workplace conditions. Despite these gains, continued progress towards justice is currently in jeopardy due to companies’ imposition of mandatory arbitration on their employees. By denying their employees access to court, companies are causing employment law to stultify. This impacts all employees, but particularly harms the most vulnerable and oppressed members of our society for whom legal evolution is most important. If companies can continue to use mandatory arbitration to eradicate access to court, where judges are potentially influenced by social movements, social movements will no longer be able to assist the overall progressive trend of our jurisprudence. While the phenomenon of mandatory employment arbitration is not new, recent Supreme Court opinions have encouraged an even greater number of employers to use this practice to force employees to take any disputes to arbitration, rather than to court. Focusing particularly on the #MeToo movement, this Article will consider this reality and its detrimental implications for the evolution of legal precedent affecting our most vulnerable employees.