Workplace Prof Blog

Lin Reconceptualizes Work Law

Shirley Lin (Brooklyn) has just published her article Race, Solidarity, and Commerce: Work Law as Privatized Public Law, 55 Ariz. St. L.J. 813 (2023). Here's a summary:

Theorizing work and its regulation has held enduring appeal for legal theorists. Yet intellectual movements that wish to theorize worker coercion within a broader critique of law often sidestep race. Since Lochner, landmark opinions involving race, labor, or both, have served as showpieces for the legal liberal tenets underpinning work law’s doctrines and institutions. Each iteration of the public/private divide instantiates an ideological—but avowedly race-neutral—structure for how we study, teach, and propose to reshape work law. Scholars, judges, and lawmakers typically cede this ground, perhaps because law itself is under right-wing attack.

This Article asks: What if work law allowed us to understand racism as central to legal liberal frames, rather than ancillary or topical? Deploying history and political theory, I demonstrate how public/private dyads within work law have generated unworkable and often divisive understandings of race, solidarity, and commerce. The Article then theorizes the links between work law’s capture by public/private divides and the harms they pose to our centuries-long pursuit of a thriving, multiracial democracy. Reexamining the development of labor and employment law in this light recovers a crucial point of synergy between Critical Race Theory and law and political economy (LPE) analysis.

Building on these insights, I describe work law’s current state as privatized public law. The term historicizes and, for the sake of argument, facilitates closer study of the link between legal liberal conceptions of commerce and the law’s maintenance of racial subordination. Conversely, it allows us to recognize the small- and large-scale frame transformations ordinary people have achieved through mass social movements, with the goal of strengthening all labor movements from within.

Centering race in a reassessment of work law opens up possibilities for unifying the field’s development, charts alternatives to liberal tenets within political economic thought, and provides a starting point for unraveling similarly contested fields of law. We may then “see” how the countertheories that popular movements pose against legal liberalism not only bear epistemic, doctrinal, and political importance, but also foreground the law’s normative distribution of power between public and private, racially solidaristic or radically individualistic. Work law’s tension with popular movements on matters of race, solidarity, and commerce therefore suggests how we may break the theoretical impasse over how to build more just economic and political systems over time.

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Shu to Join Rothstein & McGinley on Disability Law Casebook

D'Andra Shu (South Texas) will be joining Laura Rothstein (Louisville, retired) and Ann McGinley (UNLV) on the 7th edition of Disability Law: Cases, Problems, and Materials (Carolina Academic Press, forthcoming in time for classes in fall 2024). Shu's a terrific addition to a terrific team and a critical casebook. Here's an excerpt from the authors' letter to adopters:

This message is being sent to you as a current or recent adopter of the 2017 edition of DISABILITY LAW: CASES, PROBLEMS AND MATERIALS. Except for this past summer, we have sent an annual Letter Update to all adopters. Our letter noted previously that until there was a significant number of changes to this area of law, a 7th edition was not contemplated. It is now time for the 7th edition, and we are scheduled to complete that edition for Carolina Academic Press in time for classroom use by Fall 2024. We will also be bringing in D’Andra Shu, Assistant Professor of Law at South Texas College of Law Houston, as a co-author.

Although there have been few Supreme Court decisions and no major statutory changes since 2017, a new edition makes sense now to address the range of COVID-related issues that have affected disability law and because of the current Supreme Court’s approach to areas of law that are highly regulated.

The 7th edition will retain what we believe to be key assets of our textbook—the Chapter Goals, Key Concepts and Definitions, and Hypotheticals (including some new ones). We do not contemplate any major reorganization of the text or adding or deleting any chapters. The Instructor Materials will be updated and will guide the faculty member through the changes and will continue to suggest areas where the instructor might wish to add material relevant to the state in which the course is being taught. The Power Points (and content for those with visual impairments) will be updated.

We would welcome any suggestions and thoughts from our adopters—including what you like about the text and what you would like to see more of. Are there parts of the book that you do not use? Are there topics you would like to see added?

For those of you using the textbook in fall 2023 or spring 2024, we are already working on the Letter Update and plan to make it available by July 1, 2023. This would incorporate issues from the previous letter updates and major new developments through this spring.

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Bisom-Rapp's New BJELL Article

Congratulations to Susan Bisom-Rapp on the publication of her article The Role of Law and Myth in Creating a Workplace that 'Looks Like America', 43 Berkeley JELL 251 (2022)!!! Here's the abstract:

Equal employment opportunity (EEO) law has played a poor role in incentivizing effective diversity, equity, and inclusion (DEI) and harassment prevention programming. In litigation and investigation, too many judges and regulators credit employers for maintaining policies and programs rather than requiring employers to embrace efforts that work. Likewise, many employers and consultants fail to consider the organizational effects created by DEI and harassment programming. Willful ignorance prevents the admission that some policies and programming harm those most in need of protection. 

This approach has resulted in two problems. One is a doctrinal dilemma because important presumptions embedded in antidiscrimination law are tethered to employer practices, many of which do not promote EEO. Simultaneously, society faces an organizational predicament because employer practices are driven by unexamined myths about how to achieve bias and harassment-free environments. Neo-institutional theory explains how this form-over-substance approach to EEO law and practice began and has evolved. This Article builds upon that theory by arguing that favorable conditions exist for a shift from a cosmetic to an evidence-based approach to legal compliance. Three developments mark the way forward: (1) a pathbreaking Equal Employment Opportunity Commission (EEOC) report; (2) the EEOC’s call for better research on DEI and harassment prevention program efficacy; and (3) new social science research discussing which DEI efforts are most likely to succeed and those most likely to prompt backlash. 

To facilitate evidence-based EEO compliance, this Article advocates changes in liability standards. It also recommends the creation of a supervised research safe harbor for employers willing to work with researchers and regulators to assess and continuously improve their DEI and harassment prevention efforts. Finally, the Article urges lawyers to more frequently employ Brandeis briefs in litigation to place social science research directly in front of jurists. Solving the twin problems wrought by cosmetic compliance requires taking seriously the findings of social scientists. An evidence-based approach to DEI and harassment prevention would assist in restoring the promise of EEO law to create healthy, diverse, and bias-free U.S. workplaces.

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Lobel's New Book: Equality Machine

Congratulations to Orly Lobel (San Diego) on the publication of her new book, The Equality Machine: Harnessing Digital Technology for a Brighter, More Inclusive Future (PublicAffairs 2022). Here's the author's description:

The Equality Machine is a cautiously optimistic response to the current techlash and fears of AI, automation, and datafication. I envision a more balanced path forward, one where we redirect digital technology for good. Much has been written about the challenges tech presents to equality and democracy. I argue that while we cannot stop technological development, we can steer its course according to our most fundamental values. Already, digital technology frequently has a comparative advantage over humans in detecting discrimination, correcting historical exclusions, subverting long-standing stereotypes, and addressing the world’s thorniest problems: climate, poverty, injustice, literacy, accessibility, speech, health, and safety. The book offers vivid examples, new research, and stories of leaders from academia, policy, and industry—from labor markets to dating markets-that inspire to have skin in the tech game and restore human agency in a rapidly evolving artificial reality.

 

Congrats, Orly!

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New Ed.: Employment Law in a Nutshell

Congratulations to Joe Seiner (South Carolina) on the publication of the 5th edition of Employment Law in a Nutshell (with the late Robert Covington). Here's the publisher's description:

This Nutshell provides an overview of individual employee rights and responsibilities. It addresses a number of areas, including establishing and ending the employment relationship, protection of employee privacy and reputation, discrimination, regulation of wages and hours, employee physical safety, fringe benefits, and employee duties of loyalty. This edition includes a discussion of the many changes in harassment law and the impact of the #MeToo movement, a look at the recent Supreme Court case law extending employment discrimination protections to sexual orientation and transgender status, an examination of the trend toward a more virtual economy and platform-based work, and a description of the changes in how employees work, and the terms of that work, in the face of an ongoing health pandemic.

Here's what's new for the 5th edition:

The fifth edition takes on a number of transformative changes that have occurred in the last several years in the area of workplace law, including: (1) The impact of the #MeToo moment on claims of gender discrimination and harassment; (2) The changing ways employment status is considered in the face of an ongoing health pandemic; (3) The move toward a more virtual workplace and employment that relies more heavily on technology; and (4) The recent Supreme Court case law extending employment discrimination protections to sexual orientation and transgender status.

Congrats, Joe!

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Call for Papers: “What has Critical Race Theory Contributed to the Law of the Workplace?”

César F. Rosado Marzán writes to inform us about a great call for papers:

 

CALL FOR PROPOSED PAPERS:

Final papers due February 1, 2022

Employee Rights & Employment Policy Journal, Annual Symposium:

“What has Critical Race Theory Contributed to the Law of the Workplace?”

 

Some influential media pundits, politicians, state legislatures, and the administration of Donald J. Trump launched a frontal attack on Critical Race Theory (CRT). Reasons for the assault on CRT include that CRT theorists allegedly argue that the United States, white people, and other racial groups are inherently and irremediably racist and evil. Attacks include banning teaching CRT in public schools and other institutions of learning and forbidding implicit bias training.

But CRT has, for the most part, been a scholarly theoretical perspective focused mostly on exploring structures of race and racism. It has inspired a large body of work identifying how race and racism pervade in U.S. society despite the end of slavery and Jim Crow. As such, it has contributed to correcting our understandings of bias and to making U.S. law more sensitive to overt and hidden forms of discrimination. Far from arguing that groups are irremediably racist, it has also inspired research on how bias can change and how racism can be transcended, including by law and through worker training.

Unsurprisingly, labor and employment law has been affected by CRT. It has helped expand and historicize legal perceptions of race, color, and national origin; guide legislatures and courts on how appearance, grooming, and hair rules are colored by racist perceptions; understand how immigration status might be racialized; and explore intersectional realities, among other contributions.

In this light, the Employee Rights and Employment Policy Journal is calling for submissions for its annual 2022 symposium related to the contributions of CRT to the law of the workplace. Contributions can also focus on the legal rights that school and university administrators and educators have to resist political intrusions into academic freedom, such as those banning instruction of CRT.

We are seeking abstract submissions to be sent to us by November 12, 2021. Please submit to César F. Rosado Marzán ([email protected]) an abstract that is developed enough to allow the editors to evaluate the thesis and proposed execution of the project as a proposal. Please send the document in Microsoft Word format. Selected authors will be notified by Nov. 23, 2021, if not sooner, of the interest in potential publication. Completed papers will be expected by February 1, 2022. Any inquiries about the Call for Papers should be submitted to [email protected].

This Symposium is sponsored by The Labor Law Group, a non-profit trust of labor and employment law scholars who collaborate on various educational projects. Labor Law Group member César F. Rosado Marzán (Iowa Law) will serve as symposium editor working with journal co-editors Michael Green (Texas A&M) and Noah Zatz (UCLA).

Employee Rights and Employment Policy Journal is a faculty-edited, peer-reviewed journal co- published by The Labor Law Group and IIT Chicago-Kent College of Law. Authors uniformly praise the Journal’s editing process. The Journal has a student staff who provide cite checking and Bluebooking, but their work is reviewed by the faculty editors, and authors do not deal directly with students.

 

-Jeff Hirsch

Bisom-Rapp on Myth-Busting

Hot off the SSRN presses is Susan Bisom-Rapp's trenchant article, The Role of Law and Myth in Creating a Workplace that "Looks Like America." It deals efficiently and perceptively with the past, present, and potential future of employer programming to deal with DEI, discrimination, and harassment. Download available here and abstract below.

Equal employment opportunity (EEO) law has played a poor role in incentivizing effective diversity, equity, and inclusion (DEI) and harassment prevention programming. In litigation and investigation, too many judges and regulators credit employers for maintaining policies and programs rather than requiring that employers embrace efforts that work. Likewise, many employers and consultants fail to consider the organizational effects created by DEI and harassment programming. Willful blindness prevents the admission that some policies and programming, although not all, harm those most in need of protection.

This approach has resulted in two problems. One is a doctrinal dilemma because important presumptions embedded in anti-discrimination law are tethered to employer practices, many of which do not promote EEO. Simultaneously, society faces an organizational predicament because employer practices are driven by unexamined myths about how to achieve bias and harassment-free environments. Neo-institutional theory explains how this form-over-substance approach to EEO law and practice began and has evolved. This article argues that favorable conditions exist for a shift from a cosmetic to an evidence-based approach to legal compliance. Three developments mark the way forward: 1) a pathbreaking Equal Employment Opportunity Commission (EEOC) report; 2) the EEOC’s call for better research on DEI and harassment prevention program efficacy; and 3) new social science research on those organizational efforts most likely to succeed and those most likely to prompt backlash.

To facilitate evidence-based EEO compliance, this article advocates changes in liability standards. Also recommended is the creation of a supervised research safe harbor for employers willing to work with researchers and regulators to assess and continuously improve their DEI and harassment prevention efforts. Finally, the article suggests lawyers more frequently employ Brandeis briefs in litigation to place social science research directly in front of jurists. Solving the twin problems wrought by cosmetic compliance requires taking seriously the findings of social scientists. An evidence-based approach to DEI and harassment prevention would assist in restoring the promise of EEO law to create healthy, diverse, and bias free American workplaces.

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Harkavy's Annual LEL SCOTUS Review

Many thanks to Jonathan Harkavy (Patterson Harkavy) for sharing with us the 2021 edition of his annual review of the labor/employment decisions from the Supreme Court. As always, it's a great resource. Here's the abstract:

This article provides extended summaries and (separately) the author's take on every employment and labor law decision rendered by the Supreme Court during its most recent term. Also covered in this piece are abbreviated reviews of all grants of certiorari for the upcoming term and short summaries and analyses of all other employment-related opinions published by the Court this term, including those on the so-called shadow docket portion of the orders lists. The article concludes with additional commentary on the work of the Supreme Court as it affects the labor and employment law sector.

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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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[Un]Vaccinated Workers in the Labor Market

Chris Albertyn (Albertyn Arbitration, Toronto) has sent the position paper Vaccinated and Unvaccinated Workers in the Labor Market, drafted by labor law academics in Israel. Here's the introduction:

Covid-19 poses numerous challenges to the labour market. The most recent are dilemmas concerning the appropriate regulation of access to work for unvaccinated workers, and the possible infringement of labour rights that may ensue. Being the first country in which large scale vaccination took place, there is a heated debate within Israel on this topic. As part of the public discourse, 17 labour law experts from academic institutions around Israel have written the position paper presented below:

We, a group of leading labour law scholars from Israeli law faculties, have been closely monitoring the public and legal discourse around the access of unvaccinated workers into workplaces. We are concerned that at this time, when a large share of the adult population in Israel is being vaccinated, there are calls to terminate the employment of workers who are not. To this end, we wish to emphasize a few basic principles of labour law and human rights that lie at the heart of Israeli law and international labour law. These principles should guide regulation on this issue, whether it is negotiated by the parties to collective labour law, the legislature, or in the labour courts' judgements.

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Porter: The Process Due for Sexual Misconduct in Workplace v. Schools v. Criminal Cases

Nicole Porter (Toledo) has just posted on SSRN her article #MeToo and the Process That's Due: Sexual Misconduct Where We Live, Work, and Learn. Here's the abstract:

The #MeToo movement has been instrumental in bringing attention to the pervasiveness of sexual harassment and sexual assault (collectively, sexual misconduct ) in all walks of life and in all environments, including at work, school, home, and out in public. But the movement has also brought with it a great deal of confusion about how we define sexual misconduct and whether and when legal liability attaches. Part of that confusion can be blamed on the fact that at least three discrete areas of law can possibly apply to sexual misconduct—criminal law, Title VII (when the sexual misconduct takes place in the workplace), and Title IX (when the sexual misconduct takes place in schools and universities). Adding to that confusion is that there are several inconsistencies between how these three areas of the law address issues surrounding sexual misconduct. The most prominent of these inconsistencies is the varied due process protections that apply, depending on where the sexual misconduct takes place. This article will discuss these inconsistencies, and will address the issue of whether these differences can be justified. In the end, this article concludes that the increased due process protection for Title IX cases (compared to Title VII cases) cannot be justified. Thus, it proposes a compromise response to answer the question—how much process is due?

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Travis on Rethinking the Post-Pandemic Workplace

Michelle Travis (San Francisco) has posted on SSRN her article (forthcoming 64 Wash. U. J. L. & Pub. Pol'y ___ (2021)) A Post-Pandemic Antidiscrimination Approach to Workplace Flexibility. Here's the abstract:

The dramatic workplace changes in the wake of the global pandemic offer courts both an opportunity and an obligation to reexamine prior antidiscrimination case law on workplace flexibility. Before COVID-19, courts embraced an essentialized view of workplaces built upon a “full-time face-time norm,” which refers to the judicial presumption that work is defined by long hours, rigid schedules, and uninterrupted, in-person performance at a centralized workspace. By applying this presumption to both accommodation requests under the Americans with Disabilities Act of 1990 and to disparate impact claims under Title VII of the Civil Rights Act of 1964, pre-pandemic courts systematically undermined antidiscrimination law’s potential for workplace restructuring to expand equal opportunities for individuals with disabilities and for women with disproportionate caregiving responsibilities. This Article demonstrates how employers’ widespread adoption of flexible work arrangements in the wake of COVID-19—including telecommuting, modified schedules, temporary leaves, and other flextime options—undermine these prior decisions and demand a new analysis of antidiscrimination law’s potential to advance workplace flexibility.

I think Michelle is exactly right: "with [57%] of U.S. employers now offering their employees flextime or remote work options as a result of [COVID], it is no longer tenable for courts to define work as something done only at a specified time and place." We can do better.

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Veterans, USERRA, and War Powers Abrogation

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

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

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

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

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

Jeff Hirsch

A Radio Story of United Steelworkers v. Weber

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

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

–Sachin Pandya

References

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

Bornstein on Pregnancy Discrimination & the Meaning of Equaltiy

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

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

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

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Lin & Cukor: Litigating LGBTQIA+ Discrimination

Shirley Lin (NYU) & Ezra Cukor (Staff Attorney, Center for Reproductive Rights) have posted on SSRN their chapter LGBTQIA + Discrimination in Employment Discrimination Law & Litigation (Thomson West 2020). Here's the abstract:

Asserting and defending the employment rights of lesbians, gay men, bisexual, and transgender, queer, intersex, and asexual people (LGBTQIA+) is a decades-long civil rights struggle. Increasing awareness and acceptance of LGBTQIA+ individuals in U.S. society does not mean that society has not always been sexually diverse, or that sex has only recently been recognized as socially, rather than “biologically,” defined.

In June 2020, The Supreme Court decided a trio of cases wherein it acknowledged for the first time that federal workplace protections reach anti-LGBTQIA+ discrimination. In the landmark decision Bostock v. Clayton County, the Court held that because under Title VII an employer cannot rely on sex as a but-for cause, even if not the sole or primary cause, to fire an employee, an employer who fires someone for being gay or transgender “defies the law.” The landmark decision is a result of generations of advocacy by LGBTQIA+ communities and their advocates inside and outside of the courtroom. Although Title VII has prohibited sex discrimination since its enactment, early decisions rejected claims by LGBTQIA+ people as outside the statute’s ambit. Even as the doctrine generally reflected a broader understanding of sex discrimination, leading up to Bostock there existed only a patchwork of lower-court and agency precedent that Title VII covered LGBTQIA+ people (see §§ 27:2, 27:3, 27:5, 27:7.25). As a result, a LGBTQIA+ employee’s ability to seek redress for discrimination against a private employer depended on her zip code, even under federal law. The Supreme Court’s forthright decision opened courthouse doors throughout the country to LGBTQIA+ workers.

The achievement of Title VII protection is a vital milestone but not the end point in addressing discrimination: LGBTQIA+ people have long faced unacceptable levels of workplace discrimination. Despite a dramatic increase in public acceptance post the Supreme Court’s decision in Obergefell, during the administration of President Trump, the hateful rhetoric, and the policy positions taken by the President and his administration concerning LGBTQIA+ people, public tolerance for accepting LGBTQIA+ individuals declined. Moreover, because LGBTQIA+ workers who are Black, Indigenous, or people of color face disproportionate employment discrimination, the ongoing struggle for racial justice is integral to achieving meaningful equality for LGBTQIA+ people. Winning a workplace discrimination case can be devilishly difficult, especially for low-income workers who often face formidable barriers even to accessing counsel. Because LGBTQIA+ people face significant hostility and misunderstanding from a variety of social forces, including some courts, lawyers litigating for equal treatment for their LGBTQIA+ clients must innovate and educate as well as advocate. Not only does discrimination in the workplace injure and deprive individual LGBTQIA+ workers of their livelihoods, it stigmatizes LGBTQIA+ people as a group.

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Player & Sperino's 9th ed. of E'ment Discrim Nutshell

Congratulations to Mack Player (Santa Clara) and Sandra Sperino (Cincinnati) on the publication of the 9th edition of their Employment Discrimination in a Nutshell. Here's the publisher's description:

This text is designed to assist students—both law and undergraduate—to achieve a basic understanding of this complex area of the law, and provide an up to date review for the practitioner. The focus is upon Title VII of the Civil Rights Act of 1964 (race, national origin, sex, and religious discrimination), the Age Discrimination in Employment Act, and the Americans with Disabilities Act as applied to the workplace. The book addresses the method of proving violations, both disparate treatment and disparate impact analysis, including a brief primer of statistical proof, as well as the defenses to the express use of proscribed classifications. Finally, the book provides a quick reference to the complex procedural and remedial provisions of the statutes.

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Harkavy's SCOTUS Employment Review

Jon Harkavy (Patterson Harkavy) has just posted on SSRN his annual review of Supreme Court employment cases. Here's the abstract:

This article offers a review of and commentary on every opinion of the Supreme Court of the United States in each case relating to employment and labor law during the Court's 2019-2020 Term. The article also briefly summarizes the Court's grants of certiorari for its 2020-2021 Term relating to employment in the American workplace. In addition to the author's commentary on each case, the article includes a broader look at how the Court is dealing with workplace jurisprudence, including references to its "shadow docket" and the assignment of majority opinions.

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Canadian Supreme Court Issues Critical Disparate Impact Decision

Christopher Albertyn (Albertyn Arbitration Inc.) is kind enough to write this guest post on the important new Canadian decision of Fraser v. Canada (Attorney General), 2020 SCC 28 (CanLII):

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The Supreme Court of Canada has ruled that the Royal Canadian Mounted Police (RCMP) pension plan discriminated against women. The pension plan therefore breached an Equality Right at section 15(1) of the Charter of Rights and Freedoms:

15. (1) Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.

The claimants were full-time RCMP members who took advantage of a job-sharing arrangement offered by the RCMP. During the period they were job-sharing their employment was characterized as part-time. Part-time employees were not entitled to purchase full-time pension credits. So, when the claimants ended the period of their job-sharing and they sought to purchase their full-time pension credits, they were advised that, as part-time employees during their job sharing, they could not buy back their full-time pension credits. They claimed this determination discriminated against them in violation of section 15(1) of the Charter.

On October 16, 2020, the Supreme Court of Canada (the SCC) ruled that the Royal Canadian Mounted Police (RCMP) pension plan breaches section 15(1) on the ground of sex. This was because a provision of the plan perpetuated discrimination against women by precluding members who participate in job-sharing arrangements from purchasing full-time pension credit. The result was that their eventual pension entitlements were less than those, predominantly male employees, who were able to purchase full-time pension credits during periods of less than full-time work, including when they were on disciplinary suspension. Only those regular, full-time employees who were on the job-sharing program were not able to purchase the credits for their periods of less than full-time work.

The S.C.C. found that the RCMP pension plan has a disproportionate impact on women and so violated women’s rights to equality under the Charter.

The finding was not because “women continue to have disproportionate responsibility for childcare and less stable working hours than men, but because the pension plan ‘institutionalizes those traits as a basis on which to unequally distribute; pension benefits to job-sharing participants” [para.136].

Justice Abella, writing for the S.C.C., made clear that the Charter guarantees substantive equality, having regard to the actual impact on the affected employees. On its face the imposition of less favourable pension benefits for job-sharing members seemed to affect all RCMP members equally, but it had a disproportionate impact on the women officers, and so was found to be discriminatory.

The S.C.C. applied the two-step test to section 15(1) claims. The claimant had to demonstrate:

1. 1. that the impugned action, in its impact, created a distinction based on a prohibited ground, and
   2. that the action imposed had a disproportionately adverse effect on the members of the protected group, in this case, women.

On the first step, the S.C.C. found that statistical evidence showed a clear association between sex and fewer working hours. So, the RCMP’s use of a temporary reduction in working hours as a basis for imposing less favourable pension consequences had an adverse impact on women. The RCMP members who took part in the job-sharing program were predominantly women with young children. Most of these women gave childcare as their reason for doing so.

In holding that the second step was established, the S.C.C. found that the RCMP’s pension plan perpetuated a long-standing gender bias that favoured “male pattern employment” (permanent, full-time workers with long uninterrupted service records) over “female pattern employment” (temporary or part-time service). This resulted in a disproportionate economic disadvantage for women.

This case is important in reiterating and clarifying how discrimination cases are to be decided. It gives a clear statement that substantive equality is the standard on which the protection is to be decided. Also, the question is not whether a provision explicitly targets a protected group for differential treatment, but rather, does the provision do so indirectly through its impact? The S.C.C. suggested that two types of evidence are useful to provide that a law or action has a disproportionate impact on a protected group: evidence of the full context of the protected group (i.e. their physical, social, cultural or other barriers), and evidence about the results or effects of the law or action on them. To establish the link between the impugned provision and the alleged disadvantage, the claimants need only demonstrate consistent statistical disparities in how the provision affects them, without having to explain why that was the result. Such evidence “is itself a compelling sign that the law has not been structured in a way that takes into account the protected group’s circumstances”. Through such evidence, some seemingly neutral policy can be shown to have a disproportionate impact on the protected group.

The S.C.C. also had some helpful additional observations:

1. 1. The intention of the legislator is irrelevant. It is not necessary to prove an intention to discriminate.
   2. If the claimants demonstrate that a law has a disproportionate impact on members of a protected group, they need not independently prove that the protected characteristic “caused” the disproportionate impact, i.e. that the basis of the exclusion was the protected characteristic. The effect is all that matters.
   3. The claimants need also not show that the impugned provision affected all members of the protected group in the same way, or even at all. Practices that amount to partial discrimination are no less discriminatory than those in which all members of a protected group are affected.

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Bisom-Rapp on Bostock

Susan Bisom-Rapp (TJSL; visiting Cal Western) has posted on SSRN her essay The Landmark Bostock Decision: Sexual Orientation and Gender Identity Bias in Employment Constitute Sex Discrimination under Federal Law. The essay was solicited by and written for the Comparative Labor Law & Policy Journal (CLL&PJ). Valerio De Stefano (KU Leuven) and Sean Cooney (University of Melbourne) are editors of the dispatch section of the CLL&PJ. Dispatches are relatively short essays summarizing a "significant development in national labor [and employment] law." A dispatch explains the import of a domestic development and "the reasons for transnational interest…." CLL&PJ posts the dispatches on the journal’s website and the dispatches are open access. Here is a link to the dispatch section of the CLL&PJ, where the essay can also be found. Here is the abstract:

On June 15, 2020, the Supreme Court of the United States (Supreme Court or SCOTUS) issued a widely anticipated decision holding that the federal statutory ban on sex discrimination in employment includes a prohibition of discrimination based on sexual orientation and gender identity. A landmark case in every sense of the term, Bostock v. Clayton County (Bostock) is important for a number of reasons. Besides being a significant victory for civil rights advocates, LGBTQIA people, and their allies, the 6-3 decision was notable for its discussion of an ascendant theory of statutory interpretation, the majority’s well-reasoned analysis of the principles of causation, and the fact that a conservative judicial appointee of President Donald Trump authored the majority opinion. The decision also underscores the value of a carefully constructed LGBTQIA rights litigation strategy that was decades in the making. Perhaps most importantly, Bostock lays the groundwork for nationwide protection of sexual minorities from discrimination in housing, education, health care, and public accommodations, among other areas.

Despite polls showing that a majority of Americans support civil rights for LGBTQIA people, reaction to the case, both for and against, has been strong. Strong partisan response is in part driven by the Trump administration’s agenda vis-à-vis the rights of sexual minorities. Indeed, one hallmark of Trumpism has been the continuous attack on civil rights advances for the LGBTQIA community, with a great deal of hostility aimed at transsexuals. Given the antipathy of the administration towards a vulnerable population, civil rights advocates see Bostock as a much needed course correction and cause for celebration. Cultural conservatives, on the other hand, argue that Bostock strikes a blow against religious freedom and constitutes usurpation by the Court of the federal legislative function. The fears of cultural conservatives, however, were likely assuaged somewhat by a pair of SCOTUS decisions, which were issued just three weeks after Bostock. While those cases may presage limitations on the reach of Bostock, and seem to prioritize religious freedom over other fundamental rights, this Dispatch cautions that the human right to be free of workplace discrimination based on sexual orientation and gender identity must be safeguarded as the rule rather than the exception.

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