Tuesday, June 8, 2021
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.
Wednesday, April 7, 2021
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.
April 7, 2021 in Employment Common Law, Employment Discrimination, International & Comparative L.E.L., Labor and Employment News, Labor Law, Workplace Safety, Workplace Trends | Permalink | Comments (1)
Wednesday, January 27, 2021
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?
Tuesday, January 5, 2021
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.
Thursday, December 24, 2020
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.
Monday, December 21, 2020
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.
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.
Tuesday, December 8, 2020
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.
Friday, November 6, 2020
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.
Monday, November 2, 2020
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.
Thursday, October 29, 2020
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.
Wednesday, October 28, 2020
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):
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:
- that the impugned action, in its impact, created a distinction based on a prohibited ground, and
- 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:
- The intention of the legislator is irrelevant. It is not necessary to prove an intention to discriminate.
- 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.
- 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.
Tuesday, September 8, 2020
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.
Thursday, August 27, 2020
Dallan Flake (ONU) has just posted on SSRN his article Protecting Professional Athletes from Spectator Harassment. I had the pleasure of reading an earlier draft and highly recommend it. Here's the abstract:
Instances of spectators harassing professional athletes because of their race, color, religion, sex, or national origin are well documented. This is not a new problem, but it is becoming worse in this age of emboldened bigotry. Fans are sometimes punished for such behavior, as are players who retaliate in response. Meanwhile, the teams and leagues that allow it to occur face no repercussions. This must change for there to be any hope of eradicating this egregious form of discrimination. The logical starting point is Title VII of the Civil Rights Act of 1964, under which employers can be liable for harassment perpetuated against employees on the basis of certain protected traits. This statute is rarely utilized in the context of spectator harassment, in no small part because the standard for holding a team or league liable for the conduct of fans may seem impossibly high. This Article argues there is room within the extant legal framework for an athlete to prevail on such a claim and provides a blueprint for how to do so. Specifically, it asserts that (1) an athlete is entitled to a presumption that spectator harassment is unwelcome; (2) spectator harassment is sufficiently severe to be actionable because it is publicly humiliating, causes far-reaching harm, and is specifically intended to undermine job performance; and (3) spectator harassment is imputable to teams and leagues because they have the resources to implement more effective measures to protect athletes but choose not to. Holding sports organizations to account is necessary to bring about changes that will better safeguard athletes from this demeaning and degrading type of abuse.
Saturday, August 15, 2020
Jon Harkavy (Patterson Harkavy) sends word of two recent important cases from the Fourth Circuit. The first, which Jon says was issued from a particularly conservative panel, is Wilcox v. Carroll County. In that case, the court ruled that a pure retaliation claim under section 1983 is not cognizable under the Equal Protection Clause. Jon suggests that the case might not survive en banc review, but may go up on certiorari regardless. The second case, Stegemann v. Quatrone, is an ERISA case involving the duties of prudence and diversification.
Monday, August 10, 2020
I know I’m consumed with causation (there’s probably help available for that), but one of the many interesting things about Bostock is Justice Gorsuch’s focus on “but-for” causation. Some of what follows was triggered by an email from Steve Willborn, an unkind act given he’s well aware of my fixation.
Bostock, of course, recognizes that Title VII uses a “more forgiving standard” of motivating factor” under which “liability can sometimes follow even if sex wasn’t a but-for cause of the employer’s challenged decision.” (emphasis in original). But then the opinion goes back to but-for: “because nothing in our analysis depends on the motivating factor test, we focus on the more traditional but-for causation standard that continues to afford a viable, if no longer exclusive, path to relief under Title VII.”
Why did Justice Gorsuch choose the seeming harder causal hill to climb?
One possibility is obvious but seems unlikely: Title VII has the most permissive causation standard around, so focusing on motivating factor would limit the impact of the opinion as applied to the other 100 federal statutes barring “sex” discrimination so helpfully listed by Justice Alito’s dissent. Under that view, Justice Gorsuch wanted this opinion to control most if not all of these decisions. However, that possibility is inconsistent with the Justice’s later declaration that the Court was deciding only the Title VII question: “none of these other laws are before us; we have not had the benefit of adversarial testing about the meaning of their terms, and we do not prejudge any such question today.” It also seems inconsistent with the Gorsuch jurisprudence so far as it has emerged from his short time on the Court.
Another possibility worth thinking about is that, although motivating factor is supposed to require less causal clout than but-for, perhaps Gorsuch thought that but-for was satisfied in the cases before him but motivating factor maybe not.
This seems odd, but might be explained by the Alito dissent’s insistence that discrimination on the basis of sexual orientation or transgender status isn’t sex discrimination because an employer can act on that basis without knowing the sex of the employee. For Alito, that would be the end of the matter (not that he doesn’t have other arguments), because disparate treatment requires intent to discriminate and intent requires knowledge of the protected trait: “An employer cannot intentionally discriminate on the basis of a characteristic of which the employer has no knowledge.”
Alito’s on pretty solid ground with respect to disparate treatment cases, but not (somewhat oddly for a committed textualist) in terms of the statute, which speaks only in terms of causation (“because”), not in terms of intent.
So is Gorsuch (who, recall, wrote for a six-Justice majority) bringing the Court around to what is arguably a pretty radical but clearly textualist position that might blur the law’s historic bifurcation of liability into disparate treatment (intent based) and disparate impact (effects based). Presumably, both theories would remain intact but plaintiffs may now have available a third option: proving that sex was a but-for cause of an adverse decision without the need to show knowledge/intent or adverse impact.
Implicit bias comes to mind, but, more generally, loosening the requirements for proving intent might be very helpful in instances in which the employer arguably lacks the requisite knowledge to satisfy Justice Alito. That would perhaps allow challenges to “big data” hiring practices that don’t seem to be susceptible to attack under current models.
In which case, Bostock might not only resolve the sexual orientation debate but also reframe our basic paradigm.
Thursday, July 9, 2020
Mark Gough (Penn St. School of Labor & Employment Relations) has posted on the ILR Review website his article A Tale of Two Forums: Employment Discrimination Outcomes in Arbitration and Litigation, Industrial & Labor Relations Rev. (forthcoming 2020). Rather than just posting his abstract, I'll post instead a summary I asked Mark to draft for me, which helps situate this empirical work among other empirical work on similar topics:
Most of the empirical literature comparing outcomes between forums uses relatively crude descriptive statistics to show stark differences in employee win rates and monetary award amounts within the populations cases disposed of in arbitration and litigation. Indeed, scholars have provided robust evidence on the resolution of employment disputes within individual forums such as:
- The American Arbitration Association (AAA) – see, e.g., Alexander J.S. Colvin, An Empirical Study of Employment Arbitration: Case Outcomes and Processes, 8 J. Empirical Legal Studies 1 (2011); Lisa B. Bingham, On Repeat Players, Adhesive Contracts, and the Use of Statistics in Judicial Review of Employment Arbitration Awards, 29 McGeorge L. Rev. 223 (1998).
- The Financial Industry Regulatory Authority (FINRA) – see, e.g., J. Ryan Lamare & David B. Lipsky, Employment Arbitration in the Securities Industry: Lessons Drawn from Recent Empirical Research, 35 Berkeley J. Employ. & Labor L. 113 (2014); J. R. Lamare, & D. B. Lipsky, Resolving Discrimination Complaints in Employment Arbitration: An Analysis of the Experience in the Securities Industry, Industrial & Labor Relations Rev. (2018).
- Federal court – see, e.g., Kevin M. Clermont & Stewart J. Schwab, How Employment Discrimination Plaintiffs Fare in Federal Court, 1 J. Empirical Legal Studies 429 (2004).
- State court – see, e.g., Theodore Eisenberg & Elizabeth Hill, Arbitration and Litigation of Employment Claims: An Empirical Comparison, 58 Dispute Resolution J. 44 (2003).
These studies often are used to support the perceptions of arbitration as an employee-unfriendly forum. See, e.g., Mark Gough, How Do Organizational Environments and Mandatory Arbitration Shape Employment Case Selection? Evidence From an Experimental Vignette, 57 Industrial Relations 541 (2018); Mark Gough, Employment Lawyers and Mandatory Employment Arbitration: Facilitating or Forestalling Access to Justice, 16 Advances in Industrial Relations 133 (2016). And while informative, a limitation of this literature is it provides minimal controls to account for systematic variation between forums. It is clear that the average monetary award and employee success rates at trial are lower in arbitration than litigation, but are employee claimants genuinely at a disadvantage in arbitration? Or does systematic variation exist within the underlying merits of cases, presence or quality of counsel, party resources, or other case characteristics which account for differences in outcomes between arbitration and litigation? In short, one must be careful to compare “apples to apples” when drawing evaluative conclusions about arbitration’s effect(s) on access to justice.
In a 2020 empirical study, Mark Gough attempts such apples-to-apples comparisons by surveying 1,256 employment plaintiff attorneys about their most recent cases adjudicated in arbitration, state court, or federal court. Even while accounting for claim, plaintiff, defendant, and attorney characteristics, Gough finds employment discrimination plaintiffs in arbitration are less likely to receive a judgment in their favor and smaller awards compared to similar cases disposed in state and federal court. Specifically, he reports, “compared to arbitration, employees' odds of winning increase by 70.7 percent in a federal jury trial, 183.7 percent in a state judge-only bench trial, and 146.0 percent in a state jury trial…[and] relative to arbitration, monetary damages awarded to success
Wednesday, June 24, 2020
James E. Bessen, Chen Meng, & Erich Denk, all of the Boston U. Technology & Policy Research Initiative, have just posted on SSRN their important empirical article Perpetuating Inequality: What Salary History Bans Reveal About Wages. Here's the abstract:
Pay gaps for women and minorities have persisted after accounting for observable differences. Why? If employers can access applicants’ salary histories while bargaining over wages, they can take advantage of past inequities, perpetuating inequality. Recently, a dozen US states have banned employer access to salary histories. We analyze the effects of these salary history bans (SHBs) on employer wage posting and on the pay of job changers in a difference-in-differences design. Following SHBs, employers posted wages more often and increased pay for job changers by about 5%, with larger increases for women (8%) and African-Americans (13%). Salary histories appear to account for much of the persistence of residual wage gaps.
Friday, June 19, 2020
Craig Senn (Loyola Los Angeles) has just posted on SSRN his article Accommodating Good-Faith Employers in Title VII Disparate Impact Cases (94 Tulane L. Rev. forthcoming fall 2020). Here's the abstract:
This article argues that good-faith employers who adopt honest and reasonable job policies or criteria should be more broadly accommodated in Title VII disparate impact cases. These cases arise under Title VII (and the ADEA and ADA) when an employer’s facially neutral job policy or criterion inadvertently but disproportionately affects individuals based on sex, race, color, national origin, religion, age, or disability.
Unfortunately, our federal employment discrimination laws do not provide comparable defenses or accommodations for good-faith employers in these disparate impact (and related) cases. First, Title VII provides a “business necessity” defense. This complete defense is a narrow accommodation available only for a smaller subset of these good-faith employers – namely, those that can show that their job policy or criterion was related to successful performance of the job.
Next, the ADEA provides a “reasonable factors other than age” defense. This complete defense is a broad accommodation generally available for all good-faith employers that can show that their job policy or criterion stemmed from reasonable, non-age considerations.
Finally, the ADA provides not only a business necessity defense in disparate impact cases but also a supplemental “good-faith efforts” defense in closely related reasonable accommodation cases. This latter, partial defense is another broad accommodation generally available for all good-faith employers that make such efforts to adjust their policy or criterion for (or otherwise accommodate) a disabled individual.
Addressing this unique asymmetry, this article makes two new contributions to existing employment discrimination literature. First, it proposes a partial “Good-Faith Defense” for such employers in Title VII disparate impact cases – a defense that reduces (rather than eliminates) employer liability. Second, this article uses a comprehensive, cross-contextual argument that explores fourteen different examples of good-faith accommodations (by Congress and the Supreme Court) under eight different federal employment laws. Ultimately, these multiple examples evidence a clear legislative and judicial “Good-Faith Accommodation Philosophy” that lies at the heart of the Good-Faith Defense.
Monday, June 15, 2020
Tuesday, May 26, 2020
Chris O'Brien (Boston College - Carroll School of Management) has just posted on SSRN her article (forthcoming 12 William & Mary Business Law Review ___) Twenty-First Century Labor Law: Striking the Right Balance between Workplace Civility Rules that Accommodate Equal Employment Opportunity Obligations and the Loss of Protection for Concerted Activities Under the National Labor Relations Act. Here's the abstract:
This article outlines the current state of the law regarding conduct that, while otherwise protected by Section 7 of the National Labor Relations Act, nonetheless involves workplace profanity or offensive speech that potentially violates employer civility rules and equal employment opportunity laws, whether at work, on social media, or on a picket line. The paper considers recent appellate court and National Labor Relations Board (NLRB) decisions on this important issue, highlighting the NLRB’s own reconsideration of its standards as announced in its call for amicus briefs in the General Motors case, September 2019. The author recommends a solution that balances the important public policies underlying both the National Labor Relations Act and equal employment opportunity laws, as well as employer and employee rights to manage and work in a place with a desired level of respect and consideration for others.
This is a great topic and I'm very much looking forward to reading the article.