Tuesday, July 2, 2019

Negating Nondisclosure in New Jersey

New ImageNew 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.

CAS

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.

July 2, 2019 in Employment Discrimination | Permalink | Comments (1)

Thursday, June 6, 2019

Barry & Levy on Disability Rights Protection for Transgender Individuals

Barry LeviKevin 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.

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June 6, 2019 in Disability, Employment Discrimination | Permalink | Comments (1)

Thursday, May 23, 2019

Sperino: Top-5 Recent McDonnell-Douglas Developments

SperinoSandra 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.

  1. 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.
  2. 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.
  3. 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).
  4. 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).
  5. 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.

rb

May 23, 2019 in Employment Discrimination | Permalink | Comments (0)

Thursday, May 9, 2019

My Unconventional Prediction on the SCOTUS LGBT Cases

FlagThe 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.

rb

May 9, 2019 in Arbitration, Employment Discrimination | Permalink | Comments (2)

Monday, April 22, 2019

Supreme Court Agrees to Decide Whether Title VII Covers LGBT Status

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 . . . .

-Jeff Hirsch

April 22, 2019 in Employment Discrimination, Labor and Employment News | Permalink | Comments (0)

Thursday, April 11, 2019

New Book: Sperino's Law of Employment Discrimination

SperinoCongratulations to Sandra Sperino (Cincinnati) on the publication of her new book The Law of Employment Discrimination (1st ed., West 2019). Here's the publisher's description: 

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.

rb

April 11, 2019 in Book Club, Employment Discrimination | Permalink | Comments (0)

Friday, April 5, 2019

Two Great Articles

Tippett HodgesLiz 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.

rb

 

April 5, 2019 in Arbitration, Employment Discrimination, Scholarship, Workplace Trends | Permalink | Comments (0)

Tuesday, April 2, 2019

Spitko on Regulating the Platform Workplace

SpitkoGary Spitko (Santa Clara) has just posted on SSRN his very timely article (forthcoming 2019 BYU L. Rev.) Reputation Systems Bias in the Platform Workplace. Here's the abstract:

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.

rb

April 2, 2019 in Employment Discrimination, Scholarship, Workplace Trends | Permalink | Comments (0)

Wednesday, March 27, 2019

Disability Rights at UDC

ConferenceMarcy 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!

MM

March 27, 2019 in Conferences & Colloquia, Disability, Employment Discrimination, Worklife Issues | Permalink | Comments (0)

Monday, March 25, 2019

Seiner's Employment Discrimination Goes to 2d Edition

SeinerCongratulation to Joe Seiner (South Carolina) -- the second edition of his Employment Discrimination casebook has just been published by Wolters Kluwer. Here are the publisher's notes:

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.

rb

March 25, 2019 in Books, Employment Discrimination, Scholarship | Permalink | Comments (0)

Friday, March 22, 2019

Breastfeeding at Work

FeedingLiz 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.

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March 22, 2019 in Employment Discrimination, Worklife Issues, Workplace Trends | Permalink | Comments (0)

Friday, March 8, 2019

U.S. Women's Soccer Team Members Sue Over Pay Discrimination

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. 

-Jeff Hirsch

March 8, 2019 in Employment Discrimination, Labor and Employment News, Labor Law, Wage & Hour, Worklife Issues | Permalink | Comments (0)

Friday, February 15, 2019

Emerging Technology in the Workplace: AI, Robotics, Virtual Reality, & Monitoring

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.

Thanks.

-Jeff Hirsch

 

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

Flake Advocates Interactive Process for Religious Accommodations

DallanMy prolific colleague Dallan Flake has just posted on SSRN his most recent article, Interactive Religious Accommodations. Some of you may have seen him discuss it at AALS. Here's the abstract:

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.

rb

 

January 9, 2019 in Employment Discrimination, Scholarship | Permalink | Comments (0)

Friday, December 21, 2018

Sternlight on Mandatory Arbitration & #MeToo

SternJean Sternlight (UNLV) has recently posted on SSRN her article (forthcoming Harv. Civ. Rts.- Civ. Lib. L. Rev.) Employment Law: Where To, #MeToo?. Here's the abstract:

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.

rb

December 21, 2018 in Arbitration, Employment Discrimination | Permalink | Comments (0)

Sunday, December 16, 2018

4th Circuit on Protected Activity

4Thanks to Jon Harkavy (Patterson Harkavy) for sending word of the Fourth Circuit case Netter v. Barnes. Although the plaintiff lost, Judge Motz's opinion for the Court rejects a broader rationale that would have hampered enforcement of section 704 of Title VII in "protected activity" cases generally.

rb

December 16, 2018 in Employment Discrimination | Permalink | Comments (0)

Tuesday, November 6, 2018

Supreme Court Rules in Favor of Public-Sector Age Discrimination Plaintiffs

The Supreme Court issued its first decision of the term today, and it was the age discrimination Mount Lemmon Fire District v. Guido case. I'll claim credit for predicting a win for the public-sector plaintiffs--minus the fact that I was wrong about saying it wouldn't be unanimous. So, the outcome wasn't a surprise, but the unanimous support for both a group of employees and the Ninth Circuit was. You can read the full opinion here. For lazy readers, here's the syllabus:

John Guido and Dennis Rankin filed suit, alleging that the Mount Lemmon Fire District, a political subdivision in Arizona, terminated their employment as firefighters in violation of the Age Discrimina- tion in Employment Act of 1967 (ADEA). The Fire District responded that it was too small to qualify as an “employer” under the ADEA, which provides: “The term ‘employer’ means a person engaged in an industry affecting commerce who has twenty or more employees . . . . The term also means (1) any agent of such a person, and (2) a State or political subdivision of a State . . . .” 29 U. S. C. §630(b).

Initially, both Title VII of the Civil Rights Act of 1964 and the ADEA applied solely to private sector employers. In 1974, Congress amended the ADEA to cover state and local governments. A previ- ous, 1972, amendment to Title VII added States and their subdivi- sions to the definition of “person[s],” specifying that those entities are engaged in an industry affecting commerce. The Title VII amend- ment thus subjected States and their subdivisions to liability only if they employ a threshold number of workers, currently 15. By con- trast, the 1974 ADEA amendment added state and local governments directly to the definition of “employer.” The same 1974 enactment al- so amended the Fair Labor Standards Act (FLSA), on which many aspects of the ADEA are based, to reach all government employers regardless of their size. 29 U. S. C. §203(d), (x).

Held: The definitional provision’s two-sentence delineation, set out in §630(b), and the expression “also means” at the start of §630(b)’s second sentence, combine to establish separate categories: persons engaged in an industry affecting commerce with 20 or more employees; and States or political subdivisions with no attendant numerosity limitation.

The words “also means” in §630(b) add new categories of employers to the ADEA’s reach. First and foremost, the ordinary meaning of “also means” is additive rather than clarifying. See 859 F. 3d 1168, 1171 (case below) (quoting Webster’s New Collegiate Dictionary 34). The words “also means” occur dozens of times throughout the U. S. Code, typically carrying an additive meaning. E.g., 12 U. S. C. §1715z–1(i)(4). Furthermore, the second sentence of the ADEA’s definitional provision, §630(b), pairs States and their political subdivi- sions with agents, a discrete category that carries no numerical limitation.

Reading the ADEA’s definitional provision, §630(b), as written to apply to States and political subdivisions regardless of size may give the ADEA a broader reach than Title VII, but this disparity is a consequence of the different language Congress chose to employ. The better comparator for the ADEA is the FLSA, which also ranks States and political subdivisions as employers regardless of the num- ber of employees they have. The Equal Employment Opportunity Commission has, for 30 years, interpreted the ADEA to cover political subdivisions regardless of size, and a majority of the States impose age discrimination proscriptions on political subdivisions with no numerical threshold. Pp. 4–6.

 

In short, if you're an employee plaintiff, it really helps to have a strong textual argument.

-Jeff Hirsch

November 6, 2018 in Employment Discrimination, Labor and Employment News | Permalink | Comments (0)

Tuesday, October 30, 2018

Seiner on the Discrimination Presumption

Joe Seiner just his latest article, The Discrimination Presumption, 94 Notre Dame L. Rev. __ (2019) (Forthcoming), on SSRN.  The short version--everyone's had it wrong and Twombley & Iqbal don't apply to Title VII.  The abstract:

Employment discrimination is a fact in our society. Scientific studies continue to show that employer misconduct in the workplace is pervasive. This social science research is further supported by governmental data and litigation statistics. Even in the face of this evidence, however, it has never been more difficult to successfully bring a claim of employment discrimination. After the Supreme Court’s controversial decisions in Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007), and Ashcroft v. Iqbal, 556 U.S. 662 (2009), all civil litigants must sufficiently plead enough facts to give rise to a plausible claim. Empirical studies show that this plausibility test has been rigidly applied in the employment context, creating a heightened pleading standard for workplace plaintiffs. This paper argues that Twombly and Iqbal are largely irrelevant for employment discrimination claims. As employment discrimination is a fact, most allegations of workplace misconduct are plausible on their face, rendering these Supreme Court cases meaningless for this subset of claims. This Article summarizes the overwhelming number of social science studies which demonstrate the fact of employment discrimination, and this paper also synthesizes the governmental data and litigation in this field. This Article offers a model framework that the courts and litigants can use to evaluate workplace claims, taking into consideration the widespread scientific research in this area. This proposed model navigates the Supreme Court decisions and federal rules and provides a new approach to pleading employment claims, where the fact of discrimination is presumed. This Article concludes by situating the proposed framework in the context of the broader academic scholarship.

Check it out!

-Jeff Hirsch

October 30, 2018 in Employment Discrimination, Scholarship | Permalink | Comments (0)

Tuesday, October 16, 2018

Amazon Bails on AI Hiring Program

Amazon has long been known as a high-tech Moneyball employer, striving to make data-driven decision when possible. But this week shows that there are limits to that approach. After working since 2014 to develop AI-driven hiring algorithms, Amazon recently abandoned that approach. The reason? The algorithms were biased against women. This is an issue that several folks, including Rick Bales, have been talking about (and is a small part of a larger tech project I'm working on), and isn't a surprise given the dearth of women in the tech industry. This is the classic garbage-in-garbage-out issue. Amazon was training its algorithms based on resumes it has received, and because men disproportionally applied to the company, the algorithms were spitting out decisions that undervalued women; indeed, they were specifically penalizing resumes that included references to women. If Amazon or other companies want to use AI (really Machine Learning) for hiring, they should first use the technology to analyze its current hiring practices to try to root out pre-existing bias. Only once that's addressed does AI have even the hope of being effective.

To be clear: Amazon says that it never actually used the algorithms for actual hiring decisions. It wasn't for a lack of trying though. Amazon realized what was going on in 2015, but didn't disband the program until the start of last year. In other words, despite working for quite a while to eliminate the bias, they couldn't do it to their satisfaction. That a company like Amazon couldn't pull this off should serve as a strong warning to everyone about the limits of AI. I'm actually more optimistic on AI's eventual potential to reduce employment discrimination than many, but I am still extremely cautious about the technology. There's definitely a right way and wrong way to use it and, as Amazon shows, the right way can be really hard. As a result, I think the greatest risk of AI in personnel decisions is its misuse by companies that are too lazy, cheap, or blinded by the shiny object that is AI to realize that is is only a tool and, like other tools, can be used the wrong way.

-Jeff Hirsch

October 16, 2018 in Employment Discrimination, Labor and Employment News, Workplace Trends | Permalink | Comments (0)

Tuesday, October 9, 2018

Supreme Court Hears Arguments on ADEA's Application to Government Employers

Last week (yeah, I'm still catching up), the Supreme Court heard oral arguments in Mount Lemmon Fire District v. Guido. It's one of those technical cases that hinges on textual question's about the ADEA's definition of "employer." In particular, at issue is whether the ADEA's usual 20-employee small employer exception applies to government employers. There's no question that the exception applies to private employers, but because of the way the provision is written, its application to public employers is less clear. Because the text is so important, let me quote the relevant part (Sec. 11(b)):

(b) The term “employer” means a person engaged in an industry affecting commerce who has twenty or more employees for each working day in each of twenty or more calendar weeks in the current or preceding calendar year: Provided, That prior to June 30, 1968, employers having fewer than fifty employees shall not be considered employers. The term also means (1) any agent of such a person, and (2) a State or political subdivision of a State and any agency or instrumentality of a State or a political subdivision of a State, and any interstate agency, but such term does not include the United States, or a corporation wholly owned by the Government of the United States.

As you can see, the small-employer exception is in a separate sentence from the sentence that includes public employers under the ADEA. That's what the plaintiffs stress and the 9th Circuit held. But four other circuits went the other way, holding that "person" includes public employers. Charlotte Garden's (Seattle) provided an argument analysis in SCOTUSblog. Although she's too wise to make a prediction, I'm going to go out on a limb and say that I think the plaintiff is going to win this one. Not unanimous, but questions from some of the conservative justices (e.g., Roberts) makes me think that the more grammatical reading of the text is going to win the day. Also, I hope someone mentions to Justice Alito that if the Court is going to align the ADEA's coverage to Title VII's simply because they were enacted a couple of years apart from each other, then the Court needs to overrule all of its cases where it expressly rejected that argument when it came to interpreting the 1991 Civil Rights Act Amendments (e.g., Nasser and Gross).

-Jeff Hirsch

October 9, 2018 in Employment Discrimination, Labor and Employment News | Permalink | Comments (0)