Workplace Prof Blog

Flake on Sports-Spectator Harassment

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.

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4th Circuit Update

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.

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Noodling Over Bostock

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.

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Gough: New Empirical Work on Employment Arbitration

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

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Employer Access to Salary History Helps Explain Gender & Racial Wage Gaps

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.

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Senn Proposes Good Faith Defense to Disparate Impact

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.

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Bostock Pile-On

I can't resist posting separately to note that I called the outcome, the 6-3  vote (though I predicted Kavanaugh and Roberts would swing), and the majority's reliance on Oncale in this May 2019 Workplace Prof Blog post.

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O'Brien on EEO Civility Rules & Concerted Activity

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.

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The New North Carolina Civil Rights Law Review is Seeking Submissions

A new journal created by some great Carolina Law students and the UNC Center for Civil Rights is now seeking submissions:

The North Carolina Civil Rights Law Review, a student-run journal at the University of North Carolina School of Law, is now accepting submissions for its inaugural volume. We invite legal scholarship on all variety of civil rights topics.

Priority Review: Submissions received before midnight on July 31, 2020, will receive priority review for publication. Offers will be extended on a rolling basis throughout the summer priority period. Earlier submissions are encouraged.

Standard Review: Submissions received after the priority period will be reviewed on a rolling basis. The editorial board reserves the ability to suspend this standard submissions period at any time after August 1, 2020, in order to best serve the needs of the journal and its staff.

About the Journal: The North Carolina Civil Rights Law Review is a newly formed journal at the University of North Carolina School of Law. It operates in collaboration with the UNC Center for Civil Rights and integrates the long-running annual Conference on Race, Class, Gender, and Ethnicity as its yearly symposium. The journal aims to publish innovative, important scholarship on current issues in civil rights law, with the goal of protecting and advancing individuals’ actual lived experience of civil rights, liberty, and equality today. Topics of general civil rights interest are welcome. Particular consideration will be given to topics related to law and conditions affecting North Carolina and the Mid-Atlantic and Southeastern United States.

Please submit your article along with a short cover letter and current CV or resume to Rachel Grossman, Editor-in-Chief, at [email protected]. Footnotes should comply with The Bluebook: A Uniform System of Citation (20th ed. 2015).

Jeff Hirsch

Lawful Racial Discrimination in Public Accommodations

Suja Thomas (Illinois) has just posted on SSRN yet another blockbuster (and highly disturbing) article, The Customer Caste: Lawful Discrimination by Public Businesses. Here's the article:

It is legal to follow and watch people in retail stores based on their race, give inferior service to restaurant customers based on their race, and place patrons in certain hotel rooms because of their race. Congress enacted Title II of the Civil Rights Act of 1964 to protect black and other people of color from discrimination and segregation in public accommodations—places where people receive goods, food, services, and lodging. Scholarship has not analyzed how well Title II and Section 1981 of the Civil Rights Act of 1866 have functioned in this arena. An examination of this caselaw shows that courts find numerous discriminatory and segregatory actions by places of public accommodation legal. An assessment of the legislative history and text of the laws, in addition to the interpretation of similar laws demonstrate that the judiciary has incorrectly constrained the law by, among other actions, adopting the heavily-criticized employment discrimination caselaw and requiring a common law-like contractual relationship. Jim Crow laws ceased to exist in the 1960s, but these interpretations have created “the customer caste,” whereby people of color are subject to legal, daily discrimination in retail stores, restaurants, gas stations, hotels, banks, and airplanes.

Hopefully this article sparks change.

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Clean Slate Project Issues Report

Thanks to Jon Harkavy for word that the Clean Slate for Worker Power project has issued its final report A Clean Slate for Worker Power: Building a Just Economy and Democracy. Here's a brief excerpted description from Kelsey Griffin:

An initiative of Harvard Law School’s Labor and Worklife Program — called Clean Slate for Worker Power — released its final report Thursday calling to overhaul American labor laws and increase workers’ collective bargaining power. Law School Faculty members Sharon Block and Benjamin I. Sachs led the project. The initiative brought together leading activists and scholars to recommend policies aimed at empowering working people.

The report claims that an extreme concentration of wealth in the hands of few people has created economic and political inequality in the United States. It argues that current labor laws have fostered systematic racial and gender oppression. It also asserts that labor laws exclude vulnerable workers from vital labor protections and devalue the work performed by these workers.

Block and Sachs said they believe addressing this economic and political inequality would require a completely new system of labor law, rather than simply adjusting current policies. The report recommends that labor laws better enable working people to build collective organizations to increase their leverage with employers and in the political system. The policy recommendations aim to increase worker representation and inclusion by expanding the coverage of labor laws for independent contractors, as well as undocumented, incarcerated, and disabled workers. The report lays out an array of options for alternative worker representation in addition to labor unions, such as work monitors — employees who would ensure compliance with federal labor regulations.

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Essay on Affirmative Action

Louis Menand (Harvard Arts & Sciences; degree from Harvard Law) published a great essay in last week's The New Yorker on affirmative action: Integration by Parts. I'm posting the take-away below, but the entire essay is well worth reading, not least for its historical description of the concept.

The whole history of affirmative action shows ... that when the programs are shut down minority representation drops. Diversity, however we define it, is politically constructed and politically maintained. It doesn’t just happen. It’s a choice we make as a society.

It is possible to understand the opposition to affirmative action of white conservatives, like Ronald Reagan, who regard civil-rights laws as federal overreach and affirmative action as enshrining the un-American notion of group rights. And it is possible to understand the opposition of black conservatives, like Clarence Thomas, who see it as patronizing to African-Americans.

But it is hard to understand the opposition, often diehard, of many white liberals that has persisted since the nineteen-seventies. Did these people really imagine that passing a law against discrimination would reset race relations overnight? Do they really think that white Americans, wherever they work or go to college, do not carry a lifelong advantage because of the color of their skin? Do they really believe that there should be no sacrifice to make or price to pay for the systematic damage done to the lives of millions of American citizens and the men and women who are their ancestors?

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Colorblind Computers

Zach Harned (Stanford student) and Hanna Wallach (Microsoft Research) have just posted on SSRN an interesting article entitled Stretching Human Laws to Apply to Machines: The Dangers of a 'Colorblind' Computer (forthcoming Florida L. Rev.). Here's the abstract:

Automated decision making has become widespread in recent years, largely due to advances in machine learning. As a result of this trend, machine learning systems are increasingly used to make decisions in high-stakes domains, such as employment or university admissions. The weightiness of these decisions has prompted the realization that, like humans, machines must also comply with the law. But human decision-making processes are quite different from automated decision-making processes, which creates a mismatch between laws and the decision makers to which they are intended to apply. In turn, this mismatch can lead to counterproductive outcomes.

We take antidiscrimination laws in employment as a case study, with a particular focus on Title VII of the Civil Rights Act of 1964. A common strategy for mitigating bias in employment decisions is to “blind” human decision makers to the sensitive attributes of the applicants, such as race. The same strategy can also be used in an automated decision-making context by blinding the machine learning system to the race of the applicants (strategy 1). This strategy seems to comply with Title VII, but it does not necessarily mitigate bias because machine learning systems are adroit at using proxies for race if available. An alternative strategy is to not blind the system to race (strategy 2), thereby allowing it to use this information to mitigate bias. However, although preferable from a machine learning perspective, this strategy appears to violate Title VII.

We contend that this conflict between strategies 1 and 2 highlights a broader legal and policy challenge, namely, that laws designed to regulate human behavior may not be appropriate when stretched to apply to machines. Indeed, they may even be detrimental to the very people that they were designed to protect. Although scholars have explored legal arguments in an attempt to press strategy 2 into compliance with Title VII, we believe there lies a middle ground between strategies 1 and 2 that involves partial blinding—that is, blinding the system to race only during deployment and not during training (strategy 3). We present strategy 3 as a “Goldilocks” solution for discrimination in employment decisions (as well as other domains), because it allows for the mitigation of bias while still complying with Title VII. Ultimately, any solution to the general problem of stretching human laws to apply to machines must be sociotechnical in nature, drawing on work in both machine learning and the law. This is borne out in strategy 3, which involves innovative work in machine learning (viz. the development of disparate learning processes) and creative legal analysis (viz. analogizing strategy 3 to legally accepted auditing procedures).

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Guest Post by Jack Harrison: Oral Argument in Title VII LGBT Cases Offers Few Clues on How SCOTUS Might Rule

Thanks to Jack Harrison (NKU-Chase) this terrific guest post:

Aimee Stephens, a transgender woman who worked as a funeral director, began her employment at Harris Funeral Home presenting as male, the sex she to which she was assigned at birth. However, in 2013, Stephens informed her supervisor, Thomas Rost, that she had been diagnosed with a gender identity disorder and that she intended to transition. In response to this disclosure, Rost promptly terminated her. Rost later testified that he terminated Stephens because “he was no longer going to represent himself as a man,” and because Rost believed that gender transition “violat[es] God’s commands” because “a person’s sex is an immutable God-given fit.” The EEOC sued on Stephens’ behalf, alleging that the acts of the funeral home constituted unlawful sex discrimination under Title VII.

In EEOC, et. al v. R.G. & G.R. Harris Funeral Homes, the district court held that Stephens had been subjected to sex discrimination in violation of Title VII because, consistent with Price Waterhouse v. Hopkins, she was subjected to impermissible sex stereotypes. However, the district court then concluded that even though Stephens had been the victim of sex discrimination, the funeral home had a right to terminate her under Religious Freedom Restoration Act (“RFRA”), holding that RFRA protected personal religious beliefs, even when those beliefs resulted in otherwise unlawful sex discrimination.

In 2018, the United States Court of Appeals for the Sixth Circuit reversed this decision. In its decision, the Court of Appeals moved beyond the sex stereotyping rationale of Hopkins, holding that Title VII specifically outlaws employment discrimination against transgender persons.

On Tuesday, October 8, 2019, the United States Supreme Court heard oral argument in Harris Funeral Home, addressing the question of whether Title VII’s prohibition against discrimination because of sex encompasses a prohibition against discrimination based on gender identity. On the same day, the Court also heard arguments in two other cases, one from the Second Circuit, Altitude Express v. Zarda, and one from the Eleventh Circuit, Bostock v. Clayton County, addressing the issue of whether Title VII’s prohibition against discrimination because of sex includes a prohibition against discrimination based on sexual orientation.

Before the Supreme Court, David Cole of the ACLU presented the argument on behalf of Aimee Stephens. In the opening of his argument to the Court, Cole broke the case down into its simplest terms, stating:

Aimee Stephens is a transgender woman. She was a valued employee of Harris Funeral Homes for six years, until she told her boss that she was going to live and identify as a woman.

When Harris Homes responded by firing her, it discriminated against her because of her sex for three reasons. First, in firing her for failing to conform to its owner's explicitly stated stereotypes about how men and women should behave, it discriminated against her in the same way that Price Waterhouse discriminated against Ann Hopkins for failing to walk and talk more femininely. It can't be that Ann Hopkins would lose her case on the same facts were she transgender.

As Cole pointed out in his argument, Stephens was fired for “identifying as a woman only because she was assigned a male sex at birth.” In firing her for this reason, Harris “fired her for contravening a sex-specific expectation that applies only to people assigned male sex at birth; namely, that they live and identify as a man for their entire lives.”

While the Justices focused many questions on the issues of restrooms and athletes, neither of which were before the Court in this case, Justice Gorsuch acknowledged that, on this question, the text of Title VII was “close.” However, Justice Gorsuch raised the following concern:

At the end of the day, should he or she [the judge] take into consideration the massive social upheaval that would be entailed in such a decision, and the possibility that --that Congress didn't think about it.

Yet, as David Cole pointed out in response to Justice Gorsuch, “federal courts of appeals have been recognizing that discrimination against transgender people is sex discrimination for 20 years” and “[t]here's been no upheaval.”

In Zarda and Bostock, argued the same day as Harris Funeral Home, the Court addressed the claims of two men who asserted that they were fired from their jobs because they were gay in violation of Title VII. Donald Zarda (who died in 2014 in a base-jumping accident in Switzerland) had been working as an instructor for a skydiving company now known as Altitude Express, while Gerald Bostock had worked as a child-welfare-services coordinator in Clayton County, Georgia.

In arguing on behalf of the two men, Stanford professor Pamela Karlan also faced a number of questions by the justices regarding restrooms and dress codes, issues that were not before the Court in these cases either. In responding to these questions, Karlan pointed out that Title VII specifically addresses the situation regarding restrooms, with the central question being whether providing same-sex bathrooms denies someone an employment opportunity. As to the issue of dress codes, Karlan indicated that the justices would be forced to address the issue in future cases, no matter how they rule in these cases.

However, the primary issue raised during the oral argument in Zarda and Bostock was whether, in passing Title VII in 1964, Congress intended to bar discrimination based on sexual orientation and whether, from a textual interpretive perspective, that mattered at all. As Karlan pointed out, the Supreme Court has recognized many other claims under Title VII that Congress could not have contemplated in 1964, including both opposite-gender and same-gender sexual harassment and claims based on sex stereotyping.

Justice Gorsuch was very active in the Zarda and Bostock oral arguments, challenging arguments by counsel for the employers, Jeffrey Harris, attempting to draw a clear line between definitions of “sex” and “sexual orientation” as the basis for the termination of the employees. For example, Justice Gorsuch pushed Harris on this point:

Your response to Justice Kagan was, I need to focus on sexual orientation because that's the sole or primary causal factor here for the firing.

And I think the response from the other side is: But the statute has a more generous causal formulation, a but-for causal formulation, so perhaps you're right that, at some level, sexual orientation is surely in -- in play here. But isn't sex also in play here because of the change of the first variable? And isn't that enough? It -- you know, the statute talks about a material causal factor or some formulation like that, not the sole cause, not the proximate cause, but a cause. And one –o ne would -- in what -- in what linguistic formulation would one -- would one say that sex, biological gender, has nothing to do with what happened in this case?

Justice Gorsuch returned to this theme during the argument of U.S. Solicitor General Noel Francisco, who appeared on behalf of the federal government as a “friend of the court” supporting the employers in this case. When the Solicitor General attempted to draw a line between the meanings of sex and sexual orientation, Gorsuch again responded that at least one contributing cause of the plaintiffs’ firings here does appear to be sex.

In concluding his argument in all three cases, the Solicitor General argued that a ruling for the employees in these cases would ignore the issue of religious objections employers might have to hiring LGBT employees, while, at the same time, greatly expanding the rights of LGBTQ employees. For this reason, among others, the Solicitor General argued that this decision should be left to Congress to resolve.

Following the oral arguments in these cases, it is difficult to predict whether five votes exist for holding that Title VII’s prohibition against discrimination because of sex encompasses sexual orientation and gender identity. Based on the oral argument, it would seem that Justice Gorsuch vote might well be at play, given his acknowledgement that the text of Title VII made this a close call. This confirms the strategic decision by those who submitted briefs and amici on behalf of the employees to focus on the text of Title VII itself.

While many Americans currently believe that federal law prohibits discrimination because of sexual orientation and gender identity in the workplace, these cases make clear how far from reality that actually is. Currently LGBT employees are largely unprotected from employment discrimination. The protections that do exist are under an unpredictable patchwork of laws and policies, consisting of presidential executive orders, private employer initiatives, city and county ordinances, gubernatorial executive orders, and state legislation. Thus, discrimination in the workforce remains a constant in the lived experience of LGBT persons.

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Report: European Corporate Investment and Workers' Rights in the American South

The AFL-CIO released today the above-titled report, authored by Lance Compa (retired Cornell ILR; currently visiting at San Diego Law):

Multinational corporations based in Europe have accelerated their foreign direct investment in the Southern states of the United States in the past quarter-century. Some companies honor workers’ freedom of association, respect workers’ organizing rights and engage in good-faith collective bargaining when workers choose trade union representation. Other firms have interfered with freedom of association, launched aggressive campaigns against employees’ organizing attempts and failed to bargain in good faith when workers choose union representation.

Today, the AFL-CIO is releasing a report by international labor law expert Lance Compa. The report examines European companies’ choices on workers’ rights with documented case studies in several American Southern states. In their home countries, European companies investing in the American South generally respect workers’ organizing and bargaining rights. They commit themselves to International Labor Organization core labor standards, Organization for Economic Co-operation and Development Guidelines, UN Guiding Principles, the UN Global Compact, and other international norms on freedom of association and collective bargaining. But they do not always live up to these global standards in their Southern U.S. operations.

Case studies on well-known companies like VW, Airbus, IKEA and large but lesser known ones like Fresenius and Skanska provide examples of companies that have followed a lower standard in their operations in the southern states where the region’s legacy of racial injustice and social inequality open the door to a low-road way of doing business. The report also makes clear that companies always have a choice and could choose to respect workers human rights.

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Free to Retaliate?

More self-promotion. Just posted on SSRN:

Retaliation and Requesting Religion Accommodation

Abstract

A recent Eighth Circuit Court of Appeals decision on an issue of first impression suggests that requests for reasonable accommodation of religious practices or observances are generally not protected conduct within the scope of § 704, Title VII’s antiretaliation provision. The court reasoned that such a request fell did not fall within  the “opposition” clause of the provision since it did not “oppose” anything the employee could have reasonably believed was discriminatory.

This counterintuitive holding has the potential to frustrate Title VII’s command that employers reasonably accommodate believers by suggesting to employees that requests for accommodation are perilous.  It is true that Supreme Court precedent protects an employee when the accommodation must be granted because it is reasonable and not an undue hardship on the employer. In such cases, retaliating against the employee is viewed as core religious discrimination, prohibited under § 703, and so there is no need to invoke § 704.

But what if the accommodation is not legally required under Title VII? That is a very common scenario given the Supreme Court’s longstanding and extraordinarily narrow reading of the duty of accommodation under the statute.  And if the Eighth Circuit’s view were to be generally adopted, employers would seem to be largely free not merely to deny the request but also take adverse employment actions against those foolish enough to ask for it.

This Article analyses the complicated interaction between the accommodation command of § 703 and the retaliation prohibition of § 704. In the process it rejects the “no harm, no foul” argument sometimes made, which is that denying employment or firing a worker who seeks an “unreasonable accommodation” is not actionable because the worker will not perform the job requirements in any event. Such a view is predicated on a false notion that employees can seek accommodations only when they are faced with the choice between their religion and their job. In many cases, believers seek accommodations when their religion encourages (or discourages) but does not mandate (or prohibit) the conduct in question, a point that is often unappreciated.

The Article concludes that the Eighth Circuit is wrong in its reading of § 704 as applied to requests for accommodation. Further, it argues that, regardless of the correct reading of that provision, taking adverse action against a worker whose accommodation request was legitimately denied may violate § 703’s prohibition of status discrimination, a question not answered by the Eighth Circuit.    

The full article can be found here.

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Ajunwa in NYT on Algorithmic Discrimination

Ifeoma Ajunwa (Cornell I.L.R.) published an op-ed in yesterday's New York Times about the discriminatory use of algorithms in the hiring process. Ifeoma has done a ton of great work on algorithmic discrimination -- it's great that she's taking it to an even wider audience. Here's a brief excerpt:

Algorithms make many important decisions for us, like our creditworthiness, best romantic prospects and whether we are qualified for a job. Employers are increasingly using them during the hiring process out of the belief they’re both more convenient and less biased than humans. However, as I describe in a new paper, this is misguided.

In the past, a job applicant could walk into a clothing store, fill out an application and even hand it straight to the hiring manager. Nowadays, her application must make it through an obstacle course of online hiring algorithms before it might be considered. This is especially true for low-wage and hourly workers.

The situation applies to white-collar jobs too. People applying to be summer interns and first-year analysts at Goldman Sachs have their résumés digitally scanned for keywords that can predict success at the company. And the company has now embraced automated interviewing.

The problem is that automated hiring can create a closed-loop system. Advertisements created by algorithms encourage certain people to send in their résumés. After the résumés have undergone automated culling, a lucky few are hired and then subjected to automated evaluation, the results of which are looped back to establish criteria for future job advertisements and selections. This system operates with no transparency or accountability built in to check that the criteria are fair to all job applicants.

The op-ed is Beware of Automated Hiring.

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Flake on Expanding Religious Accommodation

My colleague Dallan Flake (ONU) has just posted on SSRN his article Religious Accommodation in the Age of Whole-Self Employment. Here's the abstract:

For decades, litigants and legislators alike have attempted unsuccessfully to overturn Trans World Airlines v. Hardison, the 1977 Supreme Court decision holding an employer does not have to provide a religious accommodation to an employee if the accommodation would impose more than de minimis cost on the employer. This effectively gutted Title VII’s religious accommodation requirement by enabling employers to avoid accommodating employees for almost any reason at all. This Article does not advocate for a change in the law, as others have, but instead proposes a new way forward. It makes the case that employers should voluntarily provide religious accommodations beyond what the law requires. This is because we now live in the age of whole-self employment, wherein emp

rbloyees are no longer content to check their personal lives at the workplace door, but instead expect to be able to bring their entire selves—including their religious beliefs and practices—with them to work. Accommodation facilitates whole-self employment by allowing religious employees to express a fundamental dimension of themselves in the workplace. Empirical research overwhelmingly confirms employees who are allowed to express their authentic selves at work are happier, harder working, and more loyal to their employers. Research also shows that a content workforce is a productive workforce. Thus, employers should approach religious accommodations not as a burden but as an investment—an opportunity to allow employees to display a part of themselves that will make them better workers. While employers would incur upfront costs in voluntarily accommodating employees, the potential return on this investment justifies its expense.

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A Harkavy 2-Fer

Jonathan Harkavy (Patterson Harkavy) has just posted on SSRN two articles. First is his annual review of Supreme Court employment and labor decisions and cert grants. Second is a briefer article that offers a blueprint for lawyers representing workers and unions during fraught political times - e.g., right now. The articles and abstracts are below.

2019 Supreme Court Commentary: Employment Law

This article summarizes in detail all decisions of the Supreme Court of the United States from its October 2018 Term (2018-2019) that affect employment law, labor relations, employment arbitration and the employment relationship generally. The article also provides commentary on each of the decisions and on the Supreme Court's regulation of the employment relationship. The article also summarizes briefly the grants of certiorari in employment-related cases for the October 2019 Term and concludes with brief commentary on justice in the American workplace.

A Modest Blueprint for Representing Working People and Labor Unions in Fraught Times

This article suggests approaches to dealing with the current anti-union climate in the American workplace. Building on examples of what union-side lawyers did when faced with the challenge of representing labor unions in Southern textile mills, the article makes a number of specific suggestions to counter what observers have termed a relentless assault on labor involving unchecked corporate power accompanied by income inequality and a decline in the well-being of working Americans. The article recommends, among other things, imposition of employer fiduciary responsibility for workers, a more clarion collective voice in the Supreme Court for working people, and increased use of state laws and federal antitrust laws to combat inequities in the workplace.

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Guest Post on Gender Identity, Women's Sports, and the Meaning of "Sex"

Christine Michelle Duffy (Director, New Jersey Program, Pro Bono Partnership) sends us the following guest post:

It Will Not Be 'Game-Set-Match' for Women's Sports

Earlier this month, The National Law Journal (NLJ) published an op-ed piece by Jennifer Braceras and Anita Milanovich that argues that if the U.S. Supreme Court rules in favor of the gender-affirmed plaintiff, Aimee Stephens, in R.G. & G.R. Harris Funeral Homes Inc. v. EEOC, female athletes will lose the opportunity to compete because “male-to-female transgender athletes” will suddenly flood into women’s sports. Oral argument in that case will be held on October 8.

It’s simply not true that there will be a loss in opportunities. “Male-to-female transgender athletes” have been competing in women’s sports for some time, and there is no significant evidence that “the number of opportunities for biological women and girls” has diminished or that they have an unfair advantage. (The foregoing quoted statements come directly from Braceras and Milanovich’s op-ed.) Moreover, leading medical organizations now recognize gender-affirmed people to be of the sex that matches their gender identity.

The NLJ commissioned a counter-piece to the op-ed, written by Jennifer Pizer, Law and Policy Director for Lambda Legal. Pizer does a terrific job debunking the arguments put forward by Braceras and Milanovich. As Pizer notes, “Their leaps of logic are long indeed, but they won’t win any medals. They mistake the facts, the law and who is at risk.” Though, as your will read below, I do take issue with Pizer, something I rarely do.

Braceras and Milanovich’s thesis is wrong for a number of reasons. Here are three of them.

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