Workplace Prof Blog

John Marshall-Atlanta Sued for Race Discrimination (Again)

The suit is brought by former faculty member Patrice Fulcher. Paul Caron has the details over at Tax Prof Blog, via National Jurist (paywalled). The Complaint alleges that Fulcher was steered toward a legal writing position rather than a doctrinal position and paid less than doctrinal colleagues, and that a year after getting tenure she was denied the salary raise that customarily accompanied tenure.

As Caron notes, this is the second time in four years JMLS-Atlanta has been sued for race discrimination. The former suit, by two former faculty members, was settled after the plaintiffs survived a motion dismiss.

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Cheerleading

When you have good news to share, but are reticent to toot your own horn, send that news my way. Likewise, please send my way news you come across about the accomplishments of our comrades.
I'm always happy to brag on the accomplishments of everyone in our LEL community.

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Greene cited by Eleventh Circuit

 Congratulations to friend of the blog, Wendy Greene (Samford) whose article, Title VII: What’s Hair (and Other Race-Based Characteristics) Got to Do With It? was cited today by the Eleventh Circuit in EEOC v.Catastrophe Management Solutions.  Wendy's article was cited for its discussion of the socially constructed nature of race.

Wendy describes the case: 

In this case, CMS, an insurance processing company in Mobile, Alabama, rescinded an African American woman’s job offer to handle phone calls related to customer service support because she refused to cut off her locked hairstyle. Essentially, the employer made "no locks" a condition of employment for the applicant, though she was deemed qualified, interviewed and was offered the job with the hairstyle. And, apparently CMS’ human resources manager considered her hair well-groomed at the time of hire, yet remarked that the applicant’s locks might eventually become “messy.”  The HR manager told the applicant she would be unable to hire her if she did not cut off her hair; the applicant refused do so, returned her initial paperwork as requested, and left the premises. The Birmingham office of the EEOC filed a Title VII intentional race discrimination case against CMS. In doing so, the EEOC attempted to overturn over 30 years of legal precedent affirming the legality of natural hairstyle bans (except those involving afros). Largely drawing upon legal scholarship of U.S. employment discrimination and race and law scholars, one of the EEOC's primary arguments centered around the immutability doctrine; the EEOC advanced that a biological notion of race, which treats race as an “immutable” characteristic, should no longer be employed when interpreting Title VII’s prohibitions against race discrimination. Rather, the notion of race should be expanded to include both immutable and mutable characteristics. Thus, a grooming policy prohibiting natural hairstyles, like locks, braids, twists, etc., which are associated with African descendants—in law and society—constitutes unlawful race discrimination. 

Ultimately, the 11th Circuit declined to abolish the immutability doctrine in EEOC v. Catastrophe Management Solutions and held that CMS’ “no locks” mandate did not violate Title VII, as the EEOC would be unable to produce evidence that all individuals who adorn locks are Black or that only individuals who adorn locks are Black. Though the court did not rule in the EEOC’s favor, it did engage in a fairly lengthy dialogue about the meaning of race and competing arguments of notable race and law scholars. Aside from the exploration of race, this opinion may be of interest to proceduralists and those interested in the application of the Supreme Court’s decision in Young v. UPS, the (purported) demarcation between disparate treatment and disparate impact theories of liability, and statutory interpretation more generally. 

The opinion relied very heavily on legal scholarship for its analysis. In addition to citing Wendy, the opinion cites Ian Haney Lopez, Camille Gear Rich, Sharona Hoffman, Barbara Flagg, Richard Ford, Annelise Riles, Kenji Yoshino, Juan Perea, and Rhonda Magee Andrews in its discussion of what race is. Ultimately the court relied on what it believed Congress thought race was in 1964--a set of immutable physical characteristics--and its prior precedent. But the court's analysis went a bit further, too, considering the legal scholarship. The opinion expressed some concern about including cultural or behavioral practices as part of the identity protected by Title VII because those practices might vary by individual and change over time. The court was very uncomfortable with the idea that courts would have to decide what was an "authentic" part of a racial group's culture and what was not. Despite the court's reluctance to agree with many of the scholars it cited, the fact that the opinion considers this work so carefully is heartening. 

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AALS L&E Sections Newsletter

Joey Fishkin & Joe Mastrosimone are co-chairing the labor and employment AALS sections this year and write to seek information for the joint annual newsletter. As someone who has had the pleasure of helping with this effort in the past, let me put in a plea on their behalf--please help out! The newsletter is only as good as the info provided for it, so at a minimum, fill them in on any relevant news for the year. Also, the case/legislation briefs are really helpful to readers, so please consider doing one of those as well. Joe & Joey write:

Dear Colleagues:

It is time once again for the preparation of a joint annual newsletter for the AALS Section on Employment Discrimination and the Section on Labor Relations and Employment Law, and we need your help as readers and section members. Please forward this message to any and all people you know who teach or write in the Employment Discrimination, Labor Law, and Employment Law fields.

First, if you have news of any faculty visits, lateral moves, entry-level hires, or promotions and please e-mail that news to Joseph Mastrosimone at [email protected].

Second, please also e-mail Joseph Mastrosimone with any information about conference announcements and calls for papers, employment or fellowship opportunities, honors and awards, and reports on recent conferences or other events of interest to the two Sections’ members.

Third, we want to include a list of relevant employment or labor law-related publications published in 2016.  These publications can be books, articles, and chapters.  We are working on compiling a list, but it would help us make sure not to miss your publications if you would send them to us!  So, please send an email with your relevant 2016 publications to Ms. Penny Fell at [email protected]; use the subject line “Publications for AALS Newsletter”.  (Note: please hold your forthcoming 2017 publications for next year’s newsletter.  We’re looking for 2016 publications.)

Fourth and finally, we want to solicit anyone who would be interested in writing a brief description of a recent important labor and employment case or any significant new labor or employment legislation. Your subject could be a recent Supreme Court decision (including Fisher v. University of Texas, Heffernan v. City of Paterson, Tyson Foods, Inc. v. Bouaphakeo, Green v. Brennan, etc.), a significant NLRB decision (including Columbia University, Miller & Anderson, Inc., Piedmont Gardens, etc.), a significant circuit court decision or emerging circuit split, a state supreme court decision, or an innovative and potentially influential new federal, state, or local law. The description should be fairly short — it need not be more than a couple of paragraphs, and should definitely be under 2 pages.  If you're looking for an easy way to get your name out there or want a quick outlet for your ruminations about a case or new law, this could be a good opportunity.  Please let us know what you are interested in writing about — if you would like to do this, please email Joey Fishkin at [email protected] by October 15 to indicate your interest and say what you’d like to write about.

Thank you very much for your help!

Joe & Joey

Bauries Voted Full Professor

A belated but heartfelt congratulations to Scott Bauries (Kentucky), who last week was voted up for full professorship. Scott's colleagues at Kentucky are extraordinarily lucky to have him a member of their faculty, and I am equally lucky to have Scott as a friend.

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Harpur Named Senior Lecturer at Queensland

Congratulations to Paul Harpur (U. Queensland - Beirne School of Law) who has just been promoted to Senior Lecturer. Paul focuses on disability rights, anti-discrimination laws, work health and safety laws, and corporate social responsibility. He has published widely in Australia, the United Kingdom and the United States on employment, anti-discrimination, and human rights laws. He currently leads an International Labour Organization project assessing labour rights in the South Pacific.

Congratulations, Paul!

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Michael Duff Named

Congratulations to Michael Duff, who has been appointed Associate Dean of Student Programs and External Relations at Wyoming College of Law.

Just a reminder to let us know of your good news so we can get the word out. I love celebrating the achievements of everyone in our LEL academic community!

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AALS Sections Info Request

Danielle Weatherby & Naomi Schoenbaum are collecting information for the AALS labor & employment sections.  Their request is below, with a Nov 1 deadline: 

Dear Colleagues:

It is time once again for the preparation of a joint annual newsletter for the AALS Section on Employment Discrimination and the Section on Labor Relations and Employment Law, and we need your help as readers and section members. Please forward this message to any and all people you know who teach or write in the Employment Discrimination, Labor Law, and Employment Law fields.

First, if you have news of any faculty visits, lateral moves, entry-level hires, or promotions and tenure, please e-mail that news to Danielle Weatherby at [email protected].

Second, please also e-mail Danielle Weatherby with any information about conference announcements and calls for papers, employment or fellowship opportunities, honors and awards, and reports on recent conferences or other events of interest to the two Sections’ members.

Third, we want to include a list of relevant employment or labor law-related publications published in 2015.  Please hold your forthcoming 2016 publications for next year’s newsletter. These publications can be books, articles, and chapters. Please also send a list of your 2015 publications to Danielle Weatherby.

Fourth and finally, we want to solicit anyone who would be interested in writing a brief description of a recent important labor and employment case or any significant new labor or employment legislation. Your subject could be a recent Supreme Court decision (including Young v. UPS, Inc.,  EEOC v. Abercrombie and Fitch, or the granting of cert. in Friedrichs v. California Teachers Association), a significant circuit court decision or emerging circuit split, a state supreme court decision, or an innovative and potentially influential new federal, state, or local law. The description should be fairly short (under 2 pages). If you're looking for an easy way to get your name out there or want a quick outlet for your ruminations about a case or new law, this could be a good opportunity, as the newsletter is widely circulated. Just let us know what you are interested in writing about. Please send your submissions to Naomi Schoenbaum at [email protected].

Please send all submissions by November 1, 2015.

Thank you very much for your help!

Best regards,

Danielle Weatherby & Naomi Schoenbaum

 

Labor & Employment Position at Alabama

Alabama School of Law's faculty appointments search includes needs in labor and employment law. The announcement:

Assistant Professor / Associate Professor / Professor

The University of Alabama School of Law anticipates making at least two tenured or tenure-track appointments to its faculty, to begin in the 2016-2017 academic year. The Faculty Appointments Committee seeks applications from entry-level candidates with excellent academic records and demonstrated potential for exceptional teaching and scholarly achievement. We also welcome applications from lateral candidates who possess outstanding academic credentials, including demonstrated teaching ability and a record of distinguished scholarship. Although positions are not necessarily limited by subject matter, we are particularly interested in the following academic subject areas: business law, commercial law, employment law, family law, and labor law. Most candidates will have a J.D. degree from an accredited law school. Exceptional candidates who possess an advanced degree, such as a Ph.D., and who have scholarly interests related to the law involving interdisciplinary, jurisprudential, empirical, or social scientific work may be considered even without holding a law degree. The University of Alabama embraces and welcomes diversity in its faculty, student body, and staff; accordingly, the School of Law actively welcomes applications from persons who would add to the diversity of our academic community. Salary, benefits, and research support are nationally competitive. The School of Law will treat all nominations and applications as confidential, subject to requirements of state and federal law. Interested candidates should apply online at facultyjobs.ua.edu. The positions will remain open until filled. Please refer any questions about the hiring process to Professor Julie A. Hill, Chair of the Faculty Appointments Committee for the 2015-2016 academic year (email: [email protected]).

-JH

Tenth Annual Colloquium Registration Open

Deborah Widiss (Indiana) has good news to share:

The annual Colloquium on Scholarship in Employment and Labor Law (COSELL) will be held at Indiana University Maurer School of Law, Sept. 11-12, 2015, in Bloomington, Indiana. This conference, now in its tenth year, brings together labor and employment law professors from across the country. It offers participants the opportunity to present works-in-progress to a friendly and knowledgeable audience.

 Registration is now open at: http://www.law.indiana.edu/cosell.

 If you’re planning to come, please go ahead and register now; you can fill in details about the project you will present later in the summer.

 The conference is free, and we will provide all meals during the conference. Travel & hotel information is found on the website.

 Please feel free to contact any of us with questions.

 We will look forward to hosting you in Bloomington!

• Kenneth G. Dau-Schmidt ([email protected])
• Jamie Prenkert ([email protected])
• Victor D. Quintanilla ([email protected])
• Deborah Widiss ([email protected])

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Senior Fullbright Scholar award for Secunda

Congratulations to blogger emeritus and our friend Paul Secunda (Marquette), who has been awarded a Senior Fullbright Scholar award for this fall. He will be teaching and conducting research on the national pension program in Australia. Paul will become a senior fellow at the Melbourne University Law School, teaching courses and conducting  research on the Australian Superannuation workplace pension system, which is widely considered to be a global benchmark for workplace pension programs. You can get more detail from Marquette's press release.  Great work, and wonderful news, Paul!

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Secunda on Right to Work laws

With right to work on the agenda and in the public eye in Wisconsin, it only makes sense that Milwaukee's NPR affiliate WUWM would turn to Paul Secunda, our friend and blogger emeritus. Paul was a guest on "Lake Effect," with this introduction:  "As a potential debate over right-to-work laws looms in Wisconsin, we get some historical perspective on such legislation, and more insight into the impact it could have on labor and politics in the Badger State." Follow the link to listen to the whole thing, or find just Paul's segment on this page. Nice work, Paul!

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AALS workplace sections joint newsletter

 Thanks to Monique Lillard (Idaho), chair of the AALS Labor Relations and Employment section and Natasha Martin (Seattle), chair of the AALS Employment Discrimination section for sending along the joint newsletter of the two sections for posting. Download it while it's hot:  Download Joint Newsletter for AALS Sections

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SEALS call for participants

The Southeastern Association of Law Schools holds its annual meeting every summer at the end of July/beginning of August, and planning for next year's programming has started. For the past several years, a workshop for labor and employment law has taken place over several of the days. Michael Green (Texas A & M) is helping to organize the workshop for next summer. If you are interested in participating, feel free to get in touch with him: [email protected]. Some suggestions already made include panels or discussion groups on whistleblowing, joint employer issues, termination for off-duty conduct (including recent NFL scandals), disability and UPS v. Young, and a junior scholars workshop.

One additional piece of programming already proposed is a discussion group on attractiveness issues in Employment Discrimination cases. Wendy Greene is helping to organize it, so get in touch with her if you are interested in participating on that topic.

And regardless of whether you get in touch with Michael or Wendy, you should think about proposing programming for the annual meeting if you are at all interested and regardless of the topic. The meeting is surprisingly (because of the lovely environs) substantive, and the environment is very relaxed and is designed to be egalitarian.  Here are the details:

The SEALS website www.sealslawschools.org is accepting proposals for panels or discussion groups for the 2015 meeting which will be held at the Boca Raton Resort & Club http://www.bocaresort.com/  Boca Raton, Florida, from July 27 to Aug. 2.  You can submit a proposal at any time.  However, proposals submitted prior to October 31st are more likely to be accepted.

This document explains how to navigate SEALS, explains the kinds of programs usually offered, and lays out the rules for composition of the different kinds of programming: Download Navigating submission. The most important things the Executive Director emphasizes are these:  First, SEALS strives to be both open and democratic.  As a result, any faculty member at a SEALS member or affiliate school is free to submit a proposal for a panel or discussion group.  In other words, there are no "section chairs" or "insiders" who control the submissions in particular subject areas.  If you wish to do a program on a particular topic, just organize your panelists or discussion group members and submit it through the SEALS website.  There are a few restrictions on the composition of panels (e.g., panels must include a sufficient number of faculty from member schools, and all panels and discussion groups should strive for inclusivity).  Second, there are no "age" or "seniority" restrictions on organizers.  As a result, newer faculty are also free to submit proposals.  Third, if you wish to submit a proposal, but don't know how to reach others who may have an interest in participating in that topic, let Russ Weaver know and he will try to connect you with other scholars in your area.

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Bauries, Sutherland, and Legare Amicus in Eleventh Circuit Teacher Evaluation Case

Scott Bauries (Kentucky) writes to tell us about an amicus brief he, Brian Sutherland, and Cheryl Legare (both from the Buckley Law Firm) filed on behalf of Professors of Education Law and Educational Measurement. 

From the abstract on SSRN: 

This appeal, to be decided by the United States Court of Appeals for the 11th Circuit, challenges two egregious misuses of "value-added modeling," a controversial teacher evaluation method that attempts to isolate the affect of one teacher on the learning gains of that teacher's students, as derived from annual standardized test scores. With the approval of the State Appellees, the School District Appellees used the test scores of students who took the Florida Comprehensive Assessment Test in reading and math to evaluate the teaching performance of teachers who either did not teach these students at all, or did not teach them the tested curriculum. Amici, who are experts in education, education law, and educational measurement, file this brief to assist the Court in understanding how irrational these uses of value-added modeling are. The uses challenged here contradict the very purpose of using value-added modeling in the first place. In addition, they completely lack scholarly support, and they undermine, rather than further, the state's avowed purpose in evaluating its teachers -- to incentivize the evaluated teachers to improve their teaching, and thereby improve student achievement.

Or in plainer terms as Scott wrote in an email,

The basic goal of amici was to educate the court about the many problems with value-added modeling as an employee performance evaluation tool, to better illustrate the ridiculousness (and therefore constitutional irrationality) of the uses to which it was put in these districts.  In brief, the districts used the test score data of one teacher’s students on a test in one subject area to judge the performance of teachers who either did not teach the students who took the test at all (e.g. kindergarten teachers, when testing begins in third grade), or did not teach them the tested curriculum (e.g., fourth grade music teachers). 

Very interesting read.

MM

Duff Named "Centennial Distinguished Professor"

Congratulations to Michael Duff (Wyoming) who has been designated the "Centennial Distinguished Professor of Law" at Wyoming for 2014-17.

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Cancelosi & Garden Amicus in M&G Polymers

Susan Cancelosi & Charlotte Garden write to say they are working on an amicus brief in M&G Polymers v. Tackett, a case concerning the ongoing validity of the Yard-Man presumption in interpreting collective bargaining agreement clauses that promise retiree health benefits.  The brief focuses on the initial negotiation of many retiree health benefits clauses during the 1960s and 1970s, offering context that explains why employers may have agreed to lifetime retiree health benefits during that key period of time.

If you would like to see the brief so that you can decide whether you would like to sign on, please contact Charlotte at [email protected] by Saturday, Sept. 20; the brief is due to be filed on Monday, Sept. 22.

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Death of Bernie Adell

Thanks to Paul Secunda for letting us know of Bernie's death. He's been descrited as  "one of the Godfathers of labour law in Canada." I didn't have the pleasure of knowing him personally, but he was well regarded on all counts.  Kevin Banks, Director, Centre for Law in the Contemporary Workplace and Associate Professor of Law at Queen's University reports:

With great sadness I must report to you that Bernie Adell died suddenly on July 23 while visiting his daughter in Japan. We learned of this at Queen’s this morning.   

This will probably come as a shock to those of you who knew Bernie well.  He was in great shape, and as vital as ever just before he left. 

Bernie was a deeply committed and caring scholar, teacher and mentor to generations of students and lawyers.  He was also a great friend of a great many.  He made foundational contributions to our field, in recognition of which last fall he shared the Bora Laskin Award with Don Carter.

Bernie served at Queen’s Law for 49 years, including 5 years as Dean.  Until his passing, he continued to edit the Queen’s Law Journal and the Canadian Labour and Employment Law Journal, and to be actively involved in the Centre for Law in the Contemporary Workplace.  As Dean Bill Flanagan put it, his contributions to the Queen’s community cannot be overstated.

Tributes from former students have been pouring in today.  Here's what a student recently taught by Bernie said to me this morning:

"Bernie was so loved by his students, past and present. I feel very privileged to have shared the Law Journal office with him last year -- to have worked with such a kind and supportive mentor is every student's dream."

Bernie won a teaching award last year, almost ten years after he "retired".  

We will send you information about the memorial service once it is available.

 David Doorey's blog post is here. 

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RIP Dan Markel

Usually when we note the passing of someone, it's a person who has made an impact on the field of labor and employment law, but expressing dismay at the tragic death of Dan Markel seems an appropriate exception. Even though Dan's scholarly work was in retributive justice, we shared many connections. Dan cast a net for critique of his work widely beyond his field, and likewise was always ready to comment and help on others' works, including ours. He was committed to being part of a scholarly conversation and urged others to that same goal, whether they had been writing for years or just starting out. As the founder of Prawfsblawg, Dan brought together people of many fields to write on whatever they wished and to promote their work; he did this in real life, too, organizing social events and workshops wherever he went.

Dan was so very full of life, love for his boys and friends, and generosity towards all of us that his death feels unreal. We express our heartfelt condolences to his family, friends, FSU and Tallahassee community, and the broader community we too are a part of. In his memory, it seems appropriate to link to one of his last posts, Thoughts on Work-Life Imbalance from Those Left Behind.

2014 Mario Biagi Award

 

 

The 2014 Marco Biagi Award

The winner of the 2014 Marco Biagi Award is Lilach Lurie (Bar-Ilan University, Israel) for a paper entitled Do Unions Promote Gender Equality? In this paper, the author conducts a careful and extensive empirical study of Israeli collective bargaining agreements and concludes (in line with studies in other countries) that existing “family-friendly” policies are more attributable to the political process than to collective bargaining, and that trade unions are still surprisingly willing to tolerate collective agreement provisions which embody illegal gender discrimination.   

Another paper was selected by the judges for special commendation: Corporate Social Responsibility as Work Law? A Critical Assessment in the Light of the Principle of Human Dignity by Isabelle Martin (University of Montreal, Canada). With an eye to the difficulties that labour law faces today in carrying out its traditional functions of furthering mínimum standards and giving employees a collective voice, the author offers a novel and theoretically grounded consideration of whether corporate social responsibility (CSR) is well suited to take on any of these functions. She concludes that CSR does more to protect employee rights which are easily measured and already relatively well protected by law, in contrast to those (such as freedom of association) which are harder to measure.

 The International Association of Labor Law Journals sponsors the Marco Biagi Award in honor of one of the founders of the Association: Marco Biagi, a distinguished labor lawyer and a victim of terrorism because of his commitment to social justice. A list of the member journals of the International Association can be found at http://www.labourlawjournals.com.

 This year’s winners were chosen by an academic jury composed of Bernard Adell (Canada), Jesús Cruz Villalón (Spain), and Frank Hendrickx (Belgium). The winners were chosen from twenty papers which were submitted for the competition.

 Prior winners of the Marco Biagi Award were:

 2013    Aline Van Bever (University of Leuven, Belgium), The Fiduciary Nature of the Employment Relationship

 2012    Diego Marcelo Ledesma Iturbide (Buenos Aires University, Argentina), Una propuesta para la reformulación de la conceptualización tradicional de la relación de trabajo a partir del relevamiento de su especificidad jurídica

        Specially Noted  ̶  Apoorva Sharma (National Law University, India), Towards an Effective Definition of Forced Labor

2011    Beryl Ter Haar (Universiteit Leiden, the Netherlands), Attila Kun (Károli Gáspár University, Hungary) & Manuel Antonio Garcia-Muñoz Alhambra (University of Castilla-La Mancha, Spain), Soft On The Inside; Hard For the Outside.An Analysis of the Legal Nature of New Forms of International Labour Law

    Specially Noted  ̶  Mimi Zou (Oxford University, Great Britain), Labour Relations With “Chinese  Characteristics”? Chinese Labour  Law at an Historic Crossroad

 2010    Virginie Yanpelda, (Université de Douala, Cameroun), Travail décent et diversité des rapports de travail

    Specially Noted  ̶  Marco Peruzzi (University of Verona, Italy),  Autonomy in the European social dialogue.

 2009    Orsola Razzolini (Bocconi University, Italy), The Need to Go Beyond the Contract:  “Economic” and “Bureaucratic” Dependence in Personal Work Relations

CAS (courtesy of Steve Willborn)