Tuesday, August 24, 2021
A huge congratulations to Marty Malin (Chicago-Kent) and Joe Slater (Toledo), who the Biden Administration has announced will be appointed to the Federal Labor Relations Act Federal Impasse Panel. Marty will Chair the panel. Here's the announcement:
Today, President Joe Biden announced his intent to appoint the following members to the Federal Labor Relations Authority (FLRA) Federal Service Impasses Panel: ...
The Panel is a component of the FLRA that resolves impasses between federal agencies and unions representing federal employees. If bargaining between the parties, followed by mediation assistance, does not result in a voluntary agreement, then either party or the parties jointly may request the Panel’s assistance.
Wednesday, July 21, 2021
Kate Griffith writes to let us know about an open position at Cornell's ILR School:
Assistant, Associate, or Full Professor Position Labor and Employment Law - ILR School, Cornell University
The Cornell University School of Industrial and Labor Relations (ILR) invites applications to fill a tenure-track/tenured faculty position (at the assistant, associate or full professor level) in Labor and Employment Law, to begin August 2022. The ILR School is looking for candidates who can support our growing diverse student body through advising and inclusive teaching approaches. This is a tenure-track or tenured position at a rank fitting with the candidate’s record of accomplishments. Candidates should have a record of high-quality research published in leading academic journals, or the potential for such research publications. Candidates should also have the ability to teach effectively to both undergraduates and graduate students on the Cornell Ithaca campus.
At the time of appointment, applicants must have completed a J.D. and/or a Ph.D. in law, labor relations, sociology, political science, or other related disciplines. We especially welcome candidates who are able to teach the undergraduate and graduate-level course requirement on U.S. Labor and Employment Law (covering primarily the NLRA and employment discrimination law). Faculty elective courses, as well as faculty research agendas, are based on their expertise and interests, which may include labor law, employment discrimination, wage and hour, health and safety, international labor law, and other areas related to labor and employment law.
The ILR School (www.ilr.cornell.edu) is the world’s leading college focused on work, employment, and labor issues. Our faculty come from a number of disciplinary backgrounds and study a broad range of issues related to labor, employment, and organizations. Cornell University is committed to supporting the work-life balance of its faculty.
We seek applicants whose record in research, teaching or service has prepared them to contribute to Cornell’s historical commitment to diversity.
Interested candidates should submit a cover letter, vita, statements explaining research and teaching capabilities, diversity and inclusion statement, and three reference letters. Applications from women and minority candidates are strongly encouraged.
Candidates can apply at https://academicjobsonline.org/ajo?joblist---3292-18974
Review of applications will begin on September 1, 2021 and continue until the position is filled. Inquiries about this position should be directed to Professor Risa Lieberwitz at [email protected]
Diversity and Inclusion are a part of Cornell University’s heritage. We are a recognized employer and educator valuing AA/EEO, Protected Veterans and Individuals with Disabilities. We also recognize a lawful preference in employment practices for Native Americans living on or near Indian reservations. Cornell University is an innovative Ivy League university and a great place to work. Our inclusive community of scholars, students, and staff impart an uncommon sense of larger purpose, and contribute creative ideas to further the university's mission of teaching, discovery, and engagement.
Saturday, May 29, 2021
From Marty Malin, one of the editors of the Employee Rights and Employment Policy Journal (along with Michael Green and Noah Zatz). Note that this is one of the few, peer-reviewed law journals. I may be biased, as I'm on the board of the journal and participate in the editing process, but I think they do a very good job of providing quick and useful reviews of submissions--especially with its accelerated review process.
Employee Rights and Employment Policy Journal invites you to submit your work for publication. This summer we are again using a special review process for submissions received by Thursday, July 1. For these submissions, we will complete our peer-review selection process by Friday, August 13. Selected articles will be published in the final issue of 2021 (volume 25). For more than twenty-four years, EREPJ has been a faculty-edited, peer-reviewed journal based at Chicago-Kent College of Law. Since 2016, it has been a joint project of Chicago-Kent and The Labor Law Group. Our process is quite different from the sometimes frustrating one typical of student-run law reviews. Our peer-review process provides authors with editorial suggestions from their peers who are knowledgeable about the areas in which the authors are writing, as well as light editing and rapid publication post-acceptance.
The one downside to the peer review process is that it often takes more time than the typical student-run law journal review process. To address this, EREPJ is committing itself to an accelerated review process: you send us your work by July 1, and we will give you an answer on or before August 13. This rapid turnaround means that if we do not offer to publish your work, you will still be able to submit it to student-run journals in the late summer/early fall submission season. During our review period, out of respect for the time of our colleagues who will be conducting the double-blind review, we ask that you not submit your article for consideration by another journal.
Submissions to EREPJ are treated to a double-blind review by members of the editorial board (a group of distinguished professors in labor and employment law and related disciplines) and edited by your peers—people who can help you improve your work, not just publish it. You receive suggestions that you may use at your discretion—we do not rewrite your article (although we do correct errant citations, grammar mistakes, typos, and the like). We have a student staff that performs Bluebooking and cite-checking but our authors never have to deal with them—we do!
Finally, under our standard publication agreement, you retain the copyright and give us a nonexclusive license to publish and to sublicense others. We respect our authors' time, we respect their expertise, we respect their writing styles, and we respect their intellectual property rights. We encourage you to publish with us.
Please submit articles by e-mail to [email protected] or use the submission portal at http://go.iit.edu/erepj (n.b. to facilitate the double-blind review, make sure that all identifying information—your name; institutional affiliation; postal and email addresses; and phone number—is on a separate cover).
Tuesday, May 11, 2021
Janice Bellace (U. Penn. - Wharton) and George Dragnich (DC LERA) published yesterday an op-ed in “The Hill” entitled A path for business out of the China forced labor dilemma. Here's Janice's description of the op-ed:
It addresses the China Uyghurs forced-labor situation and the role the ILO could play. It is written to attract the attention of companies by pointing out why companies might want to explore this possibility and explaining one way employers could pursue this route could be in June at the International Labour Conference.
George and I wrote this to draw attention to the ILO and its role regarding the abolition of forced labour. As you know, in the U.S., the media nearly always totally ignore the ILO. Even though Kevin Cassidy in the Washington office of the ILO has done terrific work in trying to close this recognition gap, it is an uphill slog. For instance, truly annoying is when they are discussing ILO labor standards (as was done recently in an article about the Xinjiang situation) and they refer to "a UN agency" rather than "the ILO." Since the dilemma facing companies has received coverage recently, we thought this and the timeliness of the issue would be “the hook” for a piece (since newspapers and other media typically want to see what will attract readers to the item, what will hook them in).
George and I both believe that the ILO has an important role to play and in fact, the most useful role with regard to the abolition of forced labour in Xinjiang. We hope this op-ed piece makes a helpful contribution.
Wednesday, April 7, 2021
Chris Albertyn (Albertyn Arbitration, Toronto) has sent the position paper Vaccinated and Unvaccinated Workers in the Labor Market, drafted by labor law academics in Israel. Here's the introduction:
Covid-19 poses numerous challenges to the labour market. The most recent are dilemmas concerning the appropriate regulation of access to work for unvaccinated workers, and the possible infringement of labour rights that may ensue. Being the first country in which large scale vaccination took place, there is a heated debate within Israel on this topic. As part of the public discourse, 17 labour law experts from academic institutions around Israel have written the position paper presented below:
We, a group of leading labour law scholars from Israeli law faculties, have been closely monitoring the public and legal discourse around the access of unvaccinated workers into workplaces. We are concerned that at this time, when a large share of the adult population in Israel is being vaccinated, there are calls to terminate the employment of workers who are not. To this end, we wish to emphasize a few basic principles of labour law and human rights that lie at the heart of Israeli law and international labour law. These principles should guide regulation on this issue, whether it is negotiated by the parties to collective labour law, the legislature, or in the labour courts' judgements.
April 7, 2021 in Employment Common Law, Employment Discrimination, International & Comparative L.E.L., Labor and Employment News, Labor Law, Workplace Safety, Workplace Trends | Permalink | Comments (1)
Tuesday, February 9, 2021
The California Lawyers Foundation has announced its Summer 2021 Law Student Scholarship Program, a joint program with the Labor and Employment Law Section of the California Lawyers Association -- scholarships for employment or labor related work in California for at least ten weeks during Summer 2021. More details from the posting:
The Labor and Employment Law Section of the California Lawyers Association, and the California Lawyers Foundation are committed to fostering the career growth of persons of color, women, members of the LGBTQ community, people with disabilities, and members of other underrepresented groups who are interested in practicing labor and employment law. We will be awarding summer scholarships to diverse law students for Summer 2021 in the amount of $8,000 each. The purpose of the scholarships is to provide funding to diverse law students to engage in legal endeavors in an employment or labor related field and may be non-compensated or undercompensated.
More information, including the online application, is here. The deadline: March 15, 2021.
-- Sachin Pandya (h/t Hina Shah)
Thursday, December 24, 2020
Forgive me for a bit of self-promotion, but I wanted to flag an amicus brief that a group affiliated with UNC Law filed with the Supreme Court supporting a petition for cert. by the Plaintiff in Torres v. Texas Department of Public Safety. The question centers on war powers abrogation, specifically whether state employers retain sovereign immunity in the face of congressional war powers legislation. In Torres, that legislation is USERRA, which prohibits employment discrimination based on military service and provides leave and other benefits for servicemembers called to active duty or attending training for, e.g., National Guard. Given the huge number of active and reserve servicemembers, this is an important statute even in normal times. But it's especially so now in a year that saw the greatest mobilization of National Guard troops since Wold War II.
Le Roy Torres was a Texas State Trooper who was called into active duty in Iraq. While there, he continually breathed toxic ash that made him, in addition to thousands of other veterans, very ill. So ill, he was unable to perform his usual trooper duties when he came home. According to Torres’ claim, the Texas Dept. of Safety refused to accommodate him with a desk job, instead forcing him to resign. Torres sued under USERRA, but his employer has argued that courts can’t even hear the claim because of state sovereign immunity. The Texas courts, like several other states, have agreed with this defense. But as I’ve argued in my research, which this and an earlier amicus draws on, these courts are wrong.
I actually first wrote on this topic when I was on the entry-level market. At the time, I argued that despite dicta saying that Article I can’t ever abrogate state immunity, the Court’s historical analysis leaves the door open for certain Article I powers to allow suits against states. Under this analysis, state sovereign immunity is determined by the “plan of the [Constitutional] Convention. In my earlier article, I argued that war powers should be an exception to the “no Article I abrogation” dicta. The Court has recognized that there are exceptions to state immunity; therefore, in what might be the unofficial theme of my research, “if not war powers, then what?” In other words, if there are areas in which states lack immunity, no area has a stronger claim than war powers. Indeed, subsequent to that article, the Court held in Katz that states lacked immunity when it comes to Article I’s Bankruptcy Clause. Which leads one to ask if the Bankruptcy Clause allows suits against states, then surely war powers does too.
Prompted by an earlier Torres amicus brief I wrote while the case was being considered for cert. by the Texas Supreme Court, I revisited this issue post-Katz in my new article, War Powers Abrogation, forthcoming in the George Washington Law Review. In this article, I thoroughly examined the history of the War Powers Clauses from the Articles of Confederation period, through the Constitutional Convention and text, and then the Ratification debates. The article provides the details, but the story is crystal clear: the only reasonable reading of the “plan of the Convention” is that the Founders and states adopted the Constitution fully knowing and intending states NOT to have any sovereignty when it comes to war powers. Instead, a central feature of the Constitution was assuring that the federal government was in charge of the nation’s security, free from state interference. In short, no one during that period—even those who objected to the Constitution—thought that states could interfere with the federal government’s war powers actions, including legislation like USERRA. So far, state courts (which currently have sole jurisdiction of USERRA claims against state employers) have failed to even address this history, instead siding with state immunity claims based on outdated dicta or superficial distinguishing of Katz. Our hope is that the Supreme Court will take up the issue to correct that error. So stay tuned.
Finally, I want to thank those who have helped with this brief and research (and, fingers crossed, one supporting the merits to come). This includes my research assistant, Kemper Patton, staff on the George Washington Law Review, and the several people who helped write the amicus: Elizabeth Fisher (Wiley), Rachel Grossman (UNC Law), Andy Hessick (UNC Law); and Rick Simpson (Wiley). Also thanks to the Torres’ ever-helpful counsel, including Brian Lawler (Pilot Law) and Andrew Tutt (Arnold and Porter). And, last but not least, thanks to Le Roy Torres, his wife, and the other veterans who are trying to simply get their day in court to exercise their rights under USERRA.
Tuesday, December 15, 2020
Legal Responses to COVID-19 Around the World surveys the labor-related responses of 50 countries to the COVID-19 pandemic. The book currently is available only on kindle, but will be available in hard copy within a week or so. Beyond the book's content, the table of contents provides a really nice list of labor scholars throughout the world.
Here's the complete cite: Legal Responses to Covid-19 Around the World, Cláudio Jannotti da Rocha, Flávia Fragale Martins Pepino, & Rafael Lara Martins, eds. (Lex-Magister [Brazil], 2020) . Disclosure: I contributed the U.S. chapter.
Here's the publisher's description:
This is a collection of papers from 50 countries (6 continents) about the effects of the Covid-19 pandemic on the economy, employment, contracts, business, people’s income, health, courts and dispute resolution systems. The book’s purpose is to allow current and future generations to find, in one place, information about the legal responses to Covid-19 around the world.
December 15, 2020 in Books, International & Comparative L.E.L., International Contacts, Labor and Employment News, Labor Law, Scholarship, Wage & Hour, Workplace Safety, Workplace Trends | Permalink | Comments (0)
Monday, November 9, 2020
Thanks to Tequila Brooks for letting us know that on Wednesday, 18 November at 5 pm EST, the DC Chapter of LERA @DCLERA will host a free webinar chat with Wilma Liebman, Former NLRB Chair and Incoming President of the US Labor and Employment Research Association. Details and registration are here.
Tuesday, August 18, 2020
Given all of the attention that UNC-Chapel Hill has received recently, it was suggested to me that readers might be interested in a view from the ground (not sure whether or not to thank Rick Bales for suggesting that I rehash this). I don't think UNC's experience is necessarily unique, but being a high-profile state flagship school with a recent eye-catching student paper editorial has kept us in the news.
While I was involved with plans at the law school level, I'll note that I was very much out-of-the loop at the campus level. There were some interesting dynamics going on, including the university system Board of Governors (whose members are 100% from one political party) asserting that they alone had the power make the final call on closing UNC campuses. At Chapel Hill, it seemed early in the process that there was going to be a push to have in-person classes, including--most crucially to my mind--on-campus housing. As a former Associate Dean, I'm quite sympathetic to the position that administrators were in. Quite literally a no-win situation. However, from what I'd been hearing, there wasn't enough attention to dealing with the inevitabilities involved with bringing a bunch of undergrads onto campus. As a result, the disappointing but expected reports of unsafe parties quickly came. And soon after that, COVID clusters in four dorms in less than a week. Then closure for all undergrad classes. I don't pretend to know what the best path would've been, but the school's refusal to test returning students and constantly using FERPA to restrict info about COVID outbreaks were a couple of swing-and-misses that came to my mind (e.g., they said FERPA prevented them from saying how many students tested positive in these clusters, which doesn't make any sense to me). One of my colleagues who serves on the Faculty Executive Council had also, among other things, unsuccessfully agitated for an ethicist to join the reopening discussions with all the medical researchers and scientists, which in retrospect might've saved a lot of turmoil.
At the law school, things were somewhat different, especially given that we don't have university housing and are much smaller than the undergrad schools. I was part of a group that worked throughout the summer to prepare for fall classes, although I'm compelled to recognize that a lot of our staff and our Associate Dean for Academic Affairs did a tremendous amount of work that got us off to as good a start of the semester as one could have expected. And the administration overall was quite good at listening to and accommodating faculty and staff wishes and concerns. In the end, most of our classes were all-remote, but we did have some in-person. For example, some upper-level courses met, especially those where in-person was especially important. Moreover, we surveyed all incoming 1Ls, 25% of whom chose all-remote; 75% wanted in-person. Because their schedules were easier to control, we put those 75% in what were essentially pods. Some, but not all, of their classes were in-person (including my Contracts class). I won't go into all of the details, but I felt quite comfortable with the safety measures. Masks were required of everyone all the time, and not a single student came to school without wearing one. The students stayed in a single classroom way below its capacity and their professors simply changed between class (I think, at most, there were two in-person classes a day for any given student). To keep the classroom numbers low, a third of students were remote every day, which was a bit awkward, but was working out fine. And, to my knowledge, no law student had tested positive for COVID since the semester started.
Despite the law school being in good shape and the university allowing us to stay open, our Dean decided to go all remote yesterday. While I was personally bummed about this--I really liked being able to see my students in person--I think it was the right call. Of interest to readers of this blog, once of the Dean's primary motivations was the health of our staff. To quote part of his announcement:
Given the developments of recent days in the Chapel Hill, Carrboro and Orange County communities ... the risks of continuing this valiant effort are simply too great. We cannot justify risking the health of any of our students, faculty or staff unnecessarily when we know that we are capable of providing legal education of outstanding quality via remote technology. I feel this is best decision for our community under all the circumstances.
In an emergency meeting yesterday in which the Dean told us this was coming, it was clear that the impact on staff weighed particularly heavy on him, as he was well aware that having any in-person classes required several people to regularly come into the building to help make that happen. And given what was going on elsewhere on campus, it was a risk he didn't want to force them to take. A concern that you like to see from the head of an organization and, from what I can tell, most everyone at the law school understands and supports.
Everyone teaching in-person, of course, had prepared for this possibility, so the transition to all-remote for the law school will go smoothly. The undergrads, I'm less sure about. Many students are quite angry, for understandable reasons. And they now have to figure out their living arrangements at the last minute while classes are still happening. So we shall see. In the meantime, as a resident of Chapel Hill, I'm not sorry to see fewer students and their families in town. While many were wearing masks and acting safe, many were not. It has been disturbing to see the shocking number of parents and students who were out with no masks or social distancing. There's plenty of blame to go around here, but many of the undergrad students and parents who are upset now share some of it. The folks I feel sorry for are those who did what they were supposed to, but had the rug pulled from under them by others who did not.
Wednesday, July 29, 2020
Michael Duff, Thomas McGarity, Sidney Shapiro, Rena Steinzor and Katie Tracy have published a piece through the Center for Progressive Reform on the need to provide a private right of action under OSHA. An excerpt from the executive summary:
Over the last several decades, through a concentration of economic and political power by corporate executives and their allies in government institutions, workers have been systematically disempowered and silenced. Two important results of this dynamic are that the nation's workplaces are not nearly as safe or healthy as they need to be to protect all workers, and workers lack the power they deserve to speak up against exploitation without fear of significant retaliation.
The handling of the coronavirus pandemic is emblematic of several decades of choices by our national and state leaders that prioritize short-term profits ahead of people. At this very moment and in plain view, President Trump and his Occupational Safety and Health Administration (OSHA), conservatives in Congress, and many state leaders are failing to protect workers from the potentially fatal risks of COVID-19. Significantly, this increased burden is not equally shared by all. Black, Latinx, and other people of color are disproportionately represented in many occupations that make up the low-paid, high-risk jobs, such as health services, child care, public transit, grocery clerks, janitorial services, and meatpacking, which are deemed essential during the pandemic. . . .
Agencies like OSHA should play a key role in setting policies that ensure health, safety, stability, and power for workers in addressing workplace hazards. But since 1970, Congress and the White House have hollowed out the agency, denying it resources and trimming its authority, leaving it in a weak state. The failure has been bipartisan. Republicans have been overtly hostile to OSHA, and Democrats have often lacked the political will to pursue progressive standard-setting and enforcement policies. . . .
Fixing the current system requires an updated and vastly improved labor law that empowers workers to speak up about health and safety hazards, rather than risk their lives out of fear of losing employment and pay. It also requires that workers be empowered to fight back when government agencies fail to enforce safety and health requirements. Our vision is to guarantee all workers a private right of action to enforce violations of the OSH Act, coupled with incentives for speaking up and strong whistleblower protections to ensure workers can and will utilize their new authority. In addition, this private right of action should cover the millions of workers who are currently unprotected by OSHA, including misclassified independent contractors, agricultural workers, and public sector workers in states under federal OSHA’s jurisdiction. Congress should also ban mandatory arbitration as a condition of employment, since the purpose of such arbitration requirements is to disempower workers by denying access to the courts. Finally, Congress should require that all states and territories that operate their own occupational safety and health programs in lieu of federal OSHA incorporate a private right of action into their state plans. . . .
Check it out!
Monday, June 22, 2020
Major League Baseball implemented a temporary rule limiting signing bonuses for new players as a cost-saving measure when teams are bringing in no revenue. One result: teams with a history of treating their workers well are attracting talent they otherwise would have had little chance of luring. Here's the take-away:
The Royals jumped to the top of many players’ lists because of their demonstrated commitment to their minor leaguers. While most of Kansas City’s competitors wavered on paying minor leaguers at all this summer—and then released scores of them—only the Royals and Minnesota Twins said they would keep every prospect. Royals general manager Dayton Moore justified that action by telling reporters, “The minor-league players, the players you’ll never know about, the players that never get out of rookie ball or High-A, those players have as much impact on the growth of our game as 10-year or 15-year veteran players.”
In saying that, the Royals positioned themselves to take advantage of a very simple market inefficiency: not treating your lowest-paid employees like garbage.
Jared Diamond, The Royals Are Taking Advantage of a New Market Inefficiency Wall St. J. (June 19, 2020).
Monday, June 15, 2020
We'll no doubt have more of analysis soon, but given the delays in uploading the Court's decision in Bostock (thanks to widespread interest and a bunch of uncompressed images in the opinion), I thought it would be helpful to post the syllabus:
BOSTOCK v. CLAYTON COUNTY, GEORGIA CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR
THE ELEVENTH CIRCUIT
No. 17–1618. Argued October 8, 2019—Decided June 15, 2020*
In each of these cases, an employer allegedly fired a long-time employee simply for being homosexual or transgender. Clayton County, Georgia, fired Gerald Bostock for conduct “unbecoming” a county employee shortly after he began participating in a gay recreational softball league. Altitude Express fired Donald Zarda days after he mentioned being gay. And R. G. & G. R. Harris Funeral Homes fired Aimee Ste- phens, who presented as a male when she was hired, after she informed her employer that she planned to “live and work full-time as a woman.” Each employee sued, alleging sex discrimination under Title VII of the Civil Rights Act of 1964. The Eleventh Circuit held that Title VII does not prohibit employers from firing employees for being gay and so Mr. Bostock’s suit could be dismissed as a matter of law. The Second and Sixth Circuits, however, allowed the claims of Mr. Zarda and Ms. Stephens, respectively, to proceed.
Held: An employer who fires an individual merely for being gay or transgender violates Title VII. Pp. 4–33.
(a) Title VII makes it “unlawful . . . for an employer to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual . . . because of such individual’s race, color, re- ligion, sex, or national origin.” 42 U. S. C. §2000e–2(a)(1). The straightforward application of Title VII’s terms interpreted in accord with their ordinary public meaning at the time of their enactment re- solves these cases. Pp. 4–12.
(1) The parties concede that the term “sex” in 1964 referred to the biological distinctions between male and female. And “the ordinary meaning of ‘because of’ is ‘by reason of’ or ‘on account of,’ ” University of Tex. Southwestern Medical Center v. Nassar, 570 U. S. 338, 350. That term incorporates the but-for causation standard, id., at 346, 360, which, for Title VII, means that a defendant cannot avoid liability just by citing some other factor that contributed to its challenged employ- ment action. The term “discriminate” meant “[t]o make a difference in treatment or favor (of one as compared with others).” Webster’s New International Dictionary 745. In so-called “disparate treatment” cases, this Court has held that the difference in treatment based on sex must be intentional. See, e.g., Watson v. Fort Worth Bank & Trust, 487 U. S. 977, 986. And the statute’s repeated use of the term “indi- vidual” means that the focus is on “[a] particular being as distin- guished from a class.” Webster’s New International Dictionary, at 1267. Pp. 4–9.
(2) These terms generate the following rule: An employer violates Title VII when it intentionally fires an individual employee based in part on sex. It makes no difference if other factors besides the plain- tiff’s sex contributed to the decision or that the employer treated women as a group the same when compared to men as a group. A statutory violation occurs if an employer intentionally relies in part on an individual employee’s sex when deciding to discharge the employee. Because discrimination on the basis of homosexuality or transgender status requires an employer to intentionally treat individual employ- ees differently because of their sex, an employer who intentionally pe- nalizes an employee for being homosexual or transgender also violates Title VII. There is no escaping the role intent plays: Just as sex is necessarily a but-for cause when an employer discriminates against homosexual or transgender employees, an employer who discriminates on these grounds inescapably intends to rely on sex in its decisionmak- ing. Pp. 9–12.
(b) Three leading precedents confirm what the statute’s plain terms suggest. In Phillips v. Martin Marietta Corp., 400 U. S. 542, a com- pany was held to have violated Title VII by refusing to hire women with young children, despite the fact that the discrimination also de- pended on being a parent of young children and the fact that the com- pany favored hiring women over men. In Los Angeles Dept. of Water and Power v. Manhart, 435 U. S. 702, an employer’s policy of requiring women to make larger pension fund contributions than men because women tend to live longer was held to violate Title VII, notwithstand- ing the policy’s evenhandedness between men and women as groups. And in Oncale v. Sundowner Offshore Services, Inc., 523 U. S. 75, a male plaintiff alleged a triable Title VII claim for sexual harassment by co-workers who were members of the same sex.
The lessons these cases hold are instructive here. First, it is irrele- vant what an employer might call its discriminatory practice, how oth- ers might label it, or what else might motivate it. In Manhart, the employer might have called its rule a “life expectancy” adjustment, and in Phillips, the employer could have accurately spoken of its policy as one based on “motherhood.” But such labels and additional intentions or motivations did not make a difference there, and they cannot make a difference here. When an employer fires an employee for being ho- mosexual or transgender, it necessarily intentionally discriminates against that individual in part because of sex. Second, the plaintiff’s sex need not be the sole or primary cause of the employer’s adverse action. In Phillips, Manhart, and Oncale, the employer easily could have pointed to some other, nonprotected trait and insisted it was the more important factor in the adverse employment outcome. Here, too, it is of no significance if another factor, such as the plaintiff’s attrac- tion to the same sex or presentation as a different sex from the one assigned at birth, might also be at work, or even play a more important role in the employer’s decision. Finally, an employer cannot escape liability by demonstrating that it treats males and females comparably as groups. Manhart is instructive here. An employer who intention- ally fires an individual homosexual or transgender employee in part because of that individual’s sex violates the law even if the employer is willing to subject all male and female homosexual or transgender employees to the same rule. Pp. 12–15.
(c) The employers do not dispute that they fired their employees for being homosexual or transgender. Rather, they contend that even in- tentional discrimination against employees based on their homosexual or transgender status is not a basis for Title VII liability. But their statutory text arguments have already been rejected by this Court’s precedents. And none of their other contentions about what they think the law was meant to do, or should do, allow for ignoring the law as it is. Pp. 15–33.
(1) The employers assert that it should make a difference that plaintiffs would likely respond in conversation that they were fired for being gay or transgender and not because of sex. But conversational conventions do not control Title VII’s legal analysis, which asks simply whether sex is a but-for cause. Nor is it a defense to insist that inten- tional discrimination based on homosexuality or transgender status is not intentional discrimination based on sex. An employer who discrim- inates against homosexual or transgender employees necessarily and intentionally applies sex-based rules. Nor does it make a difference that an employer could refuse to hire a gay or transgender individual without learning that person’s sex. By intentionally setting out a rule that makes hiring turn on sex, the employer violates the law, whatever he might know or not know about individual applicants. The employ- ers also stress that homosexuality and transgender status are distinct concepts from sex, and that if Congress wanted to address these mat- ters in Title VII, it would have referenced them specifically. But when Congress chooses not to include any exceptions to a broad rule, this Court applies the broad rule. Finally, the employers suggest that be- cause the policies at issue have the same adverse consequences for men and women, a stricter causation test should apply. That argu- ment unavoidably comes down to a suggestion that sex must be the sole or primary cause of an adverse employment action under Title VII, a suggestion at odds with the statute. Pp. 16–23.
(2) The employers contend that few in 1964 would have expected Title VII to apply to discrimination against homosexual and transgender persons. But legislative history has no bearing here, where no ambiguity exists about how Title VII’s terms apply to the facts. See Milner v. Department of Navy, 562 U. S. 562, 574. While it is possible that a statutory term that means one thing today or in one context might have meant something else at the time of its adoption or might mean something different in another context, the employers do not seek to use historical sources to illustrate that the meaning of any of Title VII’s language has changed since 1964 or that the statute’s terms ordinarily carried some missed message. Instead, they seem to say when a new application is both unexpected and important, even if it is clearly commanded by existing law, the Court should merely point out the question, refer the subject back to Congress, and decline to en- force the law’s plain terms in the meantime. This Court has long re- jected that sort of reasoning. And the employers’ new framing may only add new problems and leave the Court with more than a little law to overturn. Finally, the employers turn to naked policy appeals, sug- gesting that the Court proceed without the law’s guidance to do what it thinks best. That is an invitation that no court should ever take up. Pp. 23–33.
No. 17–1618, 723 Fed. Appx. 964, reversed and remanded; No. 17–1623, 883 F. 3d 100, and No. 18–107, 884 F. 3d 560, affirmed.
GORSUCH, J., delivered the opinion of the Court, in which ROBERTS, C. J., and GINSBURG, BREYER, SOTOMAYOR, and KAGAN, JJ., joined. ALITO, J., filed a dissenting opinion, in which THOMAS, J., joined. KAVANAUGH, J., filed a dissenting opinion.
Monday, May 25, 2020
Desiree LeClercq (formerly Director for Labor Affairs at the Office of the United States Trade Representative; currently en route to Ithaca NY to teach at the Cornell ILR School) writes to tell us:
LERA has been hosting a series of webinars free to members and non-members that examine various labor elements of the COVID pandemic. This Thursday, May 28, from 10-11am, I will be moderating a panel on ""Global Governance During Pandemic: Implications of Force Majeure and National Emergency for Worker Rights Protections." Panelists will include representatives from the ILO, the World Bank, the World Maritime University, Solidarity Center, and Sustainable Enterprises. In case of interest, the link to register and receive the Zoom link may be accessed at: https://lera.memberclicks.net/lera-webinar-series--ler-during-covid-19.
This looks like a terrific program!
Dear labor and employment scholars,
We're writing to see if you'd be interested in writing a short essay on any COVID-related work law issue as part of an open-source web-based book.
The COVID-19 pandemic has raised many complex work-law issues that matter a lot to thousands of people in the US right now. As a result, we're hoping to develop a virtual “book” of short essays on COVID-19 work law issues for an audience of sophisticated lay readers. Because this "book" would be completely web-based, it'll be easy to revise and update the book's content quickly as the pandemic (and the response to it) unfolds. And anyone with an Internet connection can read it. We will set up the essays in such a way that contributors can cite to essays if desired.
Moreover, while some NGOs, law firms, and the press have been discussing COVID-19 work law issues online, that has been largely piecemeal. We believe that work-law scholars, working together, can add value by putting these issues in proper context (and in one place) in a way that would really make a difference. Whether it’s informing workers of their rights, assisting workers in obtaining the benefits they’re entitled to, or informing employers’ attempts to comply with increasingly complex and fast-changing regulations, this is a project that can have a meaningful impact.
If you are interested, feel free to consider or add to this incomplete list of topic areas:
- Safety & Health
- Unemployment Insurance Benefits
- Workers’ Compensation
- Leave Rights
- Labor Rights
- Retaliatory filings
- Immigrant Worker issues
These and other COVID-19 work law topics are broad and have both state and federal components, so there will be room for multiple essays in the same general area (for instance, different state unemployment systems, or case studies of particular laws as applied). If you are interested, please contact one or both of us (Jeff Hirsch: [email protected]; Sachin Pandya: [email protected]) and let us know.
Jeff Hirsch & Sachin Pandya
Wednesday, May 6, 2020
A group of authors from the Federal Reserve Bank of Chicago and the University of Indiana have just posted on SSRN Using the Eye of the Storm to Predict the Wave of Covid-19 UI Claims. Here's the abstract of this timely article:
We leverage an event-study research design focused on the seven costliest hurricanes to hit the US mainland since 2004 to identify the elasticity of unemployment insurance filings with respect to search intensity. Applying our elasticity estimate to the state-level Google Trends indexes for the topic “unemployment,” we show that out-of-sample forecasts made ahead of the official data releases for March 21 and 28 predicted to a large degree the extent of the Covid-19 related surge in the demand for unemployment insurance. In addition, we provide a robust assessment of the uncertainty surrounding these estimates and demonstrate their use within a broader forecasting framework for US economic activity.
Tuesday, April 14, 2020
It's official ... the COSELL web page is now live. The conference is being hosted at (hopefully, literally "at") Louisville, and Arianna Levinson writes:
Please register for the 15th Annual COSELL to be held at the University of Louisville Brandeis School of Law, Thursday- Saturday, October 8-10, 2020, at this event page http://louisville.edu/law/cosell2020. We look forward to seeing everyone in October!
This is by far my favorite academic conference (I've only missed one year) because it has a lot of interesting papers, at various stages, with incredibly helpful and supportive comments from all of my favorite labor and employment scholars. It's also a great place for more junior scholars to not only get feedback on their work, but meet others in the field. So if you've never been, now is the time to correct that mistake.
Friday, March 27, 2020
The ABA International Labor & Employment Law Section has published a Special COVID-19 edition of its Newsletter, describing the myriad different responses that countries have taken to adjusting LEL laws to respond to the virus. Here's a description:
COVID-19 is now a truly global pandemic and is affecting hundreds of millions of people at both deeply personal and professional levels. Countries are attempting to respond in different ways, from quarantines to special health care initiatives to financial stimulus packages. Countries also are responding in myriad ways that affect workers and workplaces.
This special edition of the newsletter contains a series of short articles describing how several countries from throughout the world are using workplace laws to combat the spread of COVID-19 and to mitigate its effects on workers and workplaces. Though our survey is not comprehensive, it nonetheless provides a snapshot of the often thoughtful and creative ways that countries are responding to the crisis. We hope it will provide guidance not only to the international labor and employment attorneys who regularly read this newsletter, but also to policymakers worldwide considering how their countries might best restructure workplaces and protect workers in a time of crisis to mitigate both the devastating health effects of the virus and its disruption of the economic activity on which we all depend for our livelihoods.
Monday, March 23, 2020
Many thanks to Tequila Brooks for forwarding a link to
Maquila Solidarity Network's report Brands Must Urgently Take Steps to Minimize Impact of the Coronavirus on Garment Workers’ Health and Livelihoods. I can tell you firsthand that these workers are extraordinarily vulnerable -- they work in crowded conditions for long hours, have poor access to health care, and sometimes live in high-density shantytowns surrounding the garment factories. They usually are the primary or sole breadwinner for an extended family, and hence can ill-afford to lose their jobs due to supply-chain disruptions. Here's an excerpt from the report:
The new coronavirus has reached global pandemic levels and is affecting people across the world, including garment workers in global supply chains. Protecting those most at risk means both taking steps to limit exposure and ensuring that people surviving on the poverty line are not pushed below it. Due to their low wages and widespread repression of freedom of association rights, garment workers already live in precarious situations and the economic fallout of the pandemic is having far-reaching consequences. We urge all clothing brands to take immediate proactive steps in their due diligence to protect workers who make their goods in the face of this global pandemic. Brands must take responsibility for workers throughout their supply chains and ensure that the garment workers who have made their profits possible do not carry the industry’s financial burden during this pandemic.
Sunday, March 22, 2020
Revitalizing Scholarship on Academic Collective Bargaining
Daniel J. Julius
A Different Set of Rules? NLRB Proposed Rule Making and Student Worker Unionization Rights
William A. Herbert and Joseph van der Naald
Labor Unions and Equal Pay for Faculty: A Longitudinal Study of Gender Pay Gaps in a Unionized Institutional Context
Rodrigo Dominguez-Villegas, Laurel Smith-Doerr, Henry Renski, and Laras Sekarasih
Does a Prolonged Faculty Strike in Higher Education Affect Student Achievement in First Year General Education Courses?
Stephen J. Jacquemin, Christine R. Junker, and Mark Cubberley
Maintaining peer-based faculty evaluation: a case study involving student surveys of teaching
Laura Murphy and Leah M. Akins
Examining the Employment Profile of Institutions Under the Mission-Driven Classification System and the Impact of Collective Bargaining
Louis Shedd, Stephen G. Katsinas, and Nathaniel Bray
Adjuncts and the Chimera of Academic Freedom
Deirdre M. Frontczak