Wednesday, January 27, 2021
Nicole Porter (Toledo) has just posted on SSRN her article #MeToo and the Process That's Due: Sexual Misconduct Where We Live, Work, and Learn. Here's the abstract:
The #MeToo movement has been instrumental in bringing attention to the pervasiveness of sexual harassment and sexual assault (collectively, sexual misconduct ) in all walks of life and in all environments, including at work, school, home, and out in public. But the movement has also brought with it a great deal of confusion about how we define sexual misconduct and whether and when legal liability attaches. Part of that confusion can be blamed on the fact that at least three discrete areas of law can possibly apply to sexual misconduct—criminal law, Title VII (when the sexual misconduct takes place in the workplace), and Title IX (when the sexual misconduct takes place in schools and universities). Adding to that confusion is that there are several inconsistencies between how these three areas of the law address issues surrounding sexual misconduct. The most prominent of these inconsistencies is the varied due process protections that apply, depending on where the sexual misconduct takes place. This article will discuss these inconsistencies, and will address the issue of whether these differences can be justified. In the end, this article concludes that the increased due process protection for Title IX cases (compared to Title VII cases) cannot be justified. Thus, it proposes a compromise response to answer the question—how much process is due?
Friday, January 22, 2021
President Biden has named Commissioner Charlotte Burrows as the Chair of the Equal Employment Opportunity Commission and Commissioner Joceyln Samuels as Vice Chair.
From the EEOC:
Burrows has served as an EEOC Commissioner since 2015, having been initially nominated by President Barack Obama. In 2019 she was re-nominated and unanimously confirmed for a second term ending in 2023. . . .
Chair Burrows' government experience includes service as Associate Deputy Attorney General at the U.S. Department of Justice, where she worked on a broad range of civil and criminal matters, including employment litigation, voting rights, combating racial profiling, and implementing the Violence Against Women Act, which was first co-sponsored in Congress in 1994 by then-Senator Biden, and reauthorized several times since. Before joining the Department of Justice, she served as General Counsel for Civil and Constitutional Rights to former Senator Edward M. Kennedy on the Senate Judiciary Committee and later on the Senate Committee on Health, Education, Labor and Pensions.
Vice Chair Jocelyn Samuels joined the EEOC as a Commissioner on Oct. 14, 2020. . . .
Immediately prior to joining the Commission, Vice Chair Samuels served as the Executive Director and Roberta A. Conroy Scholar of Law at the Williams Institute of the UCLA School of Law, focusing on legal strategies to attain equality for sexual and gender minorities. During the Obama Administration, she was the Director of the Office for Civil Rights at the U.S. Department of Health & Human Services, where she oversaw civil rights enforcement with respect to hospitals, health care providers, insurers, and human services agencies, and served as a political appointee at the Department of Justice, including as the Acting Assistant Attorney General for Civil Rights.
-- Sandra Sperino
Wednesday, January 20, 2021
The International Lawyers Assisting Workers (ILAW) Network has just published the inaugural issue of a new law journal – the Global Labour Rights Reporter. The journal is a forum primarily for labour and employment law practitioners globally, including ILAW Network members, to grapple with the legal and practical issues that directly affect workers and their organizations today. It takes a comparative approach, reflecting the worldwide composition of ILAW’s membership. Each issue of the journal will be organized thematically and will highlight notable cases and judicial opinions, trends in the regulation of labour, and analytical pieces which help to envision how practitioners can expand the protection of law, enhance accountability and obtain full and effective remedies. The journal will be published bi-annually, summer and winter, with the possibility of additional articles or contributions being posted on the journal’s website between issues.
- WORKER-ENFORCEABLE SUPPLIER CODES OF CONDUCT AS A TOOL FOR ACCESS TO JUSTICE
IN GLOBAL SUPPLY CHAINS, by BETTINA BRAUN, AVERY KELLY & CHARITY RYERSON
- ACCESS TO JUSTICE IN LABOUR RELATIONS IN GEORGIA, by RAISA LIPARTELIANI & TAMAR GABISONIA
- ACCESS TO LABOUR JUSTICE AND PROCEDURAL BARRIERS IN COMMENCEMENT OF PROCEEDINGS: A PARADIGM SHIFT IN ZIMBABWEAN COURT PRACTICE OR A JUDICIAL MIRAGE?, by MUNYARADZI GWISAI
- EFFECTIVE JUDICIAL PROTECTION AND THE RIGHTS OF WORKING PEOPLE UNDER COVID-19: A VIEW FROM COLLECTIVE LAW, by MIGUEL ANGEL GARRIDO PALACIOS
- THE RIGHT TO FAIR AND SATISFACTORY WORKING CONDITIONS: RISK PREVENTION AND ACCESS TO JUSTICE, by MARÍA PAULA LOZANO & MATÍAS CREMONTE
- AUSTRALIA’S UNIQUE AWARD SYSTEM HAS BEEN TESTED BY THE COVID-19 PANDEMIC: IT HAS BEEN SHOWN TO BE READILY ADAPTABLE TO PROTECT EMPLOYER INTERESTS BUT LESS EFFECTIVE AT PROACTIVELY PROTECTING EMPLOYEES, by TREVOR CLARKE
- COVID-19 & NEOLIBERALISM: IMPACTS ON LABOUR JUSTICE IN BRAZIL, by PEDRO DANIEL BLANCO ALVES & MAXIMILIANO NAGL GARCEZ
- THE COVID-19 PANDEMIC AND THE WHISTLE-BLOWER PROTECTION IN POLAND, by ŁUCJA KOBROŃ-GĄSIOROWSKA
- LABOUR INSPECTION: MORE THAN AN EXERCISE IN ETHICS, by SAMANTHA RAMSAY & BERYL TER HAAR
Thursday, January 14, 2021
Tammy Katsabian (postdoc, Harvard Labor & Worklife Program) has just posted on SSRN her article The Rule of Technology – How Technology Is Used to Disturb Basic Labor Law Protections (forthcoming 25 Lewis & Clark L. Rev. ___ (2021). [Americans should note: she uses "labor" broadly to include what we usually refer to as "employment" law.] Here's the abstract of this timely article:
Much has been written on technology and the law. Leading scholars are occupied with the power dynamics between capital, technology, and the law, along with their implications for society and human rights. Alongside that, various labor law scholars focus on the implications of smart technology on employees’ rights throughout the recruitment and employment periods and on workers’ status and rights in the growing phenomenon of platform-based work. This article aims to contribute to the current scholarship by zooming it out and observing from a bird’s-eye view how certain actors use technology to manipulate and challenge basic legal categories in labor today. This is done by referring to legal, sociological, and internet scholarship on the matter.
The main argument elaborated throughout this article is that digital technology is used to blur and distort many of the basic labor law protections. Because of this, legal categories and rights in the labor field seem to be outdated and need to be adjusted to this new reality.
By providing four detailed examples, the article unpacks how employers, giant high-tech companies, and society use various forms of technology to constantly disturb legal categories in the labor field regarding time, sphere, and relations. In this way, the article demonstrates how social media sites, information communication technologies, and artificial intelligence are used to blur the traditional concepts of privacy, working time and place, the employment contract, and community. This increased blurriness and fragility in labor have created many new difficulties that require new ways of thinking about regulation. Therefore, the article argues that both law and technology have to be modified to cope with the new challenges. Following this, the article proposes three possible ways in which to start considering the regulation of labor in the digital reality: (1) embrace flexibility as part of the legal order and use it as an interpretive tool and not just as an obstacle, (2) broaden the current legal protection and add a procedural layer to the legal rights at stake, and (3) use technology as part of the solution to the dilemmas that technology itself has emphasized. By doing so, this article seeks to enable more accurate thinking on law and regulation in the digital reality, particularly in the labor field, as well as in other fields and contexts.
Tuesday, January 12, 2021
DC LERA has another great international labor program. Christy Hoffman is the General Secretary of UNI Global Union, the global union federation for workers in services which represents 20 million members in 150 countries. She will be speaking January 19, 2021, 11:00 am - 12:00 pm. on the topic Remaking the World of Work for the Service Sector. Registration is free -- follow the instructions at this link.
Thanks to Tequila Brooks for sending this along.
Monday, January 11, 2021
The Cornell ILR School’s New Conversations Project and Sandra Polaski, Senior Research Scholar at Boston University’s Global Development Policy Center, will hold a live discussion on Tuesday, 19 January 2021 from 9 – 10:15 EST on the topic of Sandra's recent paper, How Trade Policy Failed U.S. Workers--and How to Fix It. Register here.
A group of scholars and practitioners will debate the paper’s proposed changes and their possible impacts for workers. Participants include:
- Sandra Polaski, Senior Research Scholar in the Global Economic Governance Initiative at Boston University, and member of the Independent Mexico Labor Expert Board.
- Desiree LeClercq, Proskauer Employment and Labor Law Assistant Professor at Cornell University's School of Industrial and Labor Relations.
- Carlos Salas, Visiting Professor of Economics at Universidad Autónoma Metropolitana (UNAM), Azcapotzalco, Mexico City.
- Olabisi Akinkugbe, Assistant Professor at the Schulich School of Law, Dalhousie University, Canada.
- Dave Welsh, Country Director of the AFL-CIO Solidarity Center in Thailand.
- Jason Judd (Moderator), Executive Director of Cornell University's New Conversations Project in the School of Industrial and Labor Relations.
Saturday, January 9, 2021
We are pleased to present the fi rst issue of the scientific-practical journal Contemporary Labour Law Review, – published by the Center for Contemporary Labour Law. The journal has been launched on 29 November 2019. The launch event, hosted by Tbilisi State University, was attended by the representatives of government and non-governmental sectors working in the field of labour law, judges, legal practitioners, academics and students. The number of attendees at the event and subsequent feedback indicates how great the public interest in the journal has been, which, in turn, obliges us to satisfy the interest of readers and give them the opportunity to read useful information on current and problematic issues of contemporary labour law. We hope that together we will face this important challenge.
Salome Uglava, Victimization as a Mechanism to Protect Employees from Discrimination
Salome Beridze, The Practice of the Supreme Court of Georgia on Labour Disputes (Court’s Explanations About Some
Lado Chanturia, Important Research in Civil Law - Review on the Book by Giorgi Amiranashvili
Andrea Borroni, The Cambridge Handbook of U.S. Labor Law for the Twenty-First Century – A Review
Giorgi Amiranashvili, Review on the Monograph by Dr. Zakaria Shvelidze - “The Scope of Civil Claims in Labour Discrimination Disputes”
Here's a PDF of the new issue.
Tuesday, January 5, 2021
Michelle Travis (San Francisco) has posted on SSRN her article (forthcoming 64 Wash. U. J. L. & Pub. Pol'y ___ (2021)) A Post-Pandemic Antidiscrimination Approach to Workplace Flexibility. Here's the abstract:
The dramatic workplace changes in the wake of the global pandemic offer courts both an opportunity and an obligation to reexamine prior antidiscrimination case law on workplace flexibility. Before COVID-19, courts embraced an essentialized view of workplaces built upon a “full-time face-time norm,” which refers to the judicial presumption that work is defined by long hours, rigid schedules, and uninterrupted, in-person performance at a centralized workspace. By applying this presumption to both accommodation requests under the Americans with Disabilities Act of 1990 and to disparate impact claims under Title VII of the Civil Rights Act of 1964, pre-pandemic courts systematically undermined antidiscrimination law’s potential for workplace restructuring to expand equal opportunities for individuals with disabilities and for women with disproportionate caregiving responsibilities. This Article demonstrates how employers’ widespread adoption of flexible work arrangements in the wake of COVID-19—including telecommuting, modified schedules, temporary leaves, and other flextime options—undermine these prior decisions and demand a new analysis of antidiscrimination law’s potential to advance workplace flexibility.
I think Michelle is exactly right: "with [57%] of U.S. employers now offering their employees flextime or remote work options as a result of [COVID], it is no longer tenable for courts to define work as something done only at a specified time and place." We can do better.
Monday, January 4, 2021
Thanks to Vincenzo Pietrogiovanni (Lund University - Aarhus University) for alerting us to the webinar "International Trade and Labour Law: the USMCA", organised by the Labour Law Community - LLC together with the International Society for Labour and Social Security Law - ISLSSL, which will be held on Zoom on Thursday 14 January 2021 h 6.00 pm CET. To participate, follow this link starting at the time of the webinar. Here's a description:
The USMCA, an agreement between the United States, Mexico and Canada that has replaced the NAFTA and the side agreement on labour (NAALC), represents an important advance on the path of the virtuous link between regulation of international trade and promotion of social rights. The new agreement, in fact, contains chapter no. 23 entirely dedicated to work: here the Parties go beyond the generic list of "principles" contained in the previous NAALC and expressly refer to the principles and conventions of the ILO, thus aiming for regulatory harmonisation between States through international labour law.
The opportunity to deepen the knowledge of this important Treaty with Janice Bellace and Lance Compa, distinguished scholars of labour law, appointed by the US government as members of the panel that has the task of sanctioning the non-compliant parties, is also a chance to reflect on the European economic and social model, as well as on the resumption of international trade relations in the Biden era, with the aim of relaunching the instrument of the social clause at a macro-regional but also at global multilateral level.
Wednesday, December 30, 2020
The EEOC just posted news of its new data query and mapping tool, EEOC Explore.
From the press release:
Today, the U.S. Equal Employment Opportunity Commission (EEOC) launched EEOC Explore, a new interactive data query and mapping tool that gives users access to the most current, granular, and privacy protected aggregate EEO-1 data publicly available. EEOC Explore allows users to analyze aggregate data associated with more than 56 million employees and 73,000 employers nationwide. The user-friendly tool enables stakeholders to explore and compare data trends across a number of categories, including location, sex, race and ethnicity, and industry sector without the need for experience in computer programming or statistical analysis.
As part of its mandate under Title VII of the Civil Rights Act of 1964, as amended, public and private employers, as well as local referral unions are required to submit to the EEOC periodic reports which indicate the composition of their workforces by sex and race/ethnicity. EEOC Explore visualizes these aggregate data in ways that are more intuitive and efficient than previous methods.
EEOC Explore uses aggregate information from employer EEO-1 reports which include data such as employee demographics, which are collected annually from private employers with 100 or more employees and federal contractors with 50 or more employees. EEOC Explore also allows users to dive down to county-level details, surpassing the previously available static tabular format available on the EEOC’s public website.
The tool is available at this address: https://www.eeoc.gov/statistics/employment/jobpatterns/eeo1.
Thursday, December 24, 2020
Forgive me for a bit of self-promotion, but I wanted to flag an amicus brief that a group affiliated with UNC Law filed with the Supreme Court supporting a petition for cert. by the Plaintiff in Torres v. Texas Department of Public Safety. The question centers on war powers abrogation, specifically whether state employers retain sovereign immunity in the face of congressional war powers legislation. In Torres, that legislation is USERRA, which prohibits employment discrimination based on military service and provides leave and other benefits for servicemembers called to active duty or attending training for, e.g., National Guard. Given the huge number of active and reserve servicemembers, this is an important statute even in normal times. But it's especially so now in a year that saw the greatest mobilization of National Guard troops since Wold War II.
Le Roy Torres was a Texas State Trooper who was called into active duty in Iraq. While there, he continually breathed toxic ash that made him, in addition to thousands of other veterans, very ill. So ill, he was unable to perform his usual trooper duties when he came home. According to Torres’ claim, the Texas Dept. of Safety refused to accommodate him with a desk job, instead forcing him to resign. Torres sued under USERRA, but his employer has argued that courts can’t even hear the claim because of state sovereign immunity. The Texas courts, like several other states, have agreed with this defense. But as I’ve argued in my research, which this and an earlier amicus draws on, these courts are wrong.
I actually first wrote on this topic when I was on the entry-level market. At the time, I argued that despite dicta saying that Article I can’t ever abrogate state immunity, the Court’s historical analysis leaves the door open for certain Article I powers to allow suits against states. Under this analysis, state sovereign immunity is determined by the “plan of the [Constitutional] Convention. In my earlier article, I argued that war powers should be an exception to the “no Article I abrogation” dicta. The Court has recognized that there are exceptions to state immunity; therefore, in what might be the unofficial theme of my research, “if not war powers, then what?” In other words, if there are areas in which states lack immunity, no area has a stronger claim than war powers. Indeed, subsequent to that article, the Court held in Katz that states lacked immunity when it comes to Article I’s Bankruptcy Clause. Which leads one to ask if the Bankruptcy Clause allows suits against states, then surely war powers does too.
Prompted by an earlier Torres amicus brief I wrote while the case was being considered for cert. by the Texas Supreme Court, I revisited this issue post-Katz in my new article, War Powers Abrogation, forthcoming in the George Washington Law Review. In this article, I thoroughly examined the history of the War Powers Clauses from the Articles of Confederation period, through the Constitutional Convention and text, and then the Ratification debates. The article provides the details, but the story is crystal clear: the only reasonable reading of the “plan of the Convention” is that the Founders and states adopted the Constitution fully knowing and intending states NOT to have any sovereignty when it comes to war powers. Instead, a central feature of the Constitution was assuring that the federal government was in charge of the nation’s security, free from state interference. In short, no one during that period—even those who objected to the Constitution—thought that states could interfere with the federal government’s war powers actions, including legislation like USERRA. So far, state courts (which currently have sole jurisdiction of USERRA claims against state employers) have failed to even address this history, instead siding with state immunity claims based on outdated dicta or superficial distinguishing of Katz. Our hope is that the Supreme Court will take up the issue to correct that error. So stay tuned.
Finally, I want to thank those who have helped with this brief and research (and, fingers crossed, one supporting the merits to come). This includes my research assistant, Kemper Patton, staff on the George Washington Law Review, and the several people who helped write the amicus: Elizabeth Fisher (Wiley), Rachel Grossman (UNC Law), Andy Hessick (UNC Law); and Rick Simpson (Wiley). Also thanks to the Torres’ ever-helpful counsel, including Brian Lawler (Pilot Law) and Andrew Tutt (Arnold and Porter). And, last but not least, thanks to Le Roy Torres, his wife, and the other veterans who are trying to simply get their day in court to exercise their rights under USERRA.
Monday, December 21, 2020
For employment discrimination law in the U.S., United Steelworkers v. Weber, 443 U.S. 193 (1979), remains a key U.S. Supreme Court ruling on how Title VII of the Civil Rights Act of 1964 applies to an employer’s voluntary affirmative action plan. On the details and context of the Weber litigation, there are a lot of good secondary sources (e.g., Malamud 2006). Add to that list a recent radio story from WNPR’s United States of Anxiety and reporter Marianne McCune.
Come for the interviews with Dennis English (in charge of labor relations at Kaiser Aluminum), the son of Jim Nailor (selected for Kaiser’s training program), and Brian Weber himself. Stay for the oral argument exchange between Weber’s lawyer and Thurgood Marshall, plus commentary by Hina Shah.
Malamud, Deborah. 2006. “The Story of United Steelworkers of America v. Weber.” In Employment Discrimination Stories, edited by Joel Wm. Friedman. New York: Foundation Press.
Friday, December 18, 2020
Desiree LeClerq sends word that Cornell's ILR Review has issued a call for proposals for a virtual workshop and subsequent publication on Labor Transformation and Regime Transition: Lessons from the Middle East and North Africa. Here's the detailed CFP; here's a brief description:
Scholars interested in participating should submit an abstract of up to 500 words to the conference organizers by January 22, 2021. Authors whose abstracts are accepted will be invited to present a paper at a virtual workshop co-sponsored by the School of Industrial and Labor Relations at Cornell University and the Project on Middle East Political Science, to be held on April 29–30, 2021. Papers presented at this workshop should be substantially completed, but invited participants will have the opportunity to receive feedback from scholars of industrial relations and the politics of the Middle East and North Africa (MENA) at the workshop. Based on this workshop, a subset of authors will be asked to submit their paper to the ILR Review to be considered for part of a special themed section in a future issue of the journal.
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)
Friday, December 11, 2020
I'm sadly reporting the news, from Alvin Goldman via Jeff Hirsch, that labor law legend Bob Covington died November 29 at the age of 84. Below is his bio from Vanderbilt, where he taught for 46 years. Please feel free to use the comment section to recall your memories of Bob.
Bob Covington joined the law school faculty immediately after his graduation from Vanderbilt Law School in 1961. During his 46-year tenure at Vanderbilt, Professor Covington established himself as a wide-ranging scholar and teacher, with a recognized expertise in labor law. In addition to his scholarship in labor law, over the course of his distinguished career, Professor Covington published books and articles on evidence, insurance, legal method and legal education. He has recently published the third edition of Employment Law in a Nutshell (Thomson West, 2009) and will publish a fourth edition of Legal Protection for the Individual Employee in late 2010 (Thomson West, forthcoming 2010, with Kenneth G. Dau-Schmidt, Clyde W. Summers, Alvin L. Goldman and Matthew W. Finkin). In recognition of his extraordinary contributions to the university, he received the University's Thomas Jefferson Award in 1992. Professor Covington was a visiting professor at a number of prominent law schools, including Michigan, Texas, and California. He retired from Vanderbilt's law faculty in 2007.
Wednesday, December 9, 2020
DC LERA is hosting Understanding Union Representation for Professional Football Players: Mark Hyman in Conversation with Adam Richelieu of the NFLPA. It will be held Wednesday, December 16, 2020, 12:00 pm – 1:00 pm Eastern. There is no fee, but registration is required. Here's a description:
Join DC LERA for a conversation between Mark Hyman, Director of the Shirley Povich Center for Sports Journalism at the University of Maryland, and Adam Richelieu of the NFL Players Association – and one of the sport's leading experts on player compensation under the collective bargaining agreement – about Adam’s work behind the scenes to support players' rights. Adam will also tell a personal story, explaining his path from GWU graduate student to his current position.
Thanks to Tequila Brooks for sending this.
Tuesday, December 8, 2020
Miriam Cherry just published on JOTWELL her piece, "Income Sharing Arrangements and Coding Bootcamps: Boom or Bust for the Blue Collar Breadwinner?" This is a review of of Jonathan Harris' forthcoming Alabama Law Review article, Unconscionability in Contracting for Worker Training? The review came out this week. An excerpt:
In his forthcoming article, Unconscionability in Contracting for Worker Training, Jonathan Harris explores the contractual issues that arise when workers or job applicants are asked to pay for their training outside of traditional educational structures. This could arise through a training repayment agreement (TRA), which requires an existing employee to repay the employer a fixed sum expended on training if the worker quits or is fired during a set period of time. This Jot, however, will focus on the other setting in which these non-traditional training arrangements are arising, and which Harris discusses at some length in the second part of his article. These are the so-called Income Sharing Agreements (ISAs), which for-profit code academies use. ISAs are contracts that require the trainee to repay a set percentage of future income in exchange for the tuition that enables them to attend a computer coding academy or bootcamp. ...
Ultimately, in Contracting for Worker Training, Jonathan Harris shines a light on novel TRA and ISA contracts. ISA contracts could help some workers upgrade their skills. Unfortunately, as Harris notes, the ISAs could also take advantage of anxious jobseekers. Harris’s article is an illuminating and worthwhile read for those interested in the future of work and a novel application of the unconscionability doctrine.
Check out the full piece, and congrats to both Miriam and Jonathan.
Stephanie Bornstein has just posted on SSRN her article The Politics of Pregnancy Accommodation, 14 Harv. Law & Policy Rev. 293 (2020). It's a great description of the history -- and likely future -- of the meaning of "equality" in the context of pregnancy. Here's the abstract:
How can antidiscrimination law treat men and women “equally” when it comes to the issue of pregnancy? The development of U.S. law on pregnancy accommodation in the workplace tells a story of both legal disagreements about the meaning of “equality” and political disagreements about how best to achieve “equality” at work for women. Federal law has prohibited sex discrimination in the workplace for over five decades. Yet, due to long held gender stereotypes separating work and motherhood, the idea that prohibiting sex discrimination requires a duty to accommodate pregnant workers is a relatively recent phenomenon—and still only partially required by federal law.
This Article documents how decades of internal political conflict about what was best for working women resulted in tortured Supreme Court precedent on, and divergent legislative approaches to, accommodating pregnancy at work. While a diverse feminist movement took a variety of strategies to support pregnant workers, this Article focuses on one core debate in antidiscrimination law: the struggle between a formal or “sameness” and a substantive or “difference” approach to gender equality around pregnancy. It then documents how a third, “reconstructive” approach helped modern advocates move beyond comparing women to men as workers and toward critiquing gendered workplace structures. Striking a hopeful tone, the Article proposes that gender advocates’ legal and political gains have now set the stage for U.S. law to close the remaining gaps in pregnancy accommodation—to fully reflect the fact that pregnant women work and that a significant portion of workers become pregnant.
Thursday, December 3, 2020
Ifeoma Ajunwa (my soon-to-be new colleague!) has just published a short piece in Harvard's Bill of Health, "OVID-19 Immunity as Passport to Work Will Increase Economic Inequality." Some excerpts:
As scientists develop increasingly accurate tests for COVID-19 immunity, we must be on guard as to potential inequities arising from their use, particularly with respect to their potential application as a prerequisite for returning to the workplace.
A focus on immunity as a yardstick for return to work will only serve to widen the gulf of economic inequality, especially in countries like the U.S., which has severe racial health care disparities and uneven access to effective healthcare. This focus could also serve to diminish societal support for further understanding and curtailing the disease....
History has shown that immunity to disease as passport to work can draw a dividing line based on both socio-economic factors and racial group memberships. Writing for Slate, Rebecca Onion notes that “[w]hen yellow fever ravaged 19th-century New Orleans, wealthy white people who ‘acclimated’ [i.e., developed immunity] were rewarded.” White people who had survived yellow fever benefited from “immunoprivilege,” while others suffered social and economic repercussions. In the 21stcentury, a focus on coronavirus immunity rather than prevention of infection could play out similarly.
To acquire immunity, an individual must first survive the disease. Surviving the disease necessities adequate healthcare. Yet, access to healthcare services in the U.S. is unequal. While some COVID-19 patients, like President Trump, are able to receive high levels of healthcare (and even experimental drugs), others lower on the socio-economic spectrum do not have health insurance and can only receive emergency care. Thus, immunity as passport to work would only serve to increase inequality as it would reward those who could afford the care needed to survive.
It is also worth noting that people of color are generally more likely to die of the disease than their white counterparts. Could this lead to a social (even if not scientifically proven) view that white people have greater immunity to the disease than others? If so, imagine how this social view could play out in racial employment discrimination as businesses re-open. Past research shows that racial minorities have had to contend with genetic discrimination in the workplace. ...
It's definitely worth reading the entire piece, so check it out!
Monday, November 30, 2020
Tuesday, Dec. 1 | 5:30 – 6:30 p.m. MST
Join University of Colorado Law School Professor Suzette Malveaux for a virtual lecture titled “Is it Time for a New Civil Rights Act? Addressing Modern Obstructionist Procedure.” Professor Malveaux will explore how the U.S. Supreme Court’s civil procedure jurisprudence has undermined access to justice and civil rights enforcement, and why a new civil rights law is necessary during this critical and tumultuous time in our country.
The United States is in the midst of the largest civil rights movement since that of the 1960s, and calls for justice for Black and marginalized communities are stronger than ever. Many decry the violence such communities have experienced as a result of centuries of systemic racism and discrimination, which has led to significant, though insufficient, legislative gains. What has received comparatively scant attention, however, is the violence done to those legislative gains, and to civil rights more generally, through the Supreme Court’s increasingly obstructionist procedural jurisprudence. This year’s Scott Lecture explores whether a new civil rights act is the answer.
Named for Austin Scott, a member of the law school faculty for 20 years, this annual lecture features a member of the Colorado Law faculty selected by the dean who is engaged in a significant scholarly project.
Tuesday, Dec. 1
5:30-6:30 p.m. MST
One general CLE credit is pending for Colorado attorneys.
Hat tip: Brooke Coleman
-- Sandra Sperino