Sunday, May 26, 2019
Building on the success of the Inaugural Equality Law Scholars’ Forum held at UC Berkeley Law in 2017 and at UC Davis Law in 2018, and in the spirit of academic engagement and mentoring in the area of Equality Law, we (Tristin Green, University of San Francisco; Angela Onwuachi-Willig, Boston University; and Leticia Saucedo, UC Davis) announce the Third Annual Equality Law Scholars’ Forum to be held in Spring 2020.
This Scholars’ Forum seeks to provide junior scholars with commentary and critique and to provide scholars at all career stages the opportunity to engage with new scholarly currents and ideas. We hope to bring together scholars with varied perspectives (e.g., critical race theory, class critical theory, feminist legal theory, law and economics, law and society) across fields (e.g., criminal system, education, employment, family, health, immigration, property, tax) and with work relevant to many diverse identities (e.g., age, class, disability, national origin, race, sex, sexuality) to build bridges and to generate new ideas in the area of Equality Law.
We will select five relatively junior scholars (untenured, newly tenured, or prospective professors) in the U.S. to present papers from proposals submitted in response to this Call for Proposals. In so doing, we will select papers that cover a broad range of topics within the area of Equality Law. Leading senior scholars will provide commentary on each of the featured papers in an intimate and collegial setting. The Forum will take place all day Friday through lunch on Saturday. Participants are expected to attend the full Forum. The Equality Law Scholars’ Forum will pay transportation and accommodation expenses for participants and will host a dinner on Friday evening.
This year’s Forum will be held on March 13-14, 2020 at the University of San Francisco School of Law.
Junior scholars are invited to submit abstracts of proposed papers, 3-5 pages in length, by August 1, 2019.
Full drafts of papers must be available for circulation to participants by February 28, 2020.
Proposals should be submitted to:
Leticia Saucedo, UC Davis School of Law, email@example.com. Electronic submissions via email are preferred.
Thursday, May 23, 2019
Sandra Sperino (Cincinnati) just posted on friendofthecourt blog on the top five recent developments in McDonnell Douglas cases. Here, with permission, is her post:
For those interested in McDonnell Douglas, here are the top 5 developments over the last year.
- The second step of the test (employer articulates a legitimate, non-discriminatory reason) is often ignored. One appellate court recently engaged in a lengthy discussion and review of appellate cases related to the required specificity. Figueroa v. Pompeo, No. 18-5064, 2019 WL 2063562, at *5-10 (D.C. Cir. May 10, 2019). The court noted, “When the reason involves subjective criteria, the evidence must provide fair notice as to how the employer applied the standards to the employee’s own circumstances. Failing to provide such detail—that is, offering a vague reason—is the equivalent of offering no reason at all.” The court rejected an employer’s evidence that the plaintiff was ranked in the middle of the available candidates because the evidence did not explain why the employer ranked him that way. The court explained that the worker could not respond to the employer’s evidence because the employer supposedly ranked the plaintiff along 12 criteria, but the evidence did not explain which criteria caused the plaintiff’s mid-level ranking.
“A rush to the third prong may deprive the employee of McDonnell Douglas’s unrebutted presumption of discrimination created by the prima facie case.” This court stated that a court should determine whether the evidence presented by the employer has four attributes: it is admissible; that, if believed, the factfinder could find that the employer acted for a non-discriminatory reason; it must be legitimate (or facially credible); and be clear and reasonably specific.
- The debate over comparator evidence continues. The Eleventh Circuit (en banc) has rejected the Seventh Circuit standard, while also noting that its own prior standard regarding “similarly situated” was a mess. Lewis v. City of Union City, Georgia, 918 F.3d 1213 (11th Cir. 2019). The circuit stated that a meaningful comparator analysis is required in the prima facie case and that the plaintiff must show that she was similarly situated to her comparators in all material respects. The court rejected an “identical” standard, noting that in workplaces, “doppelgangers are like unicorns—they do not exist.” For an excellent discussion of the stakes of comparator evidence, read the dissent in Lewis.
- A district court interpreting Young v. UPS has held that a plaintiff proceeding on a failure to accommodate/disparate treatment claim based on pregnancy is not required to establish an adverse action. Thomas v. Fla. Pars. Juvenile Justice Comm'n, No. CV 18-2921, 2019 WL 118011, at *8 (E.D. La. Jan. 7, 2019) (plaintiff could establish harm by showing she was required to go on a 1.5 mile run despite doctor’s note restricting activity).
- A great new article about the test is Katie R. Eyer, The Return of the Technical McDonnell Douglas Paradigm (forthcoming Washington Law Review) (available at https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3362529).
- Finally, the unrecognized intracircuit splits continue. Different panels of the same circuit continue to articulate the test in ways that appear to contradict one another. Some courts are beginning to differentiate the level of comparator evidence and causation evidence required in the prima facie case. Some courts will state that the plaintiff is required to show minimal causal evidence in the prima facie case. Some courts will state that a plaintiff relying on similarly situated comparator evidence has a lesser burden at the prima facie stage than in stage three.
Monday, May 20, 2019
Employee Rights and Employment Policy Journal invites you to submit your work for publication. This summer we are establishing a special review process for submissions received by July 1. For these submissions, we will complete our peer-review selection process by August 15. Selected articles will be published in the final issue of 2019 (volume 23).
For more than twenty-two 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 15. 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 firstname.lastname@example.org 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 e-mail addresses; and phone number – is on a separate cover).
Friday, May 17, 2019
While it has little chance of becoming enacted in the near future, the U.S. House of Representatives passed the Equality Act today by a vote of 236-173. Among other things, the Act would prohibit discrimination in employment on the basis of sexual orientation or gender identity. From the Washington Post:
"Despite a sea change in the past decade in public opinion regarding gay rights and the legalization of same-sex marriage nationally, 30 states have no laws protecting people, and proponents argued that the measure would create a national standard."
The timing of the Act demonstrates how this issue has been front-and-center in recent months, as the Supreme Court has also agreed to review Title VII's coverage this fall (see Jeff's post here).
Thursday, May 16, 2019
Steven Greenhouse, long-time labor journalist for the New York Times, has a new book coming out just in time for your Labor Day gift-giving: Beaten Down, Worked Up: The Past, Present, and Future of American Labor (Knopf, forthcoming August 2019). Here's the publisher's description:
In an era when corporate profits have soared while wages have flatlined, millions of Americans are searching for ways to improve their lives, and they're often turning to labor unions and worker action, whether #RedforEd teachers' strikes or the Fight for $15. Wage stagnation, low-wage work, and blighted blue-collar communities have become an all-too-common part of modern-day America, and behind these trends is a little-discussed problem: the decades-long decline in worker power.
Steven Greenhouse sees this decline reflected in some of the most pressing problems facing our nation today, including income inequality, declining social mobility, the gender pay gap, and the concentration of political power in the hands of the wealthy. He rebuts the often-stated view that labor unions are outmoded--or even harmful--by recounting some of labor's victories, and the efforts of several of today's most innovative and successful worker groups. He shows us the modern labor landscape through the stories of dozens of American workers, from G.M. workers to Uber drivers, and we see how unions historically have empowered--and lifted--the most marginalized, including young women garment workers in New York in 1909, black sanitation workers in Memphis in 1968, and hotel housekeepers today. Greenhouse proposes concrete, feasible ways in which workers' collective power can be--and is being--rekindled and reimagined in the twenty-first century.
Wednesday, May 15, 2019
There is a great story at the Washington Post which addresses Delta's union avoidance campaign targeted at thousands of its workers. The tactics are nothing new in the world of labor law, but have caught widespread attention in the era of social media. In particular, Delta has received enormous criticism for its posters which suggest that workers would be better off using their union dues to watch football with friends or to buy a video game system. The posters can be seen here:
Again, while we have all seen these types of campaigns in the past, going too far in today's digital age can have an unanticipated backlash -- including from presidential candidates and others in the current highly politicized environment.
Thursday, May 9, 2019
The conventional wisdom on Zarda and the other two related cases on which SCOTUS recently granted certiorari is that the new conservative majority on the Court will hold that Title VII does not protect employees on the basis of LGBT status. I predict the Court will hold that Title VII does protect these employees – and that the vote will be 6-3.
Here’s my reasoning: Roberts appears to be very cognizant of the institutional damage the Court is suffering as it becomes increasingly clear that its decisions are politically motivated. He doesn’t want to be the Chief Justice on whose watch the Court loses the prestige it has built over the last nearly 250 years, and as the Sebelius (Obamacare) case demonstrates, he is willing to at least occasionally change his vote to avoid that. Moreover, there is no better case to “prove” the Court is apolitical – and to draw attention away from all the pro-business cases (e.g., arbitration) and perhaps pro-Republican cases the Court is likely to decide in the near future – than a case the outcome of which he knows will be reported on the front page of nearly every newspaper in the country.
I believe Kavanaugh will be the other conservative defector. Voting for Title VII protection of LGBT status might salvage a bit of his reputation after his less-than-stellar (and hyper-political) confirmation proceedings, and would be consistent with the judicial philosophy he claims to espouse favoring judicial empathy (see Wasserman and Horwitz).
Both Roberts and Kavanaugh will cloak themselves in Scalia’s holding in Oncale that the plain language of Title VII protects men from same-sex harassment. They will quote his statement in that case that "statutory prohibitions often go beyond the principal evil to cover reasonably comparable evils, and it is ultimately the provisions of our laws rather than the principal concerns of our legislators by which we are governed." Their conservative friends will not desert them – it’s hard to question the conservative bona fides of someone who favorably quotes Scalia.
Plus, if both Roberts and Kavanaugh flip, each will give the other cover, and Roberts will avoid the 5-4 decision that would occur if only one or neither of them flipped. I doubt Roberts wants a 5-4 vote on this divisive public issue.
I hope I’m right about this particular outcome, though this should not be taken for optimism about the Court’s future business and political cases.
Wednesday, May 8, 2019
Congratulations to Sergio Gamonal C. (Univ. Adolfo Ibanez - Santiago) and César F. Rosado Marzán (Chicago-Kent) on the publication of their book Principled Labor Law: U.S. Labor Law through a Latin American Method by Oxford University Press. Here's the publisher's description:
The gig economy, precarious work, and nonstandard employment have forced labor law scholars to rethink their discipline. Classical remedies for unequal power, capabilities approaches, "third way" market regulation, and laissez-faire all now vie for attention - at least in English.
Despite a deep history of labor activism, Latin American scholarship has had scant presence in these debates. This book introduces to an English-language audience another approach: principled labor law, based on Latin American perspectives, using a jurisprudential method focused on worker protection. The authors apply this methodology to the least likely case of labor-protective jurisprudence in the industrialized world: the United States. In doing so, Gamonal and Rosado focus on the Thirteenth Amendment as a labor-protective constitutional provision, the National Labor Relations Act, and the Fair Labor Standards Act. This book shows how principled labor law can provide a clear and simple method for consistent, labor-protective jurisprudence in the United States and beyond.
It is now understood that machine learning algorithms can produce unintentionally biased results. For the last few years, legal scholars have been debating whether the disparate treatment or disparate impact theories available under Title VII of the Civil Rights Act are capable of protecting against algorithmic discrimination. But machine learning scholars are not waiting for the legal answer. Instead, they have been working to develop a wide variety of technological “fairness” solutions that can be used to constrain machine learning algorithms. They have discovered that simply blinding algorithms to protected characteristics like sex or race is insufficient to prevent algorithmic discrimination. Given enough data, algorithms will identify and leverage on proxies for the protected characteristics. Recognizing this, some scholars have proposed “fairness through awareness” or “algorithmic affirmative action” — actively using sensitive variables like race or sex to counteract unidentified sources of bias and achieve some mathematical measure of fairness in algorithmic decisions. But is algorithmic affirmative action legal? This article is the first to comprehensively consider that question under both Title VII and the Equal Protection clause of the Fourteenth Amendment. The article evaluates the legality of the leading fairness techniques advanced in the machine learning literature, including group fairness, individual fairness, and counterfactual fairness. The article concludes that existing affirmative action doctrine under Title VII and existing constitutional equal protection jurisprudence leave sufficient room for at least some forms of algorithmic affirmative action.
Tuesday, May 7, 2019
We are all familiar with the employment dispute over whether Uber and Lyft drivers are employees or independent contractors, and there has been extensive discussion on the labor rights of platform-based workers. In the face of this debate, Uber and Lyft drivers plan a strike for tomorrow to protest a number of different issues, including pay and workplace conditions. There is an excellent article about the impending strike on the Washington Post. From the article:
"The work stoppage is part of a growing national campaign for better wages for the independent contractors who support millions of trips daily in the United States and abroad... Besides better wages, drivers are calling for a more transparent wage structure, attention to safety concerns and a right to appeal “unjust firings” with little to no notice."
These are all important labor issues and it will be interesting to follow the strike to see if any changes are made by these companies or other platform-based businesses.
Friday, April 26, 2019
Friends-of-Blog Ann McGinley and Ruben Garcia send along the first announcement regarding COSELL this year which will be held at UNLV:
14th Annual Colloquium on Scholarship of Employment & Labor Law (COSELL)
The 14th Annual Colloquium on Scholarship of Employment & Labor Law (COSELL) will be take place in Las Vegas, Nevada at UNLV Boyd School of Law on Columbus Day weekend (October 11-12). To register for the conference (we urge you to do so early), please click this link:
IMPORTANT: Hotels in Las Vegas for Colloquium
COSELL will be held during a very busy weekend (Columbus Day Oct. 11-12) in Las Vegas, and we urge you to make your reservations RIGHT AWAY. There are a number of nice hotels with good rates. We would recommend the following hotels, whose employees are represented by the Culinary Workers Union (and other unions as well). The prices listed on the Internet for the following hotels as of April 24, 2019 are reasonable for Strip hotels on the weekend (in the low $100s per night) will go up.
Some Recommended hotels:
Mandalay Bay – This is our top recommendation; our dinner on Friday night will be at Border Grill, which is located in Mandalay Bay. The Miller and Zimmer awards will be presented at the dinner at Border Grill.
Paris Las Vegas
If these hotels do not fit your budget, there are other hotels that are even cheaper. Check fairhotel.org and search “Las Vegas” for a list of hotels.
WARNING: Prices and availability do not last long. PLEASE BOOK EARLY.
Monday, April 22, 2019
The Supreme Court has just granted cert. in three cases to determine whether Title VII prohibits discrimination based on sexual orientation and gender identity. We've covered this issue for years, as the answer has gone from largely a uniform "no"; to the EEOC and DOJ saying "yes," while the circuits courts said "no"; to the current situation where some courts say "yes," others say "no," the EEOC says "yes," and the DOJ says "no." You get the idea--maybe the perfect storm of the classic split that attracts Supreme Court attention.
To say that I'm not optimistic about the Court holding that LGBT status is covered by Title VII is an understatement. I can probably best summarize my prediction by saying that I'd have more hope if Justice Scalia was still on the Court, as he would occasionally argue for strong deferral to the EEOC, even when he likely disagreed personally with the result (showing his past as an administrative law professor). The issue is really interesting from a legal perspective. It involve congressional purpose and history, statutory interpretation, and policy consequences that can go in different directions depending on its application in other cases--and that can result in political outcomes that advocates may not always like. The oral arguments in these cases will definitely have some fireworks, and the sure-to-be split decision will likely be quite heated. So hold on tight . . . .
Thursday, April 11, 2019
This book provides comprehensive treatment of the major federal employment discrimination statutes, focusing on Title VII, the ADEA, the ADA, and Section 1981. It discusses who is liable for discrimination and the people the statutes protect from discrimination. The book offers an extensive discussion of the frameworks for analyzing discrimination, including frameworks for individual disparate treatment, pattern or practice, harassment, disparate impact, and retaliation. One chapter focuses on religious accommodation and another chapter focuses on disability accommodation. The book also contains separate treatment of affirmative action. It also explores defenses to discrimination claims, the procedure for pursuing claims, and remedies. The book provides extensive discussion of canonical cases.
Friday, April 5, 2019
Liz Tippett (Oregon) and Ann Hodges (Richmond, emerita) have each posted on SSRN terrific articles on unrelated labor/employment topics; both have been or will be published in the Employee Rights & Employment Policy Journal. Liz's article is Opportunity Discrimination: A Hidden Liability Employers Can Fix; here's an excerpt from the abstract:
This article applies a model of workplace advancement where big employment decisions — like promotions and pay raises — are influenced in part by the disparate distribution of smaller opportunities over time. These smaller opportunities generally do not qualify as “adverse employment actions” for the purpose of a discrimination claim under Title VII of the Civil Rights Act. However, their legal significance has been underestimated. The disparate denial of smaller opportunities has been successfully used as evidence of disparate treatment when plaintiffs are later denied a big opportunity.
This article argues that employers should identify and address disparities at the opportunity level to advance workplace equality. Drawing from social science research on discrimination in school discipline, employers could identify the particular decision points and contextual factors that drive disparities and use that information to address the problem. Such undertakings would also be compatible with existing internal employment structures.
Ann's article is Employee Voice in Arbitration; here's the abstract:
The Supreme Court’s 2018 decision in Epic Systems v. Lewis allows employers to force employees to agree to individual arbitration of any claims against the employer, removing their ability to bring class and collective actions. These unilaterally imposed arbitration agreements deprive employees of any voice in this important term of employment.
If arbitration is to serve its intended function of a mutually agreeable forum to resolve disputes, Congress should require employers who desire to use arbitration to negotiate the terms of the agreement with a representative of their affected employees. Such a requirement would reduce some of the adverse effects of employment arbitration, making it more like labor arbitration, which has functioned as an effective dispute resolution mechanism under collective bargaining agreements for many years.
A negotiation requirement would insure that employees have notice of the arbitration provision and input into its terms. The National Labor Relations Board could use its existing election machinery to facilitate employee choice of representative which could be an individual, a group of employees, an attorney, a labor union, or another workers’ rights organization. In addition to providing employee voice, requiring negotiation would discourage arbitration where the employer’s only goal is to reduce employee rights and might also spur employee participation in the workplace and the community.
Thursday, April 4, 2019
The program for the 4th LLRN Conference has been announced and, as usual it looks really interesting (except maybe that Future of Work panel . . .).
You can get the program here: http://www.pucv.cl/uuaa/derecho-del-trabajo/programa/2017-10-11/152305.html
The organizers also send a reminder that the registration deadline and submission for papers is May 25.
Tuesday, April 2, 2019
Online reputation systems enable the providers and consumers of a product or service to rate one another and also allow others to rely upon those reputation scores in deciding whether to engage with a particular provider or consumer. Reputation systems are an intrinsic feature of the platform workplace, in which a platform operator, such as Uber or TaskRabbit, intermediates between the provider of a service and the consumer of that service. Operators typically rely upon consumer ratings of providers in rewarding and penalizing providers. Thus, these reputation systems allow an operator to achieve enormous scale while maintaining quality control and user trust without employing supervisors to manage the vast number of providers who engage consumers on the operator’s platform. At the same time, an increasing number of commentators have expressed concerns that the invidious biases of raters impact these reputation systems.
This Article considers how best to mitigate reputation systems bias in the platform workplace. After reviewing and rejecting both a hands-off approach and the anti-exceptionalism approach to regulation of the platform economy, this Article argues in favor of applying what the author labels a “structural-purposive” analysis to regulation of reputation systems discrimination in the platform workplace. A structural-purposive analysis seeks to ensure that regulation is informed by the goals and structure of the existing workplace regulation scheme but also is consistent with the inherent characteristics of the platform economy. Thus, this approach facilitates the screening out of proposed regulation that would be inimical to the inherent characteristics of the platform economy and aids in the framing of regulatory proposals that would leverage those characteristics. This Article then demonstrates the merits of a structural-purposive approach in the context of a regulatory framework addressing reputation systems discrimination in the platform workplace. Applying this approach, the Article derives several principles that should guide regulatory efforts to ameliorate the prevalence and effects of reputation systems bias in the platform workplace and outlines a proposed regulatory framework grounded in those principles.
Wednesday, March 27, 2019
Richard Moberly (Nebraska) has somehow found time from his decanal duties to write and post to SSRN his new article (North Carolina L. Rev.) Confidentiality and Whistleblowing. Here's an excerpt from the abstract:
... [T]the federal government has aggressively courted employees to become whistleblowers. In response, corporations have tried to mitigate potential damage by relying on broad confidentiality provisions to discourage employees from revealing insider information. As a result, uncertainty abounds when the corporate desire for confidentiality clashes with the government’s desire for employees to blow the whistle.
This Article is about the increasing tension between these countervailing trends. Ultimately, the Article concludes that the government’s ability to rely on insiders to monitor organizational behavior by blowing the whistle will depend on its willingness to regulate the ability of an organization to protect its secrets through contract.
Marcy Karin (UDC) sends word that on March 29th, the UDC Law Review is hosting its annual symposium, Disability Rights: Past, Present, and Future. The focus of the symposium will be on protecting and improving disability rights in today’s challenging environment and tomorrow’s uncertain future. Chai Feldblum, former Commissioner of the U.S. Equal Employment Opportunity Commission, will be the keynote speaker. A number of friends of the blog are speaking on a range of topics, including: The ADAAA at 10; Disability and the #MeToo Movement; Disability, Police Interactions, and the Criminal Justice System; Disability and Education; Disability, Leave, and Caregiving; and Disability Beyond the Workplace.
Anyone in the DMV area – or who wants to see the cherry blossoms and come to the DMV area—is welcome to join for any part of the day-long dialogue about disability rights. Registration (and a full panel/speaker list) is available at bit.ly/DisabilitySymposium. The Law Review’s related call for papers is here: Download UDC Law Review Call for Papers - Disability Rights.
In addition to the symposium, UDC is hosting a reception at Arent Fox at 6pm on March 28th to kick-off the symposium and launch The ADA Project, a new public education resource from the UDC Legislation Clinic and Quinnipiac University Civil Justice Clinic. Registration for the reception is available at bit.ly/TheADAProject.
This looks great!