Monday, October 21, 2019
César Rosado writes to tell us about an upcoming symposium at Chicago-Kent on Thursday, November 14, 2019: Alt-Labor Law: The State of the Law of the New Labor Movement. Here's a schedule of the symposium; here's a description:
This proposed symposium will bring together a group of highly accomplished scholars who have been writing about nontraditional labor organizing and other ways to break and redistribute economic power to describe the current state of the law pertaining to “alt-labor,” or what the volume will refer to as “alt-labor law.” Parts of alt-labor law lie within traditional labor and employment law, but a lot of it does not. Alt-labor law includes first amendment protections used by non-employee labor unions and worker centers, laws regulating non-for-profit associations, state laws dealing with industry wide-minimum wage setting and voluntary dues deduction, and anti-trust laws that impinge on the rights of independent contractor unions, among others.
This proposed volume of the Chicago-Kent Law Review volume will serve as a research tool for academics, policy makers, and legal practitioners. They will have, in one place, the state of the law of this fledgling legal field. The live discussion at Chicago-Kent will help these scholars learn about the disparate and discreet pieces of the law of alt-labor to enrich the final drafts of their articles. It will also attract a public interested in alt-labor, not least in Chicago, home of many very active alt-labor groups.
Thursday, October 10, 2019
The Southeastern Association of Law Schools is now accepting panel proposals for its 2020 conference. For anyone who typically goes to SEALS, you know that there are typically several labor and employment law panels, in large part thanks to the work of Michael Green. Iif you're planning on attending this summer or are just thinking about it (and if you are, you should go--email me and I can tell you why), I'm writing to encourage you to let me know if you're interested in participating in panels or--even better--putting together one. The process is very easy and discussion groups leave a lot of room for flexibility on both topics and participants.
So, email me at email@example.com if you have any interest--no need to commit fully yet. And while I look forward to hearing from people who come regularly, I'd also love to hear from newcomers, especially more junior academics.
Thursday, September 19, 2019
Jonathan Harkavy (Patterson Harkavy) has just posted on SSRN two articles. First is his annual review of Supreme Court employment and labor decisions and cert grants. Second is a briefer article that offers a blueprint for lawyers representing workers and unions during fraught political times - e.g., right now. The articles and abstracts are below.
This article summarizes in detail all decisions of the Supreme Court of the United States from its October 2018 Term (2018-2019) that affect employment law, labor relations, employment arbitration and the employment relationship generally. The article also provides commentary on each of the decisions and on the Supreme Court's regulation of the employment relationship. The article also summarizes briefly the grants of certiorari in employment-related cases for the October 2019 Term and concludes with brief commentary on justice in the American workplace.
This article suggests approaches to dealing with the current anti-union climate in the American workplace. Building on examples of what union-side lawyers did when faced with the challenge of representing labor unions in Southern textile mills, the article makes a number of specific suggestions to counter what observers have termed a relentless assault on labor involving unchecked corporate power accompanied by income inequality and a decline in the well-being of working Americans. The article recommends, among other things, imposition of employer fiduciary responsibility for workers, a more clarion collective voice in the Supreme Court for working people, and increased use of state laws and federal antitrust laws to combat inequities in the workplace.
Tuesday, September 10, 2019
Just a scholarly note that Duke's Law and Contemporary Problems journal symposium issue on "Work After the End of Employment" is now published. I was lucky enough to moderate part of the symposium, which was really interesting and features Catherine Fisk (who was the special editor for the issue), Sameer Ashar, Cynthia Estlund, Michael Oswalt, Sanjukta Paul, and Marshall Steinbaum. There's also a student note by William Sowers.
Wednesday, August 28, 2019
Bill Herbert (CUNY - Hunter College) and Jacob Apkarian (CUNY - York College) have just posted on SSRN their empirical article You’ve Been with the Professors: An Examination of Higher Education Work Stoppage Data, Past and Present (forthcoming 23 EREPJ ___ (2019)). Here's the abstract:
This article analyzes work stoppage data in calendar years 2012-2018 involving academic and non-academic employees at higher education institutions. It contextualizes the recent data through a review of the history of unionization and strikes in the field of education along with faculty strike data for the period 1966-1994. The study contributes to the literature concerning unionization and collective bargaining in higher education and will be of value to those who study or are engaged in labor relations at colleges and universities.
We find that there was a total of 42 strikes and one lock-out involving faculty, graduate assistants, and non-academic employees in higher education during the seven-year period from 2012 to 2018. The largest number of strikes per annum was in 2018, which was more than double the number in 2017. Exactly one-half of all strikes during the seven-year period were by non-academic employees, one-third of the strikes by faculty, and one-sixth by graduate assistants. The states with the greatest number of strikes were Illinois, California, and Washington.
Faculty units affiliated solely with AFT participated in 29% of all faculty strikes during the period. An additional 13% of the faculty strikes involved units co-affiliated with AAUP and AFT. AFSCME and UAW played leading roles in strikes involving staff and graduate assistants during the period with AFSCME averaging one strike per year over the period.
There was a total of 14 faculty strikes with an average of 2.0 per year in the period 2012-2018, compared to a total of 172 faculty strikes with an average of 5.9 per year during the period 1966-1994. The average duration of faculty strikes during the 2012-2018 period was 2.9 days with a median of 3 days, as compared to the average strike duration of 13.9 days and median duration of 8.5 days for the period 1966-1994. Non-tenure-track faculty were involved in 93% of all faculty strikes in 2012-2018, seven strikes with tenure-track faculty and six without.
Tuesday, August 27, 2019
Thanks to Sara Slinn (Osgoode Hall) for alerting us that the The Relations Industrielles/Industrial Relations (RI/IR) Journal has issued a call for papers on Digitization and the Regulation of Work and Employment. Here's a brief description:
This special issue seeks to understand how digitization may be disrupting and reordering the regulation of work and employment. We are interested in proposals that contribute to our understanding of the social and economic impacts of digitization at various levels (workplace, firms, sector, regional, national and international), and how they lead to organizational and institutional experimentation.
Wednesday, July 17, 2019
Apart from the COSELL and the AALS session described in the post below, I'm not aware of any LEL-themed academic conferences or live symposia in the U.S. for AY 2019-20. If you know of any, would you please add a brief description and link as a comment to this post? Many thanks,
Thanks to Stephanie Bornstein for sending along this CFP:
The AALS Section on Employment Discrimination Law and the AALS Section on Labor Relations and Employment Law invite submissions for a joint program, New and Emerging Voices in Workplace Law, at the AALS 2020 Annual Meeting in Washington, DC, on Saturday, January 4, 2020, from 3:30-5:15 p.m.
About. This works-in-progress session will give emerging workplace law scholars the opportunity for engagement on a current project with leaders in the field. Each selected scholar will present a work-in-progress and receive comments from an assigned commentator, as well as from an audience of other scholars in the field. The session will provide newer scholars with a supportive environment in which to receive constructive feedback.
Eligibility. Full-time faculty members of AALS member and fee-paid law schools are eligible to submit proposals. This call for papers is targeted to scholars with seven or fewer years of full-time teaching experience. Visitors (not full-time on a different faculty) and fellows are eligible to apply to present at this session.
Submission Format. Please submit an abstract, précis, and/or introduction of the article that is sufficiently developed to allow the reviewers to evaluate the thesis and proposed execution of the project.
Submission Instructions. To be considered, proposals should be submitted electronically to Professors Stephanie Bornstein, at firstname.lastname@example.org, and Michael Oswalt, at email@example.com. The deadline for submission is Sunday, September 1, 2019.
Selection. Presenters will be selected after review by the Chairs of both sections. Selected authors will be notified by September 27, 2019. Presenters will be responsible for paying their annual meeting registration fee and travel expenses. To facilitate valuable feedback at the session, presenters should provide a substantial draft by December 1, 2019.
Questions. Any inquiries about the Call for Papers should be submitted to the Chair for the Section on Employment Discrimination Law, Stephanie Bornstein, at firstname.lastname@example.org, and/or the Chair for the Section on Labor Relations and Employment Law, Michael Oswalt, at email@example.com.
Monday, July 1, 2019
Rick Bales &Kathy Stone has just published on SSRN their article, The Invisible Web of Work: The Intertwining of AI, Electronic Surveillance, and Labor Law. The abstract:
Employers and others who hire or engage workers to perform services use a dizzying array of electronic mechanisms to make personnel decisions about hiring, worker evaluation, compensation, discipline, and retention. These electronic mechanisms include electronic trackers, surveillance cameras, metabolism monitors, wearable biological measuring devices, and implantable technology. These tools enable employers to record their workers’ every movement, listen in on their conversations, measure minute aspects of performance, and detect oppositional organizing activities. The data collected is transformed by means of artificial intelligence (A-I) algorithms into a permanent electronic resume that can identify and predict an individual’s performance as well as their work ethic, personality, union proclivity, employer loyalty, and future health care costs. The electronic resume produced by A-I will accompany workers from job to job as they move around the boundaryless workplace. Thus A-I and electronic monitoring produce an invisible electronic web that threatens to invade worker privacy, deter unionization, enable subtle forms of employer blackballing, exacerbate employment discrimination, render unions ineffective, and obliterate the protections of the labor laws.
This article describes the many ways A-I is being used in the workplace and how its use is transforming the practices of hiring, evaluating, compensating, controlling, and dismissing workers. It then focuses on four areas of law in which A-I threatens to undermine worker protections: anti-discrimination law, privacy law, antitrust law, and labor law. Finally, this article maps out an agenda for future law reform and research.
Obviously a hot topic (and one close to my heart), so check it out!
Friday, June 7, 2019
Christine Neylon O'Brien & Stephanie M. Greene (both Boston College - Carroll School of Management) have just posted their new article (forthcoming 56 American Bus. L.J. # 4 (Winter 2019)) New Battles and Battlegrounds for Mandatory Arbitration after Epic, New Prime, and Lamps Plus. Here's the abstract:
The Supreme Court’s recent decisions interpreting the Federal Arbitration Act (FAA) in the employment context generally prioritize arbitration over workers’ labor law rights. The majority in Epic Systems upheld mandatory individual employment arbitration agreements despite their conflict with the labor law right to act in concert. The same majority in Lamps Plus presumed that the parties intend individual arbitration absent reference to group arbitration. However, in a rare unanimous decision, the Supreme Court in New Prime exempted transportation workers from FAA coverage, even where the workers are independent contractors rather than employees. These decisions resolved some disputes about the breadth of the FAA but other questions remain unresolved. For example, do the confidentiality provisions so often associated with arbitration provisions unlawfully interfere with employees’ federal labor law rights? Are state laws on employment arbitration subject to preemption?
Some state courts and legislatures continue to seek ways to protect workers who are disadvantaged by mandatory individual arbitration provisions, and others outline procedures for arbitration even for those transportation workers who are categorically exempt under the FAA. State laws regulating employment arbitration may fail in the face of preemption arguments, as the Court’s slim conservative majority appears intent on upholding individual arbitration provisions at all costs. Nevertheless, California persists in allowing representative suits under its Private Attorney General’s Act (PAGA) and state courts continue to consider traditional contract defenses such as lack of mutual assent and unconscionability as arguments to bypass onerous arbitration provisions. The Court’s New Prime decision will reinvigorate the battle over what it means to be “engaged in interstate commerce” to qualify for the FAA’s transportation worker exemption, with workers for Uber and Lyft leading the charge as they seek to avoid mandatory individual arbitration. In contrast, businesses will undoubtedly argue that even transportation workers who are exempt under the FAA still must arbitrate under state law provisions that do not exempt transportation workers.
The authors recommend that Congress amend the FAA to exclude all workers affecting interstate commerce, and clarify the role of state law regulating employment arbitration. State legislation should provide guidance on what makes arbitration truly voluntary and fair, as well as afford employees a real choice on collective action and forum, and whether to maintain confidentiality about the dispute.
I'm glad Christine and Stephanie are continuing the good fight. I find these decisions extraordinarily depressing.
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, 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
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.
Monday, March 25, 2019
This streamlined, straightforward casebook offers a fresh perspective on employment discrimination law, presenting a procedural-based approach with interactive materials. While still providing traditional coverage, Employment Discrimination: Procedure, Principles, and Practice, Second Edition (Seiner, Wolters Kluwer, 2019) emphasizes the importance of procedural issues in workplace cases. It includes a unique “best practices” chapter, which discusses the most effective ways to address workplace discrimination from both a theoretical and legal perspective. Numerous exercises and problems foster classroom discussion. Practice tips situate students in the role of a practicing lawyer. Modern, cutting-edge cases demonstrate the importance of employment discrimination law. Text boxes within cases, historical notes, and news events effectively help bring the material to life. New to the Second Edition: a renewed focus on sexual harassment and a robust discussion of the #metoo movement; an examination of sexual orientation and a review of the conflicting federal appellate cases on whether it is protected by anti-discrimination laws; a new focus on appearance discrimination and the recent case law related to this issue; a discussion of how issues evolving in the gig economy can impact workplace discrimination.
Wednesday, March 20, 2019
In 2015 the National Labor Relations Board (NLRB or Board) said no to a union election petition filed by the Northwestern University football team. In doing so, the Board reversed the finding of a regional director below that the requirements of a valid petition were met, including a finding that the Northwestern football players were employees for purposes of the National Labor Relations Act (Act). Strangely, the Board on appeal did not hold that the football players were not employees, or that Northwestern was not an employer, or that the football team did not substantially affect interstate commerce. These are all of the typical reasons that the Board might say no to an election petition and decline jurisdiction. Rather, the Board refused to assert jurisdiction even though it admitted that Northwestern football players might be employees, Northwestern University is certainly an employer, and the Northwestern football team has a substantial effect on interstate commerce. Without much explanation, the Board simply stated that asserting jurisdiction would undermine labor stability and thus be inconsistent with the goals of the Act.
Curiously, there was no dissenting opinion despite the substantial findings of fact by the regional director finding the petition valid, and despite the fact that the decision was appealed to the liberally controlled Obama Board. This essay is the first substantive critique of the NLRB’s decision in the case. The essay looks carefully and deeply at each of the stated, as well as the unstated but implied, reasons for the decision. What the essay reveals is an administrative agency decision that neglects to make critical findings and arguments in support of the agency’s position against the petition. Also, the essay uncovers a flaw in the Board’s understanding of the limited scope of its discretion to decline jurisdiction in instances where the entity involved has a substantial effect on commerce. Essentially, this essay is the missing dissenting opinion in the case.
Monday, February 25, 2019
The Occupational Safety and Health Administration (OSHA) administers the Occupational Safety and Health Act (OSH Act). OSHA specific workplace and health standards do expressly preempt the entire field of workplace safety and health law, but where such standards do not exist or states developed their own OSHA plans, nor does it merely set a floor either. A type of “hybrid federalism” has been established. Here, by “modified” or “hybrid” federalism, this article refers to a strong federal-based field preemption approach to labor and employment law issues, but tied to a conflict preemption approach. Applying this hybrid preemption approach to the employee right to disconnect problem provides the best opportunity to address the growing epidemic of overwork through electronic communications in the United States.
This hybrid approach has two essential characteristics under OSHA. First, as a default standard, a federal general duty clause that requires all covered employers to maintain a workplace free of hazards that may cause serious injury or death and cannot be feasibly abated. Second, OSHA also has promulgated specific workplace safety and health standard over the last five decades that set more detailed and specific requirements for numerous health or safety dangers in the workplace. The specific standards occupy the field and all contrary state or local safety and health regulations are preempted. Yet, employers can still seek a permanent variance from any OSHA standard if they can establish that they have another method to achieve the same goal as the permanent standard. Second, the OSHAct also permits states to develop their own plans and submit them for approval to OSHA. Twenty-seven states have taken advantage of this option to one degree or another and have plans approved by OSHA. While these state-approved plans must be “at least as effective” as the federal OSHAct, some states, like California and Virginia, have been more aggressive in regulation and have regulated areas that the federal OSHAct has not. This Article maintains that a combination of general duty clause federal enforcement and individual state enforcement is the most effective way of providing a broad-based right to disconnect standard until a federal permanent standard can be promulgated.
In a forthcoming book chapter, Charlotte Garden argues similarly that NLRA preemption should be reformed to let state and local governments enact more worker-friendly labor laws.
Friday, February 15, 2019
I normally try to avoid too much self-promotion on the blog, but I wanted to post a new draft article of mine. Hopefully the topic is of interest, but I post it mainly because I'd love comments and thoughts, which you can send me directly (I'm going through the journal submission process now, but still need to work on some things, especially citations). The article is called Future Work and is available on SSRN. The abstract:
The Industrial Revolution. The Digital Age. These revolutions radically altered the workplace and society. We may be on the cusp of a new era—one that will rival or even surpass these historic disruptions. Technology such as artificial intelligence, robotics, virtual reality, and cutting-edge monitoring devices are developing at a rapid pace. These technologies have already begun to infiltrate the workplace and will continue to do so at ever increasing speed and breadth.
This Article addresses the impact of these emerging technologies on the workplace of the present and the future. Drawing upon interviews with leading technologists, the Article explains the basics of these technologies, describes their current applications in the workplace, and predicts how they are likely to develop in the future. It then examines the legal and policy issues implicated by the adoption of technology in the workplace—most notably job losses, employee classification, privacy intrusions, discrimination, safety and health, and impacts on disabled workers. These changes will surely strain a workplace regulatory system that is ill-equipped to handle them. What is unclear is whether the strain will be so great that the system breaks, resulting in a new paradigm of work.
Whether or not we are on the brink of a workplace revolution or a more modest evolution, emerging technology will exacerbate the inadequacies of our current workplace laws. This Article discusses possible legislative and judicial reforms designed to ameliorate these problems and stave off the possibility of a collapse that would leave a critical mass of workers without any meaningful protection, power, or voice. The most far-reaching of these options is a proposed “Law of Work” that would address the wide-ranging and interrelated issues posed by these new technologies via a centralized regulatory scheme. This proposal, as well as other more narrowly focused reforms, highlight the major impacts of technology on our workplace laws, underscore both the current and future shortcomings of those laws, and serve as a foundation for further research and discussion on the future of work.
February 15, 2019 in Employment Discrimination, Labor and Employment News, Pension and Benefits, Public Employment Law, Scholarship, Wage & Hour, Worklife Issues, Workplace Safety, Workplace Trends | Permalink | Comments (0)
Saturday, February 9, 2019
Nicole Porter (Toledo) has just posted on SSRN a pair of articles well worth reading. Here's the abstract for the article A New Look at the ADA's Undue Hardship Defense (forthcoming Missouri L. Rev.):
Under the Americans with Disabilities Act (ADA), employers must provide accommodations to their disabled employees unless those accommodations cause an undue hardship to the employer. When the ADA was being enacted in 1990, many thought that the undue hardship defense would be hotly debated in the courts and by academics. And yet, the undue hardship defense is very rarely outcome determinative and has not been the subject of a significant piece of scholarship since the mid-1990s. This article takes a fresh look at the under-developed case law surrounding the undue hardship defense. From a data set of over 1,600 potential undue hardship cases, I identified only 120 that address undue hardship in depth. These cases reveal that cost — which both the statute and conventional wisdom suggest is the focus of the inquiry — plays only a minor role. Instead, these cases revealed three recurring themes: (1) courts often confuse or conflate the reasonable accommodation inquiry and the undue hardship defense; (2) whether an accommodation places burdens on other employees (what I call “special treatment stigma”) frequently is relevant to the undue hardship defense; and (3) the phenomenon of “withdrawn accommodations” often influences courts’ analysis of the undue hardship defense. These themes not only provide a deeper insight into the undue hardship defense, but also help to more broadly illuminate the scope of an employer’s obligation to provide reasonable accommodations.
Here's the abstract for Mixed Signals: What Can We Expect From the Supreme Court in This Post-ADA Amendments Act Era? (forthcoming Touro L. Rev.):
The ADA Amendments Act of 2008 was intended to breathe new life into the ADA after the courts, especially the Supreme Court, had drastically narrowed the ADA’s protected class. But since the ADA was amended in 2008, the Supreme Court has not decided any ADA cases. Thus, there are many ADA issues, especially in the employment context, that remain unresolved. This paper will attempt to determine whether we can expect a disability-friendly Supreme Court or whether the Court will once again narrowly construe individuals with disabilities’ rights under the ADA. In doing so, I have uncovered some mixed signals. On the one hand, the body of Tenth Circuit ADA cases decided by our newest jurist, Justice Gorsuch, suggests an anti-disability bent. On the other hand, one possible source of good news for individuals with disabilities are two recent IDEA Supreme Court cases decided in 2017: Fry v. Napoleon Community Schools and Endrew F. ex rel. Joseph F. v. Douglas County School Dist. RE-1. Both of these cases were very plaintiff-friendly and both were unanimous (the Fry case had a two-justice concurrence). But are these plaintiff-friendly cases signaling a disability-friendly Supreme Court? Or is the plaintiff-friendly outcome of these cases not because they involve individuals with disabilities but because they involve educating children? And if the latter is true, what can we expect from the Supreme Court if and when it decides the unresolved ADA employment issues? This paper will attempt to answer these questions.