Thursday, January 14, 2021

Katsabian on How Tech Can Undermine LEL Protections

KatsabianTammy 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 Because of this, legal categories and rights in the labor field seem to be outdated and need to be adjusted to this new reality.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.

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January 14, 2021 in Labor Law, Scholarship, Workplace Trends | Permalink | Comments (0)

Tuesday, January 12, 2021

Re-Thinking Service-Sector Work

DcleraDC 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.

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January 12, 2021 in International & Comparative L.E.L., Labor Law, Workplace Trends | Permalink | Comments (0)

Monday, January 11, 2021

Trade & Labor Policy in a Biden Administration

New convoWhat has to change in U.S. trade policy to improve labor practices in global supply chains?

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.

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January 11, 2021 in International & Comparative L.E.L., Labor Law, Scholarship, Workplace Trends | Permalink | Comments (0)

Tuesday, January 5, 2021

Travis on Rethinking the Post-Pandemic Workplace

TravisMichelle 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.

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January 5, 2021 in Disability, Employment Discrimination, Scholarship, Wage & Hour, Worklife Issues, Workplace Trends | Permalink | Comments (0)

Tuesday, December 15, 2020

New Book: Worldwide Labor-Related Responses to COVID

Covid worldLegal 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.

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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, November 20, 2020

Acevedo & others on Regulating the Gig Economy

BeyondCongratulations to Deepa Das Acevedo (Alabama) on the publication of her edited volume Beyond the Algorithm: Qualitative Insights for Gig Work Regulation (Cambridge University Press, 2020). Here's the publisher's description:

In Beyond the Algorithm: Qualitative Insights for Gig Work Regulation, Deepa Das Acevedo and a collection of scholars and experts show why government actors must go beyond mass surveys and data-scrubbing in order to truly understand the realities of gig work. The contributors draw on qualitative empirical research to reveal the narratives and real-life experiences that define gig work, and they connect these insights to policy debates being fought out in courts, town halls, and even in Congress itself. The book also bridges academic and non-academic worlds by drawing on the experiences of drivers, journalists, and workers' advocates who were among the first people to study gig work from the bottom up. This book is a must-read for anyone interested in gig work, the legal infrastructure surrounding it, and how that infrastructure can and must be improved.

Look for a paperback edition to be published in about six months, priced at about $35-40.

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November 20, 2020 in Books, Employment Common Law, Scholarship, Wage & Hour, Worklife Issues, Workplace Trends | Permalink | Comments (0)

Tuesday, November 17, 2020

Arnow-Richman on Remote Work & Temporary Termination

A-rRachel Arnow-Richman (Florida) has just posted on SSRN a pair of timely articles related to the pandemic: Temporary Termination: A Layoff Law Blueprint for the COVID Era (forthcoming ABA JLEL) , and Is There An Individual Right to Remote Work? A Private Law Analysis (forthcoming Wash. U. J. L. & Pub. Policy). Here are the abstracts:

Remote Work: One of the gnawing legal questions of the COVID-19 pandemic is the status of remote work. Since the expiration of the first round of government shut-down orders in the summer of 2020, companies have been calling workers back to the job, prompting serious concerns about the risk of workplace transmission. As a consequence, many workers have asked to continue the remote arrangements their employers adopted when forced to close under executive orders. Some employers are acceding to these requests; others are not. This brief essay, prepared for the ABA Journal on Labor & Employment Law, considers this problem from a private law perspective. It concludes that public law offers little protection to individual employees other than those with qualifying disabilities. Companies, however, may be in breach of contract if they terminate employees who have enforceable job security rights for refusing to return to in- person work. Rather than rely on guesswork, the prudent and compassionate choice for employers is to continue temporary remote arrangements to the extent feasible. 

Temporary Termination: This paper, prepared for a forthcoming Washington University of Saint Louis symposium on COVID-19, responds to the pandemic-induced unemployment crisis with a strategy for addressing temporary, economic-based terminations. Workplace regulation has long neglected workers separated for economic reasons, leaving the problem to the social welfare system, which is now overwhelmed by record numbers of unemployment applicants. In prior articles, I have drawn on comparative law models to argue for laws requiring employers to provide mandatory advance notice of termination or commensurate severance pay to laid off workers. Building on that work, and drawing specifically on Canadian law, this paper argues for recognizing “temporary separation” as a distinct legal status that confers individual rights to affected employees within the context of a comprehensive law of layoffs. Under this system, all employees terminated for economic reasons would be entitled to advance notice or its equivalent in severance pay. However, employers could suspend such obligations by classifying workers as temporarily separated. Affected individuals would retain their status as employees, obtain fast-track access to unemployment benefits, and enjoy a right to reinstatement when their jobs resume. Should the employer choose not to recall a temporarily separated worker, or if the lack of work becomes permanent, the employer would be required to fulfill its deferred severance obligation. 

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November 17, 2020 in Employment Common Law, International & Comparative L.E.L., Scholarship, Workplace Safety, Workplace Trends | Permalink | Comments (0)

Monday, September 28, 2020

Fisk to Deliver Genest Lecture at York-Osgoode

FiskSara Slinn (York-Osgoode Hall) informs us that Catherine Fisk (Berkeley) will be delivering the Pierre Genest Memorial Lecture October 6th at 4pm EDT, entitled "Protection by Law, Repression by Law: Bringing Labor Back Into Law and Social Movement Studies". Registration is here.

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September 28, 2020 in Commentary, Faculty Presentations, Labor Law, Scholarship, Workplace Trends | Permalink | Comments (0)

Monday, June 22, 2020

Royals Take Advantage of Market Inefficiency: Not Treatring Low-Paid Workers Like Garbage

RoyalsMajor League Baseball implemented a temporary rule limiting signing bonuses for new players as a cost-saving measure when teams are bringing in no revenue. One result: teams with a history of treating their workers well are attracting talent they otherwise would have had little chance of luring. Here's the take-away:

The Royals jumped to the top of many players’ lists because of their demonstrated commitment to their minor leaguers. While most of Kansas City’s competitors wavered on paying minor leaguers at all this summer—and then released scores of them—only the Royals and Minnesota Twins said they would keep every prospect. Royals general manager Dayton Moore justified that action by telling reporters, “The minor-league players, the players you’ll never know about, the players that never get out of rookie ball or High-A, those players have as much impact on the growth of our game as 10-year or 15-year veteran players.”

In saying that, the Royals positioned themselves to take advantage of a very simple market inefficiency: not treating your lowest-paid employees like garbage.

Jared Diamond, The Royals Are Taking Advantage of a New Market Inefficiency Wall St. J. (June 19, 2020).

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June 22, 2020 in Labor and Employment News, Workplace Trends | Permalink | Comments (0)

Monday, May 25, 2020

Webinar: Global Governance & Worker Protection During the Pandemic

LeraDesiree LeClercq (formerly Director for Labor Affairs at the Office of the United States Trade Representative; currently en route to Ithaca NY to teach at the Cornell ILR School) writes to tell us:

LERA has been hosting a series of webinars free to members and non-members that examine various labor elements of the COVID pandemic. This Thursday, May 28, from 10-11am, I will be moderating a panel on ""Global Governance During Pandemic: Implications of Force Majeure and National Emergency for Worker Rights Protections." Panelists will include representatives from the ILO, the World Bank, the World Maritime University, Solidarity Center, and Sustainable Enterprises. In case of interest, the link to register and receive the Zoom link may be accessed at: https://lera.memberclicks.net/lera-webinar-series--ler-during-covid-19.

This looks like a terrific program!

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May 25, 2020 in Conferences & Colloquia, International & Comparative L.E.L., Labor and Employment News, Workplace Safety, Workplace Trends | Permalink | Comments (0)

Wednesday, May 6, 2020

Using Hurricane Data to Predict Covid-19 UI Clams

FedresA group of authors from the Federal Reserve Bank of Chicago and the University of Indiana have just posted on SSRN Using the Eye of the Storm to Predict the Wave of Covid-19 UI Claims. Here's the abstract of this timely article:

We leverage an event-study research design focused on the seven costliest hurricanes to hit the US mainland since 2004 to identify the elasticity of unemployment insurance filings with respect to search intensity. Applying our elasticity estimate to the state-level Google Trends indexes for the topic “unemployment,” we show that out-of-sample forecasts made ahead of the official data releases for March 21 and 28 predicted to a large degree the extent of the Covid-19 related surge in the demand for unemployment insurance. In addition, we provide a robust assessment of the uncertainty surrounding these estimates and demonstrate their use within a broader forecasting framework for US economic activity.

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May 6, 2020 in Government Reports, Labor and Employment News, Scholarship, Wage & Hour, Workplace Trends | Permalink | Comments (0)

Monday, April 20, 2020

Stone on Neo-Feudalism

Stone Katherine Stone has a piece in the April issue of The American Prospect magazine, called The Rise of Neo-Feudalism. Together with her co-author, Robert Kuttner, the article argues that "Western democracies are not simply embracing neoliberalism in the sense of deregulating the economy. Elites are pursuing something aptly described as a new form of feudalism, in which entire realms of public law, public property, due process, and citizen rights revert to unaccountable control by private business." Among other examples, the article discusses the proliferation and expansion of arbitration as private judicial systems that operate to eliminate hard-won worker rights.

In addition, Katherine Stone discussed the article, and the ramifications for worker rights, on NPR's show, Background Briefing. The segment is posted online here and here.

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April 20, 2020 in Arbitration, Commentary, Workplace Trends | Permalink | Comments (0)

Wednesday, April 15, 2020

Global Labor Responses to Covid-19

ItThe Italian Labour Law E-Journal has published a special issue describing the global labor responses to covid-19. Here's a description:

This special issue of the Italian Labour Law e-Journal intends to provide a systematic and informative overview on the measures set out by lawmakers and/or social partners in a number of countries of the world to address the impact on the Covid-19 emergency on working conditions and business operations. The aim is to understand which labour law norms and institutions and which workplace arrangements are being deployed in the different legal systems to tackle the global health crisis. Another aim is to find whether and to what extent the established body of laws is proving able to cope with the problems raised by the current extraordinary situation or whether, on the contrary, new special regulations are being introduced. The national reports may be subject to updating in case of major changes.

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April 15, 2020 in International & Comparative L.E.L., Wage & Hour, Workplace Safety, Workplace Trends | Permalink | Comments (0)

Friday, March 27, 2020

Charting a global way forward: COVID-19 special edition of the ABA Int'l LEL Newsletter

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The ABA International Labor & Employment Law Section has published a Special COVID-19 edition of its Newsletter, describing the myriad different responses that countries have taken to adjusting LEL laws to respond to the virus. Here's a description:

COVID-19 is now a truly global pandemic and is affecting hundreds of millions of people at both deeply personal and professional levels. Countries are attempting to respond in different ways, from quarantines to special health care initiatives to financial stimulus packages. Countries also are responding in myriad ways that affect workers and workplaces.

This special edition of the newsletter contains a series of short articles describing how several countries from throughout the world are using workplace laws to combat the spread of COVID-19 and to mitigate its effects on workers and workplaces. Though our survey is not comprehensive, it nonetheless provides a snapshot of the often thoughtful and creative ways that countries are responding to the crisis. We hope it will provide guidance not only to the international labor and employment attorneys who regularly read this newsletter, but also to policymakers worldwide considering how their countries might best restructure workplaces and protect workers in a time of crisis to mitigate both the devastating health effects of the virus and its disruption of the economic activity on which we all depend for our livelihoods.

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March 27, 2020 in International & Comparative L.E.L., Labor and Employment News, Wage & Hour, Workplace Trends | Permalink | Comments (0)

Monday, March 2, 2020

Doorey's New Blog: Canadian Law of Work Forum

Doorey CanadianDavid Doorey (York University) has launched a new collaborative law blog called Canadian Law of Work Forum. The blog accepts contributions from scholars, practitioners, and students on topics related to work law and labour policy and will be a great resources for U.S. scholars interested in keeping an eye on Canadian developments. David is also encouraging posts from non-Canadian scholars on comparative law issues. Please visit the blog and consider submitting pieces to David (ddoorey@yorku.ca). Great move, David!

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March 2, 2020 in Commentary, Employment Common Law, International & Comparative L.E.L., Labor and Employment News, Workplace Trends | Permalink | Comments (0)

Monday, January 27, 2020

Clean Slate Project Issues Report

CleanThanks to Jon Harkavy for word that the Clean Slate for Worker Power project has issued its final report A Clean Slate for Worker Power: Building a Just Economy and Democracy. Here's a brief excerpted description from Kelsey Griffin:

An initiative of Harvard Law School’s Labor and Worklife Program — called Clean Slate for Worker Power — released its final report Thursday calling to overhaul American labor laws and increase workers’ collective bargaining power. Law School Faculty members Sharon Block and Benjamin I. Sachs led the project. The initiative brought together leading activists and scholars to recommend policies aimed at empowering working people.

The report claims that an extreme concentration of wealth in the hands of few people has created economic and political inequality in the United States. It argues that current labor laws have fostered systematic racial and gender oppression. It also asserts that labor laws exclude vulnerable workers from vital labor protections and devalue the work performed by these workers.

Block and Sachs said they believe addressing this economic and political inequality would require a completely new system of labor law, rather than simply adjusting current policies. The report recommends that labor laws better enable working people to build collective organizations to increase their leverage with employers and in the political system. The policy recommendations aim to increase worker representation and inclusion by expanding the coverage of labor laws for independent contractors, as well as undocumented, incarcerated, and disabled workers. The report lays out an array of options for alternative worker representation in addition to labor unions, such as work monitors — employees who would ensure compliance with federal labor regulations.

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January 27, 2020 in Employment Common Law, Employment Discrimination, Labor Law, Public Employment Law, Wage & Hour, Workplace Trends | Permalink | Comments (0)

Monday, December 2, 2019

Colorblind Computers

AiZach Harned (Stanford student) and Hanna Wallach (Microsoft Research) have just posted on SSRN an interesting article entitled Stretching Human Laws to Apply to Machines: The Dangers of a 'Colorblind' Computer (forthcoming Florida L. Rev.). Here's the abstract:

Automated decision making has become widespread in recent years, largely due to advances in machine learning. As a result of this trend, machine learning systems are increasingly used to make decisions in high-stakes domains, such as employment or university admissions. The weightiness of these decisions has prompted the realization that, like humans, machines must also comply with the law. But human decision-making processes are quite different from automated decision-making processes, which creates a mismatch between laws and the decision makers to which they are intended to apply. In turn, this mismatch can lead to counterproductive outcomes.

We take antidiscrimination laws in employment as a case study, with a particular focus on Title VII of the Civil Rights Act of 1964. A common strategy for mitigating bias in employment decisions is to “blind” human decision makers to the sensitive attributes of the applicants, such as race. The same strategy can also be used in an automated decision-making context by blinding the machine learning system to the race of the applicants (strategy 1). This strategy seems to comply with Title VII, but it does not necessarily mitigate bias because machine learning systems are adroit at using proxies for race if available. An alternative strategy is to not blind the system to race (strategy 2), thereby allowing it to use this information to mitigate bias. However, although preferable from a machine learning perspective, this strategy appears to violate Title VII.

We contend that this conflict between strategies 1 and 2 highlights a broader legal and policy challenge, namely, that laws designed to regulate human behavior may not be appropriate when stretched to apply to machines. Indeed, they may even be detrimental to the very people that they were designed to protect. Although scholars have explored legal arguments in an attempt to press strategy 2 into compliance with Title VII, we believe there lies a middle ground between strategies 1 and 2 that involves partial blinding—that is, blinding the system to race only during deployment and not during training (strategy 3). We present strategy 3 as a “Goldilocks” solution for discrimination in employment decisions (as well as other domains), because it allows for the mitigation of bias while still complying with Title VII. Ultimately, any solution to the general problem of stretching human laws to apply to machines must be sociotechnical in nature, drawing on work in both machine learning and the law. This is borne out in strategy 3, which involves innovative work in machine learning (viz. the development of disparate learning processes) and creative legal analysis (viz. analogizing strategy 3 to legally accepted auditing procedures).

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December 2, 2019 in Employment Discrimination, Scholarship, Workplace Trends | Permalink | Comments (0)

Tuesday, October 22, 2019

Guest Post by Jack Harrison: Oral Argument in Title VII LGBT Cases Offers Few Clues on How SCOTUS Might Rule

JackThanks to Jack Harrison (NKU-Chase) this terrific guest post:

Aimee Stephens, a transgender woman who worked as a funeral director, began her employment at Harris Funeral Home presenting as male, the sex she to which she was assigned at birth. However, in 2013, Stephens informed her supervisor, Thomas Rost, that she had been diagnosed with a gender identity disorder and that she intended to transition. In response to this disclosure, Rost promptly terminated her. Rost later testified that he terminated Stephens because “he was no longer going to represent himself as a man,” and because Rost believed that gender transition “violat[es] God’s commands” because “a person’s sex is an immutable God-given fit.” The EEOC sued on Stephens’ behalf, alleging that the acts of the funeral home constituted unlawful sex discrimination under Title VII.

In EEOC, et. al v. R.G. & G.R. Harris Funeral Homes, the district court held that Stephens had been subjected to sex discrimination in violation of Title VII because, consistent with Price Waterhouse v. Hopkins, she was subjected to impermissible sex stereotypes. However, the district court then concluded that even though Stephens had been the victim of sex discrimination, the funeral home had a right to terminate her under Religious Freedom Restoration Act (“RFRA”), holding that RFRA protected personal religious beliefs, even when those beliefs resulted in otherwise unlawful sex discrimination.

In 2018, the United States Court of Appeals for the Sixth Circuit reversed this decision. In its decision, the Court of Appeals moved beyond the sex stereotyping rationale of Hopkins, holding that Title VII specifically outlaws employment discrimination against transgender persons.

On Tuesday, October 8, 2019, the United States Supreme Court heard oral argument in Harris Funeral Home, addressing the question of whether Title VII’s prohibition against discrimination because of sex encompasses a prohibition against discrimination based on gender identity. On the same day, the Court also heard arguments in two other cases, one from the Second Circuit, Altitude Express v. Zarda, and one from the Eleventh Circuit, Bostock v. Clayton County, addressing the issue of whether Title VII’s prohibition against discrimination because of sex includes a prohibition against discrimination based on sexual orientation.

Before the Supreme Court, David Cole of the ACLU presented the argument on behalf of Aimee Stephens. In the opening of his argument to the Court, Cole broke the case down into its simplest terms, stating:

Aimee Stephens is a transgender woman. She was a valued employee of Harris Funeral Homes for six years, until she told her boss that she was going to live and identify as a woman.

When Harris Homes responded by firing her, it discriminated against her because of her sex for three reasons. First, in firing her for failing to conform to its owner's explicitly stated stereotypes about how men and women should behave, it discriminated against her in the same way that Price Waterhouse discriminated against Ann Hopkins for failing to walk and talk more femininely. It can't be that Ann Hopkins would lose her case on the same facts were she transgender.

As Cole pointed out in his argument, Stephens was fired for “identifying as a woman only because she was assigned a male sex at birth.” In firing her for this reason, Harris “fired her for contravening a sex-specific expectation that applies only to people assigned male sex at birth; namely, that they live and identify as a man for their entire lives.”

While the Justices focused many questions on the issues of restrooms and athletes, neither of which were before the Court in this case, Justice Gorsuch acknowledged that, on this question, the text of Title VII was “close.” However, Justice Gorsuch raised the following concern:

At the end of the day, should he or she [the judge] take into consideration the massive social upheaval that would be entailed in such a decision, and the possibility that --that Congress didn't think about it.

Yet, as David Cole pointed out in response to Justice Gorsuch, “federal courts of appeals have been recognizing that discrimination against transgender people is sex discrimination for 20 years” and “[t]here's been no upheaval.”

In Zarda and Bostock, argued the same day as Harris Funeral Home, the Court addressed the claims of two men who asserted that they were fired from their jobs because they were gay in violation of Title VII. Donald Zarda (who died in 2014 in a base-jumping accident in Switzerland) had been working as an instructor for a skydiving company now known as Altitude Express, while Gerald Bostock had worked as a child-welfare-services coordinator in Clayton County, Georgia.

In arguing on behalf of the two men, Stanford professor Pamela Karlan also faced a number of questions by the justices regarding restrooms and dress codes, issues that were not before the Court in these cases either. In responding to these questions, Karlan pointed out that Title VII specifically addresses the situation regarding restrooms, with the central question being whether providing same-sex bathrooms denies someone an employment opportunity. As to the issue of dress codes, Karlan indicated that the justices would be forced to address the issue in future cases, no matter how they rule in these cases.

However, the primary issue raised during the oral argument in Zarda and Bostock was whether, in passing Title VII in 1964, Congress intended to bar discrimination based on sexual orientation and whether, from a textual interpretive perspective, that mattered at all. As Karlan pointed out, the Supreme Court has recognized many other claims under Title VII that Congress could not have contemplated in 1964, including both opposite-gender and same-gender sexual harassment and claims based on sex stereotyping.

Justice Gorsuch was very active in the Zarda and Bostock oral arguments, challenging arguments by counsel for the employers, Jeffrey Harris, attempting to draw a clear line between definitions of “sex” and “sexual orientation” as the basis for the termination of the employees. For example, Justice Gorsuch pushed Harris on this point:

Your response to Justice Kagan was, I need to focus on sexual orientation because that's the sole or primary causal factor here for the firing.

And I think the response from the other side is: But the statute has a more generous causal formulation, a but-for causal formulation, so perhaps you're right that, at some level, sexual orientation is surely in -- in play here. But isn't sex also in play here because of the change of the first variable? And isn't that enough? It -- you know, the statute talks about a material causal factor or some formulation like that, not the sole cause, not the proximate cause, but a cause. And one –o ne would -- in what -- in what linguistic formulation would one -- would one say that sex, biological gender, has nothing to do with what happened in this case?

Justice Gorsuch returned to this theme during the argument of U.S. Solicitor General Noel Francisco, who appeared on behalf of the federal government as a “friend of the court” supporting the employers in this case. When the Solicitor General attempted to draw a line between the meanings of sex and sexual orientation, Gorsuch again responded that at least one contributing cause of the plaintiffs’ firings here does appear to be sex.

In concluding his argument in all three cases, the Solicitor General argued that a ruling for the employees in these cases would ignore the issue of religious objections employers might have to hiring LGBT employees, while, at the same time, greatly expanding the rights of LGBTQ employees. For this reason, among others, the Solicitor General argued that this decision should be left to Congress to resolve.

Following the oral arguments in these cases, it is difficult to predict whether five votes exist for holding that Title VII’s prohibition against discrimination because of sex encompasses sexual orientation and gender identity. Based on the oral argument, it would seem that Justice Gorsuch vote might well be at play, given his acknowledgement that the text of Title VII made this a close call. This confirms the strategic decision by those who submitted briefs and amici on behalf of the employees to focus on the text of Title VII itself.

While many Americans currently believe that federal law prohibits discrimination because of sexual orientation and gender identity in the workplace, these cases make clear how far from reality that actually is. Currently LGBT employees are largely unprotected from employment discrimination. The protections that do exist are under an unpredictable patchwork of laws and policies, consisting of presidential executive orders, private employer initiatives, city and county ordinances, gubernatorial executive orders, and state legislation. Thus, discrimination in the workforce remains a constant in the lived experience of LGBT persons.

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October 22, 2019 in Commentary, Employment Discrimination, Workplace Trends | Permalink | Comments (1)

Monday, October 21, 2019

Report: European Corporate Investment and Workers' Rights in the American South

AFLCIOThe AFL-CIO released today the above-titled report, authored by Lance Compa (retired Cornell ILR; currently visiting at San Diego Law):

Multinational corporations based in Europe have accelerated their foreign direct investment in the Southern states of the United States in the past quarter-century. Some companies honor workers’ freedom of association, respect workers’ organizing rights and engage in good-faith collective bargaining when workers choose trade union representation. Other firms have interfered with freedom of association, launched aggressive campaigns against employees’ organizing attempts and failed to bargain in good faith when workers choose union representation.

Today, the AFL-CIO is releasing a report by international labor law expert Lance Compa. The report examines European companies’ choices on workers’ rights with documented case studies in several American Southern states. In their home countries, European companies investing in the American South generally respect workers’ organizing and bargaining rights. They commit themselves to International Labor Organization core labor standards, Organization for Economic Co-operation and Development Guidelines, UN Guiding Principles, the UN Global Compact, and other international norms on freedom of association and collective bargaining. But they do not always live up to these global standards in their Southern U.S. operations.

Case studies on well-known companies like VW, Airbus, IKEA and large but lesser known ones like Fresenius and Skanska provide examples of companies that have followed a lower standard in their operations in the southern states where the region’s legacy of racial injustice and social inequality open the door to a low-road way of doing business. The report also makes clear that companies always have a choice and could choose to respect workers human rights.

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October 21, 2019 in Employment Common Law, Employment Discrimination, International & Comparative L.E.L., Labor Law, Workplace Trends | Permalink | Comments (1)

Wednesday, October 9, 2019

Ajunwa in NYT on Algorithmic Discrimination

SelectIfeoma Ajunwa (Cornell I.L.R.) published an op-ed in yesterday's New York Times about the discriminatory use of algorithms in the hiring process. Ifeoma has done a ton of great work on algorithmic discrimination -- it's great that she's taking it to an even wider audience. Here's a brief excerpt:

Algorithms make many important decisions for us, like our creditworthiness, best romantic prospects and whether we are qualified for a job. Employers are increasingly using them during the hiring process out of the belief they’re both more convenient and less biased than humans. However, as I describe in a new paper, this is misguided.

In the past, a job applicant could walk into a clothing store, fill out an application and even hand it straight to the hiring manager. Nowadays, her application must make it through an obstacle course of online hiring algorithms before it might be considered. This is especially true for low-wage and hourly workers.

The situation applies to white-collar jobs too. People applying to be summer interns and first-year analysts at Goldman Sachs have their résumés digitally scanned for keywords that can predict success at the company. And the company has now embraced automated interviewing.

The problem is that automated hiring can create a closed-loop system. Advertisements created by algorithms encourage certain people to send in their résumés. After the résumés have undergone automated culling, a lucky few are hired and then subjected to automated evaluation, the results of which are looped back to establish criteria for future job advertisements and selections. This system operates with no transparency or accountability built in to check that the criteria are fair to all job applicants.

The op-ed is Beware of Automated Hiring.

rb

October 9, 2019 in Commentary, Employment Discrimination, Labor and Employment News, Workplace Trends | Permalink | Comments (0)