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Is a rat a secondary picket?
January 23, 2007
That's the title of a fascinating article at 28 Cardozo Law Review 1519 (2006) written by Tzvi Mackson-Landsberg, Notes Editor, Cardozo Law Review, and 2007 J.D. Candidate at Benjamin N. Cardozo School of Law.
Here's how it starts out:
In January of 2003, several members of the Sheet Metal Workers’ International Association, a labor union, stood in front of Brandon Regional Medical Center in Brandon, Florida and gave out handbills to passersby. The handbills described a company called Workers Temporary Staffing (WTS). WTS employed non-union workers who were performing renovations at the medical center. The handbills called WTS a “rat employer,” that is, a company that “undermines wages, benefits, and . . . working conditions in the area.” The handbills warned that local living standards would drop if the community tolerated companies like WTS.
Brandon Medical Center filed a charge with the National Labor Relations Board (NLRB), claiming that the union had committed an unfair labor practice. The NLRB initiated proceedings against the union that led to a hearing before an Administrative Law Judge (ALJ). The ALJ held that the union had committed an unfair labor practice by engaging in unlawful “secondary picketing.” This ruling was not only based on the union members’ handbilling; that activity, by itself, would not have been considered picketing. The ALJ found that the union members had been picketing because, in addition to handbilling, the union members set up a sixteen-foot-tall inflatable rat. The rat was twelve feet wide at the base, wore a sign that read “Workers Temporary Staffing,” and sat “upright, smiling, with a cigar in its mouth.” This Note addresses the key argument underlying the ALJ’s decision: That it is unlawful for unions to use inflatable rats to promote secondary boycotts because the rats engage in prohibited picketing. Calling an inflatable animal a picketer may seem whimsical, but this reasoning is a serious matter for labor unions. The NLRB’s General Counsel (General Counsel) has recently endorsed this reasoning and has filed charges against at least one other union that has used inflatable rats. If the General Counsel’s reasoning prevails, unions will lose a weapon they have used effectively in their efforts to win back lost strength by gaining new members.
This Note will argue that the General Counsel’s reasoning regarding union inflatable rats in secondary campaigns ignores the limits the First Amendment sets on Congress’s power to regulate union activity through legislation like the National Labor Relations Act (NLRA). The Supreme Court has established that while Congress has broad power to regulate conduct, its power to regulate speech only extends as far as the First Amendment’s narrow limits. As a result, the Court has held that section 8(b)(4)(ii)(B) of the NLRA, which regulates the tactics that unions can use to put pressure on secondaries, outlaws certain types of conduct completely but only places limited constraints on speech.
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Federal Arbitration Act - Misconstruction
November 02, 2006
Here's an assault on the US Supreme Court's cases dealing with the Federal Arbitration Act (FAA), by Professor Margaret L. Moses at Loyola University of Chicago. To be published in Florida State University Law Review, Vol. 34, p. 1, Fall 2006.
Quoting the abstract:
The Supreme Court has so significantly rewritten the Federal Arbitration Act (FAA) over the last twenty-five years that today it bears little resemblance to the statute enacted by Congress in 1925. Adopted as a simple procedural Act to enforce arbitration agreements, the FAA was intended to be applicable only in federal court. Today, the statute is a substantive statute applicable in both state and federal courts, which broadly pre-empts state law. The statute's pre-emption of state law has recently been confirmed and expanded in the Court's decision in Buckeye Check Cashing v. Cardegna (Feb. 2006).
Although the thrust of the original legislation was to enforce arbitration agreements between merchants regarding fact-heavy commercial disputes, the Court has held that the FAA applies to statutory rights under antitrust, securities and employment laws. Moreover, although all workers' contracts were excluded from the Act in 1925, the Court has held that only transportation workers are excluded. Finally, despite concerns of Members of Congress that this legislation should not apply in "take-it-or-leave-it" situations, the increasing use of mandatory arbitration clauses in adhesion situations has closed access to the courts for a substantial segment of consumers, insureds, small businesses, and investors.
How does a statute acquire a totally different scope and application without any legislative intervention? This article begins with the story of the Federal Arbitration Act's origins, and then discusses the interpretive methods used by the Supreme Court in the major cases that have defined the FAA. It concludes that none of the different interpretive methods used by the Court has served to cabin judicial discretion to legislate, resulting in a complete rewriting of the statute.
The article also considers the impact of the Court's policy choices on our legal system. The FAA is a statute that reduces protections legislated in the fields of federal antitrust, securities and employment law, and intrudes upon state police powers to control core state functions involving contract law and legal process. The new architecture of the FAA appears to reflect judicial policy preferences for the economically powerful, favoring corporations over consumers, and employers over employees.
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FLSA actions threaten public sector employers
August 12, 2006
Preventive Measures For Public Employers by Peter Brown and David Urban discusses four types of FLSA cases frequently brought against public employers. They also provide five useful ways to prevent FLSA lawsuits.
Here's the first paragraph:
Recent years have seen a rise in the number of lawsuits brought by employees against cities, counties, and other public entities under the Fair Labor Standards Act (“FLSA”). These actions, which are brought as “collective actions” specifically authorized by the FLSA, can impose substantial liability on public employers. Legal periodicals regularly report on private sector wage and hour settlements and verdicts well into the tens of millions of dollars, sometimes over a hundred million. The FLSA applies to public sector employers just as it does to those in the private sector, and presents the same magnitude of exposure. This Article will describe the dangers of FLSA collective actions (why an organization’s liability can be so substantial), and how public employers can take steps to avoid such lawsuits.
Peter Brown, left, a partner with Liebert Cassidy Whitmore, has been defending California public agencies since 1990 regarding claims brought for violations of the Fair Labor Standards Act. In addition to public agency FLSA defense work, he has developed the www.FLSAaudit.com website, which enables public agencies to audit their own FLSA compliance. He also represents cities, counties, special districts, and school and community college districts in litigation, administrative proceedings, negotiations and grievances. Brown has also spoken at many conferences in California as well as throughout the United States on the many pitfalls which the FLSA presents and how to avoid them.
David Urban, right, who is of counsel with Liebert Cassidy Whitmore, has fourteen years of experience practicing litigation in federal and state courts, and has successfully defended numerous employment litigation cases, including alleged employment discrimination, whistleblower and collective bargaining rights cases. He provides employment advice to California employers, and was a contributing author to the ABA Treatise The Fair Labor Standards Act.
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Expanding liability for retaliation
August 07, 2006
A lot has been written on Burlington Northern v. White.
Here's a useful addition: U.S. Supreme Court Expands Employer Liability for Retaliation by Thomas J. Flaherty and George S. Howard.
Here's the lead paragraph:
The United States Supreme Court's June 22, 2006 decision in Burlington Northern & Santa Fe Railway Company v. White is important for both employers and employees, as attested by the extensive media coverage. However, the media largely overlooked the most significant implications of the ruling. It is not surprising that the Court would permit a retaliation claim where the employer transferred the employee to a physically harder, less desirable job, shortly after her first complaint of harassment, and suspended her without pay for 37 days, during the holidays, shortly after she filed a complaint with the Equal Employment Opportunity Commission ("EEOC"). What is surprising is the Court’s expansive, sweeping approach.
Thomas J. Flaherty, left, serves as Managing Partner of Pillsbury Winthrop Shaw Pittman 's 100+ attorney Northern Virginia office. He is also the Team Leader of the local office's Employment and Labor group with a national and local practice encompassing all areas of employment and labor law, including litigation and advice involving both individual and class action matters.
George S. Howard, right, a Pillsbury Winthrop Shaw Pittman partner, practices employment and labor law on behalf of management. He is one of a handful of San Diego-area management labor lawyers selected for inclusion in the 2005 edition of The Best Lawyers in America, and was also listed in all editions beginning in 1993. Howard is Chair of The Employers Group Legal Committee, a group of 16 California employment lawyers who represent the interests of employers, as amicus curiae, in appeals of important employment cases in California.
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Death of Labor Law?
July 30, 2006
The Death of Labor Law? by Cynthia L. Estlund, Professor of Law at New York University Law School, Annual Review of Law and Social Science, Vol. 2, December 2006.
Here is a provocative article that seeks to find a correlation between three "declines" in the field of organized labor:
- The decline of labor law. Essentially, Estlund argues that the National Labor Relations Act really never changes, and thus is "ossified."
- The decline of labor law scholarship. Apparently, without changes in the law, the scholars have little to write about.
- The decline of organized labor. Organized labor has declined, and Estlund is one who pins much of blame on the fact that labor law has exhibited "rigidity in the face of change."
Cynthia Estlund is Professor of Law at New York University Law School, where she teaches labor law, employment law and a course called Labor Standards and the Regulation of Work.
The abstract:
This review tells three interlocking tales of decline, each with its respective prognosis for recovery: the declines of labor law scholarship, labor law, and organized labor. The relationship between the latter two, and the role that a reformed labor law might play in reviving organized labor, are matters of continuing controversy. In the meantime, two developments on the ground suggest a way forward for organized labor, labor law, and labor law scholars: Activist unions have found success with a new organizing model: neutrality and card-check agreements. Elsewhere, anti-sweatshop activists are developing increasingly sophisticated supplier codes and monitoring schemes to improve labor standards in developing countries. Both strategies, with their basically contractual architecture, exemplify what regulatory scholars are calling “new governance.” These strategies suggest a potential way around the roadblocks that meet labor law reform proposals, and toward more agile and responsive forms of workplace governance.
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Union Immunity From Suit in New York
July 21, 2006
Frankly, it never occurred to me that a labor union could be "immune" from lawsuits.
In New York labor unions are, for the most part, immune from legal liability - a strange situation brought about by outdated legal principles that continue to carry the day.
The fascinating story is told in the article Union Immunity From Suit in New York by Mitchell H. Rubinstein, Senior Counsel, New York State United Teachers, 52 Broadway, 9th floor, New York, NY 10004, phone 212-533-6300, email mrubinst@nysutmail.org. The article is published in the New York University Journal of Law and Business, vol. 2, no. 3, summer 2006.
Abstract
One of the best keep secrets in New York law is that most labor unions are immune from legal liability simply because they are organized as an unincorporated association. In jurisdictions such as New York, which follow common law, unions have this immunity because plaintiffs cannot met the stringent common law pleading requirements applicable to unincorporated associations, to wit, it must be alleged, and ultimately established, that the conduct complained of was approved of and ratified by each and every member of the association. Thus, the form in which a labor union is organized has a significant impact on its potential for legal liability. This is reminiscent of the forms of actions utilized in the Middle Ages where the form of the action determined whether a party had any remedy.
This Article surveys union liability in this important and little understood area of law. It concludes that the common law pleading requirements of Martin v. Curran make little sense today, particularly when applied to labor unions. Public policy is certainly not furthered by blind obedience to an ancient common law doctrine.
Surprisingly, there is no academic commentary which address this important issue under New York law or the seminal case in this area, Martin v. Curran. However, Martin v. Curran continues to be relied upon in order to dismiss cases against unions even though this case has been severely criticized by a number of courts. Just recently, the First Department upheld the dismissal of a tort action against a union because the common law pleading requirements of Martin v. Curran could not be met. That 2006 decision generated a significant dissent by Justice Saxe, who stated that this dated rule should be abandoned. Salemeh v. Toussaint, 25 A.D. 3d 411 (1st Dept. 2006)(Saxe, J., dissenting).
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Litigating the Maternal Wall
July 11, 2006
Family Responsibility Discrimination (FRD) is what it's called. Workers claiming they were discriminated against because of their responsibilities as family caregivers.
Litigating the Maternal Wall: U.S. Lawsuits Charging Discrimination Against Workers With Family Responsibilities by Mary C. Still, Research Director and Faculty Fellow at the Center for Worklaw Life at University of California Hastings College of The Law, is an article that looks at lawsuits from what I will call "an FRD perspective."
Executive Summary:
This report examines the growing trend in lawsuits filed by workers alleging they were discriminated against because of their family caregiving responsibilities.
The number of such cases has grown from a total of eight in the 1970s, when the first case was heard in U.S. courts, to 358 in the first half of the 2000s. In the last decade (1996-2005), the number of family responsibilities discrimination (FRD) cases filed grew nearly 400% from the previous decade, from 97 cases to 481.
This report describes where the cases are most prevalent - in which industries, amongst which kinds of workers, and in which parts of the country. It discusses case outcomes, as well as possible causes for increased filings.
Analyses show that rapid growth in (FRD) lawsuits began in the 1990s and continues today. Increases are correlated with media coverage of high-profile lawsuits involving maternal wall discrimination; growth in the number of employed mothers; diffusion of information about FRD cases amongst the legal profession; and changes in law making it more attractive to file discrimination lawsuits. FRD lawsuits have now been heard in 48 of 50 states and the District of Columbia.
More FRD cases have been filed by non-professional employees than by professionals, and plaintiff s are more likely to win FRD lawsuits than other types of employment discrimination cases.
The average award is just over $100,000; the largest award to date is $25 million. The lawsuits analyzed in this report make a strong case that companies’ effective handling of workers’ caregiving responsibilities is an issue of risk management; companies that mismanage their work/life programs tend to fare poorly in court. Amongst companies sued for discriminating against workers with family responsibilities are nearly 30 that have been designated as “Best Companies to Work For” by Working Mother magazine or have been touted by Fortune’s “Most Admired” list as amongst the best in the nation for treating employees well. Companies such as IBM, Wal-Mart and UPS have been sued multiple times.
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Enforcing employee handbook promises
July 06, 2006
In the old days, say around 1970, one could safely say that employees were "at will."
Then courts began to interpret employee handbooks as creating contractually enforceable promises. It was good deal for some employees.
Of course, this was contract law. And it is one of the great truths of contract law that it takes two to tango.
The courts that were finding contracts in employee handbooks made it pretty clear that if the employer (always the drafter of the handbook) said that the handbook did not create a contract, then ... well, Duh ... there was no contract.
Professor J. H. (Rip) Verkerke at the University of Virginia has written an interesting article exploring all this history, a history that has resulted in what he calls a "contractual equilibrium in which the overwhelming majority of employers contract expressly for an at-will relationship."
'Woolley v. Hoffmann-LaRoche': Finding a Way to Enforce Employee Handbook Promises.
Rip teaches both contracts and employment law, and is Director of the Program for Employment and Labor Law Studies at the University of Virginia Law School.
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ERISA - Attorney Conflicts of Interest
June 13, 2006
Can corporate counsel act in the dual role of representing a company in both (1) the company's role as an employer and (2) the company's role as an ERISA plan fiduciary?
Does this raise a conflict of interest between (1) the company's duty to act in the best interest of its shareholders and (2) the company's ERISA fiduciary duty to act in the best interests of plan participants and beneficiaries?
Looks like a plain conflict to me.
Here's an article that explores the whole matter: Inherent Attorney Conflicts of Interest under ERISA: Using the Model Rules of Professional Conduct to Discourage Joint Representation of Dual Role Fiduciaries by Professor Paul Secunda, University of Mississippi School of Law, in print: John Marshall Law Review, Vol. 39, No. 3, Spring 2006.
Professor Secunda concludes that the current version of the Model Rules of Professional Conduct don't provide enough guidance, and Proposed Model Rule 1.13(h) would be an improvement. He also has his own suggestions. In the end, he seems to reach the same conclusion I did: Don't.
Paul Secunda, University of Mississippi School of Law. Professor Secunda joined The University of Mississippi School of Law Faculty in the summer of 2002 after engaging in private practice for four years with the law firms of Morgan, Lewis & Bockius and Montgomery, McCracken, Walker & Rhoads in Philadelphia, Pennsylvania . Professor Secunda also served as a federal judicial clerk for the Honorable Murray M. Schwartz of the United States District Court for the District of Delaware in Wilmington, Delaware during the 1997-1998 term. He teaches employment discrimination law, labor law, employer-employee relations, school (K-12) law, higher education law, employee benefits law and civil procedure.
He also does a great job as co-editor of Workplace Prof Blog.
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Delays in complaining about sexual harassment
June 12, 2006
As an arbitrator I once had a case in which a group of women made a complaint about alleged sexual harassment that had been going on for a period of eight years. How could they wait that long, I wondered.
It was simple. They had good-paying jobs. They lived in a small town. If they got fired, there was no hope of getting a job that good. They thought that they might get fired if they complained.
Read Why Don't 'Reasonable Women' Complain about Sexual Harassment? by L. Camille Hébert at Ohio State University College of Law. She will explain it for you.
Abstract:
In this article, I examine the manner in which the lower federal courts have applied the affirmative defense to liability for supervisory sexual harassment, which was articulated by the United States Supreme Court in the 1998 cases of Burlington Industries, Inc. v. Ellerth and Faragher v. Boca Raton. In particular, this article focuses on the second prong of that affirmative defense, which requires that employers prove that employees who are targeted for sexual harassment failed to act reasonably in responding to the harassing conduct. The article explores the conclusion of most of the federal courts to examine the issue that the failure to immediately file a formal complaint about harassing conduct constitutes unreasonable conduct on the part of the target of harassment. The article then addresses the ways that women typically respond to sexual harassment, referencing empirical research, and explains why women reasonably fail to immediately file formal complaints concerning harassing conduct. Finally, the article explores the ways in which the reasonable woman standard might be used by courts in judging the reasonableness of women's conduct in response to sexual harassment under the affirmative defense.
L. Camille Hébert at Ohio State University College of Law. Professor Hébert has published a number of law review articles on employment discrimination, sexual harassment, employee privacy, and alternative dispute resolution. Her treatise on Employee Privacy Law was published in 1993 and is supplemented annually.
Professor Hébert makes frequent presentations to academic and professional audiences on issues of sexual harassment and employee privacy, including genetic testing and electronic surveillance. Professor Hébert served as Chair of the Employment Discrimination Section of the Association of American Law Schools in 1998. She currently serves as a member of the Workplace Mediation Advisory Committee of the State of Ohio Commission on Dispute Resolution and Conflict Management.
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Legal Protections for Atypical Employees
June 11, 2006
The "atypical employee" is the independent contractor, the home worker, the temporary employee.
Where does this employee fit in when it comes to minimum wages, overtime, collective bargaining, workplace safety rules, and retirement?
These questions are explored in Legal Protections for Atypical Employees: Employment Law for Workers Without Workplaces and Employees with Employers by Katherine Stone at UCLA Law School, published in Berkeley Journal of Employment and Labor Law, Vol. 27, 2006.
Abstract:
In the United States, the decentralization of production has fostered the growth of many types of atypical employment, most notably temporary employment, homework, and dependent independent contractors. The labor and employment laws in the U.S. were designed for long-term employees, so that criteria for eligibility and schedules of benefits assume an on-going employment relationship with a single employer. As the numbers of atypical employees grows, more and more individuals find themselves lacking basic protection for minimum wage, health and safety, retirement security, industrial injury, and collective bargaining rights. This article surveys major U.S. employment laws to demonstrate that temporary workers, homeworkers, and independent contractors face practical as well as legal barriers that prevent them from getting full coverage under existing labor and employment laws.
Katherine Stone, Professor of Law at UCLA School since 2004. She teaches Arbitration Law, Labor Law I, Private Justice: The Law of Alternative Dispute Resolution and a Seminar on Labor and Social Policy. Prior to joining the UCLA School of Law, she was Professor of Law at Cornell Law School (1992-2004) and Anne Evans Estabrook Professor of Dispute Resolution at Cornell School of Industrial and Labor Relations (2000-04). Previously, she was Professor of Law at the Benjamin N. Cardozo Law School, Yeshiva University from 1984 to 1992. Stone received her B.A. from Harvard University (1970) and earned her J.D. from Harvard Law School (1979). She was an attorney at Cohen Weiss & Simon from 1979-1981 and at Rabinowitz Boudin Standard Krinsky & Lieberman from 1981-1984. She has also visited at Chicago Law School (1990-91), Stanford Law School (1997) and Yale Law School (1999-2000).
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Psychiatric disability and the legal system
June 10, 2006
People with psychiatric disability fared significantly worse in employment discrimination lawsuits than their counterparts with nonpsychiatric disabilities, according to this article: Justice Disparities: Does the ADA Enforcement System Treat People with Psychiatric Disabilities Fairly? by Scott Burris at Temple University Law School. The article will be printed in the Maryland Law Review, 2006.
The article is full of statistics, which I find quite boring. However, the conclusions are interesting. Plaintiffs with psychiatric disabilities were less satisfied with the overall process of filing a claim of employment discrimination and bringing a lawsuit under the ADA. There were perceptions of unfairness, lack of voice, and lack of procedural justice in the charge process and litigation.
Update - June 12, 2006:I regret that I omitted the following additional authors of this article:
- Jeffrey Swanson, Ph.D., Department of Psychiatry & Behavioral Sciences, Duke University School of Medicine.
- Kathryn Moss, Ph.D., Cecil G. Sheps Center for Health Services Research, University of North Carolina at Chapel Hill.
- Michael Ullman, M.A., University of Hawaii.
- Leah M. Ranney, Ph.D., Cecil G. Sheps Center for Health Services Research, University of North Carolina at Chapel Hill.
Scott Burris has been a member of the Temple University Law School faculty since 1991. Formerly an attorney at the American Civil Liberties Union of Pennsylvania, he has also served as law clerk to Judge (now Chief Judge) Dolores Sloviter of the Third Circuit United States Court of Appeals. He is a graduate of the Yale Law School. He received his B.A. from Washington University.
He has written extensively in the areas of HIV and public health law. He is the editor of AIDS Law Today: A New Guide for the Public (1993), and the author or co-author of articles including The Law and the Public's Health: A Study of Infectious Disease Law in the United States, 99 Columbia L. Rev. 59(1999), Dental Discrimination Against the HIV-Infected: Empirical Data, Law and Pub lic Policy, 13 Yale J. Reg. 1 (1996) and Legal Strategies for Syringe Exchange in the United States, 86 Am. J. Pub. Health 1161 (1996).His work has been supported by grants from foundations including The Robert Wood Johnson Foundation and the Lindesmith Center. He serves on numerous advisory committees on matters relating to the intersection of public health and law.
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Contract Formation Issues in Employment Arbitration
February 27, 2006
Contract Formation Issues in Employment Arbitration (download here) by Richard Bales, Professor of Law at Northern Kentucky University - Salmon P. Chase College of Law.
This article looks at five issues that are often raised in contract-formation challenges to the enforceability of employment arbitration agreements:
- notice
- consent
- the employer’s retention of a right unilaterally to modify the agreement
- non-reciprocal obligations
- consideration
The concluding paragraph states:
As a general rule, courts will enforce employment arbitration agreements when the employer (1) provides employees with a clearly-drafted arbitration agreement, (2) provides employees with sufficient time to read the agreement (and perhaps to consult an attorney) before signing the agreement, (3) provides something to the employee in return for the employee’s signing of the arbitration agreement, such as a reciprocal promise to arbitrate or some other form of consideration, and (4) obtains from the employee a signed acknowledgment stating that the employee has received and read the arbitration agreement and that she understands and agrees to it.
Abstract of the article:
American courts operate under the strong presumptions that the Federal Arbitration Act makes nearly all claims arbitrable and nearly all arbitration agreements enforceable. However, the FAA Section 2 provides that arbitration agreements “shall be valid, irrevocable, and enforceable, save upon such grounds that exist at law or in equity for the revocation of any contract.” This apparent reservation of a broad role for state contract law is undercut significantly by two Supreme Court doctrines: the FAA preemption doctrine (which forbids state courts and legislatures from “singling out” arbitration agreements for inferior treatment) and the separability doctrine (which requires that contract-law challenges directed at the contract as a whole – as opposed to at the arbitration clause specifically – be decided by arbitrators rather than courts).The Court has interpreted both of these doctrines broadly. Though the broad interpretation of these doctrines has been extensively criticized, the effect nonetheless has been to constrict the applicability of state contract law to arbitration agreements. This, in turn, has created considerable tension between those doctrines and the Section 2 reservation of state contract law. This article discusses and evaluates several potential limitations on the preemption and separability doctrines, particularly as applied to employment arbitration agreements, which would preserve a broader role for state contract law.
The Supreme Court’s FAA preemption and separability doctrines frame the “big picture” of the scope of state authority regarding arbitral contract formation. After discussing and evaluating these doctrines, this article shifts focus and examines in detail how state courts have applied state contract law to employment arbitration agreements. State contract law, of course, differs considerably from state to state. This article does not examine in detail this state-to-state variation generally (e.g., on different approaches to mutuality), but instead focuses specifically on how this variation affects judicial approaches to employment arbitration agreements. This article examines five issues that often are raised in contract-formation challenges to the enforceability of employment arbitration agreements: notice, consent, the employer’s retention of a right unilaterally to modify the agreement, non-reciprocal obligations to arbitrate, and consideration.
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By Any Other Name?: On Being 'Regarded As' Black
January 16, 2006
By Any Other Name?: On Being 'Regarded As' Black, and Why Title VII Should Apply Even if Lakisha and Jamal are White is the long title of an interesting article. [download here]
Professors Angela I. Onwuachi-Willig (University of California at Davis) and Mario L. Barnes (University of Miami) examine discrimination by proxy, such as the phenomenon that individuals with "black sounding" names are less likely to get job interviews. Then they suggest borrowing the "regarded as" concept from disability discrimination law and applying it to Title VII.
Pretty interesting stuff. (OK, I already said that.)
Abstract of the article:
Forty years after the passage of Title VII, scholars Marianne Bertrand and Sendhil Mullainathan reported the results of their groundbreaking study, Are Emily and Greg More Employable Than Lakisha and Jamal? A Field Experiment on Labor Market Discrimination. Their study revealed that simply having an African American-sounding name significantly decreased one's opportunity to receive a job interview, regardless of occupation or industry.
The results of Bertrand and Mullainathan's investigation raise critical questions about the effectiveness of Title VII as a remedy for race discrimination in the hiring market today, especially as employment discrimination has evolved into different forms. As shown by the study, in many instances, employers rely on proxies for race, such as a person's name, to exclude an applicant from consideration.
Outside of the context of age and national origin discrimination, very few scholars have examined the problem of proxy discrimination, and none have analyzed how to address such discrimination as it relates to race in light of theories regarding the social construction of race, in particular what it means to be correctly or incorrectly perceived as belonging to a certain racial group on the hiring market. This Article borrows from the definition of disability under the Americans with Disabilities Act (ADA) and the courts' analyses of disability discrimination cases under the regarded as disabled provision of the ADA, which allows a plaintiff to bring a claim against an employer who regards the plaintiff as having an impairment that substantially limits a major life activity, to propose a new method for analyzing race-based proxy discrimination claims.
Part I examines the ways in which race is socially constructed and analyzes several studies to demonstrate how the construction of race by cultural and social factors can have damaging effects on the job market for those perceived as belonging to certain racial groups. Part II analyzes the current framework under Title VII for evaluating individual disparate treatment cases based on race and describes how federal courts have failed to recognize the way in which race is socially constructed. Part III then borrows from a framework used in proving disability discrimination to argue for the inclusion of race discrimination claims where one is, for example, regarded as black, with all of its collective negative imaging, to redress discrimination in the workplace. Finally, this Article concludes by explaining the importance of maintaining the effectiveness of Title VII by judicially interpreting such legislation in a manner that comports with the realities of racism and race discrimination.
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Jurisdiction and Merits
January 10, 2006
Professor Howard M. Wasserman of Florida International University College of Law likes to write about free speech and procedure in public law civil litigation.
He has an interesting article on whether certain facts in litigation have to do with (1) jurisdiction or (2) the merits.
Jurisdiction and Merits, 80 Wash. L. Rev. 643 (2005). You can download it from SSRN here: http://ssrn.com/abstract=680565.
The article is quite relevant in light of Arbaugh v. Y & H Corp (Docket No. 04-944) which is pending in the US Supreme Court. [See my blog comment.]
Abstract of the article:
Federal courts frequently make the mistake of treating factual elements of federal causes of action as going to the jurisdiction of the federal court; courts hold that the failure to prove some element requires dismissal of the civil action for lack of subject matter jurisdiction, rather than for failure to state a claim.
Read more about "Jurisdiction and Merits"
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A Normative Consideration of Employment Arbitration at Gilmer's Quinceañera
December 29, 2005
Richard A. Bales has built an academic career around writing about employment arbitration.
A Normative Consideration of Employment Arbitration at Gilmer's Quinceañera is his latest. Read it in full here (55 pages)
(Blush. I had to look up the meaning of quinceañera - a Mexican girl's 15th birthday celebration that marks her transition into womanhood. So the point is that the Gilmer decision is about 15 years old.)
After surveying historical developments and empirical research, Rick lays out the arguments for and against pre-dispute agreements to arbitrate statutory employment claims.
He concludes that two things are necessary to an "acceptably fair" system: (1) some due process rules and (2) penalties against employers who draft flagrantly lopsided agreements.
Abstract of the article:
"In the fifteen years since the Supreme Court decided Gilmer, empirical research and case law development have provided answers to many of the issues that originally were debatable only as a matter of conjecture.
Read more about "A Normative Consideration of Employment Arbitration at Gilmer's Quinceañera"
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Invisible Settlements, Invisible Discrimination
December 23, 2005
Invisible Settlements, Invisible Discrimination is an article by Professor Minna J. Kotkin of Brooklyn Law School.
We all know that when lawsuits are settled it is common that the settlement agreements are secret, contain non-disclosure provisions, and are not filed at the courthouse.
As a result, the public knows only that the court dismissed the case.
Professor Kotkin objects. And he has his reasons.
(I should point out that arbitration of employment disputes results in non-public outcomes. I suppose the same objections apply.)
Abstract of the article:
Invisible settlements make discrimination in the workplace invisible. Now the norm in employment discrimination litigation, these settlements resolve actions through private contractual agreements with confidentiality clauses that prohibit the plaintiff and her attorney from revealing not only the payment amount, but even the existence of and the facts surrounding the underlying claim.
Read more about "Invisible Settlements, Invisible Discrimination"
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Prohibiting employee conversations
July 10, 2005
In both unionized and non-union workplaces employers may have work rules that forbid such things as:
- having "negative conversations" about managers
- making "false, vicious, profane or malicious statements toward or concerning [the employer] or any of its employees"
- using "abusive or profane language"
- "verbal, mental and physical abuse"
- "harassment . . . in any way"
No problem? Think again. These quotes were taken from actual NLRB decisions in which the employers were held to be in violation of the National Labor Relations Act.
It didn't matter whether the employers were unionized or non-union.
As this article points out:
There are numerous decisions by the NLRB holding that the mere maintenance of an overly broad work rule violates the law.
Read more about "Prohibiting employee conversations"
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