PrawfsBlawg

Guest Post: Pharmacist Walkouts: The Cost of Unchecked Incivility

The following is by my FIU colleague Kerri Stone.

Although not coordinated by any union, numerous Walgreens pharmacy staff from around the country have staged walkouts from their jobs, protesting what they cite as harsh working conditions. One of the cited contributing factors is the bullying and harassment that they have to endure at the hands of some patients. What’s more is that news outlets report that additional walkouts are planned for later this month.

This will hit home for many Americans, as prescriptions become harder to fill. But that same public needs to consider doing more to curb all forms of workplace abuse—like passing laws to prohibit workplace bullying by and of employees. While sex, race, disability, and other protected class-based harassment is already rendered unlawful, status-neutral bullying in the workplace remains lawful. It ought to be no surprise that pharmacists and those who work with them are targeted by abusive behavior that has reached levels that impede them from serving the public. They are far from alone.  

According to the recently conducted Violence Study of Healthcare Workers and Systems survey, which utilized almost 600 responses from 69 countries, the majority (63%) of critical care healthcare workers fall victim to on-the-job violence, and a quarter of those workers have said that they were willing to quit over this violence. This violence includes both physical violence and threats. Healthcare workers are not alone. In the face of unprecedented “air rage” and associated viral incidents since the pandemic, many are advocating for the passage of the “Protection From Abusive Passengers Act", which would authorize the Transportation Security Administration (TSA) to create and oversee a program that would ban airline passengers from air travel if they act abusively toward airline employees.

 Last month, Senators Rubio and Manchin introduced the Safety from Violence for Healthcare Employees (“SAVE”) Act, which introduces new criminal penalties for physically assaulting healthcare workers. The rampant abuse and bullying that these workers have been forced to endure could have been stemmed greatly if a twenty-year-old Model Act that prohibits workplace bullying had been passed in any U.S. state.  Since 2003, the Workplace Bullying Institute has been advancing the Model Act—the Healthy Workplace Bill, authored by Professor David Yamada. While it has been introduced in 32 states, no state has passed it; only Puerto Rico has.

Workplace bullying seems to have been written off as something that need not be regulated, either because it is too trivial or because people should be able to navigate it themselves—or leave their employment, but this is not the case. Speaking tours of the families of those for whom workplace bullying led them to die by suicide address audiences regularly. The literature and studies on the topic show that the workforce has been impacted deleteriously by workplace bullying, with precipitous declines in workplace morale and productivity and increases in absenteeism and retention issues attributed to it. And yet, as Americans have remained unpersuaded that this behavior should be regulated in the workplace by law, just as Title VII regulates sexual and racial harassment. Believing, perhaps, that regulating bullying is best relegated to playground monitors, legislators have failed to do anything to curb some of the most insidious behavior that Americans inflict and endure.

If laws were passed in this country at the federal or state levels to prohibit workplace bullying, a larger-scale shift would likely have occurred whereby day-to-day abuse and incivility, while likely still problematic, would not be as unchecked and as rampant as they now are. The costs exacted by workplace bullying are neither always visible nor always felt directly by the general public, though everything from companies’ service to their prices arguably suffers from it. Rather, victims tend to suffer in silence and solitude, sometimes going so far as to leave their jobs altogether. When the abuse by the public of, for example, pharmacists, however, gets so intolerable that they walk out, as they have started doing this week, the public will feel the impact sharply and immediately. Society simply cannot function if those who serve as its engines cannot seek refuge and sanction from workplace abuse in the law. It may take an upending of aspects of day-to-day life before that public appreciates the gravity of all types of workplace abuse, whether it is inflicted by colleagues, customers, or supervisors.

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Tip of an Iceberg?

The following is by my FIU colleague Kerri Stone, who teaches and write on employment discrimination, including the atmospherics within law firms and other white-collar professions. Her book is Panes of the Glass Ceiling (Cambridge 2022).

In the weeks since the law firm of Barber Ranen was somewhat blown up after its two named partners were forced to resign, I have been sent numerous emails with articles about the scandal by friends. “Isn’t this what you write about,” they asked. “Doesn’t this scandal illustrate the unspoken beliefs that pervade the workplace?” Of course, the sexist, racist, homophobic, and antisemitic emails unearthed by the partners’ former law firm, Lewis Brisbois Bisgaard & Smith after they left that firm brought to light the private communications between Barber Ranen’s managing partner and the firm’s chief financial officer.

Predictably, the two publicly apologized as they made their exodus from their eponymous firm, disavowing their words and noting that, of course, they were not reflective of their character or of their values. “This is how they speak when no one’s around,” a friend noted to me. “They said the quiet part out loud. What are your thoughts?” My first thought was, honestly, that this, as a news story, was low-hanging fruit. The phenomenon of lawyers and other professionals who purport to be civil-rights minded or enlightened and then proceed to speak in private spaces in a manner that degrades, demeans, and devalues whole groups and individuals is as abhorrent as it is time-worn. There is no novel lesson to be gleaned here,

However, maybe the food for thought here is some consideration of just how frequently this kind of banter goes on behind the scenes. While some may lament the fact that private communications between colleagues working in the trenches on a case—never intended to see the light of day—could be exposed and published as these were, this incident, rare though it may be, offers an interesting window or insight into what goes on every day. While the monikers, language, and tone used in these communications may confirm some people’s worst fears about what self-professed enlightened professionals really think of or call their clients, colleagues, or opponents, we have to pause and ask just how prevalent these kinds of communications are.

And maybe that is where the real story—and the real discussion is. Ought we presume that where members of a given group do not occupy a secluded space, be it on a case team or a workplace friend group, if no one is willing to police the space, there is a fair chance that the space is rife with jokes, epithets, and crass, discriminatory put-downs? How fair of a chance? If we are only seeing what’s on the surface, how much would it aid us to form an understanding of how much pejorative, discriminatory speech goes unchecked, shielded by a shroud of silence, complicity, and a false sense of security?

According to Lewis Brisbois, the discovery of the offensive emails was spurred by an anonymous complaint that it received about these attorneys. Hopefully, attorneys and other employees are pausing to think about how they have communicated on not only organizational emails, but on group texts, at lunch tables, and at late-night meetings. While the presence of a member of a group that would be targeted in some way in a private professional space might deter hateful workplace speech, the very lack of such a presence is what likely helps to instill a sense of safety and security in the speakers.

This story ought not fade from memory too quickly; it contains many lessons. I plan to reference it when I teach about employee privacy and teach about company emails and compliance reviews (using AI or other programs to screen them). There is a role for this story in many Employment Law, Employment Discrimination, and Professional Responsibility classes. And, of course, hopefully outside the classroom, this story ill come to mind when those privileged to occupy (at least semi-) private workplace spaces—virtual or actual—will think about it and be better bystanders/upstanders when they bear witness to behavior or to speech that would not reflect well upon them or upon their values if it saw the light of day. 

Oral Arguments in Groff: Reconciliation and Reasonableness

The following is by my colleague Kerri Stone, commenting on last week's arguments in Groff v. DeJoy.

On April 18, 2023, the Supreme Court heard oral argument in the case of Groff v. DeJoy. In this case, the plaintiff, a mail carrier who was an Evangelical Christian, asked to not work on Sundays as a reasonable accommodation under Title VII in order to practice his religion. The U.S. Postal Service denied this request, maintaining that this was not a reasonable accommodation and would confer an undue hardship on it. The questions presented were: “1. Whether this Court should disapprove the more-than-de-minimis-cost test for refusing Title. VII religious accommodations stated in Trans World Airlines, Inc. v. Hardison, 432 U.S. 63 (1977). 2. Whether an employer may demonstrate ‘undue hardship on the conduct of the employer's business’ under Title VII merely by showing that the requested accommodation burdens the employee's co-workers rather than the business itself.”[1]

As noted above, at the center of the oral argument lurked the issue of the continuing viability and meaning of the 1977 Supreme Court case of Trans World Airlines v. Hardison, a case with a similar request for an accommodation that would afford the plaintiff a day off each week to observe his sabbath, that held that the defendant did not violate Title VII. The Court so held because, it said, an employer need not afford a religious accommodation that involves “more than a de minimis cost,” and the defendant airline had argued that the proposed accommodation would impinge upon its critical operations and function.  The Court found that since TWA made reasonable attempts to accommodate the plaintiff, but could not effectuate a shift or job swap, and the seniority system that prevented the plaintiff from getting the days off that he needed had been agreed to by the union and the defendant,  no deprivation of others’ rights under the seniority system was required.

The plaintiff in Groff has argued that Hardison standard fails to comport with Title VII, under which, he maintains, a reasonable accommodation can only be refused if it confers an undue hardship on the defendant. Solicitor General Elizabeth Prelogar, representing the Biden administration, for her part, advanced the argument that Hardison, should survive in some form.

Headlines like “Supreme Court may require employers to be more accommodating of religion,”[2] “Supreme Court seems sympathetic to postal worker who didn’t work Sundays in dispute over religious accommodations,”[3] and “Justice Samuel Alito appears eager to overturn 50-year-old precedent in favor of Christian postal worker who refused to deliver Amazon packages on Sundays”[4] all speak to observers’ seemingly shared sense that the Court is poised to overturn, or at least roll back the Hardison rule.  Indeed, NBC has reported that Justice Neil Gorsuch said that "Some courts have taken this de minimis standard and run with it ... and that's wrong and we all agree that's wrong," adding that perhaps, "we could do a good day's work and put a period at the end of it by saying that is not the law."[5] As NBC reported, the Justices seem poised to push back against the low employer standard:

That approach seemed to be favored by Justice Amy Coney Barrett, too, who suggested the case be sent back to lower courts with the instruction: ‘to be clear, de minimis doesn't mean trifling costs.’ The seeming consensus on the bench on at least some of the issues in the case was illustrated by a remark by Justice Elena Kagan.’ I'm so happy that we are all Kumbaya-ing together,’ she said.[6]

            I have a few thoughts about this case and about the signals that the Court may have sent that the standard for employer refusal to accommodate ought to be altered or at least clarified. Several scholars, I among them, have taken interest over the years in the disparity between the Title VII Hardison/de minimus standard for an employer’s refusal to make a religious accommodation, and the ADA ‘s “undue hardship” standard for an employer’s refusal to accommodate a disability. The latter standard asks whether the employer is being forced to incur a “significant difficulty or expense.”[7] To the extent that the Title VII standard may now, after decades, be brought in line with the ADA standard, I have several thoughts.

            First off, what was ever meant by the Hardison Court by “de minimus cost”? In other words, what do religious accommodations tend to look like? This was touched upon at the argument, but most seem to be for special food, permission to wear religious articles at work, space and time to pray during the day, and time off for a sabbath or an observance. Of these, only the time off seems to invoke notions of any significant “cost.” This cost seems to come in the form of disrupting pre-set systems whereby the accommodated person receives a benefit in the form of a scheduled slot or time off that was not initially supposed to go to them. In contrast, while a disability accommodation could involve days off, it could also entail the reassignment of certain tasks (like lifting), physical/structural changes to the workplace, or purchasing special equipment like books, software, or devices.

Secondly, why was there initially such a long-standing disparity between the Title VII and ADA accommodation standards? Is it because although ADA accommodations can sometimes displace or be seen to inconvenience an accommodated employee’s colleagues, this is seen as much more pronounced in Title VII cases? An amicus brief filed by the American Postal Workers Union in support of the defendant has alleged that a victory for Groff in this case will engender a “religious preference” when it comes to the scheduling of work on the weekends and systemic disadvantage for those who are not members of an accommodated faith. This supports the notion that he “cost” that has been too high for defendants for all these decades often comes in the form of premium pay for rescheduled workers, displaced, inconvenienced colleagues, and the loss of morale that comes from the sentiment that the group of accommodated people is somehow “favored.” 

Groff’s attorney at oral argument posited that undue hardship can only be claimed when the business as a whole is impacted, but not necessarily when the sole effect or impingement is on colleagues. Justice Kagan, however, raised the issue of how blurred a distinction that is; does imposing on colleagues necessarily impact the employing entity as a whole? Justice Barrett, for her part, approached the question as one of the erosion of morale, probing the specifics of what that would have to look like and how bad it would have to get before the standard for lawfully refusing a proposed accommodation was met. 

Thirdly, one must ask whether it makes sense to bring the two standards into any kind of harmony with one another. It is interesting to note that while Title VII harbors no sincerity-of-belief test for religion, ADA adjudications have long had bottle necks at the juncture at which class membership is determined—is the plaintiff “disabled” within the meaning of the Act? Perhaps it has not been coincidental that courts have been more loath to ratchet up the standard for employer refusal to accommodate in Title VII cases. Indeed, Justice Roberts and Justice Barrett pointed to the respective numbers of accommodation-seeking plaintiffs in each category and the respective levels of “discreteness” of the categories as they pondered the question of whether the ADA standard could really be imported in any meaningful way into Title VII.

Groff’s attorney invoked the absurdity of trying to reconcile the concept of “undue hardship” with anything more than a “de minimus cost,” and noted that the ADA’s “significant difficulty or expense” test made much more sense in context. The Solicitor General, for her part, urged that even in the Hardison opinion, the two terms were used together and that the concepts could be harmonized without creating a fracture line after so many decades of jurisprudence based off of Hardison.

Again, the Justices, particularly Justice Gorsuch, indicated that they were inclined to try to seek “common ground” reconcile the terms at issue, particularly as the whole undue hardship question is so fact -specific and context-dependent. There were simultaneous signals from the Justices that no proper reading ought to be that a simple “trifling” could rise to the requisite level—in other words, employers asked to make religious accommodations need to do more than incur the most minor of costs. 

It is also interesting that religious discrimination/failure-to-accommodate plaintiffs have been subjected to a higher standard than have their counterparts suing under the ADA because in recent years, religious claims and the protection of religion and religious employers have all enjoyed great favor in the courts. Notably, the Supreme Court recently ruled in favor of a dismissed public employee who coached football after he alleged that he was fired for leading prayers after games on the field.

Interested to see what others think will happen to the undue hardship standard and to Hardison as precedent as the Justices seek “common ground,” reconciliation. It is likely, judging from the oral argument, that the Court will try to leave Hardison undisturbed, while simultaneously underscoring that a trifling cost or burden will not suffice for an employer to lawfully refuse to effectuate a religious accommodation? But what will the necessary clarification of the standard look like? Will the Justices parse out the standard across different types of requested religious accommodations? How will “cost” be quantified at all? Is the notion of the cost coming at another’s expense, like a zero-sum game, what was initially meant by more than de minimus?

Finally, what about the fact that Congress has not acted to change the standard in Title VII to the ADA standard? Justice Jackson expressed reservations about disrupting the standard in place since 1977 when Congress has been aware of it for as long and failed to take any action. What would overreach versus appropriate adjustments/clarifications look like here?

 

[1] https://www.supremecourt.gov/docket/docketfiles/html/qp/22-00174qp.pdf.

[2] https://abcnews.go.com/Politics/supreme-court-require-employers-accommodating-religion/story?id=98662988.

[3] https://www.cnn.com/2023/04/18/politics/groff-dejoy-supreme-court-religious-liberty/index.html.

[4] https://lawandcrime.com/supreme-court/justice-samuel-alito-appears-eager-to-overturn-50-year-old-precedent-in-favor-of-christian-postal-worker-who-refused-to-deliver-amazon-packages-on-sundays/.

[5] https://www.nbcnews.com/politics/supreme-court/supreme-court-hears-christian-postal-workers-religious-claim-rcna80013.

[6]Id.

[7] Enforcement Guidance: Reasonable Accommodations and Undue Hardship Under the Americans with Disabilities Act, U.S. EQUAL EMP. OPPORTUNITY COMM'N (2012), https://www.eeoc.gov/policy/docs/accommodation.html [https://perma.cc/67RF-LXT3] [hereinafter Enforcement Guidance].

Naomi Osaka and the ADA

The following post is by my FIU colleague Kerri Stone, who writes on employment discrimination. I solicited her thoughts on Naomi Osaka.

On May 26, 2021, 23-year-old tennis phenom Naomi Osaka stunned the world by proclaiming on social media that out of a desire to protect her mental health, she refused to partake in mandatory press conferences during her participation in the French Open. After incurring a $15,000 fine for this refusal and threats of further sanctions from organizers of the French Open and the other Grand Slam tournaments, she announced her withdrawal from the tournament.

Universally recognized as one of the most “marketable” athletes in the world, Osaka, who, in 2020, had earned the distinction of being the highest-earning female athlete of all time by annual income, announced that she has been struggling with depression. She decried "people [with] no regard for athletes' mental health,” noting that "We're often sat there and asked questions that we've been asked multiple times before or asked questions that bring doubt into our minds and I'm just not going to subject myself to people that doubt me."

As many commentators have pointed out, Osaka’s exodus has thrust into the spotlight issues of mental health and self-care among everyone in workplaces from sports arenas to boardrooms to factory floors. Words of support and encouragement have poured in for Osaka from athletes and celebrities ranging from Serena Williams, to  Stephen Curry.

            Because the tournament at issue, at Roland-Garros, is not held in the United States, US law does not apply. Moreover, we know nothing about Osaka’s mental or emotional state, other than what she has shared. We do not know whether she would ever claim or be capable of being shown to be disabled so as to entitle her to protection under any law. But many now wonder what would happen if someone who did claim that depression, anxiety, or another mental impairment rendered them disabled within the meaning of the Americans with Disabilities Act (“ADA”), were to be fired from a job or excluded from an event after they refused to participate in a requirement that they deemed too corrosive to their mental health. Under the ADA, an individual deemed disabled within the meaning of the Act (via a physical or mental disability) may not be discriminated against because of their disability and is entitled to an affirmative reasonable accommodation that may be needed.

            This hypothetical case immediately reminds me of a 2001 Supreme Court case that I analyzed over a decade ago, when discussing the varying amounts of deference that courts give defendants in ADA cases: PGA Tour, Inc. v. Martin. In that case, the PGA refused to allow Casey Martin,  a pro golfer stricken with Klippel-Trenaunay-Weber Syndrome, a degenerative condition that impeded his ability to walk, to use a golf cart to get around during PGA Tour competition, as he had been permitted to do in other, lower-level tournaments. The Supreme Court held, over the PGA’s strident protestations, that walking the course was not an essential part of the game of golf and that no real disadvantage would be imposed upon Martin’s opponents due to the accommodation of a golf cart to transport him from hole to hole.

In a previous article, I noted that the case was somewhat remarkable, in that the PGA was charged with the administration and regulation of professional golf, a sport whose rules, by all accounts, are inherently arbitrary. Unlike a more objectifiable “essence” (such as of a pizza business to sell pizza) or “essential function” (such as of a fire department to fight fires, perform rescues, etc.), the rules/requirements of any sport are typically precisely what the regulatory body overseeing the sport and administering its competitions says they are. As dissenting Justice Scalia famously quipped, if the majority could answer the question “What is golf,” in a way that put it at variance with the PGA itself, then “One can envision the parents of a Little League player with attention deficit disorder trying to convince a judge that their son’s disability makes it at least 25% more difficult to hit a pitched ball. (If they are successful, the only thing that could prevent a court order giving the kid four strikes would be a judicial determination that, in baseball, three strikes are metaphysically necessary, which is quite absurd.)”

            In Martin, as would likely happen here, the plaintiff, though a professional athlete, was not considered an “employee” of the PGA  such that he could pursue a claim under Title I of the ADA; rather, he needed to use Title III, which covers public accommodations. Under title III, a plaintiff is entitled to a reasonable accommodation so long as it does not threaten safety or effectuate a fundamental alteration of the defendant entity or that which it purveys. The Supreme Court in Martin held that despite the PGA’s contention that as the arbiter of professional golf and its rules it could proclaim that walking was an essential element of the game, it would not effect a fundamental alteration of the PGA Tour’s highest-level tournaments if Martin were afforded the use of a golf cart.

What does this tell us about how our hypothetical might play out? There are several key points to keep in mind. In the first place, Martin is considered good authority for the proposition that even in the case of a sport or sports tournament whose purpose is leisure and recreation, the regulatory body of the sport is not entitled to the final word or even to high levels of deference when it comes to defining the rules of the sport or the essence of the defendant entity.

So where does that leave us? Assuming that our hypothetical plaintiff could establish that she is disabled within the meaning of the ADA and the issue was her entitlement to refuse  to comply with the tournament’s requirement that she make herself available to the press after competing, the issue would boil down to whether an exemption from the press conferences would be a reasonable accommodation or whether it would constitute a fundamental alteration of the tournament. Unlike in Martin, this requested accommodation could probably not, at first blush, be argued to confer a physical, athletic, competitive advantage (though the Martin Court did give this issue thorough consideration). It is an interesting question as to whether a defendant might try to argue that the press conferences are so draining and deleterious to an athlete’s psyche that avoiding them might amount to an advantage, or whether that might not be a thing that would be auspicious for the USTA to put out there.

However, a defendant that made participation contingent upon press availability would need to argue that the ability to face the press and answer even aggressive questioning is essential to making the tournament what it is. Selling tickets, procuring ratings, and keeping the tournament relevant and current is dependent upon permitting the public a window into the athletes’ reflections upon and reactions to their performances. Inasmuch as probing into these innermost thoughts may cause stress, embarrassment, or perseveration, the state of social media and the public’s increasingly handy access to and hunger for sports heroes’ and other celebrities’ thoughts and feelings necessitates the press conferences. They are as much a part of the essence of the tournament as the competition itself. Would a court buy this? Might a court be persuaded that in the age of social media and instantaneous access to celebrated public figures, fan access to athletes’ personas, including their most agony-filled defeats and regrets, is now necessary in a way that maybe it didn’t even used to be? To the extent that a reasonable accommodation could be argued to be an athlete’s furnishing this access through written statements or some other less immediate means of communication, could a court nonetheless be persuaded by a defendant that the buffer of time and space to prepare responses and the filter of the keyboard failed to yield sufficiently direct, raw access?

This is not to say that the defendant would necessarily win this case. Our hypothetical plaintiff might be, like Osaka, a personally and professionally compelling figure who is pushing back on not only the rules of this tournament, but on the idea of the public’s entitlement to this kind of access—especially when it causes and inflames harm and/or is deemed unnecessary. A court adjudicating the dispute would have wide latitude in determining the questions of the “essence” of the event and of the “fundamental alteration” or transformation that the requested accommodation could cause. Any number of considerations—including increasing societal recognition of the sanctity of the mental health of athletes (and all people trying to earn a living) at work, the evolving nature of what it means to be a public figure, the public’s insatiable hunger for access to athletes’ post-game thoughts and opinions, or even individual judges’ conceptions of “What is this tournament—to me”—could factor into the final determinations.

A case like our hypothetical would thrust the issue of workplace bullying into the spotlight. Only Puerto Rico and no U.S. state has passed comprehensive legislation that makes status-blind workplace bullying unlawful. This failure of legislatures to act has occurred despite high-profile stories about how celebrities and athletes have been driven from their workplaces and even from their careers by workplace bullying. Years ago, I pointed to the compelling case of Jonathan Martin, a talented, successful Stanford graduate who was driven from his career in professional football when Richie Incognito and other Miami Dolphins teammates tormented him. This torment took the form of both abhorrent race-based abuse as well as more generic bullying. Many scholars bemoaned the failure of the law and law makers to take not only bullying but the mental health of those at work seriously enough.  It should not be lost on anyone that Martin and Osaka are Black, and many of us have pointed to the impact and compounding effect of systemic racism and sexism on so-called “status-neutral” bullying.” Not only does “neutral bullying” often accompany race-based abuse as with Jonathan Martin, even when it doesn’t, it still befalls and, some studies say, affects, women and minorities more than it does others.

Last, but far from least, a comparison of the hypothetical case of an athlete who sought to avoid a contentious press conference for the sake of her mental health with the Martin case should also draw a comparison between the way we address and compel accommodation of physical disabilities and mental/emotional disabilities at work or in places of public accommodation. Michael Perlin has written extensively about sanism, "an irrational prejudice of the same quality and character of other prevailing prejudices such as racism, sexism, heterosexism and ethnic bigotry that have been reflected both in our legal system and in the ways that lawyers represent clients.” Would a case brought by someone with a disability that was not physical lay bare the differences in the ways in which the law and society regard and address mental disabilities?

I am working on an article that will seek to address these and other issues raised by this very compelling news story. I am interested in hearing others’ thoughts.

Empathy, LGBT rights, and employment discrimination

Rick Bales (Ohio Northern) predicts that SCOTUS will hold 6-3 that Title VII prohibits discrimination against LGBT employees as a form of sex discrimination. He predicts that the "defectors" will be the Chief and Kavanaugh--the Chief to avoid the institutional damage from a high-profile decision that appears politically motivated and Kavanaugh as a way to show himself as less political and because such a decision might reflect the empathy he espouses.

Interdisciplinary Projects

I have enjoyed my time here blogging, and many thanks again to Rick and Howard for having me.  In my last post, I thought I would discuss an interdisciplinary project I have been working on. 

Last year, I applied for a large, internal university grant to try out some interdisciplinary projects.  The goal was to spend a year investigating a significant corporate scandal with colleagues from around the university in an effort to come up with a “super solution.”  When I wrote the grant proposal, I used the General Motors ignition switch scandal as an example of what one might investigate.  The original grant proposal envisioned a three-year project, which would have allowed three areas of study. 

I was instead offered a more modest grant to test out the idea.  By the time the award was provided, the #MeToo movement was in full swing, so I changed the topic of inquiry to sexual harassment within organizations.  Ultimately, we had participants from law, management, economics, philosophy, and journalism.  Each participant wrote a small three to five page paper addressing the sexual harassment crisis within organizations from their scholarly discipline and expertise.  We then had a one-day conference where we presented our solutions, and we had two senior external scholars attend to comment and provide additional input.  Ultimately, we walked away with two potential theses, and a few of us are currently working on a paper. 

One of the proposed uses of the grant award in the original proposal was to provide research funding for contributors as an incentive to participate.  Every department at Notre Dame has its own publication expectations, so I worried that people might need an incentive to participate in interdisciplinary work.  When I received the more modest grant, however, I dropped the attempt to provide the incentive.  As it turned out, each person I approached agreed to participate except for one, and the one person who declined instead provided some additional funding for the project. 

For the those of us working on a writing project together, we have determined that we may be able to publish three articles—one each in a management, law, and economics journal—related to one of the theses we identified.  We would of course emphasize different points in each publication.  I think this is in actuality a better incentive than research funding would have been.  We identified a thesis that hasn’t been written about in our respective disciplines, and we have identified related projects that we can tackle for the purpose of publishing pieces in those disciplines.  This provides us each a publication opportunity that “counts” in our departments, but it also broadens the potential impact of our work.  This is still very much an experiment, but it does seem as if it is an experiment worth attempting as the potential upside is quite high. 

With that, I close my stint here at Prawfs.  I had some more half-written blog posts, but my 1Ls are happy, eager, and love sitting in my office.  Until next time! 

Happy Family Day Weekend

Mothers don't need to "do it all". We all need to balance it all, families, governments, markets. I am reading Chimamanda Ngozi Adichie (Americanah) newest book, a short love letter to girls and mothers is how I read it, called Dear Ijeawele, or a Feminist Manifesto in Fifteen Suggestions. The first of her 15 suggestions is not to let motherhood define you completely, show your daughters that you are more than just a mother, that you are a person with passions, interests, ideas, ventures. This resonates, especially here in Southern California where often times I feel the pressures of having a career even more acutely in relation to the many many moms around me who (mostly) choose not to work. When my middle daughter was in kindergarten I had to miss the Mother's Day breakfast in her class (I was back on time for the "real mother's day") because I was giving a talk at ALEA, held that year in Princeton. I asked the kindergarten teacher that my dear husband (who thankfully is also an academic and we both have the privilege of flexibility and control over our work schedules, but we also both travel a lot for talks and conferences) take my spot at the breakfast. The teacher adamantly refused, saying no, mother's day is only for mothers. In other words, better that the kid sit there without a loving parent than challenge gender roles. I remember this vividly because it was one of the only times I lost my temper at an otherwise excellent school. I went to the administration and protested loudly about how in the 21st century families come in all forms and shapes - some have two moms, some two dads, some single parents, some, lo-and-behold, are dual-career. I added that around the world progressive places were changing the day to Family Day. My husband was eventually allowed to join the breakfast and my daughter was happy. And now I am happy that their school celebrates Family Day instead of mother's day.

Tort Law and the Sharing Economy

Six weeks ago, a UK employment tribunal declared that Uber drivers are employees. A few months before that, Uber settled two class action lawsuits in the US in order to avoid a ruling on whether drivers can remain independent contractors. And Uber regularly takes the position that it is not subject to the regulations that apply to taxi services. Sharing economy companies go to great lengths to shun traditional business models (and the legal and regulatory structures that come along with them). While regulation of the sharing economy remains a major issue, tort law is an important complementary concept – and the subject of my new article, Sharing Tort Liability in the New Sharing Economy.

Because sharing economy companies often avoid traditional employment relationships, they complicate the analysis under some long-standing tort law doctrine, particularly when a tort victim is negligently harmed by a worker in the gig economy. But traditional tort law concepts are already well-equipped to adapt to this new world of ad-hoc transactions. For ridesharing in particular, liability challenges may be solved with vicarious liability doctrines – especially joint enterprise liability. An Uber driver, for example, may be unable to bear the brunt of liability when a passenger, pedestrian, or other driver is negligently harmed. In the traditional economy, vicarious liability would solve the under-compensation problem. But sharing economy companies purport to merely “connect” providers with customers, thereby skirting the traditional relationships that would give rise to liability. 

Nonetheless, vicarious liability may still attach. First, respondeat superior applies if Uber drivers are deemed employees. Even if drivers are independent contractors, vicarious liability may still attach, such as when they are engaged in a non-delegable duty (like safety). But, at the very least, courts should consider joint enterprise liability: sharing economy companies embark on a joint venture with service providers for a shared profit motive, which could amount to a joint enterprise for the purposes of vicarious liability.

Regulatory challenges are certainly at the forefront of legal issues surrounding the sharing economy, but retrospective tort remedies can help minimize harm and prevent over-regulation. Further, tort law may prove even more important under an administration that vows to cut regulations across the board. Thus, a sound approach to dealing with the sharing economy involves a look at both tort law and regulation and, in my article, I suggest that vicarious liability principles be used liberally to ensure fairness and adequate compensation. By clarifying liability issues under tort law, we can enable policymakers to proceed with a holistic understanding of how retrospective tort remedies already address some of the unique issues in the sharing economy.

The Meaning of Sex Discrimination

In response to a number of questions from school districts about how to serve transgender students under Title IX, the Departments of Justice and Education issued joint guidance in May explaining how they interpreted the prohibition on sex discrimination contained in Title IX and its implementing regulations. In bringing clarity to the issue, the guidance explains that the prohibition on sex discrimination “encompasses discrimination based on a student’s gender identity, including discrimination based on a student’s transgender status.” Pursuant to the guidance, “[t]he Departments treat a student’s gender identity as the student’s sex for purposes of Title IX and its implementing regulations.” The guidance then details that transgender students should be permitted to use restrooms and locker rooms consistent with their gender identity.

A number of states have filed lawsuits challenging the guidance, arguing that the Administration is “foisting its new version of federal law” on schools. But the Departments’ interpretation is not drawn from whole cloth. In fact, courts have recognized that sex discrimination under federal civil rights statutes includes discrimination based on someone’s transgender status for some time, authority that is noted in the Departments’ guidance, and is collected here and here. And of course, in Price Waterhouse v. Hopkins, the Supreme Court adopted a capacious understanding of what constitutes “sex” discrimination, prohibiting sex stereotyping or treating people differently because of their perceived failure to conform to gender norms.

The states also argue that the Departments are attempting to “redefine the unambiguous term ‘sex.’” But the statutory and regulatory meaning of the prohibition on sex discrimination as it relates to transgender individuals is far from clear, as the Fourth Circuit recently concluded in G.G. v. Gloucester County School Board, the lawsuit by a Virginia transgender boy challenging his exclusion from the boys bathroom. Indeed, as one of the lawsuits challenging the Departments’ guidance concedes, “[n]othing in Title IX’s text, structure, legislative history, or accompanying regulations address gender identity,” suggesting—at most—that the statute doesn’t speak, one way or another, to whether transgender individuals are protected by the statute. As the Fourth Circuit held in G.G., because the law is “silent as to how a school should determine whether a transgender individual is a male or female for the purpose of access to sex-segregated restrooms,” there is an ambiguity which the Departments are permitted to clarify.

As an alternative interpretation, those challenging the Departments’ guidance suggest that “sex” means what they call “biological sex.” But neither the statutory language or the legislative history quoted by those challenging the guidance appear to reference so-called “biological sex” at all. As discussed in a prior post, medical experts have established that the factors contributing to one’s sex are multifaceted, including “external genitalia, internal reproductive organs, gender identity, chromosomes, secondary sex characteristics and genes.” Thus, even if one focused purely on the physical characteristics of sex, reliance on “biological sex” creates more ambiguity than it resolves. Again, as the Fourth Circuit reasoned: “For example, which restroom would a transgender individual who had undergone sex-reassignment surgery use? What about an intersex individual? What about an individual born with X-X-Y sex chromosomes? What about an individual who lost external genitalia in an accident? The Department’s interpretation resolves ambiguity by providing that in the case of a transgender individual using a sex-segregated facility, the individual’s sex as male or female is to be generally determined by reference to the student’s gender identity.”

When one combines the statutory and regulatory ambiguity with the medical reality, defining “sex” with reference to one’s gender identity is far from radical,  is certainly reasonable, and is probably the best interpretation of the relevant language.

The reasonableness of that interpretation is heightened when one considers that, at least with regard to public schools, the Equal Protection Clause overlays any analysis. And, without diving into a detailed discussion, the Supreme Court’s Obergefell decision makes clear that “[t]he Constitution promises liberty to all within its reach, a liberty that includes certain specific rights that allow persons, within a lawful realm, to define and express their identity” (emphasis added). Given Obergefell’s context, this is powerful language suggesting that we possess constitutional rights over our sexual and gender identity.

Misrepresenting the Employment Law Impact of HB 2

One of the most disappointing and infuriating things about the HB2 saga in North Carolina has been the persistent misrepresentation of its impact by Gov. McCrory and its supporters in the General Assembly.  As an employment and civil procedure scholar (and former long time litigator), I take particular umbrage at the gross misrepresentations related to the elimination of the state law claim for employment discrimination (discussed in my last post, here). 

The misrepresentations started in the General Assembly where the Republican sponsors repeatedly asserted that nothing in HB2 would take away existing rights.  Even when directly questioned about the elimination of the state law wrongful discharge claim for employment discrimination, Republican legislators responded that it would have no effect.  [I am basing the foregoing primarily on tweets from reporters on the scene as I was not in Raleigh for the “debate.”] 

The misrepresentations continued when Gov. McCrory issued his statement announcing he had signed HB2 into law.  In that statement, he stated “[a]lthough other items included in this bill should have waited until regular session, this bill does not change existing rights under state or federal law.”  (emphasis added).  Gov. McCrory doubled down on this misrepresentation in a document entitled “Myths vs Facts: What New York Times, Huffington Post and other media outlets aren't saying about common-sense privacy law” (here), which was posted on his official website on Friday, March 25.  In this document, question #2 is “Does this bill take away existing protections for individuals in North Carolina?”  Gov. McCrory’s answer: “No.” 

Put simply, McCrory’s statements are clearly and undeniably false. 

However, the most persistent voice in misrepresenting the impact of this provision of HB 2 has been (perhaps not surprisingly) HB 2’s author and sponsor, Rep. Dan Bishop (R-Mecklenburg).  Rep. Bishop is an attorney.  When pressed by a reporter on whether HB2 eliminated the longstanding state law claim for wrongful discharge, Rep. Bishop acknowledged that it likely did, but said “who cares” because you could get the same remedies under federal law.  In a separate interview, Rep. Bishop said the elimination of the state law claim “is an exceedingly minor procedural difference."  

Rep. Bishop graduated from UNC-CH law with high honors, so I will assume he does actually understand the differences between (1) substantive and procedural law; and (2) federal and state employment discrimination law.  But assuming he understands the distinctions, one must conclude that he is intentionally misrepresenting the impact. 

Whether the elimination of a state law claim is “substantive” or “an exceedingly minor procedural difference” is beyond rational debate.  Having 28 days to respond to a motion instead of 30 days is an exceedingly minor procedural difference.  Eliminating a state law claim that has existed for 34 years, is indisputably substantive and significant. 

I’ll take up the substantive differences between federal employment discrimination claims under Title VII (or the ADEA) versus North Carolina’s now defunct claim for wrongful discharge in violation of public policy premised on EEPA in my next post.

Employment Law Easter Eggs in North Carolina’s HB 2

The vast majority of the commentary around and criticism of N.C.’s HB 2 [see the full text as enacted here] has, perhaps rightly, focused on the elimination of LGBT rights in North Carolina.  The lawsuit filed early this morning by the ACLU, Equality NC, and others (including NC Central Law Professor and Assoc. Dean Angela Gilmore) focuses exclusively on the LGBT rights provisions of HB 2.  [Read the Complaint here]. 

However, HB2 was not just about LGBT individuals.  It also has some rather nasty Easter Eggs for all employees in North Carolina. 

First, and most openly, it prohibits all local governments in North Carolina from enacting a local minimum wage that exceeds the federal minimum wage.  No local government in N.C. had tried, but I guess the General Assembly figured it would rather be safe than sorry – especially when the LGBT provisions would tie up the news cycles. 

Most importantly – and most sneakily – HB 2 eliminated (yes, ELIMINATED) the only state law cause of action available to private employees to redress employment discrimination based on race, national origin, religion, color, age, or biological sex.  The General Assembly accomplished this profound change in North Carolina employment law via a single sentence in middle of page 4 of the five page bill.  That sentence reads:

“This Article does not create, and shall not be construed to create or support, a statutory or common law private right of action, and no person may bring any civil action based upon the public policy expressed herein.” 

To a lay reader (or legislator), this sentence would not seem terribly important.  However, it was inserted into Article 49A of Chapter 143 of the NC General Statutes [here, before being amended].  Article 49A is called the “Equal Employment Practices Act” (“NC EEPA”) and contains the heart of North Carolina’s state law protection from employment discrimination.  NC EEPA, which was enacted in 1977, is merely a statement of public policy.  It declares that it is the public policy of North Carolina “to protect and safeguard the right and opportunity of all persons to seek, obtain and hold employment without discrimination or abridgement on account of race, religion, color, national origin, age, sex or handicap by employers which regularly employ 15 or more employees.”  N.C. Gen. Stat. 143-422.2.  Unfortunately, NC EEPA does not contain a private right of action.  Thus, the only way to enforce it was through a common law tort action for wrongful discharge in violation of public policy. 

Now, of course, you see the problem with the sentence inserted into Article 49A via HB 2.  “[N]o person may bring any civil action based upon the public policy expressed herein.” 

Poof.  With that sentence, 34 years of state law protection for employment discrimination based on race, national origin, color, religion, sex, and age VANISHED.  Millions of working North Carolinians (whether they knew it or not) relied on NC EEPA to help protect them from discrimination.  Thousands – tens of thousands? – of North Carolina workers have asserted wrongful discharge claims premised on NC EEPA since our appellate courts officially recognized the claim in 1982. 

As a management-side employment lawyer for more than 11 years, I never heard a single client complain about the existence of this claim.  But now, it is gone. 

I wonder how many members of North Carolina General Assembly knew it was in HB 2?  I wonder how many of them knew the ramifications of that sentence?

Vermont's All-Payer Claims Database: What Hangs in the Balance.

I have been following Vermont's all-payer claims database litigation, Gobeille v. Liberty Mutual Insurance Co. -- argued at the U.S. Supreme Court on December 2, 2015. Perhaps you have as well. There is absolutely nothing like a good ERISA preemption dispute to to remind me of the force of Bill Sage's observation that is a case like this that reminds you why  you must explain "to every class of Health Law students... that ERISA [is] the most important law affecting private health insurance in the United States."

Strictly as an ERISA preemption case, Gobeille is interesting for how it may force the Court to parse yet again and yet further whether the collection of health care data by a state interferes with a core ERISA function belonging to the U.S. Secretary of Labor or whether state by state variable all-payer claims database reporting requirements are arguably unduly burdensome on the reporting entities and firms.   If you've read this far, I know you are fascinated by preemption, but even more importantly, such a decision would test whether or not the gradual movement of the states to mandating reporting of all-payer claims data has legs.

It is early days, but there is some evidence that the all-payer claims data has begun to influence health care cost to consumers and health care consumer decision making in New Hampshire (under its Comprehensive Healthcare Information System established by state law in 2007). The claim of price transparency triumphant, of course, is also balanced by arguments about adverse affects of health care  price transparency because limited research may also indicate that it causes rates to narrow and average costs to rise.

All of this is based on fairly little experimentation with health care cost transparency in the U.S. of the sort that may be developed from  all payer claim databases.  So just what is it that we would rather not know, rather not test empirically, about the competitive effects of the disclosure of this kind of information?

When does labor law violate the Takings Clause?

 In Horne, the Court held 8-1 that the government committed a per se taking when it required raisin growers to set aside a percentage of their crop each year for the government to take and dispose of as it wanted. It was a taking even though: the burden on raisin growers was originally part of a much larger New Deal economic policy; growers could, and often did, get something in return (namely, the net proceeds from the government’s sale of the raisins after certain deductions were taken), and; raisin farmers could have avoided the burden by simply getting out of the raisin market entirely. This got me thinking: what would happen if the Court extended its Horne Takings analysis to another area of massive New Deal economic policy – labor law. And in particular, to the collision of “right to work” statutes with the federal requirement that unions provide non-members of the bargaining unit with the same goods and services they offer to paying members. I’ve written before on just this collision, but if the Court overturns Abood in Friedrichs v. CTA we’ll have a de facto “right to work” regime for all public-sector employees, making this puzzle worth a second look. 

The first place I saw a takings argument in this context was in Chief Judge Wood’s dissent in Sweeney v. Pence. As Wood saw it, this collision constituted a taking because the government was compelling one private party to give their property to another with neither a public purpose nor just compensation.[1] The majority engaged in a takings analysis but found a public purpose (it being whatever motivated the duty of fair representation) and just compensation (in the form of exclusive representation). Horne, however, seems to interject itself on both sides of this argument: (1) it is likely that a majority of the Court would find the labor law regime itself to have a public purpose, in the same way the Horne majority assumed the New Deal agricultural cartel did, but (2) benefits other than the fair market value of the thing taken does not typically count as just compensation, which suggests the “benefit” of exclusive representation the majority in Sweeney relied on will not suffice.

Statutory Refresher

Section 7 of the NLRA gives workers the right to “bargain collectively through representatives of their own choosing.” Yet while one might read section 7 and think it means employees are free to choose how to organize themselves for purposes of bargaining, the courts have not read it that way. Instead, over time, the Court has enforced a system of exclusive bargaining representation. If employees want to bargain collectively, then all employees in that bargaining unit must be represented by a single union. And conversely, if a union wants to represent its members collectively in negotiations with those members’ employer, the union is required to fairly represent all members of that bargaining unit, even those who are deeply opposed to union representation.

Whether exclusive representation should have been read into the NLRA is questionable but irrelevant: courts have required it. As a result of this government-imposed exclusive representation regime comes an equally government-created free rider problem. Nobody is forced to join the union and pay the corresponding member dues but non-union members benefit from a variety of goods the union provides. As a result of this problem, unions and employers have had the right, through the private negotiation of collective bargaining agreements, to require non-members to pay a service fee that covers the cost of (and only of) the union’s collective bargaining activities. This is not to say unions will always ask for non-members to pay (again, it depends on whether the provision for such payments is bargained for in the collective bargaining agreement with the employer), but the option is there.

Now enter state right to work laws. Such laws typically include a provision that prohibits employers and unions from making contracts that require non-union members of the bargaining unit to pay any dues, fees, assessments, or other charges of any kind or amount to the union. In other words, in right to work states, to take advantage of their section 7 right to bargain collectively through representatives of their own choosing, a worker’s union has to not only take on the burden of exclusive bargaining representation but must do so while being compensated by those non-members for its services is statutorily prohibited.

Taking in Horne and after

The first question is whether the government is actually taking property from the union. Here the answer seems to be yes, as the setup is reminiscent of the one in both Brown v. Legal Foundation of Washington, 538 U.S. 216 (2003) and to a large degree Horne itself. The government is compelling one private party (the union) to donate its private property (money) to another private party (non-members).

One possible out here is to say the government is not taking the union’s money outright but instead simply forcing it to provide services, in which case a regulatory taking analysis may be more appropriate. But as I understand it, unions often outsource the provision of at least some services to third-parties. In those cases, the right to work law entails the direct taking of dollars. Regardless of whether the setup requires the union to transfer either dollars or services to another private party, if we assume a public purpose, where is the just compensation? 

The majority in Sweeney thought the “benefit” of exclusive representation compensation enough but Horne seems to cut against that position. First, in response to the government’s argument that general regulatory activity can constitute just compensation for a specific physical taking, the Court found its “cases … set forth a clear and administrable rule for just compensation … just compensation normally is measured by the market value of the property at the time of the taking.” If the government wants to take the union’s money to deal with a government-created free rider problem, just compensation will not come in the form of something like exclusive representation, especially when the fair market value of the taking is clear. 

In Horne, the government also argued that the raisin requirement was not a taking “because raisin growers voluntarily choose to participate in the raisin market.” As far the government saw it, if they didn’t like the requirement, they could grow something else. The Court did not approve, finding that like in Loretto, where it rejected the argument there was no take because the landlord in question could avoid it by simply ceasing to be a landlord, “property rights ‘cannot be so easily manipulated.’” Something similar is arguably happening in the labor context. Employees have a right to bargain collectively. If they want to do so through a union, that union is required by the government to be the exclusive bargaining representative of the entire bargaining unit. That is the union’s job. The union, like landlords, also have property. It seems unavailing to say that if the union wishes to keep doing its job it must give up some of its private property to non-paying non-members.

That all said, the best response to a takings argument is also found in Horne, but the Chief Justice’s opinion for the majority moves through it so quickly that its potential utility is unclear. In making the above argument the Court distinguished Ruckelshaus v. Monsanto Co., 467 U.S. 986 (1984), where the Court held that the EPA could require companies manufacturing things like pesticides to disclose certain health and safety information about their products as a condition of receiving a permit to sell those products. The manufacturers thought the disclosure requirements a taking of their trade secrets but the Court did not find it so because they received a “valuable Government benefit” in exchange. That is, a license to sell dangerous chemicals. The Court thought Ruckelshaus did not apply in Horne because while selling raisins in interstate commerce could be subject to reasonable regulation, it was not a “special governmental benefit that the Government may hold hostage, to be ransomed by the waiver of constitutional protection.” Raisins, the Court found, “are not dangerous pesticides; they are a healthy snack” and “[a] case about conditioning the sale of hazardous substances on disclosure of health, safety, and environmental information related to those hazards is hardly on point.”

The question we are left with seems to be: exclusive bargaining – healthy snack or dangerous pesticide? I’d be pretty surprised if the Court thought it the latter.

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[1] Disclosure: I clerked for Judge Wood when Sweeney was argued. 

Marriage and Other Favored Unions

So we have a fundamental right to same-sex marriage. In the most obvious way, the Court’s holding was good: if the state is going to privilege a particular association (here, marriage), it should not discriminate against persons who try to take advantage of it. Fair enough. But in another way both the government’s favored treatment of marriage and especially the majority’s decidedly not-postmodern love letter to that particular form of association (Alito’s comment that the majority’s vision of liberty “has a distinctively postmodern meaning” notwithstanding) should give us cause for pause. There is another area where the state has favored a particular type of association over others: labor unions, which have been favored over other types of worker organizations. That preference has not worked out well for workers; we would do well to think more about whether the story of state preference for marriage will turn out the same.

 

Associations of Workers and the NLRA

Congress passed the National Labor Relations Act years ago and, with it, enacted a particular vision of what worker associations should be and how they should operate. That vision included both (1) exclusive representation[1] and (2) a commitment to the view that the interests of workers and employers are fundamentally opposed and antagonistic.  

At first the NLRA benefited workers (if rapidly increasing unionization rates are any indication), but over time that has largely ceased to be the case. The government restricted covered labor organization activity and the Act stifled the ability of covered workers to develop innovative forms of worker organizations that could better help them achieve their particular interest. One example of this stifling (and one that I discuss in a forthcoming article) comes out of the Act’s prohibition on company “support” of labor organizations. This ban has in turn dramatically limited the development of mutually beneficial collaborations between workers and companies looking to sell themselves to consumers as “conscious capitalists.” As a result of the Act’s narrow vision of appropriate worker organization, it is not surprising that innovative forms of worker organization (the Fair Food Council being just one example) have only occurred among workers who are not covered by the NLRA at all.  

 In short, when the government favors a particular vision of worker association – even with good intentions – it also frustrates experimentation with other forms – forms that may in fact be better for at least some workers.   

Associations of Individuals and Marriage

 Something similar might be said about marriage. Like the vision of worker organization demanded by the NLRA, marriage (including same-sex marriage) is but one of the many forms romantic and family associations can take. And like a traditional labor union, a traditional marriage (same-sex marriage included) will work better for some than others. The government, however, does much to encourage traditional marriage. Spousal privilege and military, social security, and immigration benefits being just a few examples. And these benefits, like all incentives, serve to promote marriage over non-matrimonial forms of romantic and family association. Those benefits alone might already have been enough to stifle experimentation with other forms. But the majority opinion in Obergefell, if its love letter to marriage is read and its views adopted, imposes an arguably different and more potent type of cost on would-be experimenters: stigma. As the majority sees it, marriage is of “transcendent importance” and “promise[es] nobility and dignity to all persons”. It is marriage that “embodies the highest ideals of love, fidelity, devotion, sacrifice, and family.” Without it, “children suffer the stigma of knowing their families are somehow lesser.” (emphasis added). Given all this, a reader would think marriage the sole means by which we come to flourish in relationships – that families and romantic relations structured without it truly are lesser. On that view, failure to get on board with the institution really does deserve to be stigmatized.  

For those who think the Court’s substantive view on marriage’s importance right and the government’s subsequent promotion of it good, this all won’t seem bad. But for those who think the highest ideals of love and family might be better achieved – at least for them – through other forms of association, the majority’s reification of the centrality of marriage to the good life will strike them as yet another barrier to a future where those ideals can be realized. As with the story of worker associations, it might take us a long time to realize that the government’s “help” of our association of choice today won’t actually be so helpful tomorrow.

 

 

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[1] A few argue exclusive representation was not required from the start but it certainly was treated as such soon afterward. Either way, my point is the same.  

Fourth Circuit Highlights Circuit Split on Legal Standard for Retaliation Claims in Employment Cases

In Foster v. Univ. of Md.-E. Shore, No. 14-1073 (4th Cir. May 21, 2015), the Fourth Circuit identified a circuit split on the applicability of the McDonnell Douglas burden-shifting paradigm for cases alleging Title VII retaliatory action in employment. The split arises as a result of the Supreme Court's 2013 decision in Univ. of Tex. Sw. Med. Ctr. v. Nassar, 133 S. Ct. 2517 (2013).

Nassar held that a plaintiff suing for retaliation must establish that retaliation was not just a motivating factor for an adverse employment decision; instead, the plaintiff must demonstrate that retaliation was the "but-for cause" of the adverse action. Id. at 2534.

The circuit split arises because some courts, construing Nassar, require direct evidence of "but-for" causation in evaluating retaliation claims.  See Foster, slip op. at 15 n.10. But the Fourth Circuit in Foster concluded the opposite: that the McDonnell Douglas test can itself establish the requisite but-for causation under Nassar.

This seems like an issue ripe for Supreme Court review. We'll see whether the defendant in Foster takes a shot.

The New Cognitive Property & Human Capital Law

Intellectual property is all about the bargain, no absolutes. But below the radar, a patchwork of law and contract is operating to expand the types of knowledge and information that become propertized. My new article, The New Cognitive Property: Human Capital Law and the Reach of Intellectual Property, forthcoming Texas Law Review 2015 is now up on ssrn. Here is the abstract and as always, I would love to get your thoughts and comments:

Contemporary law has become grounded in the conviction that not only the outputs of innovation – artistic expressions, scientific methods, and technological advances – but also the inputs of innovation – skills, experience, know-how, professional relationships, creativity and entrepreneurial energies – are subject to control and propertization. In other words, we now face a reality of not only the expansion of intellectual property but also cognitive property. The new cognitive property has emerged under the radar, commodifying intellectual intangibles which have traditionally been kept outside of the scope of intellectual property law. Regulatory and contractual controls on human capital – post-employment restrictions including non-competition contracts, non-solicitation, non-poaching, and anti-dealing agreements; collusive do-not-hire talent cartels; pre-invention assignment agreements of patents, copyright, as well as non-patentable and non-copyrightable ideas; and non-disclosure agreements, expansion of trade secret laws, and economic espionage prosecution against former insiders – are among the fastest growing frontiers of market battles. This article introduces the growing field of human capital law, at the intersections of IP, contract and employment law, and antitrust law, and cautions against the devastating effects of the growing enclosure of cognitive capacities in contemporary markets.

On Being Sued, 3

In the last few days, there's been lots of good discussion about tenure and the role of scholarship in the tenure process. It reminds me that, before it was the subject of litigation, Of Meat and Manhood was my first post-tenure paper. I made a promise to myself that, once I had tenure, I would write write something kooky. Serious scholarship, but kookily so. I had the title kicking around for some time, and I knew I wanted to write something about food and discrimination.

So I wrote a paper based on a hypothetical, in which a man faced discrimination because he was vegetarian. I based it on the long line of cases where gay men are called "sissy" and "fag" by their coworkers. After I had a good draft ready to go, I circulated it for comments--so folks could beat the crap out of it. 

One reader--my former colleague Carissa Hessick, a careful reader with a strong sense for what works in scholarship--hated the hypothetical. It needs to be a real case, she said. So she did some research and found the perfect case. It was an ongoing case out of New York, in which a former employeee said he had been the victim of sex and vegetarian discrimination. Thrilled, I rewrote the paper...and then I got sued.

Scholarship is a cooperative effort. Carissa's comments may have led me down defamation alley, but she was right about the paper, and the paper was better for the change. The funny thing is that I never really stopped thinking about the real case as a hypothetical. Yes, I used the litigants' real names, but in my mind the case was always just an entry point into a larger discussion about the limits of antidiscrimination law. It's easy to forget that the cases we write about and teach involve real people--real people with families and feelings and grievances.

I get this now in a very practical way. A colleague of mine taught Catalenllo v. Kramer in her advanced torts class, and I sat in for the discussion. The students were studying defamation at the time, and they were deep in it. During my case, I had to learn defamation law on the fly (I didn't study it much in law school), so my understanding of it, not surprsingly, was clouded by my feelings about my situation. But the students were incredible--engaged, supportive, deeply interested in my team's theory of the case.

For me, the experience was odd. The teacher in me was pleased, as the students dug deep into the material. The defendant in me wanted to hear them say that I was right, that I didn't do anything wrong. And the scholar in me wanted to stand up on the table--Oh captain, my capatain--and scream about the virtue of academic freedom.

The last thing I'll say is that I am grateful for the support. So many students, friends, and colleagues--some I had never met before--reached out during the case to say kind things. The best thing about being a law professor is the opportunity to engage with smart, curious, committed people. It's a wonderful way to spend your days. Thanks, everyone.

Fin.

On Being Sued, 2

Man kills puppies, allegedly.

In life and in law, the word "allegedly" does a lot of heavy lifting. It conveys that something has yet to be proven, that it may in fact be wrong, that a search for truth will uncover what really went down. Allegations are a core part of legal practice, just as they are a core part of journalism, not to mention how we read and absorb news.

Catalanello v Kramer was a case about the word allegedly. Did my article use it enough? Did my article make clear that I was talking about a case at the pleadings stage? Can the word allege--in one form or another--turn a defamatory statement into a non-defamatory statement? Whoops, I meant to say an allegedly defamatory statement.

At oral argument, plantiff's counsel argued that my article blurred the line of fact and allegation. A reader would get the wrong impression, thinking that my discussion was about decided facts rather than allegations of fact. The judge even asked counsel if I should have used the word allegedly in every sentence. Counsel rejected that approach, preferring instead that I had, at the outset of the paper, said that the case was ongoing (which the paper clearly said), that the facts were contested, and that plaintiff denied the allegations in the underlying case.

The distinction between allegations and facts is fuzzy. We lawyers are used to it, but my sense is that most non-lawyers don't see the difference. This is where context comes into play. I wrote the paper for lawyers. I never imagined others would read the thing.

Which brings me to the point. The lesson of my brush with defamation law is that the walls of the ivory tower are porous, and our scholarship is going to leak out. You can't prevent others from reading your work and reacting to it. Sites like SSRN and Bepress provide easy access to our scholarship. Don't get me wrong. I think this is a great thing. I want my work out in the ether; I want people to hear what I have to say. But it means that we have to be careful about what we say and how we say it.

I stand by my paper. I don't think it was defamatory, and I'm glad the court dismissed the case--not just for me, but for the scholarly process in general. A world in which we can be held liable for talking about ongoing cases is a scary place in which to write.

While the case was ongoing, I read--more like devoured--Amy Gajda's book The Trials of Academe: The New Era of Campus Litigation. Gajda has a wonderful chapter on scholarship in an era of defamation suits.

More to come.

SEALS

Think about proposing programming for the annual meeting, or participating in a junior scholars workshop. And if you are ever interested in serving on a committee, let Russ Weaver (the executive director) know. The appointments usually happen in the summer, but he keeps track of volunteers all year long.

Law School Centers

Many law schools have centers or institutes, most of which seem to be ways to carve out market niches, to attract students, to help graduates market themselves, and to attract scholars in a particular field. We have three of them at SLU (the Center for Health Law Studies and the Center for International and Comparative Law), and I am the director of one: the William C. Wefel Center for Employment Law. This center has been a part of the law school since 1987, and in that time has served as an institutional home for our employment and labor law concentration and provided a way to coordinate interesting programming and bring in outside speakers. The center has also provided a way to connect faculty who teach, write, or provide legal services in related areas.

For many years, the center was supported by the efforts of one or two faculty members, simply added onto their other full teaching and research responsibilities, with occasional help from one of the faculty support staff. Now, as a result of some new educational programming and shuffling of staff, the center has more support, including a full-time program coordinator. Additionally, we are in the midst of developing metrics and processes to evaluate our programs, as many law schools are, in line with the ABA's learning outcomes standard, a standard that has been required by other educational accreditors for some time. As a result, we are exploring what our center could be.

We are surrounded by some useful examples. Our own Center for Health Law Studies has been very successful in that field, bringing together researchers, advocates, students, and those who work in health law settings. The Institute for Law and the Workplace at Chicago-Kent, which Marty Malin wrote about for a recent symposium we held on teaching labor and employment law, is an example in the labor and employment arena. In addition to being home for a certificate program, the ILW has business, union, and law firm members, which contribute to the center and participate in its programming. There are opportunities for students (experiential and scholarships), a peer edited law journal and Illinois public sector newsletter, and a number of workshops, conferences, and events with outside speakers.

Our main focus is to provide the best educational and experiential program for our students. We already have a solid curriculum, including the opportunity to spend a semester in Washington, DC, working full-time for an agency that works in the area. We also want to be able to focus on the needs of our community, and provide a home for research, both of which we have made some forays into. So what else might we consider for our center? Are there any centers or institutes you know of that are doing interesting and important things? Have there been difficult tradeoffs in centers or institutes you know about? I'd be interested in any thoughts in the comments.

On Being Sued, 1

In 2011, I published a paper called "Of Meat and Manhood." It's a paper about vegetarianism and sex discrimination. It's about how discrimination has changed in the half decade since Congress passed the Civil Rights Act. And it's about what the future of civil rights law might look like.

Here's a link to the version posted on the Wash. U. Law Review's website. Look at the bottom of the page. There's a link called "Editors Note to Of Meat and Manhood." When you click on it, a pdf opens, which says the following:

Editor’s Note: The allegations that are drawn from the publicly filed complaint in the case of Pacifico v. Calyon et al., No. 100992-2009 (N.Y. Sup. Ct. filed Jan. 26, 2009), are footnoted or sourced to the Pacifico complaint in the Law Review Article. The defendants in that case filed answers denying the referenced allegations of the complaint. Subsequent to the Law Review Article’s publication, the plaintiff in Pacifico voluntarily discontinued the case with prejudice.

No one ever said lawsuits produce poetry.

In late December 2013, I was sued in federal court in New Jersey. The case was dismissed in May of 2014, in a decision by Judge Engelmayer of the Southern District of New York. I haven't spoken much about the case--first because I couldn't while itigation was ongoing, then because I didn't want to.

So now I'd like to share some thoughts. Here's my first take. 

I learned about the lawsuit from a reporter, who email me for a comment. I had no idea what she was talking about. I had to google the plaintiff's name. Now when you google his name, a picture of me comes up. How strange to be linked to someone I will probably never meet.

When I write a paper, I think a lot about who my audience is. Until I got sued, I never imagined anyone but lawyers and professors would read what I write. It didn't occur to me that, if I wrote about a case, the parties to the case might read it. And even more importantly, they may not like what I have to say. Maybe I was naive about that. If you knew the people you were writing about were going to read the paper, would it change the way you write? I know it has changed the way I write. 

The primary claim was for defamation. There were also supporting claims for publication of private facts and false light invasion of privacy. I wasn't the only defendant, at least initially. The plaintiff also sued Wash. U. and Western New England College of Law. Wash U published the paper in its law review. I gave a lecture at WNEC about the paper. I gave probably ten or so talks at different schools about that paper. WNEC was the only one that put the talk online.

The basic facts were this. The plaintiff in my case was the defendant in an employment discrimination case in 2009. The plaintiff in the underlying case alleged that he was fired because he was vegetarian and perceived to be gay. When I wrote my article, that case was still ongoing, stalled somewhere in the pre-trial phase. It was voluntarily terminated--I assume because of a settlement--in 2012, more than a year after my paper was published.

How did the plaintiff (my plaintiff) find out about my paper? I don't kow for sure. I've always assumed he googled himself and stumbled upon my stuff. I few blogs and other outlets wrote about my paper, so he could have found me indirectly. At the hearing on my motion to dismiss, counsel for plaintiff said that the plaintiff served on a Federal Reserve Board subcommittee and that another member of the committee had seen the article. So perhaps the plaintiff learned of it from someone else.  

A couple more things to set the stage.

1. As a professor at a public law school, I am a state employee. Not only did the university support me, but so did the state of Arizona. The Attorney General's office coordinated my defense. Indemnification is a beautiful thing. 

2. As a state employee, I am covered by the state's notice of claim statute. In order to sue an agent of the state, a plaintiff must give notice of the claim in advance of filing suit. That did not happen in this case. If we hadn't won at the motion to dismiss stage, we likely would have prevailed at summary judgement, when the notice of claim issue would have come before the court.

3. Before the lawsuit, I always thought academic freedom was something lazy professors raised when something was required of them. Academic freedom, you can't make me teach the statute of frauds! Academic freedom, you can't make me assign a different casebook!  Not anymore. I love academic freedom. And not just because I was able to use it to cover my ass. Academic freedom is why we are able to do this for a living. To write and explore, to fight for justice and right wrongs, to make the world a better place, one measly law review article at a time.

4. I always hoped my scholarship would be covered by an outlet like the Wall Street Journal. I never imagined I would have to get sued for that to happen. 

5. In the world of injustices, my lawsuit is small potatoes. But it wasn't to me. It was something that loomed large in my life for well over a year. Even if the lawsuit never had much of a chance of success--which many people told me from the start--for me it always felt very real, very accute, and very scary.

More to come.

Unions, incentives, and change

In March, the regional director of the Chicago office of the National Labor Relations Board ruled that football players at Northwestern University were employees, entitled to form a union and to collectively bargain with the university over conditions. That vote is scheduled for April 25, although the votes would be impounded if, as expected, Northwestern appeals the decision to the full NLRB. Yesterday, Northwestern football coach Pat Fitzgerald publicly urged his players to vote against forming a union in a letter sent to players and their families. And at least a few players seem inclined to vote against it, at least based on quotations in the story.

What is interesting is the near-universal sense from everyone that things do need to change in college football in terms of benefits, hours, health care, and other conditions for student-athletes.--all the things supporters want to get through the union and collective bargaining. The dispute is over how those changes will or should occur. One player pointed to Fitzgerald and his activities with the American College Football Association (he is on the association's Board of Trustees); another said he hopes the NCAA will see the need for change. But what would cause anyone to believe either of those groups (or any other non-player group) is likely to act in the players' interests. Football coaches are control freaks (I say that as a control freak myself) who would see that control threatened by many of the changes the players might want. How likely is ACFA to support tighter limits on football hours--so players can spend more time being students--or tighter limits on contact practices--so players are subject to fewer hits? The NCAA is a dysfunctional organization that has never shown any inclination to truly protect and benefit players, especially when the changes transfer from it and its schools to the players. This is not an institution likely to change unilaterally or from within. Especially since the NCAA, conferences, and schools make massive amounts of money off football and men's basketball and may make less money if the system changes.

Importantly, none of these organizations is structured or legally obligated to take player interests into account or even to hear their concerns. All the unfortunate anti-union sentiment in the United States obscures the real benefit of the NLRA and a union in this situation--the rules regarding the terms and conditions under which the players operate can only be made with consent from the players. Absent a union, the players are left hoping that someone else--ACFA, the NCAA, the Big Ten/Twelve, Northwestern--will deign to give them what they want or need. In other words, change comes because the same powers that be decide to throw the players a bone via the same paternalistic arrangements. Moreover, since Northwestern must follow NCAA regulations (as a condition of membership and maintaining eligibility of its teams), the only source of change really is the NCAA.

I thought of similar issues surrounding the union in doing an interview regarding this joint study by the Student Press Law Center and a journalism class at the University of Maryland (I am quoted in the report itself). The report describes some of the policies to which student-athletes are subject (either by the university, the athletic department, or the team) regarding social media and other speech activities; social, dating, and sexual activities; and privacy. For example, the University of Georgia men's basketball team has policies regarding monogamy (good) and visible hickeys (bad) and reserving the right to inspect a player's dorm room at any time. Obviously these policies would be unconstitutional as applied to an ordinary student at the University of Georgia. They probably are not much more constitutionally valid as applied to student-athletes--much depends on whether the court views student-athletes as akin to employees and thus subject to the tighter speech and conduct restrictions that government can impose on its employees. Of course, one still could argue that these policies are over the top even in that situation--seriously, telling a student-athlete how many girlfriends he can have or that he cannot use "offensive language" (whatever that means) on Twitter?

Of course, we never will find out whether these policies and rules are constitutionally valid because no player is ever going to challenge them in court, for fear of retribution from the powerful and in-control coach. Collective action eliminates that problem--the coach is not going to kick everyone off the team for objecting to these sorts of unconstitutional and offensive rules. Only the group, not the lone player, can resist the greater power of the coach, the school, and the NCAA.

"Sex offender seeks admission to Kentucky bar"

The title of this post is the headline of this notable new AP article discussing a notable dispute concerning the potential professional collateral consequences of getting convicted of downloading the wrong dirty pictures.  Here are the details, followed by a bit of commentary: 

Guy Padraic Hamilton-Smith graduated in the top third of his law school class at the University of Kentucky, but the state Supreme Court blocked him from taking the bar exam because he is a registered sex offender.  In the first case of its kind in Kentucky, the court rejected Hamilton-Smith’s bid and a move by the state Office of Bar Admissions to create and endorse a blanket rule that would have kept all registered sex offenders from gaining access to the bar.

“Rather, we believe the better course would be to allow any applicant for bar admission who is on the sex offender registry the opportunity to make his or her case on an individualized basis,” Chief Justice John D. Minton wrote in the Dec. 19 opinion on Hamilton-Smith’s case and the proposed rule.

Hamilton-Smith, who was convicted of a charge related to child pornography in 2007, has until Jan. 13 to ask the court to reconsider its decision. In an email, Hamilton-Smith referred Associated Press questions to his attorney, who said the reconsideration request will be filed.

Nationally, cases of felons seeking admission or re-admission to the bar are common. But situations of registered sex offenders attempting to do so appear to be rare. Beyond a recent rejection in Ohio and an ongoing case in Virginia, legal experts and those who work to rehabilitate sex offenders couldn’t recall a similar situation arising in recent years.

But Shelley Stow of Reform Sex Offender Laws — a Massachusetts-based organization that seeks to ease restrictions on offenders and promote rehabilitation — said she wouldn’t be surprised to see more cases out there. “It is so difficult for registrants to even get jobs and support themselves and function day to day, let alone pursue a law career,” she said.

The Kentucky case brings up the question of how to treat someone who has admitted to criminal activity, wants to rehabilitate himself and serve others, but is still monitored by law enforcement, said Hamilton-Smith’s attorney, Scott White, of Lexington. “It’s a highly stigmatized thing,” White said.

Hamilton-Smith pleaded guilty to a charge of possession of matter portraying a sexual performance by a child in March 2007. He received a five-year prison sentence, which was suspended, and was required to register as a sex offender for 20 years — until 2027.

After disclosing the conviction and sex offender status on his applications, Chase Law School at Northern Kentucky University and Brandeis Law School at the University of Louisville both rejected him in 2008. But the University of Kentucky College of Law accepted him in 2008 and he graduated in 2011. Hamilton-Smith later competed on the National Trial Team and National Moot Court Team, and he had a piece published in the Berkeley La Raza Law Journal through the University of California law school.

Since graduating in 2011, Hamilton-Smith has held a non-lawyer position for Baldani, Rowland and Richardson. The Lexington firm has filed letters in support of Hamilton-Smith taking the bar exam, White said. But Hamilton-Smith still has not been cleared by the Kentucky Office of Bar Admissions to take the exam that would allow him to practice law.

White called Hamilton-Smith “a classic sex addict.”

“The classic example is somebody who just downloads buckets of pornography,” White said. “In that download, there just happened to be child pornography.” In this case, Hamilton-Smith has gone through Sex Addicts Anonymous, despite a few admitted relapses with adult, but not child, pornography, White said.

White also said his client used law school as a redemptive and rehabilitative effort while owning up to his criminal conduct. “He just hasn’t let it define him,” White said....

For the justices, the nature of the crime defines someone lacking in the “requisite character and fitness” to be admitted to the bar.  “Indeed, our certification could significantly mislead the public into believing that we vouch for (Hamilton-Smith’s) good character,” Minton wrote.  “Consequently, a client’s subsequent discovery of the registry listing could then justifiably lead him to question the value of this court’s certification of the good character of those who are permitted to take the bar examination.”

I find this matter interesting for lots of reasons, especially because I suspect that Hamilton-Smith's personal background and recent professional challenges are likely to make him a much better lawyer to serve the (ever-growing) legal needs of the (ever-growing) sex offender population.  Indeed, were I running a law firm that often dealt with sex offense cases and offenders, I would be very eager to hire Hamilton-Smith to help me serve this client population whether or not he ever gets admitted to the bar.

That said, it is quite possible (even likely?) that Hamilton-Smith is eager to develop a legal practice that has nothing to do with sex offenders.  If that is true, I cannot help but wonder and worry that his status as a registered sex offender may always serve as a problematic disability in the competitive legal marketplace: I fear Hamilton-Smith's adversaries may be inclined (even perhaps eager) to use the modern stigma associated with sex offenders to harmfully impact both Hamilton-Smith and his clients.

More broadly, if the goal of the barring process was only to ensure that only those capable of being a competent lawyer served in this profession, it would be clear that Hamilton-Smith should be allowed to sit for the bar exam.  Conversely, if the goal the barring process was only to ensure that nobody with a blemished past could become a lawyer, it would be clear that Hamilton-Smith should not be allowed to sit for the bar exam.  But because it seems the goal of the barring process is a little of both, this is an interesting case.

 

Cross-posted at Sentencing Law and Policy

Great jobs for green lawyers in the new green ganja legal world(?)

The statement/question in the title of this post serves as a reiteration of one reason I developed a new law school seminar titled "Marijuana Law, Policy & Reform" and as my reaction to this new Bloomberg article headlined "Pot-Smoking Quadriplegic’s Firing Shows Haze Over Rules."  Here are a few excerpts from this article:

The marijuana that Brandon Coats smokes under a doctor’s supervision helps calm muscle spasms stemming from a car accident that left him a quadriplegic.  It also cost him his job. Coats, 34, was fired as a customer service representative at satellite TV provider Dish Network Corp. after failing a random drug test, even though Coats lives in Colorado where marijuana is legal for medical use.  A state appeals court in April upheld the company’s right to fire him based on the federal prohibition on pot.

“I wasn’t doing anything wrong,” Coats said. “I had a doctor’s permission to do something I need to help me get on with my life.”

Coats’ ordeal shows how workplace rules on drug use have yet to catch up to changing attitudes and laws. Employers have retained War-on-Drugs-era policies, in part because of conflicts between state and federal statutes.  And commonly used drug tests are unable to differentiate between someone who is under the influence of pot on the job, or has merely used it in off hours.

“Employers ought to reconsider their drug testing policies in states where medical marijuana is legal,” Lewis Maltby, president of the National Workrights Institute in Princeton, New Jersey, said in an interview. “Why discriminate against marijuana users? They’re not different than beer drinkers.”

Medical marijuana is legal in 20 states and the District of Columbia, yet illegal under federal law. Colorado and Washington allow recreational use of pot, and this week, Portland, Maine, and three cities in Michigan voted to back legalization.  Meanwhile courts in Colorado, Washington, Oregon and California have held that laws permitting the limited use of pot don’t prevent employers from enforcing drug-free workplace rules....

Washington-based Costco Wholesale Corp., for example, continues to screen potential workers for drugs and conducts random employee tests on “reasonable suspicion,” according to Pat Callans, vice president of human resources at the retailer.

Others say the contradiction between state and federal law is sowing confusion, according to Kellis Borek, director of labor and employer relations for Washington Employers, a Seattle-based group that advises firms on human resources issues. “I’m seeing employers grapple with the concern about losing good people because they participated in legal, off duty activity,” Borek said in an interview....

Borek’s group is developing advice for companies seeking to amend drug policies to reflect changes in state laws. One option is to allow someone in a safety-sensitive job, such as driving a truck or fork lift, to go on job-protected leave or move to a different position until they stop using medical marijuana.

This article highlights that applications of labor laws are sure to be a big a source of dispute and uncertainty as marijuana law reforms continue to make marijuana use legal at the local level in various setting.  That reality, of course, means that labor lawyers are going to be needed to help both employers and employees "grapple" with new and difficult state and federal labor law challenges.

In addition to the need for labor lawyers, tax and business-transactions lawyers will become more and more in demand as state-level medical and recreation marijuana reforms create new needs for new businesses to sort through new tax laws and business-planning challenges posed by operating a state-permitted marijuana business.

My post title here suggests that green (i.e., young/junior) lawyers may have a uniquely important role to play in this emerging new industry.  I suspect and fear that many law firms and many veteran lawyers will be, for various sound reasons, very cautious and concerned about representing any persons actively involved in state marijuana business.  Moreover, because marijuana reform movements seem often to be a "young man's game" in many ways, junior lawyers may be uniquely positioned to be of service to persons needing legal help in this arena.

But I have a question mark at the end of this post because I wonder if I may be unwise to urge my students and other junior lawyers to consider seriously seeking to be involved in helping those at the forefront of the new green ganja industries.  Is there still so much stigma and concern with this drug that a lawyer's career plans and possibilities might become permanently damaged or distorted by representing even legal pot dealers?

Cross-posted at Marijuana Law, Policy and Reform

Nate Silver and the Hidden Genius of Capitalist Crowdfunding

After a long and difficult year personally, it gives me some quiet joy to announce that I've just uploaded a "shitty" first draft of Catalyzing Fans to SSRN. Actually, it's somewhat polished as a draft, but it's pre-submission, blissfully short (13,000 words) and, um, really interesting. Bonus: it has nothing to do with retributive justice.  So, my co-authors, Mike McCann and Howard Wasserman, and I hope you'll read a draft and send along comments. Here's an overview:

Should Nate Silver have stayed at the New York Times, or instead go to ESPN?  Where should Cass Sunstein teach? What team should Lebron James play on? In this paper, we have a proposal for how to think about the trilateral relationships among "talent" (Silver, Sunstein, James), teams (the NYT, the Miami Heat, Harvard), and fans. For some reason, the answers to where that talent should work are  often only indirectly connected to the desires of third-party fans. We think this could be different.

Specifically, we propose the development of Fan Action Committees (FACs).

Analogous to, but distinct from, Political Action Committees (PACs), these FACs would coordinate, aggregate, and monetize the intensity of fan preferences and would thus serve to either enrich "talent" directly, or, in a wrinkle we prefer, make contributions to charities favored by talent.  If we're right about how fans could introduce crowdfunding as a way to re-configure that triangular relationship, well, it's a potential game-changer, if you'll pardon the pun.  Once our paper lays out the architecture of the direct compensation and charitable models, we anticipate how to overcome obstacles to the development of FACs that may exist under current rules or laws. We also address a variety of policy concerns and objections ranging from considerations of competitive balance to distributive justice.  Advancing and illuminating the possibility of FACs across pro team sports and commercial entertainment, journalists and academics, we show how crowdfunding options produce the potential for more efficient valuations of talent by registering not only the number of fans but also the intensity of their preferences. This insight, which stresses the upside of price discrimination, has relevance to a wide range of human endeavor. In short, the introduction of FACs can basically change the dynamic of any area where bilateral contracts have third party externalities that are not currently calibrated or adequately valued.  

Btw, Howard, Mike and I began kicking this idea around last summer after I floated on FB something like the notion of  fan interference, wondering why fans couldn't affect the Knicks' incentives to hire or retain Jeremy Lin in the midst of Linsanity. To transition this into a proper paper, however, I encountered the slight problem that I could not care less about sports or sports law, and knew zero about the area. So I enlisted my pals Mike and Howard -- two of the leading sports law guys in the country -- to write a paper with me about the law, policy and economics about fandom. The paper's come a long way from a facebook thread (which itself is a sort of crowd wisdom opportunity), and some of its most interesting moves and extensions come from conversations with prior readers at FSU and more recently the 10,000 Feet Legal Theory Workshop--so thanks to those folks! (The latter, btw, is a workshop that spontaneously emerged among the group of profs who went hiking with me in the afternoons while in the Rockies two weeks ago for the LEC's annual law and econ boot camp.)  Anyway, we'll be sending it out soon, and, now that it's been gently road-tested, I'm sure any of us would be excited about the prospect of talking about it at your law school this coming year. 

 

Spousal Hiring, Ethics, and the Theory of the Family

Some of my work intersects with family law, although I've yet to fully step into the curricular powder room. After hearing a wonderful presentation about her upcoming book on women in academia by one of my Radcliffe Institute Co-Fellows, I have been thinking more about the ethics of spousal hiring in academi [full disclosure: I am unmarried myself]. As part of her interview with several university presidents and academics, apparently spousal hiring is often credited with helping to improve the number of women on faculties and there is also some data suggesting that in universities with spousal hiring the "index spouse" if you will (the one the university has gone after) performs better than where there is no such policy. I am very interested in how the laudable goals of accomodation and family support intersect with general priors against nepotism.

For today's post, though, I wanted to examine the notion that spousal hiring rules or tendencies may reflect a certain theory of the family. To see this, imagine the following hypotheticals.

1. Brenda and Allen are married. Brenda is hired to teach physics, and the university finds a position for her husband Alan in its law school clinic.

2. Carl and Dan are same-sex partners in a state without legalized gay marriage. Dan is hired to teach physics, and the university finds a position for Carl in its law school clinic.

3. Evelyn is the daughter of Frank. Evelyn is hired to teach physics, and the university finds a position for her father Frank in its law school clinic.

4 Garret is the father of Jordi and a senior scholar in the field. Garret is hired to teach physics, and the university finds a position for Jordi in its law school clinic.

5. Hector and Ingrid are best friends and have been for life. Ingrid is hired to teach physics, and the university finds a position for Hector  in its law school clinic.

So each of these is a potential family relation. My sense is that many schools would do or have done hiring in case 1, some would do it in case 2, but none would do it in case 3 through 5.  3 and 4 at least are what average people would call family relationships, so this is interesting.

By making a cut (whether between 1 and the rest or 1 and 2 and the rest) universities are essentially endorsing once conception of the family over others. I want to suggest this is contested terrain, and we may need a justification for why they do so.

One answer would be that everyone asks for 1, and no one asks for 4 or 5. That kind of conventional answer, though, might suggest no one asks for the others because universities have never offered them. A more essentialist answer is that 1 is endorsed because there is a particular value that familial hiring is meant to secure relating to child rearing. That would raise the question of why universities should support that particular goal -- after all closeness and ability to care for an aging parent is also important -- whether some of these other family structures might also facilitate that goal (case number 3 in particular -- and what to do about relationship hiring that has no child rearing involved (including possibly case number 2). Finally, one might suggest that universities are committed to romantic love, or at least believe potential people they might hire care more about romantic love, than parental love or friendship. Again, though, it seems to me highly contestable as to what relationships people value more, very culturally contingent, and also I wonder what it is about the Telos (if I can be Aristotelian for a moment) about the university that connects it to romantic love?

What do people thing about these cases?

A Reminder to Hiring Committees: Don't Google The Candidates?

Here's some advice to hiring committee members travelling to the AALS conference: While it may be natural to search the internet for additional information about candidates for faculty positions, how you use the information you find may subject your university to legal liability. Here are two cautionary tales involving university hiring to keep in mind.

Cautionary tale number one illustrates that the refusal to hire an employee based on information gleaned from social media can sometimes give rise to a discrimination claim under Title VII.  Two years ago, the University of Kentucky faced a Title VII lawsuit brought by a rejected job applicant who claimed that the University refused to hire him based on information about his religious views found by the hiring committee during an Internet search. Gaskell v. University of Ky., 2010 U.S. Dist. LEXIS 124572 (E.D. Ky. Nov. 23, 2010). Evidence in the case indicated that the chair of the department conducting the search asked the candidate about his religious beliefs, which the chairman had "personally" researched on the internet. In addition, an email from a staff member to hiring committee members during the process noted: "Clearly this man is complex and likely fascinating to talk with, but potentially evangelical."  The case settled for $125,000 after a judge denied cross-motions for summary judgment. 

Cautionary tale number two illustates that discrimination against hiring candidates on the basis of their political beliefs can subject state universities to liability for constitutional torts. This tale involves the University of Iowa's College of Law and the hiring of a legal writing instructor. In Wagner v. Jones, Teresa Wagner alleged that the College of Law refused to hire her because of her conservative political beliefs, and she sued under 42 U.S.C. § 1983. The trial court granted summary judgment to the college, but a panel of Eighth Circuit Court of Appeals reversed.

The Eighth Circuit determined that Wagner had made a sufficient claim of political discrimination to get to a jury. The court applied the following test (drawn from the Supreme Court's decision in Mt. Healthy City Sch. Dist. Bd. of Ed. v. Doyle):

A plaintiff alleging First Amendment retaliation must first make a prima facie showing that (1) she engaged in conduct protected by the First Amendment; (2) she suffered an adverse employment action; and (3) the protected activity was a substantial or motivating factor in theemployer’s decision to take the adverse employment action. If a plaintiff makes this prima facie showing, then “a presumption of retaliation arises and the burden shifts to the defendant to advance a legitimate reason for the employment action.                                 

The court found Wagner had presented evidence from which a jury could conclude that her polticial beliefs were a substantial or motivating factor not to hire her.  Specifically, a deposition in the case indicated that the candidate's conservative views may have been discussed at a faculty meeting on her candidacy; there was also evidence that she was advised to hide the fact she'd been offered a job at Ave Maria during the interview process at the College of Law, and a contemporaneous email from an associate dean expressed concern that Wagner's politics could have played a part in the faculty's decision not to hire her. In addition, the court noted (several times!) that only one of the fifty faculty members of the College was a registered Republican at the time Wagner interviewed. There's more to the decision, of course, including full discussion of why the court rejected the argument that the Dean was entitled to qualified immunity. Regardless, the decision should be a reminder to hiring committee members at state schools not to use information found on the internet or anywhere else to discriminate against potential hires in violation of their First Amendment rights.

 

Employees with Religious Attire and the "Back of the Bus"

As a fellow at the Pluralism Project, a Harvard-based research center that explores the state of religious liberty in the United States, I examined an employment discrimination case involving Kevin Harrington -- a native New Yorker of Irish descent who converted to Sikhism as a youth and who has worked for the New York Metropolitan Transportation Authority since the 1980's. Harrington started working for the MTA as a bus cleaner, and for the last two decades has been an MTA train operator.  On 9/11, Harrington was able to reverse his Number 4 train, which was headed to the World Trade Center station, and safely discharge his passengers.  For this, Harrington was honored by the MTA.

Shortly after 9/11, however, Harrington claimed that the MTA discriminated against him on the basis of his religion.  Harrington specifically stated that the MTA informed him that he had two choices: that he could continue working as a train operator only if he wore a cap with MTA's logo, or that he could wear his religiously-mandated turban in the railyard, away from customers.  The MTA then told Harrington that he could wear a turban as a train operator only if he attached an MTA logo to it.  The MTA apparently explained that the logo was necessary to alert customers and passengers that the person at the helm of the train was indeed an MTA employee -- not, as some would say, a "runaway terrorist."  Newsday ran an editorial arguing that "perhaps [the logo] will ward off any biased fears that outsiders have commandeered the system."

The MTA was eventually sued by the Department of Justice, the Center for Constitutional Rights, and the Sikh Coalition, on the theories that the employer's generally applicable uniform policy was being selectively enforced against Sikhs and Muslims, including Harrington, and that the out-of-customer-view option was impermissible under Title VII.  A CCR attorney, for example, stated that the MTA engaged in "a calculated attempt" to hide certain workers "on the grounds that they 'look Muslim' and might alarm the public for that reason."  Yesterday, the MTA settled the case, agreeing to permit employees to wear religious headgear without the logo and to pay $184,500 to eight current and former MTA employees. 

As I noted in this forthcoming article, some may assume understandably that Title VII does not tolerate employers' attempts to place employees with conspicuous religious attire in the back areas, where these attempts are tied to actual or perceived customer preferences.  But federal courts have sided with employers in this context.  This settlement may help undercut the view that employers can place employees with distinct religious appearances out of sight without running afoul of Title VII's protections.

This case also lends support to the suggestion that the Department of Justice has taken great interest in religious liberty issues.  (Though, in fairness, I should note that an astute reader has expressed to me the concern that the Department may be conflicted or divided as to the extent to which it is willing to robustly enforce statutes safeguarding religous liberty, including RLUIPA.  The reader points specifically to the Solicitor General's position recommending that cert in a case involving a RLUIPA circuit split be denied or granted and summarily reversed. )

The title of  this post is taken from a Sikh Coalition attorney's comment that the MTA's initial choice to Harrington was a "back-of-the-bus solution."

EEOC Accepts Transgender Discrimination as Sex Discrimination

I'm delighted to be back on Prawfs (even if Dan did "forget" to list me on this month's roster).  In all seriousness, I much appreciate the community of bloggers and commenters on this site, and Dan for making it all happen.

It looks to be another busy news month.  Leading off on the topics I want to pose is the news that the EEOC has decided that discrimination against a transgender person constitutes sex discrimination under Title VII  (Macy v. Holder).  Thanks to Nan Hunter's blog for noting this.

Macy's facts are straightforward.  Macy, a police detective, applied for a job with the ATF.  Things seemed to be going well until she disclosed that she was transitioning from male to female, when the bureau suddenly decided that budget cuts made it impossible to hire her, a fact that apparently was untrue.  She filed an EEO complaint with the agency, which decided that her "gender identity stereotyping" claim could not be processed under Title VII, but only under the (apparently less favorable) intra-DOJ system for considering gender identity and sexual orientation discrimination claims.

On appeal, the Commission held that transgender discrimination claims were included within the types of gender discrimination that Title VII precluded.  It relied heavily on Price Waterhouse v. Hopkins, the well-known 1989 case that allowed a female plaintiff to state a claim of sex discrimination based on her theory that she was denied promotion because of her failure to conform to traditional notions of how a woman should look and act.  The Commission held that that type of sex stereotyping theory was broad enough to include claims of transgender discrimination.

Some preliminary thoughts after the jump.

First, as a general matter (i.e., going beyond the details of Title VII interpretations) it's astonishing how quickly transgender status has come to be seen as grounds for a colorable discrimination claim.  Given how deeply the transgender issue cuts into our notions of male and female it's notable that these claims have attained even the level of partial success they currently enjoy.

Second, it's interesting to consider what Title VII interpretations like Macy could mean for the Employment Non-Discrimination Act.  There's been a good deal of struggle about whether ENDA advocates should settle for a bill that excludes gender identity expression, on the theory that  success on a less comprehensive law today will ultimately redound to the benefit of trans people, by building momentum for a more comprehensive law eventually.  Cases like Macy may lead some to conclude that there's less reason to fight for gender identity inclusion in ENDA.  Indeed, continued inclusion of GI status in ENDA might even lead some courts to reject interpretations like Macy's, on the theory that any congressional defeat of a GI-inclusive ENDA reflects congressional intent to exclude gender identity from employment non-discrimination.

Third, it may be interesting to see if cases like Macy redound to the benefit of gays and lesbians, who might be able to claim the same sort of sex stereotyping Macy accepted as discrimination on the basis of sex.  In the past at least some courts have not favored this argument, drawing a distinction between sex and sexual orientation.  (I believe some courts have also noted Congress's failure to enact ENDA over the last decade and a half as evidence that Congress agrees with that distinction.) How transgender status fits in with the relationship between sexual orientation and sex or gender is a fascinating, but tough, question.  Macy's analysis will presumably contribute to that ongoing debate, as the arguments in favor of finding a closer relationship migrate from law review pages to case reporters.

Interesting stuff, for sure.

Is Sheryl Sandberg a Model for (Female) Prawfs?

I have a bit of a friend-crush on Sheryl Sandberg. No, I don't know her. But her sister was my classmate, and through FB, I get to keep track of some of her accomplishments. So from afar, I admire much of what she's done and come to represent. That said, as much as I love her advice to women (and men) about the need for audacity in professional and personal life, I also harbored some concern that audacity comes more cheaply to folks who aren't struggling financially. There was a fun piece about Sheryl's soon-to-come riches in the Times yesterday, and one of the quotations archly noted the same point:

“I’m a huge fan of her accomplishments and think she’s a huge role model in some ways, but I think she’s overly critical of women because she’s almost implying that they don’t have the juice, the chutzpah, to go for it,” said Sylvia Ann Hewlett, president of the Center for Talent Innovation, a research organization on work-life policy, and director of the Gender and Policy Program at Columbia University.

“I think she’s had a golden path herself, and perhaps does not more readily understand that the real struggles are not having children or ambition,” Ms. Hewlett continued. “Women are, in fact, fierce in their ambition, but they find that they’re actually derailed by other things, like they don’t have a sponsor in their life that helps them go for it.”

With much affection, I can think of a few friends in the academy who have internalized Sheryl's powerful message. But if Ms. Hewlett is right, as I think she is, then the message of toujours l'audace is one that must be shared by male mentors as well as female ones. I realize it's controversial to even acknowledge this, but I think male mentorship/sponsorship of women (the sort that happened when Summers took Sandberg under his wing) has been jeopardized by concerns that the menfolk want to avoid the creation of whispering campaigns of inappropriate behavior. There certainly was a lot of icky or abusive stuff that used to happen that our new norms have (thankfully) made less frequent.  But, as a consequence, doors remain always open, and the kind of mentorly candor necessary for professional growth is, accordingly, more rare, and perhaps less desired. Perhaps the best way to overcome this is not by shutting out mentorship altogether, but by mentoring in small groups. For instance, the other day, we had a faculty lunch talking about tactics and strategies relevant to the law review submission process, as well as the craft of a good thesis. Peer mentoring also happens. E.g., our juniors are meeting frequently to workshop ideas, and, much like at Prawfsfests and similar venues, there is space and time for safe feedback, though again, candor, expertise (or insight into the folkways of an institution from a senior member) and individualized attention might be reduced because of the group dynamic.

So some questions: What is to be done? Do we have a mentorship deficit? If so, what's the best way for it to be overcome? Relatedly, can audacity ripen w/o the safety net and sponsorship that Sandberg has had? Or is this entirely misguided, and Sheryl's work/life balance story should be of no greater interest than Zuck's? (Signed, civil, and substantive comments invited.)

What's Keeping Prawfs from Imitating Judges?

The NYT has a funny story today about this year's clerkship madness. Judge Kozinski fesses up to recruiting at birth, or something approximating it. A triumphant student still vomits from the stressful experience. All this raises many questions but here's one: why has the FAR process held up more against the threat of unraveling than the clerkship market? Is it simply because hiring for a multi-year position requires more due diligence? The judges would probably deny that--they'd likely argue that a year with a judge is more socially significant than a career where we're marginalized to reporting our views in the ostensibly irrelevant law reviews. I'm not sure why some talent markets unravel and others don't. Maybe the law schools are more inclined to see the benefits to hiring in a context where one isn't operating under hot emotions. What's your rank speculation?

Workplace "Segregation"?

Earlier this year, the ABC News show, "What Would You Do?," aired a segment in which three job applicants – a Jewish man with a yarmulke, a Muslim woman with a headscarf, and a Sikh man with a turban – were denied employment at a restaurant, in front of and within earshot of customers, specifically because the applicants’ religious attire did not conform to the employer’s dress code policy.  The purpose of this hidden camera show is to ascertain how unsuspecting members of the public will respond to an underlying problematic situation played out by actors.  In this case, the objectionable situation designed to illicit a public reaction was the fact that the applicants were rejected solely because of their religious appearance.  For example, the restaurant manager informed the Sikh applicant that he could not be hired “looking the way you look” because the turban could be considered “threatening to anyone sitting here eating.”

Some patrons  took the bait -- they voiced concern that the restaurant manager’s decision was discriminatory and unlawful.  One witness, for example, likened the treatment of the Sikh applicant to discrimination on the basis of race -- can the manager “say the same to me about my color or my religious beliefs, it’s the same thing.” Another troubled witness told the manager, “I’m not sure you’re aware how illegal this is…. You’re lucky there are no lawyers around."

As it turns out, the assumption that such conduct is inconsistent with the law is a mistake.  For years, federal courts have enabled employers to engage in the behavior depicted in this broadcast.

Where, as with the above scenario, there is a conflict between an employee’s religiously-mandated appearance and an employer’s interest in avoiding possible negative customer reactions to the religious employee’s identity, federal courts are allowing employers to resolve this conflict by placing the religious employee out of public view or by refusing to hire him or her altogether.  In legal terms, courts faced with Title VII claims are reasoning that placing an employee with religious attire in the back is an acceptable “reasonable accommodation” of the employee’s religion or that to hire such an employee may result in economic costs that amount to an “undue burden.”

My recent research argues that these courts have it wrong.  It seems to me that the text of Title VII forbids such employer action and that this conduct reinforces majoritarian norms and perpetuates harmful stereotypes as to who the public wants to interact with.  Reserving social spaces for the familiar or likeable religions is problematic.  Moreover, other contexts, particularly principles from the civil rights movement, also point to the discriminatory nature of this employer conduct. 

While this position may not be controversial, what may serve as a lightning rod is how the aforementioned employer conduct is being described.  In particular, if an employer places in the back an employee who looks different on account of his religious attire, or refuses to hire such an individual, can this be fairly termed "segregation"?  In other words, it seems, the employer is segregating an employer in the workplace (by placing him or her away from the public) and from the workplace (by refusing to hire him or her).   Title VII expressly prohibits "segregation" and language in the latest Workplace Freedom Restoration Act refers to this conduct as "segregation."  The term is charged, but the question is whether its use is accurate or prudent in this context.

Amicus Support Requested: Hosanna-Tabor

Leslie C.Griffin and Caroline Mala Corbin have drafted an amicus brief in the Hosanna-Tabor case, which involves a ministerial exception to employment laws and has important implications for gender discrimination.  They are asking interested law professors, particularly First Amendment Law professors and Employment Law professors, to join them in supporting the brief.  Here's their description of the case and the issues, which I am happy to pass along:

Cheryl Perich was a kindergarten and fourth grade teacher at Hosanna-Tabor Evangelical Lutheran Church and School, a K-8 school in Redford, Michigan. After she became suddenly ill at a school event, Hosanna-Tabor granted her a disability leave of absence and assured her that she would still have a job when she returned. After her narcolepsy was treated and her doctor cleared her to return to work, however, school officials questioned whether she was better and urged Perich to resign voluntarily from her position. After Perich told the principal that she would sue for disability discrimination, she was fired.  Correspondence from the school indicates that she lost her job because of her insubordination and her threats to take legal action.

Perich sued for discriminatory retaliation under the Americans with Disabilities Act. The success of Perich’s retaliation claim turns on whether the Supreme Court finds that she is a minister.  If she is not a minister, she will probably win.  After all, the school stated in writing that a main reason for Perich’s termination was her threatened lawsuit. If, on the other hand, she is a minister, she loses.  She loses because under the ministerial exception doctrine, ministers may not sue their employers for discrimination.  

The ministerial exception grants religious organizations immunity from employment discrimination suits brought by "ministerial" employees, even if the discrimination is not religiously required. Thus, even if the tenets of the Hosanna-Tabor Evangelical Lutheran Church forbid discrimination on the basis of disability (and in fact their Governing Manual for Lutheran Schools states that the school will not discriminate on these grounds), ministers cannot sue the school for disability discrimination.  The lower courts, who created and uniformly apply the ministerial exception, claim that the religion clauses require it

The ministerial exception has breathtaking consequences for the civil rights of thousands of women who work for religious organizations. Any employee (including elementary and secondary school teachers, school principals, university professors, music teachers, choir directors, organists, administrators, secretaries, communications managers and nurses) at any religious employer (school, mosque, synagogue, church, hospital, nursing home, social service organization, faith-based organization, non-profit religious organization) is at risk of losing the protection of the employment laws (including the Americans with Disabilities Act, the Age Discrimination in Employment Act, Title VII, the Pregnancy Discrimination Act, the Equal Pay Act, the Fair Labor Standards Act, the Family & Medical Leave Act, Workers Compensation laws and state tort and contract law) as long as the employer decides that the employee performs “important functions” in the religion.

We wish to ensure that the range of scholarly views on the ministerial exception – including those that understand the widespread problem of discrimination and the need for legal protection from discrimination – are before the Court. Our brief explains why the Free Exercise and Establishment Clauses do not require the ministerial exception. The Free Exercise Clause does not create a zone of church autonomy to which the laws do not apply.  Indeed, Employment Division v. Smith held that neutral laws of general applicability do not violate the Free Exercise Clause, and no one disputes that the American with Disabilities Act is a neutral law of general applicability. The Court’s church property cases do not hold otherwise.  

 As for the Establishment Clause, applying the ministerial exception in this case actually causes more Establishment Clause problems than simply resolving the retaliation claim. Deciding whether Perich’s termination was caused by protected activity, when the school wrote her a letter stating that it intended to fire her because she threatened legal action, does not entangle the court in any theological disputes. In contrast, deciding whether Perich’s service as a Christian role model for her students is important to the religious mission of the school requires the court to delve into the religious beliefs of the Hosanna-Tabor Evangelical Lutheran Church. Resolving a theological dispute about the religious role of schoolteachers is precisely the kind of doctrinal issue the courts are incompetent to make, yet the ministerial exception requires such theological analysis in this case.

If you are interested in learning more about the case, reading a copy of the brief and signing on to it, please contact us at the following e-mail addresses:

Leslie C. Griffin & Caroline Mala Corbin
[email protected]; [email protected]

A New Twist on Customer Preference and Employment Discrimination

(The following is by my colleague Kerri Stone, who teaches and writes on employment and employment discrimination)

As an employment law and employment discrimination professor, I teach my students the same basic premises each year. Federal law protects many classes of people from employment discrimination. Title VII and its jurisprudence protect plaintiffs from defendant employers’ assertions that their biases are rooted those of their customers or clients. So-called “customer preference” as a justification for the intentional disparate treatment of employees will simply not fly; this would thwart the broad remedial purposes and the efficacy of the statute.

So you can imagine how delighted I was when a friend from my hometown of Long Island passed along a local, developing news story to me yesterday that, since then, has already been picked up by, among other media outlets, the Toronto Sun. This viral story has sprouted wings and taken off to such an extent that I believe that it will be getting exponentially more national media attention by the time this blog gets published. It is a story about what I will call “reverse customer preference”—about a single customer/bystander’s bringing to light and shaming a major national company over alleged employment discrimination, abuse, and bullying that is not unlawful under federal law—but should be.

     This is one of the most moving and compelling stories about workplace discrimination that I have heard recounted. Having litigated and taught in this field for several years now, I can’t say that the underlying facts are worse than the worst things I’ve read recounted. But I can say that the poignant way in which the story unfolded and was brought to light—a glaring national spotlight— is nothing short of extraordinary and spectacular. Missy Alison is a gay mom who writes a blog about her family—   the Lil Family Blog, which carries the tagline "2 Moms, 1 Toddler, and a Lot of Love." On June 13, she posted a letter that she had written to Starbucks after she returned from their store in Centereach, Long Island.  Because I don’t think that I can give a better, more vivid and earnest account of what she alleges occurred or how her role in all of this should be seen than she did, I will quote liberally from her letter.

As Ms. Alison recites, she is “a loyal customer with concerns.” She elaborates:

  I know probably 90% of the letters you receive trying to solicit something from you probably start the same way, but this is different. When I say, I am a loyal customer I mean you have had me for the better part of my adult life, hook, line and sinker. I will spend the extra $2.50 for a cup of your coffee. When I worked in Hoboken I would walk an extra three blocks for your coffee, walking past a Dunkin Donuts, Panera, Macdonalds and two bodegas to purchase from you. …When you roll out a new product, I flock to your nearest location like a moth to a flame.  …I know, and speak your “lingo” that …is sometimes so complicated I feel like I speak a second language. I even, as much as I am ashamed to admit it, buy most of the adult contemporary CDs you peddle in the front of the store. …I am your disciple. I am part of the Starbucks machine. I am your dream customer because whatever your company puts into the market, I have and I would have continued to buy. 

She continues to explain that she “never felt bad about my commitment to your chain …because I felt like you were a company that was ethically sound.  Your commitment to free trade, The Starbucks Charitable Foundation, your appearance as a diverse work environment. These are all things that I as a customer felt good about. I felt like I was supporting a company that although huge, I felt you were doing your best to “do good” and leave a positive mark on the world.”

This was, she said, “the case, until yesterday.” After clarifying that the preface to her letter was “not written to solicit anything from you. I do not want free coffee or a refund,” she proceeded to ask “as a loyal customer for the past 15 years that I have your attention. Your time and consideration.” She then proceeded to describe her experience in the store as having exposed her to

one of the most brazen and unapologetic displays of homophobia I have ever witnessed….  What was most concerning about it was it was perpetuated by …THREE of your employees and it was directed towards a fourth employee.  I don’t know this man, but I know his name is Jeffrey because the woman (who seemed to be in charge…)  loudly scolded [him]….  In the middle of your store. Two feet away from my table.   Then when Jeffrey, who was visibly shaken went to the bathroom to collect him self [sic], the women at the table went on a long…homophobic rant that lasted about five minutes. This …transpired two feet away from my table where I sat with my daughter. A three year old child, with two mothers. …

Ms. Alison then proceeded to recount the details of what I can only say sounds like, at the very least, a humiliating episode of bullying and a constructive discharge because of the employee’s sexual orientation:

The whole incident spanned about 15-20 min[utes]. It looked like it was …about something that had happened in the store, an earlier problem.  What that was, I couldn’t be certain. I do know however,…that Jeffery’s sexuality was brought into the conversation…. The …Manager[]…spoke to him in a sharp condescending manner. She told him that they were not interested in his politics or beliefs and his thoughts were down right offensive to his co-workers. They did not want to hear about his personal life. … She was even so condescending to tell him, “It might not be today, it might not be tomorrow, but ten years from now you will thank me for this…”

For what? … For learning to put up with bigotry in the work place? She kept reminding him, “You are not fired but….” as if to say, you are not fired but you are really not welcome here anymore. I assume this was a clever HR move so he would not be able to collect unemployment. He told her that he felt like he was being FORCED to leave because he felt like the “problems” at that location were not being addressed and the workplace had turned into a hostile environment.  She in turn told him that if he was not, “Part of the solution, he was the problem.” and his two weeks notice would not be needed. He asked if he would be marked by the corporation as “un-hireable. She smugly looked at him and said, “Well I don’t know. It’s not looking good for you.” Basically threatening his professional future.

…The event got more horrific, when he, who had kept his composure through the entire incident, not once raising his voice despite being attacked, got up from the table to go to the bathroom to cry in private. Then the three women turned on him like Vultures. “I’m done. I’m done. Nobody wants to hear it anymore.  I don’t care who he is dating. I don’t want to hear about it.” “He should not get upset at the things people say to him. He should be used to it. It’s not like he turned gay yesterday.” “I used to listen to it, now I’m just sick of hearing about it.” “Nobody does, but it’s over now. You won’t have to hear about it anymore.” It went on, and on and on.

The focus of their discussion… when he left the table, was not about an incident that occurred in the previous days.  It was about how they were intolerant to his lifestyle, nobody wanted to hear about the fact that he was gay, they didn’t want to be exposed to that.  …

This man, this Starbucks employee was losing his job, because he was gay. …Whatever Jeffrey’s offense might have been… that is how one of your loyal customers perceived the events as they transpired based on the actions and the statements of your “manager”.  …When Jeffrey returned from the bathroom she asked him for his keys. She was pretending to be sensitive and offered him her card if he needed to talk.  Which disgusted me because, she was anything but concerned for his well being.

Finally, Ms. Alison ended her narrative by noting that she

followed Jeffery out of the store horrified by what I had just witnessed. I said to him, “That was unreal. …He …said, “Thank you.” I hugged him and he said, “I came to this company because I thought it was supposed to be better. I thought that it was a positive and tolerant work place to work. I was passed over for promotions, they hired from the outside,…. I couldn’t take it anymore. I didn’t have a chance here.”…I walked away from Jeffrey and I started to cry.  …I strapped my daughter into her car seat and I thought about how in this society we are so self congratulating as we …promis[e] our children, “It gets better!” I found myself wondering, “Better than what?”

So many things about this account are remarkable.  In the first place, Ms. Alison is the first person to concede that she is not an activist. An self-described ordinary person thrust into an Erin Brockovich-like  scenario  in which the impetus for her to respond was simply too great to ignore, she, by her own account is

not militant and I do not have an axe to grind nor am I looking for a soap box. I’m pretty boring to be quite honest with you.  I do not even march in pride parades and I swear I own not a single thing that has a rainbow on it. I don’t celebrate my diversity, That’s simply not the type of person that I am. In fact, I’m more the type to wallow in how mediocre I am.  I am an average American who just so happens to be gay. I live my life, I raise my family and I hope to also leave a mark on this world that is positive.

She also did not post her letter looking for any personal gain or to harm or precipitate any kind of boycott against Starbucks. In fact, as she noted, as she made her final entreaty to the company:

I want to still be able to walk into a Starbucks with my head held high. I want to drink your drinks, speak your code and even buy your newest record releases, even though they make me feel middle aged and unhip… and feel good about it. I want you to restore my faith that you are the company I always thought you were. Please don’t let this incident go unnoticed. Do something, anything you can to make this right. Please protect your (former) employee.

Her request did not go unnoticed. In this age of social media, the story has gone viral. Starbucks’s facebook page now has countless pleas from around the world for the company to “Please make good Starbucks. Homophobia - like racism - should never be tolerated,” and threats that customers “will no longer purchase any Starbucks products until there is Justice for Jeffrey. And I'm not even gay. I just abhor bullying of any kind. “

Starbucks, for its part, took to facebook and its website to acknowledge the incident  rather quickly, saying, pretty much, what one would expect them to say in this day and age:

At Starbucks, we pride ourselves on being a great place to work. We are deeply dedicated to our core values – to embrace diversity and treat each other with respect and dignity. We’re committed to providing an inclusive, supportive and safe work environment for everyone. … Starbucks has supported the LGBT community for many years, and we have zero tolerance for discrimination of any kind. We have one of the largest Employer Resource Groups for LGBT employees in the United States helping to raise awareness about issues in the communities in which we live and work. Our benefits program has always offered domestic partner benefits in the United States and Canada, and Starbucks partners actively participate and organize local LGBT events in their communities.

Starbucks noted that it was “disheartened by the allegations reported in an East Coast Starbucks store and are taking immediate measures to investigate and take any steps necessary to make this right. The actions reported do not correspond with our values, who we are as a company or the beliefs we try to instill in our partners.”

Those of us who monitor employment discrimination and the ways in which it is stoked or inhibited by the law and by society cannot help but marvel at how social media outlets, so often blamed for perpetuating and enabling expressions of bullying and discrimination, seem to have facilitated the publicity and the handling of this situation in a way and at a speed that more traditional outlets could not have. Although harassment  may be unlawful under Title VII, sexual orientation is not a protected class (although it is under certain state and local laws, including laws in New York). This fact and the fact that the threshold for actionable harassment is so high means that that it is not likely that what transpired would be unlawful in many places. It certainly does not look to have been unlawful under Title VII.  Workplace bullying that is not anchored to a cognizable protected class status is entirely (and some of us say, lamentably,) lawful.

Yet, lo and behold, a single “customer’s preference” for decency, civility, and nondiscrimination against one of the most discriminated against groups in the world was able to effect awareness and change that the law in most places could not. A woman who is most likely wholly unfamiliar with the jurisprudence that says that gay people are not discriminated against “because of sex” when they are stereotyped as nonconforming with their biological sex, the notion of a “mixed motive” jury instruction or the debate that has transpired as to precisely how a court should adjudicate a “mixed motive” case, or the concept of a constructive discharge; managed to impel action, where the same situation would have delayed, if not entirely stymied the law in its attempt.  This twist should not elude those who lament the impotence of employment discrimination law and jurisprudence, as so many of us who write and think about it do regularly.  Ms. Alison’s understated yet infinitely elegant and effective entreaty has ignited passions (and undeniably effective shaming mechanisms) and mobilized people to a degree and with a speed that it is doubtful that a lawsuit could have achieved.

 

 

Call for Labor & Employment Papers from the Saint Louis University Law Journal

An announcement from the Saint Louis University Law Journal:

The Saint Louis Law Journal is proud to announce its labor and employment themed Symposium Issue for Volume 56 (2011-12).  Articles in this issue will accompany articles presented last fall at the Fifth Annual Colloquium on Current Scholarship in Labor & Employment Law. 

The Journal is currently accepting scholarly papers and paper proposals for publication in this issue.  We anticipate publishing the issue in late fall 2011, and therefore would need a final draft of all accepted papers or proposals by August 1, 2011.   Articles for this issue are generally between 25 and 40 pages long.  Please send drafts or proposals to Stacy Osmond, Symposium Managing Editor, at [email protected].

Creating a Conference from Scratch

Tomorrow Wash U and SLU will be hosting the Fifth Annual Labor and Employment Law Colloquium.  It's a terrific event, with close to 70 presenters, and I'm very excited to be one of the hosts.

The event itself is a testament to the power of a good idea and hard work by a few folks -- in this case, Scott Moss, Joe Slater, and Paul Secunda.  Here's the original post by Scott that prompted the conference, and here's his follow-up post.  I think it's a great example of what a few prawfs can do when they put their mind to it.

Postscript on Crawford v. Metropolitan Government of Nashville

For those of you who teach Crawford v. Metropolitan Government of Nashville in employment law, here are some interesting facts about what happened after the Court's decision, taken from this Nashville Post article :

• The district court denied summary judgment on remand (2009 WL 3348233).
• The case went to trial.
• Crawford was awarded $1.436 million in damages ($300,000 in compensatory damages, $409,000 in back pay, and $727,000 in front pay).
• Her attorneys received $453,000 in fees, including UW Professor Eric Schnapper, who received $183,000.

Also, the employee resources director -- the one against whom Ms. Crawford testified -- resigned in 2003 after admitting he had falsely claimed to have been a lawyer, a Navy SEAL, and a professional football player in the past.

Where Are We Now after Ricci v. DeStefano?

As mentioned a few weeks ago, Prawfs is hoping to serve as a repository for some of the evidence of intellectual life that happens at conferences like SEALS. Thanks to SLU's Marcia McCormick, we now have a document that integrates the reactions and comments of the various speakers on her panel (see below). The theme of this panel is the title of this post. And you can read the notes of the various speakers here. (If you were on a panel at SEALS and want to coordinate collating some or all of your co-panelists' notes, please do so and send me an email and there'll be a post just like this one.)

The Supreme Court's decision in Ricci v. DeStefano at the end of its 2008 term was the first in decades to deal with the question of what practices constitute discrimination under Title VII. This panel will explore the effect of the Court's decision, specifically the current state of the law on employment discrimination, the theory of discrimination that seems to have been adopted by a majority of the Court, and the future of employment discrimination and affirmative action.

Moderator: Professor Jeffrey Hirsch, The University of Tennessee College of Law

Speakers: Professor Marcia McCormick, Saint Louis University School of Law; Professor Michael Zimmer, Loyola University Chicago, School of Law; Professor Kingsley Browne, Wayne State University Law School; Professor Robert D'Agostino, Atlanta’s John Marshall Law School; Professor Harold Lewis, Jr., Mercer University School of Law; Professor Kimberly West-Faulcon, Loyola Law School Los Angeles 

"Formation is a very basic existential analysis": Thoughts on the Rent-a-Center Oral Argument

Those who are interested in contract law, arbitration, labor & employment law, and federal courts should check out the oral argument for Rent-A-Center, West v. Jackson.  The quote above is from Robert Friedman, counsel for Rent-A-Center, and as a Contracts professor I enjoyed the sentiment.  But ultimately Rent-A-Center's argument hinges on a effort to separate unconscionability into two different categories -- a separation that has no basis in common law or statute.

The question before the Court is "Is the district court required in all cases to determine claims that an arbitration agreement subject to the Federal Arbitration Act (FAA) is unconscionable, even when the parties to the contract have clearly and unmistakably assigned this 'gateway' issue to the arbitrator for decision?"  The case involves a Sec. 1981 racial discrimination claim brought by employee Antonio Jackson against Rent-A-Center.  Jackson signed an arbitration agreement which stated:

The Arbitrator, and not any federal, state, or local court or agency, shall have exclusive authority to resolve any dispute relating to the interpretation, applicability, enforceability or formation of this Agreement including, but not limited to any claim that all or any part of this Agreement is void or voidable.

In the opinion below, the Ninth Circuit held that courts must decide whether the agreement to arbitrate is unconscionable as a threshold matter, regardless of what the agreement itself says.

In his argument, Friedman conceded -- indeed, he had to concede -- that if an arbitration clause was fraudulently induced, it cannot force the defrauded party into arbitrating whether there was fraud.  He also conceded that some cases of duress -- namely, "a gun to somebody's head" -- would not go to the arbitrator.  What Friedman was trying to distinguish was cases in which no contract was formed (due to fraud or duress) and cases in which there is a contract but it needs reformation in some way.  Some on the court seemed sympathetic to this, looking to draw a line perhaps between "total" and "partial" unconscionability.  As Chief Justice Roberts put it, "[O]nce you get past that [g]ateway question of whether the formation of the contract was not unconscionable, then claims that particular provisions were unconscionable are by definition for the arbitrator to decide."

The First Circuit suggested something along these lines in Awuah v. Coverall N. Am., Inc., 554 F.3d 7 (1st Cir. 2009).  In that case, the First Circuit said that a court could refuse to enforce an arbitration agreement if it were "impossibly burdensome" or provided only "illusory" relief.  But the common law of unconscionability makes no such distinctions between "illusory" contracts and "non-illusory but unconscionable" contracts.  All unconscionable agreements are subject to judicial reform.  And it would make no sense to say that an agreement to arbitrate is possibly unconscionable, but the arbitrator -- whose power derives solely from that possibly unconscionable agreement -- gets to decide whether it is unconscionable and, if so, what the remedy shall be.  As Ian Silverberg, counsel for Jackson, pointed out, Rent-A-Center wants "a rule where certain unconscionability challenges went to the court and other unconscionability challenges didn't go to the court."  There's no basis for this in the FAA.

The Supreme Court has a legitimate concern that some state courts have been pushing the bounds of unconscionability with respect to arbitration agreements. Justice Ginsburg, in particular, seemed to think that the agreement at issue was not all that unconscionable.  But that's the bed the Court made for itself in Gilmer.  Once it said: (a) litigants can agree to arbitrate statutory rights prior to the dispute, but (b) they cannot waive those rights and (c) normal contractual remedies apply, a result like the one in Rent-A-Center was in play.  The Court itself has said: “Of course, courts should remain attuned to well-supported claims that the agreement to arbitrate resulted from the sort of fraud or overwhelming economic power that would provide grounds ‘for the revocation of any contract.’ ” Mitsubishi, 473 U.S. at 627 (quoting FAA Sec. 2).  The Ninth Circuit has to be upheld, I believe, unless the Court is going to start mucking around in state common law.  It could make the argument that the Ninth Circuit is disingenuously applying unconscionability law here.  But that's not the question presented.  I don't see any way to give the arbitrator the ability to decide the legitimacy of the agreement to arbitrate itself.

Justice Breyer, author of First Options, summed it up this way:

[First Options says that] unless it's clear and unmistakable that they wanted this matter [--] the matter of whether the arbitration clause itself is unconscionable [--] referred to the arbitrator, whether or not they wanted that referred to the arbitrator has to be clear and unmistakable. And they are claiming no, because . . . the provision that says that is itself a product of unconscionability. . . . [W]hy isn't that the simplest, most direct and four-sentence ground for deciding this case?

If you haven't done so already, check out this great preview post by Aaron Bruhl.  I hope Aaron will weigh in with his thoughts on the argument.

Goodbye and, BTW, Eight Circuit Reinstates ERISA Case Against Wal-Mart Involving Iqbal Plausibility Standard

Thanks to Dan and all for having me as a guest this November.  I leave you all with the exciting world of ERISA/employee benefits and how the Iqbal/Twombley plausibility standard is impacting that part of the legal world. 

Braden v. Wal-Mart Stores, No. 08-3798 (8th Cir. Nov. 25, 2009) involves a class action dispute, alleging breach of fiduciary issues in the way that Wal-Mart managed its profit sharing and 401(k) retirement plans:

The gravamen of the complaint is that appellees failed adequately to evaluate the investment options included in the Plan. It alleges that the process by which the mutual funds were selected was tainted by appellees' failure to consider trustee Merrill Lynch's interest in including funds that shared their fees with the trustee. The result of these failures, according to Braden, is that some or all of the investment options included in the Plan charge excessive fees. He estimates that these fees have unnecessarily cost the Plan some $60 million over the past six years and will continue to waste approximately $20 million per year . . . .

Braden alleges extensive facts in support of these claims. He claims that Wal-
Mart's retirement plan is relatively large and that plans of such size have substantial bargaining power in the highly competitive 401(k) marketplace. As a result, plansn such as Wal-Mart's can obtain institutional shares of mutual funds, which, Braden claims, are significantly cheaper than the retail shares generally offered to individual investors. Nonetheless, he alleges that the Plan only offers retail class shares to participants. Braden also avers that seven of the ten funds charge 12b-1 fees, which he alleges are used to benefit the fund companies but not Plan participants.

The case is significant because the Plan has over one million participants and nearly $10 billion in assets.

Wal-Mart had moved for a motion to dismiss under 12(b)(1) and 12(b)(6) and:

The district court granted the motion, concluding that Braden lacked constitutional standing to assert claims based on breaches of fiduciary duty prior to the date he first contributed to the Plan and that he otherwise failed to state any plausible claim upon which relief could be granted.

The Eight Circuit reversed and remanded. Specifically on the standing issue, the court held that that Braden made a sufficient showing on Article III standing and proving a cause of action under ERISA and that the district court erred in concluding that he lacked standing to maintain claims for the period before he began participating in the Plan:

In reaching this conclusion, the district court mixed two distinct issues. Whether Braden may pursue claims on behalf of the Plan at all is a question of constitutional standing which turns on his personal injury. Whether relief may be had for a certain period of time is a separate question, and its answer turns on the cause of action Braden asserts.

On the plausibility issue, the court took issue with the high standards the district court placed on the plaintiffs under Iqbal and Twombley:

We conclude that the district court erred in its application of Rule 8. Accepting Braden's well pleaded factual allegations as true, he has stated a claim for breach of fiduciary duty.

The district court erred in two ways. It ignored reasonable inferences supported by the facts alleged. It also drew inferences in appellees' favor, faulting Braden for failing to plead facts tending to contradict those inferences. Each of these errors violates the familiar axiom that on a motion to dismiss, inferences are to be drawn in favor of the non-moving party.

More specifically,

Braden's allegations are sufficient to state a claim that appellees breached their duty of loyalty by failing to disclose details about the revenue sharing payments. Braden alleges that those payments corrupted the fund selection process—that each fund was selected for inclusion in the Plan because it made payments to the trustee, and not because it was a prudent investment.

So, at this stage of the litigation, nothing of real substance has been decided as far as ERISA violations, but at least the court suggests that ERISA defendants will not be normally able to avoid more searching inquiries into their fiduciary acts in these fee litigation cases through a combination of standing and process objections.

Paul Secunda

Work Email: "I Always Feel Like ... Somebody's Watching Me"

No, this post is not about the singer Rockwell or that annoying Geico commercial, but about whether you should just assume that your boss monitors your email.

A new Wall Street Journal article suggests that is what exactly may be happening, but now there is some push back from employees and their advocates:

Big Brother is watching. That is the message corporations routinely send their employees about using email.

But recent cases have shown that employees sometimes have more privacy rights than they might expect when it comes to the corporate email server. Legal experts say that courts in some instances are showing more consideration for employees who feel their employer has violated their privacy electronically . . .

In past years, courts showed sympathy for corporations that monitored personal email accounts accessed over corporate computer networks. Generally, judges treated corporate computers, and anything on them, as company property.

Now, courts are increasingly taking into account whether employers have explicitly described how email is monitored to their employees.

That was what happened in a case earlier this year in New Jersey, when an appeals court ruled that an employee of a home health-care company had a reasonable expectation that email sent on a personal account wouldn't be read.

To be honest, I don't think this a new trend at all (though it makes a nice theme in a WSJ story). Since I was practicing management side employment law back in the late 90s, we would advise clients routinely that they had to have clear language in their employee handbooks that employees had no expectation of privacy in their computers, internet browsing, or emails.

Nothing new, but still a good practice for employers to follow if they want to avoid this type of lawsuit.

Hat Tip: Joe Seiner

Paul Secunda

Widespread Employer Under-Reporting to OSHA

So finds a new astonishing and disturbing report released by the GAO this past Monday and reported on by the New York Times:

Employers and workers routinely underreport work-related injuries and illnesses, calling into question the accuracy of nationwide data that the Occupational Safety and Health Administration compiles each year, the Government Accountability Office said Monday.

The report, by the G.A.O., the auditing arm of Congress, said many employers did not report workplace injuries and illnesses for fear of increasing their workers’ compensation costs or hurting their chances of winning contracts.

The report also said workers did not report job-related injuries because they feared being fired or disciplined and worried that their co-workers might lose rewards, like bonuses or steak dinners, as part of safety-based incentive programs . . . .

According to the G.A.O. report, 67 percent of the 1,187 occupational health practitioners surveyed had reported observing worker fear of disciplinary action for reporting an injury or illness, and 46 percent said this fear had some impact on the accuracy of employers’ injury and illness records.

It goes without saying that it is hard for OSHA inspectors to do their jobs if they are faced with this type of lying/gamesmanship.  It also shows that previous reports that injuries in the workplace were declining during the conservative Bush era are a bunch of hogwash.

OSHA inspectors will now have to start with the presumption that employers may be holding back the truth as far as injuries and illnesses in the workplace and will have to interview individual employees to get information on what is really going on in the workplace: "In response to the report, which examined OSHA’s audits from 2005 to 2007, the safety administration said it would adopt the accountability office’s recommendations, which include requiring inspectors to interview employees during all audits to check the accuracy of employer-provided injury data."

And you wonder why regulation of the workplace is necessary? Because many employers (not all) cannot be trusted.

Hat Tip: Josh Pollack

Paul Secunda

Does Wal-Mart Use of Check Cards for Pay Purposes Violate Wage Payment Laws?

The Wall Street Journal reported two days ago:

Wal-Mart Stores Inc., the nation's largest private employer, is eliminating paper payroll checks in the U.S., transferring workers' earnings to a debit card if they decline direct deposit to a bank.

Wal-Mart is the biggest company yet to make the move that it said will save paper and money. It estimates the move will save 257,572 pounds of paper a year. It declined to specify the savings but said the shift will reduce its payroll costs . . . .

Some Wal-Mart workers last month received earnings electronically in the form of credit to a MasterCard Inc. debit card. The program will roll out nationally this month, though many of Wal-Mart's 1.4 million U.S. workers will continue to receive paper checks for months while it is fully implemented. About half of its U.S. workers now receive paper checks.

Though the debit cards save companies money by reducing payroll costs, consumer advocates have criticized some card programs, noting that workers are often charged fees to access their money or even check balances.

I understand the consumer adovocates point and I appreciate the environmental angle, but as an employment law professor I wonder (out loud) whether this arrangement could violate a state's wage payment and collection law?

At least in Michigan, under the Michigan Wages and Fringe Benefits Act, the answer appears to be "no."  There, Mich. Comp. Laws Ann. § 408.476 (West Supp. 2006) allows Michigan employers to mandate use of a payroll card by employees.  Most of these laws require that employees be paid in cash or check, and not in some other form of payment. 

Do any readers have insights from other states?

Hat Tip:  Hammad Haider-sha

Paul Secunda

The NFL Commissioner Asks for Labor Law Reform?

Who knew that the commissioner of the NFL was such a labor law aficionado?  From Yahoo! News and the AP:

Frustrated by court decisions that blocked the suspension of two football players who tested positive for banned substances, NFL commissioner Roger Goodell is asking Congress for help.

"We believe that a specific and tailored amendment to the Labor Management Relations Act is appropriate and necessary to protect collectively bargained steroid policies from attack under state law," Goodell said in testimony prepared for a House Energy and Commerce subcommittee hearing Tuesday.

Recent court decisions "call into question the continued viability of the steroid policies of the NFL and other national sports organizations," Goodell said. 

I have written previously about the interesting state law questions lurking in the case concerning the suspension of two Minnesota Viking players. Here is the summary of that case again that started all of this:

In Williams v. NFL (8th Cir. Sept. 11, 2009), the appeals court affirmed three legal conclusions of the district court: 1. the Minnesota statutory claims alleged by Kevin Williams and Pat Williams of the Minnesota Vikings were not preempted by section 301 of the Labor Management Relations Act; 2. their Minnesota common law claims were preempted by section 301; and 3. the arbitrator's award upholding the player's suspensions for using banned substances would be upheld.  The NFL Players Associations was at least initially successful in getting it claims heard that they had some statutory defenses to the suspensions under the Minnesota Drug and Alcohol Testing in the Workplace Act and the Minnesota Consumable Products Act.

My colleague Matt Mitten, director of the National Sports Law Institute here at Marquette, thinks the court got it wrong:

The court gives no consideration to a national professional sports league's need for uniform rules by permitting state law to invalidate the terms of a collectively bargained anti-doping program. It conflicts with other federal appellate cases holding that state labor, antitrust, administrative, and tort laws cannot be used to regulate national sports leagues and governing bodies, which require rules that must be applied and enforced consistently nationwide. It's almost certain the NFL will petition the Supreme Court for cert., and I think there's a reasonable chance the Court will grant its petition.

Major league baseball also believes in a legislative fix:

Rob Manfred, Major League Baseball's executive vice president of labor relations, also discussed a legislative remedy in his testimony, saying "a narrowly drafted statute could solve the problem faced by professional sports" while preserving the role of collective bargaining in drug programs without interfering with states' prerogatives.

Legislatively or judicially, it would not be surprising if what came out of all of this was some changes in the law which permit professional sports leagues some form of preemptive power to maintain uniformity in their substance abuse policies.

[Cross-posted on Workplace Prof Blog]

Paul Secunda

Employers Under Siege by the EEOC?

Not so says the EEOC.  From the National Law Journal:

Many of Burwell's clients who attended the breakfast are facing EEOC charges, some for the first time. "A lot of people had questions" for the agency, said Josephine Avery, vice president of human resources of the Motor City Casino Hotel, who attended the breakfast. It was "a good opportunity to hear what they had to say."

And what did the EEOC say? "We're not the big bad government coming after them, and we truly do want to forge a partnership [with employers], but we have to enforce these laws," said Deborah Barno, the supervisory trial attorney in the Detroit EEOC office, noting that the jobless are seeking legal redress like never before. "Our lobby is full every day, and mailed-in charges are increasing even more." The Detroit office of the EEOC alone has 2,500 complaints pending before it — 25% more than it had pending at the start of the recession in 2007.

Welcome to the world of employers under siege. Discrimination complaints from their former and current employees are flooding into the EEOC and similar state agencies. Management lawyers are getting their desperate calls. And the lawyers anticipate that, by the end of 2009, the number of claims will look even worse.

From 2007 — the recession first started in December of that year — to the end of 2008, overall claims filed with the EEOC increased by 28%, from 83,000 to 95,000. Discrimination claims jumped by 28%, and retaliation charges — what lawyers call the hottest charge these days — jumped by 22% last year, from 27,000 to 33,000 claims. The EEOC does not have numbers yet for 2009.

Clearly, the EEOC is receiving more complaints because of the economic recession, but are the EEOC regional offices pro-employee too much?  I would be interested in readers comments on their notions from both sides of the bar.

[Cross Posted on Workplace Prof Blog]

Paul Secunda

Ricci Glitch

The following post was written by my FIU colleague Kerri Stone, who writes on employment discrimination:

In Ricci v. DeStefano, the Supreme Court held that “under Title VII, before an employer can engage in intentional discrimination for the asserted purpose of avoiding or remedying an unintentional disparate impact, the employer must have a strong basis in evidence to believe it will be subject to disparate-impact liability if it fails to take the race-conscious, discriminatory action.” In the case, the City of New Haven violated Title VII when it refused to certify the results of a test given for promotion on the basis that “too many whites and not enough minorities would be promoted were the lists to be certified,” and the City feared a disparate impact lawsuit. Having had not too much time to digest the opinion at this point or fully research the issues, I have only initial impressions to share about it, but one that I thought was interesting.

While, as the Court said, a “disparate-treatment plaintiff must establish ‘that the defendant had a discriminatory intent or motive’ for taking a job-related action,” does this mean that anyone who suffers an adverse action (and there is debate as to whether one was conferred here) because of a decision made on the basis of a racial consideration has been discriminated against “because of” his race? The Court’s language on this point is not entirely clear. The Court proclaimed that the premise of its analysis was that “[t]he City's actions would violate the disparate-treatment prohibition of Title VII absent some valid defense [because a]ll the evidence demonstrates that the City chose not to certify the examination results because of the statistical disparity based on race- i.e., how minority candidates had performed when compared to white candidates.” The Court noted that the District Court had concluded that the City’s “own arguments ... show that the City's reasons for advocating non-certification were related to the racial distribution of the results,” and found, based on that, that “[w]ithout some other justification, this express, race-based decisionmaking violates Title VII's command that employers cannot take adverse employment actions because of an individual's race.” The Court later noted that “the City made its employment decision because of race,” when it “rejected the test results solely because the higher scoring candidates were white.”

Title VII prohibits discrimination “against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race….” After reading this case, however, I have to take issue with the Court’s assertion that disparate treatment cases “present ‘the most easily understood type of discrimination.” As even the Court recited, disparate treatment claims succeed “where an employer has ‘treated a particular person less favorably than others because of’ a protected trait.” But does this case open a door to what might be called a “transferred intent” theory of Title VII, whereby one who is not the intended victim of a race-based decision may sue in the context of a policy in which another group is discriminated against?

Consider a tougher hypothetical. If an employer with an expressed bias against Asian Americans announced that in attempt to lower the number of Asian Americans in his workforce, he would be firing all employees who had one-syllable last names, and if a non Asian-American got fired because of this, would a cause of action under Title VII be viable? I ran this idea by Professor Anne Lofaso, and she commented that upon reading the case, she had thought that it would make proving discrimination cases easier for all Title VII plaintiffs.

I am thinking of writing on this principle, and I’d love to hear others’ thoughts.

Stimulus Blogging III: Conditional Grants & the Tenth Amendment

Legal controversy over ARRA, the stimulus legislation, continues.  This week, a student in South Carolina filed an original petition in the South Carolina Supreme Court, seeking a declaration that the legislature could act to apply for more than $700 million in funds for S.C. education that the Governor has refused to request.  Last time I posted, I argued that under ordinary principles of statutory interpretation, the statute can plausibly be read to permit legislatures to "apply" for education funds, and almost certainly to apply for federal unemployment subsidies.  But, as I noted, the Congressional Research Service thinks that the statute should not be read that way, in order to avoid the 10th-Amendment question that, according to CRS, would be posed otherwise.  (The South Carolina AG also suggested this argument in a footnote to their memo on the question).

CRS (and, to the extent he takes this position, the SCAG) is off-base on this one, I think.

Although the 10th Amendment bars Congress from "conscripting" state non-judicial officers, a conditional offer of funds is not conscription.  The Supreme Court has said as much repeatedly, most notably in South Dakota v. Dole and New York v. United States.  (As an aside, I've argued, drawing on the work of Rick Hills and others, that the best explanation for that combination of rules is that it forces Congress to internalize the costs of enacting and enforcing legislation.)  So, ARRA is a conditional offer.  Where's the conscription?

CRS's argument, as I understand it, is that allowing the legislature to "apply" in place of the governor would be, in effect, allowing Congress to enlist the state's legislature to conscript its governor.  That's, um, a strange argument.  For one, if the legislature applies itself, it isn't forcing the governor to do anything; in fact, it's acting without the governor at all.  (Although para. 42 of the S.C. complaint also asks the Court to hold in the alternative that the legislature can force the Governor to apply.)  For another, there's nothing at all unusual about a decision by some state officials that binds other state officials.  No one would argue that a joint decision by governor and legislature to accept federal funds is a prohibited "conscription" because it also binds inferior state officers, such as the Secretary of Education. 

I think the conceptual problem that trips up CRS is the potential puzzle over what the federal-law consequences should be if state law does not ordinarily authorize the actor specified by federal law to bind other state officials.  So, in Jack Balkin's example, what if a federal statute says that the capital-house janitor can accept federal funds?  Are the conditions attached to those funds binding on the state? Or, more realistically, what if the state treasurer, a person with no real policy authority, cashes a $700 million federal check?  Is the state now bound, at least by estoppel, to follow the accompanying federal terms? 

These are interesting questions (and I've addressed them in depth elsewhere), but at this point they have nothing to do with the stimulus.  Even unelected state officials, such as state Secretaries of Education, routinely accept federal money in ways that bind states, and no one has ever suggested that these decisions would so undermine federalism norms that they should be problematic under the 10th amendment.  Hard to see how, if these are fine, a decision by an entire state legislature would be a problem.  Plus, the question for now is -- can the feds cut the check?  Also hard to see how disbursing money is conscripting anyone to do anything.   

--Brian Galle

NLRA Trumps ADEA in 14 Penn Plaza; Whither Gardner-Denver?

The Supreme Court has just handed down its decision in 14 Penn Plaza LLC v. Pyett.  In a 5-4 decision, lined up according to the traditional liberal/conservative split, the Court held that a union-negotiated collective bargaining agreement (CBA) can force individual employees to arbitrate their ADEA claims against the employer.  The CBA in 14 Penn Plaza was negotiated between Local 32BJ of the SEIU and NYC's Realty Advisory Board (RAB) -- a massive CBA covering thousands of workers.  The Court held: "The NLRA provided the Union and the RAB with statutory authority to collectively bargain for arbitration of workplace discrimination claims, and Congress did not terminate that authority with respect to federal age-discrimination claims in the ADEA."

A few notes:

• The majority appears not to have overruled the holding in Gardner-Denver, but it admits it has overruled much of the "broad dicta" in the case that was "highly critical of the use of arbitration for the vindication of statutory antidiscrimination rights."  However, it claims that Gilmer, rather than the present case, did the overruling.
• Justice Stevens and Justice Souter both dissent, focusing on the majority's abrupt rejection of prior precedent.  Both point to the fact that Congress chose not to overturn Gardner-Denver in the last 35 years, so this ruling is (in their view) contrary to Congressional intent.
• The majority does leave a potentially huge hole in its holding, because it does not address the concern that a union may choose not to pursue an individual employee's claim through arbitration.  The majority states: "[A]lthough a substantive waiver of federally protected civil rights will not be upheld, we are not positioned to resolve in the first instance whether the CBA allows the Union to prevent respondents from 'effectively vindicating' their 'federal statutory rights in an arbitral forum'" (quoting Green Tree).  Justice Souter's dissent notes: "On one level, the majority's opinion may have little effect, for it explicitly reserves the question whether a CBA's waiver of a judicial forum is enforceable when the union controls access to and presentation of employees' claims in arbitration, which is usually the case."
• What will unions and employers do with this new-found power?  In its amicus brief, SEIU claimed that the CBA did not cover the workers' claims, since both the union and the employer did not think the claims had merit, and under the CBA only disputes between the union and the employer were arbitrable.  The Court seemed to ignore this argument as not presented below.  I would guess that 14 Penn Plaza would be a double-edged sword for most unions.  Neverthless, the politics are interesting: a holding that provides more power to unions gets the five conservative justices to overrule fairly venerable precedent.

Reflections on Ledbetter, the Statute

Thanks to Dan and everybody for letting me guest blog over here this month. I am usually found at Workplace Prof Blog or speaking only to my students at McBlogmick (my class blog), so having the option to publicly embarrass myself on subjects beyond workplace law will be a real treat. I'll start small and stick with a workplace subject first, though.

I hesitate to express value judgments in my analysis of workplace issues at those other places because of the nature of those fora, but I'd like to do that here a little, starting with the first-ish bill that Obama signed into law, the Lilly Ledbetter Fair Pay Act. The statute changes the statute of limitations for when an employee can file a charge of discrimination in pay on the basis of race, sex, age, disability, religion, national origin, or color, restoring it to what the circuits had held before the Supreme Court issued its decision in Goodyear Tire v. Ledbetter almost 2 years ago.

There was a lot of rhetoric on both sides of this legislation--it was going to eliminate discrimination v. it's a field day for the trial lawyers--but no one seemed to ask this question: is it really going to have any effect? My gut reaction is, not much, and I'll explain why after the jump.

All the Ledbetter Fair Pay act does in terms of enforcement is to extend the time to file a charge to within 180 days of a discriminatory paycheck or other decision. It makes these claims easier to bring then, in that plaintiffs will not be time barred so easily. But the time bar was just one obstacle that, frankly, didn't even really exist until the Ledbetter case. It seems to me that other obstacles operate with much more force, and this statute does not address those.  Other, more powerful obstacles include a fear of retaliation and lack of access to legal help to pursue the claims.

I'll address the lack of legal help first. Discrimination cases are difficult to win or get enough of a settlement for to warrant an attorney taking the case on contingency, and most workers can't afford the kinds of hourly fees to pay an attorney up front. There is a wealth of empirical research on this winnability point. And this statute doesn't make these cases more likely to pay, which would enable attorneys to take them. The pay difference (amount of damages) may be a big deal to the individual plaintiff, but a relatively small amount in terms of recovery for the attorney. And attorneys can get fees if they win a judgment, but these cases almost never get to trial, when they get to trial most often lose, and when plaintiffs win at trial, are twice more likely to get reversed on appeal than when defendants win. And even where they win, plaintiffs can only recover damages for the two years prior to the charge being filed, so the available recovery is relatively limited.

And retaliation is a bigger problem. Pay discrimination cases are almost always going to arise in the context of continued employment. Particularly in a weak economy, no one is going to want to give their employer a reason to look for problems by suing for pay discrimination. Some kind of backlash is highly likely. Research has shown that people who complain about discrimination are viewed negatively even when the viewer knows that the person was actualy discriminated against. On top of that retaliation is very difficult to prove, and even if a person can prove they were discharged in retaliation for filing a charge, they're out of work during the time they're pursuing that claim. And at least some industries are tightly knit enough that the person wil be unlikely to be hired anywhere else, either.

So, the statute opens the door to the one group of people who don't have retaliation to worry about, people just like Lilly Ledbetter, those retiring. Maybe that will be enough.

Is uncoercive workplace democracy impossible?

The ongoing propaganda battle over the Employee Free Choice Act (EFCA) is largely two sides’ trading anecdotes. The apparent futility of the debate suggests a larger and depressing possibility – that uncoercive workplace democracy is simply impossible.

EFCA provides (among other things) that employees can certify their desire to form a union by checking a card rather than by voting in a certification election. Employers’ organizations argue that the “card check” deprives employees of a secret ballot, exposing them to intimidation by union organizers. (The idea that EFCA undermines the secret ballot is a constant refrain in the anti-EFCA press). EFCA supporters respond that the “secret ballot” in certification elections demanded by Chamber of Commerce types is actually an intimidated ballot: Employers use intimidating tactics – for instance, threatening to close plants or lay off workers if union representation is approved -- without fear of serious sanction from the NLRB.

Without purporting to be any kind of expert in labor relations, I am inclined to think that both sides are right. It is hard for me to imagine that union organizers would not pressure workers during card-signing campaigns in ways that we would find intolerable in, say, a school board election. (Do union folks seriously contend that a worker who refused to sign the card would never face some degree of ostracism from a pro-union workplace?) Likewise, it is common knowledge that employers pressure workers with thinly veiled threats of job loss if they vote for the union -- threats that often materialize in actual termination. In theory, the NLRB could outlaw tactics deemed to be coercive, and Congress could stiffen the sanctions to make such limits stick. In practice, the NLRB will likely be either Democratic (pro-labor) or Republican (pro-management) and dilute any statutory limits that Congress enacts.

Is the moral of the story that uncoercive democracy in the workplace is a pipe dream? This is a sad thought to someone like myself with a soft spot for Brandeisian localism. But the more the defenders and detractors of EFCA defend their version of democracy, the more dispirited about workplace democracy I become.