PrawfsBlawg

Where Were the Feminists When Elizabeth Vargas was Mommy-Tracked?

Feminists are speaking out in droves regarding Hillary Clinton’s presidential bid. Her treatment by the media, opponents, and pundits is getting careful scrutiny from women’s advocates. That’s great. But the attention has caused me to re-focus on a question I had two years ago, which still bother me.

Where were the feminists when Elizabeth Vargas – brief holder of the “permanent” anchor position at ABC World News Tonight – had to give up her post upon becoming pregnant?

There are two important aspects to the story that beg for feminist scrutiny. First, Vargas left her position early in her pregnancy, and “voluntarily” chose not to come back to the anchor-chair after giving birth. Press-release pleasantries aside, it sure looks like mommy-tracking. This is an issue that is explicitly legal in nature, as it raises the prospect of colorable employment-discrimination claims under federal law. Where were the feminist law professors to lend this story a critical eye, forcing these concerns into the national consciousness?

The second facet of ABC’s maneuver begging feminist scrutiny is that Vargas’s downgrade came after her male co-anchor, Bob Woodruff, was sidelined following a severe head injury suffered in a roadside bombing in Iraq. The questions raised by this aspect are less legal than social, but deserving of examination nonetheless: Did ABC decide it could tolerate a woman in the anchor chair only if the feng shui on set was put into balance by a male presence?

[More after the jump ... ]

The three major-network anchor chairs are positions of enormous influence and power – arguably more significant – and I know I’ll get flak for this – than seats on the U.S. Supreme Court. While each justice gets only one of nine votes on the Court, each national anchor is one of only three people who deliver, and thereby shape, the national news for millions upon millions of Americans. Anchors generally wield considerable power over story selection and editing as well.

There are few people suited for anchoring the national news. Candidates need to be able to use disarming ebullience in one instant, and mass-casualty gravitas in the next. They have to project a sense that they could share a good-natured laugh with you over coffee, yet be your polestar in times of history-turning tragedy.

It’s a talent that NBC’s recent hire, Brian Williams, appears to lack. He would deliver the news of National Candy Day the same as he does for genocide: Punching. Three words. In every sentence.

Katie Couric, the new face of the CBS Evening News, also seems to lack the ability. After debuting to considerable fanfare, her sinking ratings quickly became tabloid fodder.

Virtually everyone who has done the national anchor job brilliantly has been male – Peter Jennings, Tom Brokaw, Walter Cronkite. Yet Vargas possessed the rare gift. Perhaps ABC could not overcome the image of a male anchor in their mind’s eye. But isn’t that why we have federal employment discrimination law? Too bad public intellectuals didn’t force America to confront the issue.

Law-Firm Associates Should Unionize

Law-firm associates should unionize. I don’t know why they haven’t already, except that they are, on the whole, rather gutless.

Think about it. Associates at big law firms are perfectly suited to unionize. They are overworked and underpaid. And partners utterly depend on them. If associates actually used their latent collective bargaining power, it seems to me they could extract huge concessions from partners.

Now, I know nothing about labor law. Is there a legal barrier here? Or are associates just holding themselves back? There would certainly be some professional responsibility issues with an all-out strike, as client interests could be threatened. But I think associates could flex considerable collective-bargaining muscle without creating an ethics problem.

Let me note that when I say associates are underpaid, I do not mean that they are impoverished and we should feel sorry for them. But, compared to the amount that the partners bill clients for associate hours, the portion associates receive is trifling. Why should they surrender more than three-quarters of their billable rate to pay for the partners’ rainmaking services and office overhead?

I am struck by the irony that associates are trained and employed to play hardball in their litigation work and corporate deals, yet, when it comes to dealing with the partnership over pay, associates seem to take what they are given, unless they feel so slighted they move to another firm. That’s my observation, having been one.

One last point: I am sure many associates would claim they are uninterested in unionization since, as they see it, they will be a partner someday. But, of course, if everyone thinks that, most are wrong.

Jeff Hirsch is En Fuego

It is a rare blog post that can combine thoughtful analysis with passionate feelings over the subject matter.  This post is one.

What Should a 50-50 Union Vote Mean?

Since I started looking at corporate voting discontinuities, I've gotten a little obsessed with voting discontinuities in general. One place I've looked for discontinuities is NLRB workplace elections seeking to certify a union. (Disclaimer: I basically know nothing about the topic other than the ability to look at data, so please correct me if I say anything egregiously wrong.) I've learned a few things from looking at these votes. 1:  There is no evidence that anything fishy is going on in close elections. and 2:  When there is a perfect tie vote, the tie goes to the company. 

I'm puzzled by point 2-- why should a tie go to the company? I think it would make more sense to vote again or even flip a coin in these circumstances, rather than just give a victory to one side or the other.

If ties never happened, then this would be a trivial detail. But they do happen. In my dataset of over 84,000 NLRB certification/decertification votes from 1977-1999, there was a tie in over 3,000 votes (3.6% percent of all votes). This happens because many votes come from small workplaces with even numbers of workers, making ties a frequent outcome.  Given the frequency of ties and the apparent unfairness of the apparent "unfairness" of the "tie goes to the company" rule, I think a different tie-breaking rule, such as revoting or even coinflipping, is worth considering.

Unionize! (or I'll slap the Figure Four on you)

Whooooooooooo!

-- The Nature Boy, Ric Flair

One of the more interesting topics I saw presented at the Employment Law Conference that Blogs Built was John Hall's talk on workplace safety in the pornographic film industry.  (The only reason I went to this particular session was because of my deep interest in workplace safety.  Really.)  The thing that was most striking about Professor Hall's topic was, given the obvious risks of contracting sexually transmitted diseases, just how badly porn actors are in need of legal protection and just how little protection California safety and health officials actually provide.  According to Hall, this is an area in which California health officials have more or less turned a blind eye.

Hall's talk eventually got me thinking about another industry that has largely been ignored by the law and those who enforce it:  the professional wrestling business.  Like the porn industry, professional wrestling is a high-risk business for performers.  The number of professional wrestlers who have died young in the past few years is truly frightening.   

In many instances, the cause of death appears attributable, in part, to abuse of painkillers, steroid abuse, and/or general physical abuse resulting from risky on-the-job behavior.  Like performers in the porn business,  wrestlers take sometimes extreme risks in terms of their job performance.  While modern wrestlers spend less time in the ring than their predecessors, their style of wrestling has far more potential for serious injury.  High-risk maneuvers -- such as flips, leaps from the top rope to the floor, and unprotected chair shots (i.e., smacks to the head with metal chairs) -- are far more common now than in the past as workers try to push the envelope to keep the attention of the public.  The risky behavior doesn't end in the ring, however.  Steroid use is reportedly widespread in the business.  As a result of these factors, the potential for sudden paralysis (see Darren Drozdov) or death (see Owen Hart) is fairly high.  So too is the potential for long-term, chronic pain (see the Dynamite Kid), a condition frequently treated by copious amounts of painkillers (see Kurt Angle).

Like performers in the porn industry, wrestlers are easily exploited.   Because they are classified as independent contractors, wrestlers are not entitled to collect workers' compensation, so working with serious injury is a common occurrence.  Unlike football players, wrestlers don't have pensions.  They don't enjoy employer-provided health insurance.  State athletic commissions  generally take a hands off approach.  (At least as of a few years ago, Oregon was the only state whose commission tested wrestlers for steroids.  Coincidentally (?), the WWE didn't run shows in Oregon.).  In short, this is an industry that is largely unregulated to the detriment of the performers.

So, if the law won't protect wrestlers, what's the solution (short of siccing Professor "Samoa Joe" Slater on management)?  Unionization might be one possibility, but it would be a tough sell.  Because there are plenty of people who dream of being a wrestler, the performers are often quite willing to assume risks workers in other industries would never tolerate.  Years ago, Jesse "the Body" -- later "the Governor" -- Ventura actually tried to organize the WWE (then the WWF).  According to Ventura, however, he was ratted out to management by one Hulk Hogan. 

In discussing all of the above, I don't mean to overstate the seriousness of the situation.  There are plenty of occupations out there in which workers earn far less money and face greater health risks (say, coal mining, for example).  But there is something at least slightly offensive to me about the fact that lawmakers and regulators are unwilling to take steps to protect those such as wrestlers and porn actors because (I surmise), in part, they don't want to associate themselves with such "embarrassing" industries.

Law Firms: One Last Bastion of Legal Discrimination?

The New York Times reports on the surprising prevalence of age-based mandatory retirement at big law firms:

In a survey last year of 46 law firms with 100 or more lawyers, about 57 percent of them reported a mandatory retirement age, ranging from 65 to 72

Let me converse with myself about this:

(1)  Scott, haven't the standard "retirement ages" become obsolete?  Excellent point, Scott.  "65 isn’t old anymore,” one lawyer is quoted as saying.  This reminds me of how the social security "retirement age" was set in the 1930s at 65... because 65 was the life expectancy at the time.

(2)  Is this really legal, Scott?  Good question.  Yes and no.  The federal age discrimination law covers only "employees," and the folks in question here are partners, not employees.  But the EEOC's position, and a 7th Circuit ruling against Sidley & Austin in an age discrimination case, is that many so-called "partners" are really "employees" with fancy titles -- e.g., if they lack a meaningful equity stake or role running the firm.  Such partners are, legally speaking, "employees" protected against age discrimination -- which means that mandatorily "retiring" them is illegal.

(3)  Isn't mandatory retirement just younger lawyers grabbing business from older lawyers?  Sure looks that way.

“To be a healthy institution, you have to encourage people to hand off business to the younger generation,” said Richard J. Davis, a partner and Weil Gotshal’s general counsel

This is one of those sentences: if you're not reading it carefully, you'll just nod your head because it has a lot of common catchphrases ("healthy institution"..."younger generation"); but if you think about it for a minute, it makes no sense whatsoever.  Say a partner normally would have a client from age 40 to 75 without mandatory retirement, but mandatory retirement truncates that relationship from 35 years to 30 years: (1) Is that 5-year shortening of a partner's client relationship really that critical to "the younger generation"? (2) Is this guy really asserting that forced turnover of clients to new lawyers is a good thing for business? (3) isn't this policy -- you must give up your business to help others without business -- kind of like a 100% estate tax (which even Nancy Pelosi doesn't advocate)?

Thoughts???

The Conference that Blogs Built

So, I just returned to California from the First Annual Colloquium on Current Scholarship in Labor & Employment Law at Marquette Law School, and I think I can speak for (most? many?) when I say that this was a great conference.  With so many interesting papers, on everything from Title VII, to whistleblowing, to labor, it's difficult to know where to begin. 

Over on WorkplaceProf, Paul Secunda (Ole Miss) has already graciously thanked everyone, and I have –already - mocked his use of the smiley face graphic (a bit ironic to use the Walmart symbol for a labor and employment conference, eh Paul?). 

A “theme” of the conference that emerged involved the use of powerpoint graphics.  One panel I attended featured Michael Z. Green (Texas-Wesleyan) who had powerpoint animations, Scott Moss (Marquette) who had odd embedded clip art deployed to humorous effect, and Marcia McCormick (Cumberland) who had meticulously drawn images that looked almost postmodern.  Of course, these speakers all had interesting things to say too (about arbitrator bias, confidential settlements, and collaborative dispute resolution respectively), but that’s beside the point, no?

It was also great to catch up with folks on blogs, which in addition to the aforementioned, also included Joe Slater (Toledo); Michael McCann (Mississippi College); an unnamed, but very cool blogger; and Prawfsblawg’s own Orly Lobel. 

Which I guess brings me to the point of this post, which is that the conference had its beginnings in the blogosphere, with Joe, Scott, and Paul deciding – in cyberspace – that they were going to organize this conference.  I’m still thinking this through, but perhaps this conference is a testament to the idea that blogs aren’t by any means the antithesis of scholarship (as a distraction, or just providing glib soundbites, as I have seen argued by others before).  Perhaps what they can do is assist us in creating welcoming scholarly communities (whether online, or in person).

Employment Discrimination by Religious Employers

There’s an interesting article in the New York Times (click here; registration required) discussing employment discrimination by religious employers.  The article begins by recounting why J. Jeffrey Heck, a management-side attorney decided, in this instance, to take on a plaintiff’s case:

“The only employee cases I take are those that poke my buttons… And this one really did.”  His client was a middle-aged novice training to become a nun in a Roman Catholic religious order in Toledo.  She said she had been dismissed by the order after she became seriously ill – including a diagnosis of breast cancer. … Along with her occupation and her home, she lost her health insurance[.]”

The story continues by describing how the U.S. District Court dismissed the novice’s case (under the Americans with Disabilities Act), reasoning that this was an ecclesiastical matter.  The article also describes a lawsuit by a rabbi, diagnosed with Parkinson’s disease, who was dismissed from his position (and whose case was also dismissed, due to the ministerial exception).

Although some of the cases involving clergy members were rather disturbing (if you can’t expect compassion from the church or synagogue for anyone who is ill, let alone an ill clergy member, who can you expect compassion from?), even more troubling were the cases described where religious institutions, as employers, were exercising discriminatory biases against workers in rank-and-file positions that had nothing to do with religion (such as receptionists) and were shielded from liability. 

More commentary from Paul Secunda (Ole Miss) here at Workplace Prof Blog.

Immoral Jobs?

Last semester, when I taught employment law, I remember having a conversation with some students that ended up carrying over into a question I kept asking (seemingly) everyone.  The question was, what do you think is an “immoral” job and why?  The responses I received varied widely.  One friend, an entrepreneur - and also a fan of the Sopranos – replied that his only category was “hitman” but then, under my intensive questioning, qualified that answer with “anything illegal.”  But of course, that begs the question of what is illegal and why, etc., which wasn’t really what I was thinking about, at all.  To the other extreme, another friend was adamant that plastic surgeons belonged on the list.  Me, personally?  I think if your job is “spammer,” well, that might be immoral.  (No one mentioned any law-related jobs, but that might be because everyone I was talking to knew I was a lawprof…)

Shiver me Timbers

Just a note, mateys, to remind you that today is “International Talk Like a Pirate Day” a fact that I'm sure is not lost on our colleagues at Pitt Law.  As you drink your bottle of rum to celebrate, you could check out Theresa Beiner & Robert Chapman’s article on employment law and bankruptcy claims, Take What You Can, Give Nothing Back: Judicial Estoppel, Employment Discrimination, Bankruptcy and Piracy in the Courts, 60 U. Miami L. Rev. 1 (2005) (quoting Captain Jack Sparrow).

[Hat tip: Amy Landers]

Course Preparation and the 800-Pound Gorilla in the Room

OK, so Jeff Lipshaw has clearly set  a torrid pace for guest bloggers on Prawfs.  Geesh, he made me feel guilty for not posting yesterday (I mean the guy is driving across country and apparently blogging as he's changing lanes).   And to think I really liked the guy when I met him in Baltimore in July.

In any event, and keeping with the spirit of discoursing on course preparation for the upcoming fall semester (alas, I am not lucky enough to teach Secured Transactions like Jeff), I will let everyone in on my prep situation. 

In a word: ERISA.  Yes, I am one those masochistic people who actually went into their Associate Dean's office and offered to teach employee benefits.  Unlike Article 9, ERISA does not only not make sense when you get to thorny little issues, but it is also maddeningly complex at a global level.

Things just got a lot more hectic though for employee benefits people.  I give you the 907-page Pension Protection Act (PPA) about to be signed into law by the President.  In short, I don't know how I am going to incorporate this new statutory bad-boy into the already confusing ERISA framework.

Everything from minimum funding of pension plans to automatic enrollments in 401(k) plans have been altered to a degree that will keep ERISA attorneys busy and rich for many years to come (to students, I refer to my employee benefits law class as "the guaranteed future employment in law" class.  Thinking back to Kim Roosevelt's recent post, however, the students in their evaluations of the class do not seem to appreciate the gift I am giving them).

So, I am interested in hearing whether other people are dealing with anything similar as they prepare for their classes this semester.    Any other 900-page statutory gorillas out there? 

At least for my other class, Labor Law, it really has now just come down to a situation which Stephen Colbert sums up best when he concludes: "It's time for management and labor to put aside their differences and come together as management to exploit labor."