Putting Union Security Clause First Amendment Law in a Broader Context: Charlotte Garden’s Meta Rights

Charlotte Garden, Meta Rights, 83 Fordham L. Rev. 855 (2014).

Meta Rights is a thought-provoking article that addresses concerns about labor law rules governing agency fee payments in public-sector employment by comparing these rules to doctrines in analogous situations in other areas of law. Specifically, after the Supreme Court decided Knox v. SEIU Local 100 in 2012, 132 S.Ct. 2277 (2012), many felt that the Supreme Court was primed to change the default rule for agency payers from “opt-out” (an employee covered by a union security agreement would have to affirmatively state a preference not to pay dues for activities deemed “not related to collective bargaining”) to an “opt-in” system (unions could not require such dues absent specific, individual consent). Many in the field also noted that Harris v. Quinn, 134 S.Ct. 2618 (2014), looming but not yet decided when this article was written, could result in the Supreme Court mandating the “opt-in” system (I thought that was the most likely result in Harris). This is a very important issue in labor law and policy and for the labor movement as a whole. Although these cases explicitly covered only public-sector unions, such unions make up about half the total membership of all unions in the U.S.

Professor Garden could have written an article solely about whether “opt-in” rules were good or bad labor policy, or the extent to which constitutionally mandating such a system would be consistent with previous precedent (e.g., Abood v. City of Detroit, 431 U.S. 209 (1977)). Instead, she wrote a more interesting article by casting her net much more widely, describing when, in other contexts, courts have required Party A to give notice to Party B that Party B has certain constitutional rights. This takes her well beyond labor and employment law, and indeed beyond civil law (e.g., by discussing Miranda rights). Showing that such “meta rights” are relatively rare (e.g., public schools need not give notice to students that they have a First Amendment right to abstain from reciting the Pledge of Allegiance), Professor Garden provides a strong, principled, and broad-based critique of “opt in” rules.

Of course this type of analysis only works if the author has a solid knowledge of the other areas of law she is contrasting. Happily, Professor Garden does. In addition to Miranda warnings and Pledge of Allegiance cases, she analyzes an impressive variety of legal doctrines: procedural due process rights (both Matthews v. Eldridge rules and rules regarding notice to members of class actions); cases involving mandatory dues to bar associations; mandatory subsidies for agricultural advertising; the right to refrain from speaking (e.g., through license plates with the “live free or die” motto); and other areas. She persuasively demonstrates that “meta rights”—notice of the substantive right—are rarely required.

Using these comparisons, Professor Garden makes several points effectively. First, courts have never articulated an overarching principle as to when “meta rights” are required (or, when they are, what the precise contours of those rights should be). Second, doctrines in this area are troublingly inconsistent: it is difficult to justify why, for example, school children have no right to be informed of their substantive right to refrain from reciting the Pledge, while adult members of union bargaining units have extensive, detailed, and expensive (for the unions providing them) “meta rights” regarding the share of their dues that go to activities deemed “not related to collective bargaining.” She also draws effective comparisons to Citizens United, and raises intriguing questions about the entire area of “compelled speech” First Amendment law.

Further, Professor Garden offers an original and (at least to me) persuasive framework to help determine whether and to what extent meta-rights are owed: the degree to which individuals must overcome significant barriers to self-help. She describes factors to balance within this framework. These include: costs (financial and otherwise) to the parties; ability to get information from other sources; extent of the burden on constitutional rights of the parties; potential for coercion; and vulnerability of the parties. When she applies this framework to the agency fee issue, she adds some observations about the significance of “default” rules (opt-in vs. opt-out). Her conclusion that an opt-in regime for union dues payers should not be required may not be surprising, but it is very well-supported.

I had very few and very small nitpicks. First, I would have liked to have heard even more discussion about public employee due process rights under Cleveland Board of Education v. Loudermill, 470 U.S. 532 (1985). Second, some might argue that she understates the potential for “coercion” in the agency fee context, and I would have liked to hear her take on the more aggressive claims from that side. But it’s a good sign when an article leaves you wanting to hear just a bit more.

Overall, this is a terrific article by an excellent scholar that makes a significant contribution to the field. I have written a casebook chapter on the rules regarding union agency fees in both the public and private sectors, and this article gave me some important new insights into this area. I liked it a lot, and I highly recommend it.

 
 

Title VII and Tort Law: A New Perspective

Martha Chamallas, Two Very Different Stories: Vicarious Liability Under Tort and Title VII Law, Ohio St. L.J. (forthcoming), available at SSRN.

In her paper, which is a working draft and part of the Ohio State Law Journal symposium, Torts and Civil Rights Law: Migration and Conflict, Professor Chamallas takes on the daunting task of analyzing how the Supreme Court’s use of agency principles have helped develop employment discrimination doctrine. Professor Chamallas does a superb job of explaining how the Court has used common-law tort principles to help create the theory of vicarious liability in workplace cases. She explains how the use of agency principles has diminished the scope of liability under Title VII, and she further analyzes how this erosion has played out in the case law. Most importantly, however, her paper “challenges the logic and the wisdom of borrowing tort and agency law to craft liability rules for Title VII” and calls on Congress to act swiftly to correct the situation. The paper thus does an excellent job of not only identifying the problem of integrating tort law into employment cases—it provides a workable remedy for resolving the issue.

In the first part of the paper, Professor Chamallas looks at the definition of “employer” under the statute. She explains how agency principles have helped define this term over time. Professor Chamallas undertakes a historical review of this definition, and she explains the importance of the role of the common law in the development of the definition of “employer” under Title VII. The paper further examines the Supreme Court’s well known and controversial employer liability decisions in Burlington Industries v. Ellerth and Faragher v. City of Boca Raton, exploring the role these sexual harassment cases have had in shaping employment law through common-law agency principles. In particular, the paper examines the impact these cases have had on the development of vicarious liability and negligence theory in hostile work environment cases. Professor Chamallas discusses how the Supreme Court’s use of the Restatement (Second) of Agency in these cases was instrumental in establishing the negligence and strict liability standards for Title VII cases.

The paper does an outstanding job of examining the Supreme Court’s development of these standards, and explores how Title VII cases have been redefined as “statutory torts.” Professor Chamallas explains the difficulty of “predicating Title VII on a negligence standard.” She also looks at how the use of strict liability standards has negatively impacted Title VII cases. The paper further outlines the existing narrative of these cases: violations of Title VII are essentially statutory torts that can—and should—be interpreted through tort law principles.

Professor Chamallas takes issue with this narrative, and explains why agency law is an inappropriate vehicle for defining employer liability in employment discrimination cases. She explains the important role of dual liability in tort law and notes the critical distinction with Title VII claims, which can be pursued exclusively against the employer. The paper further explores the structural differences between Title VII and tort law with regard to the identity of the plaintiffs. In this regard, the paper undertakes a historical review of American law on the issue. And, Professor Chamallas examines how the “fellow servant rule” has played an important role in this analysis. The paper further looks at workers’ compensation laws and their impact on employer liability. From this historical review, Professor Chamallas concludes that we should “import the lesson that the common law has definitively proven to be inadequate when it comes to employee rights. There is really little of value to borrow here.”

Professor Chamallas explains why the prevailing narrative of the role of tort law in employment cases is sorely misplaced. She sets forth a differing view, explaining how the creation of Title VII was necessary given the inadequate relief available to workers through the private law. By providing an alternative “story” on the relationship between Title VII and tort law, she beautifully “challenges the logic and the wisdom of borrowing tort and agency law to craft liability rules” in employment discrimination cases.

In the final section of the paper, Professor Chamallas concludes by recommending legislative changes to Title VII. In particular, she advocates that employers should be held accountable for any discriminatory acts of their workers, “free of any restrictions.” This bold proposal would simplify employment cases and “restor[e] the enterprise liability scheme contemplated” by the original statute. On a more practical level, this proposal “would provide a reasonable incentive for employers to take the steps necessary to deter discrimination.”

The proposal Professor Chamallas offers here is important and should be closely analyzed by the legislature and academic literature. The paper does a superb job of outlining a “simple” proposal that would help remedy this complex and confusing area. Title VII and tort law have become almost hopelessly intertwined. In this brilliant paper, Professor Chamallas provides a clear path to unraveling the existing problems.

 
 

A Grand Unified Theory of Employment Law

Samuel R. Bagenstos, Employment Law and Social Equality, 112 Mich. L. Rev. 225 (2013).

If the law of the workplace could be anthropomorphized into a family of four siblings, here’s how it might go: labor law would be the oldest, a raconteur spinning yarns about the old days; employment discrimination would be the middle child, an activist vigorously standing up for justice and equality; employee benefits would be an accountant, quietly off to the side at family dinners; and employment law would be the oddball youngest child, jumping from activity to activity without rhyme or reason.1 I teach employment law, and it is often compared to a “catch-all” or “grab-bag” category: anything that doesn’t fit in the other courses is covered there. The Fair Labor Standards Act is paired with covenants not to compete; unemployment compensation is alongside the at-will doctrine. This hodge-podge looks like an unfortunate intellectual shambles when contrasted with labor law, which has the coherence of an overarching (and little amended) system of regulation, as well as employment discrimination, which has a limited set of comparable federal statutory schemes. Perhaps as a result, the employment law course tends to be one that a professor picks up on the side, to accompany one’s main interest in one of the other three subjects.

Sam Bagenstos has set himself the task of cleaning up this particular set of Augean stables by providing an overarching theory to justify our set of employment law doctrines. In Employment Law and Social Equality, Bagenstos sets out a “social equality” theory of employment law under which individual employment doctrines can be understood, as well as justified, for their promotion of social equality. Jumping off from his work on social equality and antidiscrimination protections, Bagenstos notes the difference: “[w]here employment discrimination law targets the threats to social equality caused by occupational segregation and group-based subordination, individual employment law should be understood as targeting the threat to social equality posed by a boss’s ability to leverage her economic power over workers into a more general social hierarchy in and out of the workplace.” (P. 232.) He argues that social equality—the notion that each of us are equal members of our communities—serves as the primary justification for many important employment law doctrines, such as employee privacy and autonomy protections, antiretaliation provisions, arbitration regulation, child labor laws, and overtime protections. Nimbly straddling the line between positive and normative claims, Bagenstos argues that social equality can serve as a theoretical lens for both seeing the law and critiquing it. As an example, he argues that critics of the at-will rule are primarily concerned with its effects in undermining social equality, and that the rule should be dismantled for propping up workplace hierarchies. His “social equality” theory thus serves as a tool for understanding the law as well as a sword for attacking it when it exacerbates existing hierarchies.

As an employment law professor, I deeply appreciate Bagenstos’s effort to provide some theoretical backbone to the field, particularly in contrast to the omnipresent (and omni-encompassing) reach of law and economics and its utilitarian methodology. Of course, the “social equality” lens need not be exclusive of the economic one; both can coexist and even provide complementary justifications for the same doctrine.2 Similarly, I think Bagenstos need not identify his theory as one that covers all of employment law or one that applies only to employment law. He wisely chooses those doctrines that best match up with his theory, in either a positive or a negative sense, and provides keen doctrinal insights into the operations of these provisions. In particular, I believe his interest in the confused and often neglected realm of employee political speech and activities is an important one, and he neatly demonstrates how social equality would counsel for much greater protection for employee political participation. But social equality need only be one theory or justification within a set of justifications—one lens among many. And why try to tie it to the grab-bag of employment law? The article reads somewhat as if Bagestos had selected the category and then matched it to the theory; but why is employment law even a meaningful category? In fact, why is employment at all a meaningful category? Why do we base so many of our laws on the initial threshold requirement that the person be defined as an employee for purposes of the relationship in question?

Employment should not be a meaningful category simply because it provides an easy entry point for carrying out policy goals that could be equally relevant to other legal situations and dynamics. Instead, we should ask: what is so special about employment that it justifies its own legal meaning? From my perspective, employment is special because of the employer: employees would not be employees but for their relationship with an entity defined as an employer. Employers take on the responsibility of having employees not by self-description or by legal decree, but whenever they form relationships that are best characterized as employer-employee. Using the traditional common-law tests, employers provide direction and exhibit control over the work that employees do.3 Employment is a useful legal category because it is defined by how the employer has constructed its actual relations with its workers. Because employees are those “controlled” by the employer, the employer has responsibilities towards its employees that extend beyond the average contractual relationship. It is not a generalized sense of social equality that is at issue: it is equality within the firm, both economic and social, that employment law seeks to engender.

That is a discussion that I hope will continue on into the literature. In the meantime, praise be Bagenstos for shining the light of social equality into the rough mess of employment law, and finding some gold that glitters back.



  1. See Orly Lobel, The Four Pillars of Work Law, 104 Mich. L. Rev. 1539, 1539 (2006). []
  2. As one example, law and economics may try to swallow social equality by making its goal of equality in social relations part of the “preferences” that economic analysis measure and balance in evaluating different policies. []
  3. I have argued that a better concept is participation: employees are those who participate in the continuing business of the employer. Matthew T. Bodie, Participation as a Theory of Employment, 87 Notre Dame L. Rev. 661 (2013). []
 
 

Is Standing Out the Best Way to Fit In?

Brian Soucek, Perceived Homosexuals: Looking Gay Enough for Title VII, 63 Am. U.L. Rev. 715 (2014), available at SSRN.

I’m a sucker for a contrarian perspective, and that’s certainly what one finds in Brian Soucek’s recent article. It’s pretty conventional wisdom—although often decried—that the safest bet for identity expression in the workplace is by assimilating to the expectations of the majority. Indeed, there’s a whole critical literature devoted to the “covering” and “working identity.”

Looking Gay Enough challenges that proposition—at least where sexual orientation is concerned and at least in terms of what identity strategy maximizes an employee’s prospects of prevailing in a lawsuit. Professor Soucek, of course, is writing about the Never Never Land that current judicial interpretations of Title VII have created: it’s not illegal to discriminate on the basis of sexual orientation but it is illegal to discriminate against individuals on the basis of failure to conform to gender stereotypes (except for the ultimate stereotype that individuals are sexually attracted to persons of the opposite sex).

Calling this rule incoherent is charitable, but its existence creates serious problems in workplaces and in the courts—typically in the harassment context—in trying to sort out what, exactly, is the basis of the discrimination. For employers, tolerating either form of discrimination has its risks because it’s often impossible to know ex ante where the line will be drawn and because the spread of legislation adding sexual orientation to the list of protected characteristics suggests a need to police any such conduct.

Federal courts, however, continue to struggle with distinguishing the indistinguishable, and this is where Professor Soucek comes in. His article, not surprisingly, views the rule stated above as “conceptually untenable” but, somewhat startlingly, he also claims it to be “descriptively incorrect.” The real distinction being drawn, he argues, is between how violations of stereotypes are perceived:

If you look or act sufficiently “gay” at work, you might currently find protection from discrimination in at least half of the nation’s courts of appeals. If, however, your coworkers or employers simply know or think you are gay, you are not only unprotected under federal law, but your claim is that of a “bootstrapper” trying to force sexual orientation into Title VII against the will of Congress.

In other words, “contrary to popular wisdom and most academic theorizing,” appearances in employment-discrimination law in this context not only matter but “take precedence over knowledge, and one’s look and affect receive more protection than one’s sexual identity.” Maybe even more surprising, the piece contends that behavior at work does not have to mimic opposite sex characteristics: “gender nonconformity does not equal opposite-gender conformity. Traits not perceived as feminine may be perceived nonetheless as violating masculine stereotypes, and vice versa.”

As is always true with a Jot, I cannot hope to capture all of this interesting article in the space allotted. It is firmly grounded in a detailed study of two cases raising the issues and an empirical examination of a data set of 117 federal court opinions. All well worth the read. But, as a contrarian, I found most interesting the tension between those empirical findings and much of the writing in our discipline—Robert Post’s invisibility paradigm, Kenji Yoshino’s “covering” theory (Soucek finds both his “descriptive doctrinal account and prescriptive theory” challenged by the article’s empirical findings), and the almost universal recognition—again, much decried—that the courts disfavor appearance-based claims.

The question why courts should have drawn to a bizarre distinction also fascinates Professor Soucek, but he avoids “psychologizing about judges.” I tend to agree: since courts are trying to distinguish the indistinguishable, any line they draw will be bizarre.

But Soucek is concerned about the effects of an appearance/cognition distinction, fearing it might “reinforce the homophobia the courts presumably hoped to counteract.” He sketches several potential problems, but I was most taken with the resultant “incentives for gay employees to flaunt.” Not only does this heighten inauthenticity concerns but “[b]y incentivizing workers to flaunt and requiring employers to attend to gay-coded appearance and affect, courts reinforce the perceived differences separating gay and straight employees.”

There’s obviously a lot in this piece to think about, and it’s a must-read for those of us interested in what’s happening at the sex/sexual orientation border.

 
 

(Re)Booting the Dismal Science

Thomas Piketty, Capital in the Twenty-First Century (2014).

French economist Thomas Piketty has published a lengthy tome on economics that, unusual for economics books, has become a best seller. That attention is for good cause. While not exactly a beach read, Capitalism in the Twenty-First Century is a potential game changer for what the study of economics entails and its consequence for future policies. The timing of the book is perfect because the fact of increasing economic inequality has become a topic of increasing focus among academics but also in public policy discussions more broadly. What has been lacking is a deep understanding of how this has come to happen and what might be done to reduce inequality. Picketty’s book moves the discussion forward by pointing to where inequality comes from, where it is going, what might be done to shift its momentum and direction and what might happen if nothing is done to alleviate ever increasing inequality.

In his Introduction, Piketty quotes Marx’s “Communist Manifest” for its prediction of the inevitability of revolution resulting from the internal contradiction of capitalism: “The development of Modern Industry, therefore, cuts from under its feet the very foundation on which the bourgeoisie produces and appropriates products. What the bourgeoisie therefore produces, above all, are its own gravediggers. Its fall and the victory of the proletariat are equally inevitable.” In less dramatic language, Piketty concludes that “the private rate of return on capital, r, can be significantly higher for long periods of time than the rate of growth of income and output, g. The inequality r>g implies that wealth accumulated in the past grows more rapidly than output and wages. . . . Once constituted, capital reproduces itself faster than output increases. The past devours the future.” His evidence supporting his conclusion that makes capitalism inherently unstable, at least in its present form, is his of study of a wide array of data from a number of countries from the 19th century up until the beginning of World War I and, beginning again after the end of World War II until today. During those prolonged periods, the net rate of economic growth in terms of output and wages was about 1% while the return on capital was always between 4 and 5%. Thus, wealth in terms of capital versus from labor increasingly is concentrated in the top 1% and, even more so, in the top .01%. Ever-expanding capital simply cannot be sustained in the long run because that would mean that labor loses all value. If the past is the prologue to the future, capitalism will at some point inevitably collapse if actions are not taken to reduce the growing value of capital. The period from the beginning of World War I through the end of the immediate post-World War II period demonstrated that the momentum toward ever increasing concentration of wealth can be stopped. During that disastrous period of the 20th century, there was a substantial shift as capital shrank due to the destruction of the two great wars, the Great Depression, the end of European colonization and a policy shift toward the creation of a middle class. As a result economic inequality decreased significantly until after World War II. Much economic theory assumed that this period was the new normal, but, for Piketty, the experience since 1970 onward shows that the old normal has reasserted itself so that economic inequality will continue to grow unless substantial efforts are undertaken to change the policies that underpin the growing power of capital over labor.

Where Piketty differs from Marx is that he does not agree that the end of capitalism is inevitable or that capitalism is inherently contradictory. Instead of Marx’s economic determinism, Piketty believes in capitalism and a globalized economy but he concludes that the present situation is the result of policy choices that have been made. For him, disaster can be averted if those policies are altered to change the course of the present trend toward ever increasing economic inequality.

There has been and will continue to be, I am sure, extensive debate about his thesis and the data he has assembled to support it. But, I want to explain why this book has much broader potential impact, even if his analysis and conclusion might not ultimately be accepted in whole or even in substantial part. There are three reasons why this book is likely to have long term significance, even beyond the conclusions that Piketty draws from his studies. The first concerns the proper scope of economics as a discipline. In 1962, Milton Friedman published “Capitalism and Freedom” that was the opening shot in the war to replace Keynesian macroeconomics with free market microeconomics—the Chicago School. With tremendous support from those economic interests that would benefit from neoliberal economic theory and governmental policies based on that theory, free market microeconomics won the war in the United States and it has had a tremendous impact globally as well. Piketty challenges that narrow view of what is properly called economics by reasserting the significance of macroeconomic theory as a proper basis not only for the study of economics as an academic discipline but also to make economic policy decisions.

Second, Piketty is convinced that the true study of economics is a social science. To be a social science and to be potentially meaningful, economics must be based on the best and broadest available data, and not just theory. To support a return to that broader view of what economics is all about, Piketty looks to history and, more importantly, to all kinds of sources of economic data developed both internationally and—so far, more significantly—within different national economies. In short, he wants to transform economics from pure theory to join other social sciences, such as sociology, that are based on data and its analysis. Chicago School economics has recently been at least dinged, if not seriously undermined, by the emergence of microeconomic behavioral economics that studies data showing how people make economic decisions rather than the hypothetical “rational economic actors” that drive pure Chicago School economic theory. Piketty shows that analyzing vast amounts of macroeconomic data is key to making the study of economics realistic and therefore useful. He, of course, calls for amassing much more data of different types especially from much more of the world including the developing and undeveloped nations of the world.

Third, Piketty rejects the parochialism of economics that focus on individual national economies. He takes a global perspective on how economic theory and policy should be discussed. Given the expanding significance of global economic activity, this seems obvious. Most of his analysis is based on major developed national economies because the U.S., the U.K., France, Germany, Japan, and Sweden have the data that have been collected that can be used for his comparative analyses. But he uses any data he can find to project the way globalized economics works. Would more data come available from the developing world, Piketty would incorporate that in his approach to economics.

The book is well written, surprisingly so considering it is a translation from the French, but it is long. Piketty presents a vast array of historical and current data of widely different forms and includes data from 20 countries. His descriptions along with accompanying graphs and tables are extremely clear. Based on the data presented, Piketty presents a wide variety of different interpretations and he does a good job supporting the conclusions that he draws from these mountains of information.

Publication of Capital in the Twenty-First Century has resulted in a significant amount of response, much of it favorable but also a lot of criticism. The criticism takes two basic forms—challenges to his data and to the inferences that he draws based on that data. So far, the most significant attack on Piketty’s methodology for presenting and interpreting data has been by the Financial Times economics editor, Chris Giles. Some of the criticisms involve what Giles considers to be “transcription errors from the original sources and incorrect formulas.” Piketty has explained these not as errors but as necessary judgment calls based on limitations inherent in the way the different sources of data have been made available and how best to interpret them overall. More seriously, Giles claims that Piketty misinterprets data from the U.K. so that Piketty’s conclusion that inequality is increasing is unsupported and in fact economic inequality is not increasing in the U.K. Piketty responds that Giles fails to understand the difference between tax data and survey data about wealth. According to Piketty, Giles is comparing the apples of hard tax data with the oranges of much softer survey data. Survey data understates wealth because people have a strong tendency to underreport what they own. Given the tremendous amount and range of data that Piketty has assembled, the immediate future of Piketty’s approach will depend on how reviews of his methodology turn out. In his response to Giles, Piketty appears to have so far won the debate, but it is still very early. If nothing else, Capital in the Twenty-First Century is likely to set the agenda for economic researchers for the foreseeable future.

A number of critics have challenged the inferences that Piketty has drawn based on the data he has presented. For example, Larry Summers is not so sure that Piketty’s conclusion that the recent extraordinary increases in CEO compensation in the United States is the result of our low income tax rates that create incentives for CEOs to seek ever higher compensation. Piketty bases his conclusion on the fact that productivity of U.S. corporations has not increased to justify higher executive compensation and that CEO compensation of multi-national corporations located in other developed countries with higher income tax rates has not ballooned as they are doing in the U.S., even though the productivity of their corporations is in line with U.S.-based corporations. As with challenges to the data Piketty has presented, his inferences will also form the agenda for economic researchers in the near and perhaps far term.

Capital in the Twenty-First Century is important to read because it has already altered the focus of economic debate. Its longer term significance depends on how it holds up to the many critics who have a new research agenda based on what Piketty has done.

Piketty’s policy conclusions will make people like Grover Norquist gasp in horror. For example, Piketty concludes that “the optimal top tax rate in the developed countries is probably above 80 percent.” He concludes that income tax rates that high would not interfere with the growth of economic productivity and would, in the U.S., go a long way toward reducing the present growth in economic inequality that is primarily based on unjustified rent seeking by the high executive class. Even more shocking to the present conventional wisdom is Piketty’s proposal for a worldwide tax on net wealth that is accompanied by international laws and policies to minimize the ability of taxpayers to hide their assets in tax havens.

Given the present state of political discussion, Piketty’s proposals sound shocking. But, there is a great jazz song, “Compared to What,” recorded in 1969 by pianist Les McCann and saxophonist Eddie Harris for their album, Swiss Movement. Doing something to reduce economic inequality has to be compared with what will happen if nothing is done. Piketty explains that the last time economic inequality was as extreme as it is today was in the Gilded Age, as it is described in the U.S., and the Belle Époque as the period was called in Europe. What reversed that inequality was the horror of the two world wars and the Great Depression. If the alternative to dealing with ever increasing economic inequality is such catastrophes, perhaps we can begin to discuss policy approaches that are not nearly so destructive. If Piketty’s analysis is right and nothing is done, what will be dismal is the failure of humankind to protect its future.


Editor’s note: For other Jotwell reviews of Thomas Piketty’s Capital in the Twenty-First Century see:
 
 

On Managerial Justice and the Anti-Discrimination Project

Nancy Gertner, The Judicial Repeal of the Johnson/Kennedy Administration's ‘Signature’ Achievement (forthcoming, 2014), available at SSRN.

The extensive research showing that employment discrimination plaintiffs fare significantly worse than plaintiffs in other kinds of cases in federal court at every possible stage of litigation is well known at this point. Scholars like Ted Eisenberg, Kevin Clermont, and Stewart Schwab have thoroughly documented the disparity. Building from this work, other scholars have focused on why employment discrimination cases are different. Some have chalked the change up to changes in employer behavior, labeling current forms of discrimination “subtle” rather than “overt.” Others have mapped doctrinal drift between the goals of the statutes when they were initially enacted and their current applications. Still others have linked the drift and plaintiffs’ disproportional losses to the liberal use of summary judgment and the change in rules to pleading standards under Twombly and Iqbal. Most scholars are able only to theorize on the causes as they document these changes, but Nancy Gertner, a Professor of Practice at Harvard and former United States District Court Judge, has offered important new insights on why it is that employment discrimination cases fare worse than other kinds of cases.

Judge Gertner’s most recent article on the subject is The Judicial Repeal of the Johnson/Kennedy Administration’s Signature Achievement. In it, she identifies five potential causes of this phenomenon: 1) judges may believe that discrimination doesn’t exist anymore; 2) more discrimination cases are frivolous; 3) good cases are taken to state courts because state law is less employer friendly; 4) the Supreme Court has narrowed the law in a way that protects employers; and 5) the pressures on judges create and perpetuate biases against these cases. Based on her own experiences and others’ studies of judicial decisions, Gertner concludes that ideology, particularly as communicated by the Supreme Court in its decisions, plays some role, but that the greatest cause of the disparity is the pressure on judges to manage their caseloads and the ways that the effects of those pressures magnify the ideological factors.

Judge Gertner’s article builds on two of her prior articles, Losers’ Rules, and with Elizabeth M. Schneider, “Only Procedural”: Thoughts on the Substantive Law Dimensions of Preliminary Procedural Decisions in Employment Discrimination Cases. The core contention in these three works revolves around how case management practices are driving a wholesale abandonment of the antidiscrimination project.

First, judges are encouraged to resolve cases without trials and to write decisions only when absolutely necessary. Because a grant of dismissal or judgment disposes of at least part of a case, those decisions must be written and must explain the decision’s rationale. So decisions are written only when plaintiffs lose. That means, the only decisions available to be read are decisions explaining what is wrong with plaintiffs’ cases, which creates and reinforces judges’ implicit biases about the merit of employment discrimination cases. As Judge Gertner notes, “[i]f case after case recites the facts that do not amount to discrimination, decisionmakers have a hard time imagining the facts that comprise discrimination.”

In addition, courts have developed decision-making heuristics for employment discrimination cases, which are employed in only one direction to avoid false positives—wrongful accusations of discrimination. Those heuristics become precedent and then supplant the law themselves. One particularly vivid illustration of such a heuristic is the “stray remarks” doctrine, which trivializes sexist and racist speech. This doctrine arose as a way to distinguish direct evidence of discriminatory motive from circumstantial evidence, with a particularly narrow view of direct evidence. Only if no inference at all was required to link the plaintiff’s protected class with the decision—I am not hiring you because you are black or female—would the evidence be direct. Anything else would be a “stray” remark. This heuristic has been employed in such a way that now, explicitly gendered or race-linked speech is not considered evidence of discrimination or constitutive of harassment at all by judges in the summary judgment stage. Conversely, when juries hear that this kind of language was used, they have ruled for plaintiffs and awarded large damages.

To counter these structural pressures on the substance of the law and consequent self-perpetuating spiral away from the goals of the employment discrimination statutes, Judge Gertner makes several suggestions. Congress could amend Title VII of the Civil Rights Act and the Age Discrimination in Employment Act (ADEA) as it has the Americans with Disabilities Act (ADA),  using language more broad and cabining judicial discretion. Scholars could monitor judicial decisions, like one study of decisions from the Northern District of Georgia, showing that summary judgment was granted for defendants on at least one issue in 95% of cases, in an effort to reveal to judges their own patterns. Judge Gertner herself is currently undertaking a larger study like that one. Finally, an enforcement scheme that doesn’t rely on the federal courts might be worth exploring.

Judge Gertner is not the only person with federal judicial experience writing about how the system is broken for employment discrimination cases. She is joined by Judge Mark W. Bennett, whose article Essay: From the “No Spittin’, No Cussin’ and No Summary Judgment” Days of Employment Discrimination Litigation to the “Defendant’s Summary Judgment Affirmed Without Comment” Days: One Judge’s Four-Decade Perspective agrees that these structural pressures are having an effect, and by Judge David F. Hamilton, whose Address to the Association of American Law Schools, Section on Employment Discrimination Law at the 2013 Annual Meeting, On McDonnell Douglas and Convincing Mosaics: Toward More Flexible Methods of Proof in Employment Discrimination Cases, 17 Emp. Rts. & Emp. Pol’y J. 195 (2013) agrees and offers the Seventh Circuit’s standard as an antidote. The work of all three should confirm for the rest of us that we are right to continue to be concerned about the way employment discrimination cases are treated by the judiciary and inspire us to work more effectively toward solutions.

 
 

Internalizing The Costs Of Employment Law Violations

David Weil, The Fissured Workplace (Harvard University Press, 2014).

David Weil’s new book on the fragmenting of internal labor markets in many American industries, The Fissured Workplace, should be read by all who wish to understand how the challenges to enforcing laws designed to protect American workers have become greater as the institutional structures and processes through which American businesses produce and deliver goods and services have continued to evolve. This book should be read not primarily because President Obama last year nominated Weil, a Boston University School of Management Professor, to head the Wage and Hour Division of the Department of Labor or because the book includes several chapters stressing the importance of strategic public enforcement and the role of unions and other non-governmental worker advocacy groups in changing workplace culture. Rather, the primary value of the book is its rich description of the variant ways by which successful American businesses that sell branded goods and services have externalized the costs of employment law violations by delegating to other businesses the responsibility for providing and supervising the labor input for their branded products. This description supports the book’s most important recommendation, a recommendation that would require—beyond stronger enforcement of current laws—a re-internalization of the costs of employment law violations to those businesses that monitor and control the production of goods and services sold under their brands.

Weil describes three kinds of externalization: subcontracted workplaces, outsourced supply chains, and franchised retail operations. For each, he provides examples of lead businesses that use externalization to concentrate on their core competencies of branded product design, development, and marketing, as well as to escape certain costs, including labor costs, that would have to be incurred without externalization. Weil explains how externalization has been facilitated by technological developments that enable lead businesses to protect differentiated brands, and associated high profit margins, through close monitoring and coordination of the quality and timely production of branded goods and services. Modern computer-based technology provides this brand protection without some of the higher labor costs of non-union, as well as unionized, large internal labor markets. Furthermore, as long as the lead company delegates actual control over a subcontractor’s or franchisee’s workforce to the subcontractor or franchisee, it can escape at least some of the costs of compliance with employment laws like FLSA and OSHA, in addition to potential workers’ compensation liability. There is good reason to think that subcontractors and franchisors often cannot pass on employment law compliance costs to the dominant branding companies with which they are in business. While subcontractors’ and franchisors’ reduced concern with reputational costs and their tight profit margins encourage their non-compliance, their relatively small size and less permanent work forces make enforcement less likely. Further, lead companies with differentiated brands generally can transfer their business to competing contractors or other potential franchisees.

Franchising in the fast food industry provides a particularly revealing example for Weil’s central branding thesis. Franchising in the fast food industry—unlike some of the franchising in janitorial services that Weil also describes—cannot be dismissed easily as a misclassification under current law of employees as independent contractors or businesses. Furthermore, at least ostensibly, most fast food franchisors delegate to each of their franchisees control over the compensation, work time, working conditions, and supervision of the workers at the franchisee’s retail outlets. Yet, at the same time, in order to protect their brands, the fast food franchisors maintain strict control over the food and services delivered by the franchisees. Weil reports the consequences of franchising for employment law compliance with federal minimum wage and overtime laws in the fast food industry: “The probability of noncompliance is about 24% higher among franchise-owned outlets than among similar company-owned outlets.” (P.131). Weil tells a similar, albeit somewhat more complicated story, about franchising in the hotel industry, finding that hotels managed by a branding company generally having higher non-compliance rates.

Under current law, in order to hold a franchisor responsible for employment law violations as a joint employer of a worker at a franchisee’s outlet, there probably would have to be some demonstration of the franchisor having at least effective partial control of the worker’s compensation, hours, working conditions, or supervision. But Weil’s analysis begs the question of whether the law should require such control to be demonstrated. Why should a franchisor that uses technology to ensure the quality of the products marketed under its brand, not also be required to ensure the quality of the workplaces that sell its product? Why is it not more efficient, as well as equitable, to treat the costs of compliance with employment laws as part of the costs of marketing branded products? Franchise agreements, and other contracts delegating control of employees, of course may include indemnification clauses as part of the allocation of returns, but if only the branding company can pay, should the costs of violations not be internalized to provide proper incentives for compliance?

Weil is not a lawyer; he is sometimes not precise in his explanation of current law and does not explore possible legal problems with some of his analysis. Beyond approval of some liberal judicial rulings and an explanation of how involvement of a branding company with reputational concerns can ensure much more effective implementation of employment laws like the FLSA, the book does not explore what might be workable limits on joint employer liability. The reality of fissured employment Weil describes and the consequent legal problems he highlights, however, are ones that should be of concern to any policy maker interested in the effective enforcement of employment law in the modern economy.

 
 

Employer Retaliation Policies and the Retaliation Catch-22

Deborah L. Brake, Retaliation in an EEO World, 89 Ind. L.J. 115 (2014).

Whistleblowers and workplace retaliation victims continue to make headlines in the national media. From Edward Snowden to NFL players Chris Kluwe and Jonathan Martin, employees who speak out against what they perceive as employer or coworker wrongdoing often generate significant disagreement among the public. Professor Deborah L. Brake has done as much as anyone in legal scholarship to highlight some of the limitations of workplace retaliation law. Her most recent article on the subject sheds light on a relatively unnoticed limitation.

One of the more frequent criticisms of the courts’ handling of retaliation claims is the standard to which retaliation plaintiffs are held. An individual who is retaliated against for opposing unlawful discrimination need not establish that the conduct opposed was actually illegal under federal law. Instead, the individual must simply establish that she reasonably believed that the conduct complained of was unlawful. If a reasonable employee would not have believed that the employer’s conduct was illegal, the employee’s conduct is unprotected under the law and the employer is free to retaliate against the employee for the employee’s opposition. As Brake notes, much of the criticism to date has focused on the fact that courts tend to hold retaliation plaintiffs not to the standard of a reasonable employee, but to that of a reasonable employee who has taken a law school course on employment discrimination, thus leaving many employees unprotected when they oppose what they believe to be discriminatory conduct.

But to Brake, this represents only half of the equation. Her new article focuses “on the interplay between retaliation doctrine and employers’ internal discrimination policies.” Brake examines how employers’ internal policies strongly encourage employees to file internal complaints of sexual harassment early on—before the harassment becomes more severe. Unfortunately, the policies often define sexual harassment more broadly than the term is defined under federal law. Brake notes that employer’s sexual harassment policies often incorporate the definition of sexual harassment used in a set of EEOC guidelines from 1980. Brake points out that this definition “encompasses a much broader category of conduct than what a court would necessarily find to be actionable.” The effect of these policies, then, is to encourage employees to complain about conduct that is not actually unlawful under federal antidiscrimination law. By complaining, the employees increase the odds of being retaliated against. Yet, because courts often hold retaliation plaintiffs to something stricter than a reasonable person standard, these employees are left unprotected from retaliation.

Intrigued, I decided to look at my own institution’s sexual harassment policy that is provided to student-employees. This is a document whose target audience is (as a general matter) young people with limited experience in the adult workplace. These student-employees likely know little about employment law and have little context in which to place their interactions with coworkers and supervisors. Therefore, the university’s internal EEO policy seems particularly likely to influence the decision of this particular kind of employee, who may be seeking to understand her rights and to plan her course of action when confronted with objectionable conduct. Therefore, I was interested to see what sort of guidance my institution provides its employees. And, lo and behold, the harassment policy contains the same overly broad 1980 standard Brake mentions. Thus, student-employees are given a somewhat skewed and employee-friendly view of what qualifies as sexual harassment. The policy then goes on to provide the following advice to student-employees who believe they may be victims of harassment: “[d]on’t delay” in reporting harassment because “if you delay action, the harassment is likely to continue.” But the policy is, in effect, encouraging unsophisticated employees to report behavior that a court may very well find no reasonable employee could have believed was actually unlawful while at the same time increasing the likelihood that the employer might retaliate against the employee for reporting in the first place. (For the record, I have no reason to think that my employer would do this. I’m talking about employers in the generic sense.)

Brake also discusses a related problem with the failure of employer EEO policies to track legal standards. EEO policies sometimes employ fairness- or civility-focused language, thus encouraging employees to report unfair or uncivil workplace behavior. But generalized complaints about unfairness or incivility in the workplace are insufficient to put employers on notice about potential violations of antidiscrimination law. The effect, as Brake notes, may be to “ensnare employees who use the terminology of human resources and EEO policies to express their complaints instead of the rights-claiming language of the underlying statutes” and who end up being retaliated against.

Too often, legal scholars focus on the flaws of prevailing judicial or agency approaches to discrimination and retaliation law without considering how employers communicate these approaches to their employees. Brake’s article looks at the side of the coin that most authors have ignored to the point. The result is an illustration of the Catch-22 that employees may find themselves in as a result of the interplay between judicial interpretations of statutory antiretaliation provisions and employer policies.

 
 

Fundamentally at Odds: Is the Sex Industry Compatible with the Mandates of Title VII?

Lua Kamál Yuille, Sex in the Sexy Workplace, 9 Nw. J.L. & Soc. Pol'y 88 (2013).

With the continual evolution of anti-discrimination law and an endless array of new, unexplored wrinkles and nuances of the law seemingly unfurled with each new holding, it is more important than ever that scholars persist in identifying open issues and problems in the jurisprudence. One of the primary practical benefits of scholarship in the field of employment discrimination has been to expose the gaps and cracks in the law’s coverage and regulation of the workplace, and the best scholars have made their contributions by surveying the landscape, contouring the fault lines, and proposing solutions. Sex in the Sexy Workplace by Professor Lua Kamál Yuille does just this.

Addressing itself to the issue of how to properly adjudicate the hostile work environment sexual harassment claim of a non-sexualized worker (like assistants, etc.) in a so-called “sexy workplace,” the article deftly raises the issue of how neither the law of sexual harassment, nor any of the critiques levied at that law, adequately responds to this unique situation in a way that vindicates the victim or recognizes the injustice of what has been allowed to occur. It then posits what Professor Kamál Yuille terms a “doctrinal fix that draws inspiration from the ‘bona fide occupational qualification’ and ‘business necessity defense’ exceptions to Title VII’s prohibition on workplace discrimination.” Finally, the article seizes upon the opportunity to point to this particular deficit in the law as being illustrative of a more rudimentary tension worthy of note in the law of sexual harassment: the so-called “sex industry,” Professor Kamál Yuille claims boldly, “is fundamentally incompatible with the principles of Title VII’s prohibition of gender discrimination.”

Noting that sexual harassment is an ”intractable and evasive problem,” the article uses as its premise the facts alleged in recent cases that highlight the plight of the non-sexualized worker in the sex industry. It goes on to ask whether, presuming that the law allows a “sexy workplace” to exist, and even to provide certain defenses to sex-based discrimination due to the inherently “sexy “ nature of the workplace, such a workplace can demand that all of its employees put up with sexualized treatment and behavior that would otherwise not be allowed at work. Analyzing this type of a workplace and the non-sexualized workers within it, against the backdrop of current Title VII law, the article concludes that non-sexualized employees of businesses whose “essence” is sexual titillation are subjected to the same lower standards of Title VII protection as those who opted to accept sexualized employment in the first place.

The article is tremendously useful, in that it then goes beyond that astute observation to posit a change in courts’ approach to hostile work environment claims in the form of a new model that draws upon extant defenses like the bona fide occupational qualification (BFOQ) exception and the business necessity defense (BND) to heighten the protection afforded. Further, it reflects upon the larger significance of the project of examining the sexy workplace, observing that there is a basic incompatibility between the very existence of sexy workplaces and the mandates of Title VII, and laying the foundation to truly question the existence of such workplaces. This is a very powerful observation.

The article’s discussion of unwelcomeness, in particular, is useful and enlightening. Noting that in its establishment of the cause of action of sexual harassment in 1986, the Supreme Court stressed that the claim’s “gravamen” or hallmark was unwelcomeness, the article highlights how hard it will be for a non-sexualized employee, to prove that sexualized or otherwise offensive banter or treatment is, in fact, unwelcome “even under a liberal approach to unwelcomeness.” This is because receptiveness to what would otherwise be harassment is imputed to these employees; they are readily seen as willingly participating in these exchanges because they opted for employment in a workplace with an “environment inherently pervaded by sexuality.” The article’s critique of both courts’ handling of the unwelcomeness prong of the analysis of cases, even those beyond the “sexy workplace,” and courts’ “inordinate focus on the type of language used by the claimant” is also tremendously valuable and insightful.

After raising and dismissing many responses to the problem she has identified, the author posits that “the BFOQ would become an exception for bona fide occupational requirements—the BFOR,” and that “the business necessity defense (BND) supplies another” model for examination, making up the so-called “BFOR/BND exception.” So not only does this article shed light on the plight of a uniquely-situated group of employees, but it moves beyond critiques to both ponder new approaches and to make a larger statement about both the state of Title VII jurisprudence and its gaping holes and about the existence of sexy workplaces and what they will invariably do to the perceptions of and protections afforded to all of the employees who work in them. There is much in this article that provokes and enriches thought and debate on the state of Title VII, sexual harassment, and certain accepted workplace terms and conditions.

 
 

Who, What, Why, When and Where: How Well Does the National Media Report on Sexual Harassment?

Joni Hersch & Beverly I. Moran, He Said, She Said, Let’s Hear What the Data Say: Sexual Harassment in the Media, Courts, EEOC, and Social Science, 101 Ky. L.J. 753 (2013), available at SSRN.

In He Said, She Said, Let’s Hear What the Data Say: Sexual Harassment in the Media, Courts, EEOC, and Social Science, Joni Hersch & Beverly Moran explore whether coverage of sexual harassment in the New York Times and Wall Street Journal is consistent with sexual harassment as it is reported in three other sources: a 1994 United States Merit Systems Protection Board (USMSPB) survey, charges filed with the Equal Employment Opportunity Commission (EEOC) from 2006-2010, and complaints filed in the Eastern District of Pennsylvania (EDPa) from 2010-2011. As the authors note, the article stemmed from curiosity regarding what national media outlets are reporting about sexual harassment and if that matches the reality of sexual harassment: “This article was inspired by a desire to learn if our national portrait of sexual harassment comports with what we know about harassment through social science.” (P. 775.) I like the article because it explores a practical issue that can help illuminate how one particularly important area of law is perceived and lived. How sexual harassment is perceived can help shape how sexual harassment law is enforced and how sexual harassment is lived in the workplace. Consequently, the article may be of interest to almost anyone who works with or cares about employment discrimination law.

The article can be summarized fairly quickly. The authors identify the key issue: whether major media outlets cover sexual harassment reasonably, fairly and accurately. After a brief discussion of the literature regarding sexual harassment in the workplace and the doctrine and history of sexual harassment, the authors compare sexual harassment coverage in the New York Times and Wall Street Journal with three data sets noted above: the USMSPB survey on sexual harassment, EEOC charge data, and sexual harassment complaints filed in the EDPa. The authors quickly analyze each data set noting the demographics of the sexual harassment claimants and what behavior tends to trigger harassment charges. The review of the media coverage suggests that sexual harassment is covered in an intensely local and episodic manner, with little recognition that sexual harassment is a national phenomenon that could be connected to “a larger, social, economic or political trend.” (P. 778.) In comparing the media coverage and the data sets, the authors found that while the reporting of the New York Times and Wall Street Journal generally does not mislead regarding the demographics of sexual harassment claimants, particular stories may downplay the seriousness of the factual allegations made in complaints. The article suggests that differences between the media portrayal of sexual harassment and what can be found in the data may result from the media’s focus on litigation. The authors note that a focus on pre-litigation harassment claims may provide a fuller picture of sexual harassment. The authors end the article observing that the focus on litigation leads to reporting that tends to miss “a sense of what happens before litigation and what sexual harassment means to victims in terms of their economic, professional, and emotional lives.” (P. 781.)

The article is not a comprehensive study of how major media portrays sexual harassment and whether that portrayal is consistent with how workplace sexual harassment is lived. It takes a narrow slice of the media and a narrow slice of sexual harassment claims and complaints and compares them. To be clear, this is not a criticism. Scholarship need not always be earth-shattering or make an all-encompassing point. Good and interesting scholarship can be fairly narrow and limited. A narrow exploration of a narrow slice of evidence that yields a few insights based on the limited exploration can be enough to move the enterprise forward. This article does that. As important, this article likely will encourage additional areas of study regarding the broad question of how the public is informed about sexual harassment, its prevalence and its resolution. Several more articles like this one could help us better understand whether the public’s vision of sexual harassment matches sexual harassment’s reality.

Those of us who have taught and written about sexual harassment realize that many laypeople and some lawyers have a tenuous grasp of what sexual harassment is and how prevalent it is. The information the public receives about sexual harassment is of critical importance because it can color the public’s vision of what the law is and can affect what the law becomes. Judges and juries will nearly always attempt to follow the law. However, judges and juries may analyze a sexual harassment case based on what they believe they know about sexual harassment. Factfinders must find facts based on the evidence presented, but how they do so may depend on their background impressions of sexual harassment. To the extent that more people will get their ideas about the law from the media than from studies of workplace sexual harassment, seeing what information the public is provided and how it appears to track what we know about sexual harassment is a fruitful task. The article is worthwhile.

The article is worth a read for those who have an interest in sexual harassment law. It is worth a read for those who are curious about how sexual harassment is portrayed in the New York Times and the Wall Street Journal. It is worth a read for those who might consider comparing the coverage that sexual harassment gets in other media outlets. Lastly, it is worth a read for those who have ever thought about how non-lawyers develop their ideas on sexual harassment. The article qualifies as a Thing I Like Lots.