The History, and Worrying Contemporary Relevance, of Anti-Trust Law for Non-Traditional Worker Organization

Sanjukta Paul, The Enduring Ambiguities of Antitrust Liability for Worker Collective Action, 47 Loy. U. Chi. L.J. ___ (forthcoming 2016), available at SSRN.

As someone interested both in the history of workplace law and in modern forms of worker organization, but not especially well-versed in antitrust law, I was delighted to read, and learned a lot from, Sanjukta Paul’s excellent article. The piece starts with a troubling suggestion I have not seen seriously addressed elsewhere: antitrust law could be used against workers engaged in collective action if those workers are not traditional employees: e.g., against low-wage independent contractors. After showing this is a legitimate concern, Paul provides a rich description of the history of antitrust law (including but not limited to the “labor exemption”). She then makes a convincing argument that while current antitrust law could be applied to such collective action, it should not be. While her history is ultimately aimed at a modern issue, this is not “law office history.” Indeed, her detailed discussion of the development of both antitrust and labor law (a rare combination) would be a worthwhile contribution to the historical literature by itself. Linking it to a modern question makes the piece even more valuable.

Paul starts with a vignette about a 1999 federal antitrust investigation into potential price-fixing by striking port truck drivers who were not “employees.”  This leads her to the early days of labor and antitrust. She argues that before the New Deal, courts “dominated by classicists who were concerned primarily with freedom of trade and contract, imported fundamentally hierarchical and coercive assumptions regarding workers” into the Sherman Act. (P. 2.) In so doing, the courts “relied upon status-based normative assumptions that violated their own freedom of contract principles.” (P. 2.) Worker collective action was thus presumptively illicit. The “labor exemption” the Supreme Court ultimately created in the 1940s was the exception, not the rule, and arguably might not apply to independent contractors.

But this interpretation is not required. Modern antitrust law is primarily concerned with economic efficiency (as opposed to freedom of contract), an approach that “necessarily imports a vision of the social good.” (P. 3.) Given that, antitrust policy should inquire into the “normative concerns implicated by worker organization for decent wages and working conditions.” (P. 3.) More broadly, Paul rejects the at-least-implicit assumption that workers’ right to organize should involve an exemption to be bargained for; instead, the fundamental question should be how regulation of markets interact with the regulation of labor.

The article does many things well. Paul demonstrates how the threat of antitrust liability in the 1999 trucker action and other cases inhibited the ability of contingent workers to act collectively, and how important the threat is in light of the growth of independent contractors — including low wage workers who are easily replaced. The problem is that modern antitrust law looks at “market actors” and may not distinguish between a massive corporation and a single truck driver.  In this regard, she analyzes Federal Trade Comm’n v. Superior Ct. Trial Lawyers Ass’n, 493 U.S. 411 (1990), which found a Sherman Act violation when lawyers in DC collectively refused to take criminal assignments for indigent clients unless their fees were increased.

She also does an excellent job with the history of the “labor exemption,” ultimately forged in the 1940s from certain language in the Clayton Act and the Norris LaGuardia Act by the Apex Hosiery Co. and Hutcheson cases. Most interestingly, she points to a “minor strain” in Apex which Hutcheson ignored: the distinction between the labor market and the product market. While Hutcheson was a victory for labor, it removed the idea that the exemption should be based on the idea that labor is not an article of commerce; instead, it focused on “a list of exempted activities, for which no real principle” was offered. (P. 45.) This concept depended on the power and role of labor unions at the time, and later cases specifically held that independent contractors were not covered by the exemption.

Paul argues, though, that the original Sherman Act was not intended to apply to worker collective action, and further that the application of antitrust law to worker collective action rested on reasoning that older courts should not have accepted and that modern courts would not consciously accept. In the older period, theories of “freedom of contract” animated the law, yet the regulation of work was “the great exception to classicism’s clarion call of economic freedom.” (P. 21.) This was because of implicit notions about hierarchies at work; status, not contract controlled. Thus, workers, uniquely, were not permitted to compete vertically with capital by withholding their labor. After the Sherman Act, classicists argued that it would be “unfair” to apply antitrust law to capital but not labor. But this argument presupposed “the very social hierarchy that neutrally applied freedom of contract principles ought to have condemned . . . .” (P. 26.) It reflected worries that labor was already too powerful in relation to capital and simultaneously “obscured the subordination” intrinsic to contemporary laws regulating work. (P. 27.) This argument thus ascribed to workers the consequences, but not the benefits, of actual legal agency.

Notably, while in this era many union activities fell afoul of antitrust law, the business corporation in and of itself was not considered a restraint of trade.  Corporations were single entities, while unions were combinations. Paul’s discussion of the rules and analysis of antitrust cases in this era shows that they used much of the same analysis (illegal means and/or illegal ends, presumptions of intimidation) as the conspiracy cases (more familiar to labor law scholars) of this era. For Paul, though, the key is the tension of the role of workers qua workers and their role as agents of commerce.

Today’s judges would not consciously rely on status-heavy notions of workers in disallowing collective action. Yet, modern antitrust law, even with the labor exemption, inherited the older conception of the social good. The modern justification for punishing worker collective action, like the classicist one, “rests on specific normative judgments that are neither politically neutral nor self-evident.” (P. 50.) Here, Paul interrogates the shifting rules governing “price-fixing.” (P. 50.) Older rules allowed some forms of cooperative behavior, but more recent cases restrict this by holding e.g., that lack of market power is not a defense to price-fixing (hence, the result in the trial lawyers’ case).

Still, this approach is not monolithic, and alternative approaches that could favor smaller actors could be revived and adopted. Among other possibilities, a traditional exception for professionals exists that could be broadened to other types of workers. Paul also suggests certain types of worker collective action could be protected by the First Amendment. She analogizes to Claiborne Hardware, questioning distinctions between economic and political boycotts, and also harkening back to older rules that looked at the imbalance of vertical market power.

Paul makes a fascinating and persuasive argument on an important topic, one that I have not seen others make. I liked this a lot.

Cite as: Joseph Slater, The History, and Worrying Contemporary Relevance, of Anti-Trust Law for Non-Traditional Worker Organization, JOTWELL (January 29, 2016) (reviewing Sanjukta Paul, The Enduring Ambiguities of Antitrust Liability for Worker Collective Action, 47 Loy. U. Chi. L.J. ___ (forthcoming 2016), available at SSRN), http://worklaw.jotwell.com/the-history-and-worrying-contemporary-relevance-of-anti-trust-law-for-non-traditional-worker-organization/.
 
 

Disabilities, Caregiving Responsibilities, and Employer Requirements

In workplace law, we often see groups of workers that are marginalized by their employers or fellow employees. The treatment of these employees can dramatically affect the working environment.

In her article, Mutual Marginalization: Individuals with Disabilities and Workers with Caregiving Responsibilities, Nicole Buonocore Porter explores two specific groups that remain heavily stigmatized in modern society – those with caregiving responsibilities and those that have disabilities. Professor Porter highlights the connection between these employees and their treatment in the workplace. While the link between these two groups is not readily apparent, Professor Porter carefully addresses the disparate treatment of these two types of workers.

In her paper, Professor Porter discusses the “special treatment stigma” that both groups often suffer. Those with disabilities may face resentment by fellow employees when they receive work accommodations not offered to other workers. Similarly, pregnant workers often face a similar stigma, as co-workers and managers will anticipate that these employees will need special assistance. Both groups often experience discrimination in the hiring context, as employers may expect (either correctly or otherwise) that employment of these workers will raise operating costs.

As Professor Porter points out, the law extends broad protections to workers with disabilities. Under federal law, employers are required to reasonably accommodate these employees up to the point of undue hardship. The case law reveals that this statutory requirement has some actual teeth, and while often stigmatized, disabled workers still can receive favorable treatment under the law. At the same time, those workers with caregiving responsibilities do not enjoy the same types of protections. The Family and Medical Leave Act’s leave requirement applies only to larger employers, is limited to twelve weeks, and is unpaid. While the FMLA is an important first step for workers, it does not provide the same types of workplace protections afforded to those with disabilities. And Title VII does not provide any real relief for these workers. Some states and local jurisdictions have stepped in to offer additional protections, but this stigmatized group lacks significant benefits on a more broad-based level.

The parallel drawn between these two groups is revealing, and the article provides a refreshing look at this unexplored area of the law. Through her analysis, Professor Porter provides a “theoretical justification for the reasonable accommodation provision under the ADA” while arguing for a similar “accommodation mandate for workers with caregiving responsibilities.” (P. 2.) Professor Porter thus advocates for broader protections for caregivers, as this group has a substantial need for workplace accommodations. By justifying the accommodations given to workers with disabilities, Professor Porter explores why similar accommodations are needed for caregivers.

Like all of her scholarship, Professor Porter’s work expands upon important areas of the law. It draws a new connection between these two groups that are often stigmatized. And it serves as an important reminder of how federal law can effectively change the working environment for certain groups of employees. It is critical to continually reconsider the scope of these workplace protections, and to identify where the law can be more inclusive. Professor’s Porter’s work effectively hits upon all of these areas.

Cite as: Joseph Seiner, Disabilities, Caregiving Responsibilities, and Employer Requirements, JOTWELL (November 19, 2015) (reviewing Nicole Buonocore Porter, Mutual Marginalization: Individuals with Disabilities and Workers with Caregiving Responsibilities, 66 Fla. L. Rev. 1099 (2015)), http://worklaw.jotwell.com/disabilities-caregiving-responsibilities-and-employer-requirements/.
 
 

Masculinities Theory Helps Understand Employment Discrimination and Could Help Reduce It

Ann C. McGinley, Through a Different Lens: Perspectives on Masculinity and Employment Discrimination Law (Forthcoming 2016, NYU Press)

Ann McGinley has made significant contributions to the legal literature concerning employment discrimination in general and to the social science concerning “masculinities” in particular. In many ways, this book is a culmination of a significant number of articles and a prior book of edited essays on the topic of masculinities and the law. With the new focus on issues of masculinity highlighted in the case of Miami Dolphin football player, Jonathan Martin, who quit the team because of harassment by several of his teammates, there is beginning to be greater general awareness of the multifaceted way in which various masculinity behaviors are used to harass and discriminate against women, people of color, and people perceived as failing to behave in appropriate gender roles.

More recently, there is a focus on the role of stereotypes and masculinity games that have been barriers to women becoming Hollywood directors.1 So, this forthcoming book is quite timely. It should have a significant impact on how we discuss and resolve questions arising from the role of masculinity games in employment.

The Introduction and first chapter set the background for how masculinities theory works in the context of the workplace. The role of masculinity in employment is very contextual, depending on a variety of situations where masculinity “games” are played. At bottom, despite very different social situations, these games are all about supporting the masculine feelings of the perpetrators while subordinating the victims as weak and incapable. Those contexts in which masculinities play out based on sex, of course, but also race, class and organizational hierarchies can be implicated. Chapter 1 develops in general how employment discrimination law has dealt with, and failed to deal with, the variety of contexts in which masculinity games operate to harm its victims.

Chapters 2 to 4 work out how, at a more detailed level, the law dealing with gender and sex-based harassment has dealt with the masculinities phenomenon. The author traces the strengths and weaknesses of the law in dealing with the issues raised by the social science studies of masculinities. These chapters will be of immediate interest to lawyers and judges in dealing with the issues that masculinity theory present in cases now to be resolved.

Chapters 5 to 8 put the light of careful analysis dealing with masculinities theory on the larger context of the general theories of employment discrimination law. These materials offer a significant critique of these theories in light of the findings of the social sciences, including the implicit bias studies. These studies describe the reality of how employment discrimination operates in the workplace today. The author lays out ways in which employment discrimination law can be developed in light of the social science to the end that the incidence of discrimination could be substantially reduced. Masculinities theory is illuminating as to the shortfalls of conventional employment discrimination law but also as to the potential reforms that are evidence-based and could make a real difference in how protective that law can become.

Chapter 9 returns to the practical aspect of how the social sciences, including masculinities theory, can be utilized to educate judges and juries to better achieve just results in employment discrimination litigation. It also ties back into the more theoretical chapters because it shows how well planned litigation strategies can stretch the present law to better take account of the insights offered by the masculinities social science and, perhaps, develop new ways to protect the victims of employment discrimination.

This book represents the capstone for Ann McGinley’s career developing new and important insights into how discrimination occurs in the workplace, how the law deals with it and, especially, how the law can be developed to better protect the victims of employment discrimination. We should all be eagerly awaiting its publication.

It is with great sadness that Jotwell notes the passing of Worklaw co-editor Michael J. Zimmer.



  1. See, Cara Buckley, ACLU Pushes for Inquiry Into Bias Against Female Directors, New York Times, Wednesday, May 13, 2015, C 1. []
Cite as: Michael J. Zimmer, Masculinities Theory Helps Understand Employment Discrimination and Could Help Reduce It, JOTWELL (October 21, 2015) (reviewing Ann C. McGinley, Through a Different Lens: Perspectives on Masculinity and Employment Discrimination Law (Forthcoming 2016, NYU Press)), http://worklaw.jotwell.com/masculinities-theory-helps-understand-employment-discrimination-and-could-help-reduce-it/.
 
 

Michael Zimmer

Michael Zimmer

Michael Zimmer

With sadness we note the passing of Jotwell Worklaw co-editor Michael Zimmer who has died at age 72. (See his obituary.) Mike was a graduate of Marquette University and Marquette University Law School, as well as Columbia Law School, where he earned his LLM. Following a clerkship with Judge Thomas Fairchild of the U.S. Court of Appeals for the Seventh Circuit and work as an associate at Foley & Larnder, Mike devoted the rest of his career to legal education. He started at the University of South Carolina before moving to Seton Hall, where he served as Associate Dean for four years. Later, in 2008, Mike moved to Loyola University Chicago’s School of Law. He was one of the most widely admired scholars in the labor and employment field and co-authored leading textbooks in both employment discrimination law and international and comparative employment law. Mike was also dedicated mentor to a generation of law students and legal scholars, who benefited from his warmth and knowledge. (See comments from his labor and employment colleagues.)

 
 

Explaining the Blurred Line Between Employment and Independent Contracting

Julia Tomassetti, The Contracting/Producing Ambiguity and the Collapse of the Means/Ends Distinction in Employment, 66 S.C. L. Rev. 315 (2014), available at SSRN.

As the Reporter primarily responsible for the chapter defining the employment relationship in the recently completed Restatement of Employment Law, I thought I had fully considered and taken account of the origins and various instances of judicial confusion in distinguishing employees from independent contractors. Thus, I was especially surprised to have my understanding of the confusion substantially enhanced by Julia Tomassetti’s recent conceptually deep article. Tomassetti argues that an understanding of the unusual and contradictory nature of employment contracts and their development is necessary to explain judicial confusion when defining employment, and that it is not sufficient simply to highlight the challenges posed for courts by the nontraditional work relationships in the modern economy and the many multifactor indeterminate tests that have been developed to supplement the traditional but inadequate “right to control the means and manner of work” test.

Tomassetti contends that the principal source of judicial confusion derives from the law’s presumption that the traditional master-servant relationship is incorporated into employment-at-will relationships. These relationships entail the employer’s ongoing discretionary control over the employee’s means of production, while concomitantly providing the non-indentured “free labor” servant with the leverage of a right of exit at any time. This atypical type of indefinite contract has seemed to courts different than service contracts containing work specifications even when those specifications seem to cover not only what is produced (the ends) but also how production is to be accomplished (the means). Tomassetti provides many examples of courts rejecting employment status for service relationships defined by what she terms “upfront contractual specifications” (UCS) that would entail employment status if the specifications were imposed by employers through the ongoing exercise of their contractually presumed discretionary control. The courts, viewing contracts as the products of bilateral negotiations, assert that the specifications express a bargain between businesses, regardless of how bad a bargain the terms express for the service provider.

Tomassetti’s argument has two main components: first, a historical analysis of the unusual and contradictory nature of employment contracts; and second, a demonstration of how courts have been confused by this nature when denying employee status to workers whose means of work is controlled by their contracting partners through “upfront contractual specifications”. For her historical analysis, Tomassetti, who has a doctorate in sociology as well as a law degree, draws heavily from the work of other scholars, notably the great institutional labor economist, John R. Commons, and the labor law historian, Christopher Tomlins. Tomassetti explains that employment is both a “contract between civic equals,” as is any contract, and also “a relationship between a subordinate and superior” deriving from the historical choice of the master-servant template. Relying on Commons, she stresses that employers and employees are “continuously” and “simultaneously” bargaining and producing as the employees work and the employers direct. Control through contractual specifications, rather than only through continuing bargaining, however, highlights the contract part of the relationship, and thus provides courts with a rationale for accepting the subordinate-superior relationship as one between independent “civic equals.”

Tomassetti’s article provides many examples of how courts use contractual specifications, including ones that control the means and manner of production, as justifications for denying employment status. Some of these examples are from cases challenging FedEx’s classifications of its drivers as employees despite the contractual specification of work time, compensation, routes, and work details. Other examples provide even more blatant examples of judicial confusion, with courts making assertions such as: “setting out in detail…obligations…is nothing more than the freedom of contract” that “is significantly different than the discretionary control an employer exercises daily over its employees’ conduct.” Tomassetti, moreover, notes further examples of what she terms “meso formalism” where courts reject as evidence of employment status even contractual terms that require workers to obey or cooperate with the discretionary orders of the agents of putative employers.

Tomassetti’s project is only to explain the “unintelligibility” of the law defining the employment relationship. She does not offer alternative intelligible doctrine or tests or even express views on what should determine the scope of laws protecting or securing rights for employees. She does no more than introduce the concept of “capitalist exploitation,” ascribed to both Weber and Marx, and then note that it can be based on definite contractual terms as well as on the imposition of an employer’s superior bargaining power in production.

I believe, however, that her explanation can be used to support a reformist agenda, like that embodied in the Restatement of Employment Law, to articulate more determinate doctrine that does not founder on the distinction between contractual and production control her examples highlight. The unintelligibility of legal doctrine is not inevitable, even if the misuse of the doctrine by elite-sympathetic judges is. Despite Tomassetti’s conclusions, even the inadequate means versus ends distinction, so important to the traditional doctrine, is not rendered unintelligible by its misuse by judges using contract law to protect the discretion of employers. Distinctions can be made and should be made. Some service contractual relationships, even when bargaining leverage is not equal, are less likely than others to benefit from protections fashioned for employees. At least, whether such protections should apply may require different policy balances.

Tomassetti’s unwillingness to offer a route around doctrinal confusion or the contradictions of the employment contract does not detract from her contributions in this article. The article’s unusually creative and deep analysis demanded my attention, and I think should demand that of all concerned about this increasingly important issue in employment law.

Cite as: Michael C. Harper, Explaining the Blurred Line Between Employment and Independent Contracting, JOTWELL (September 16, 2015) (reviewing Julia Tomassetti, The Contracting/Producing Ambiguity and the Collapse of the Means/Ends Distinction in Employment, 66 S.C. L. Rev. 315 (2014), available at SSRN), http://worklaw.jotwell.com/explaining-the-blurred-line-between-employment-and-independent-contracting/.
 
 

“Otherwise Unqualified” Individual with a Disability

Michelle Travis, Disqualifying Universality Under the Americans with Disabilities Amendments Act, __ Mich. St. L. Rev. (forthcoming, 2015), available at SSRN.

I have long admired Professor Michelle Travis’s work, but I was impressed all over again by her recent SSRN article, Disqualifying Universality Under the Americans with Disabilities Amendments Act, to be published in the Michigan State Law Review. There’s a lot to like in her piece, and I can’t begin to capture the entire article, but I do see a theme—“hidden in plain sight”—which I’ll try to sketch out here.

Professor Travis’s overarching argument is that the qualification question has become the emerging gatekeeper for ADA claims, threatening to replace the “disability” barrier that the courts erected and that Congress demolished with passage of the ADAAA. In a nutshell, because courts are putting the burden of persuasion on the employee to establish that she is a “qualified individual,” and that qualification requires an ability to perform the “essential functions” of the job, what is “essential” is often outcome determinative for ADA plaintiffs.

She’s not the first to notice this, of course, since Professor Travis builds on the empirical work of Steve Befort and Nicole Porter. But she makes several contributions, one of which is to trace the troop movements in the qualification counterrevolution. She does this by documenting the advice peddled by management law firms and human resources organizations in reaction to the ADAAA. That’s what I mean by hidden in plain sight: we all have seen individual examples of this, but I at least had no idea on how grand a scale or how effective this movement has become. A critical strategy is to advise employers to rewrite job descriptions to throw in the kitchen sink, that is, to include all possible functions as essential, including mental, not merely physical, functions; employers were also advised to frame environmental factors (such as tolerating excessive noise or high temperatures) as essential functions. The more comprehensive the list, the more likely a disabled individual will be unable to perform one or more of the items on it. (Although hopefully the Achilles heel of this strategy is the likelihood that others operating under the same job description aren’t performing the same tasks or under the same conditions.)

A second contribution of Professor Travis is in exploring how management attorneys have pushed the courts to give deference to employer job descriptions in deciding what is—and is not—essential. And more importantly, how much deference post-ADAAA lower courts have accorded them. Although the statute itself requires a court to give “consideration” to such descriptions, it does not require deference. Indeed, as Professor Travis makes clear, deference is contrary to the thrust of the ADA. Nevertheless, the article demonstrates that that is how job descriptions are being treated across a number of cases. Speaking of making the fox the keeper of the henhouse. Again, a phenomenon that I, at least, did not appreciate until I read Disqualifying Universality.

Professor Travis even reports several decisions that basically allow the employer to define an essential function as not being disabled! This is an extreme example of confusing the function—the tasks entailed in the position—with the qualifications of the employee in question, which leads to her third point. Building again on Nicole Porter’s work, she finds that the courts are conflating the function question with both employer norms about when and where the function is to be performed and with the employee’s qualifications to perform that function.

With respect to the former, defining a job as requiring an employee’s presence at a particular time and place means that an employee who can’t work a particular schedule is unqualified, and therefore not protected by the statute—regardless of whether he could perform the tasks involved from a distance. This is not exactly news, Professor Travis having dealt with this issue at length before, but recent events make it worth flagging. I refer specifically to EEOC v. Ford Motor Co., where the en banc Sixth Circuit just reversed a panel decision that challenged the prevailing wisdom that regular attendance was an essential function for all, or almost all, jobs

But the second conflation—the tendency of the courts to mischaracterize qualification standards as job functions—is a troubling development that went largely unnoticed in the literature before Professor Travis raised it. The statute requires that qualification standards be justified as a business necessity, but Professor Travis points out that this scrutiny can be avoided if what ought to be a qualification standard is instead viewed as an essential function. She cites several examples, one being a district court decision deferring to the employer’s job description by finding that lifting 40 pounds was an essential function. Had the court proceeded correctly, lifting would have been the essential function and the employer would have had to justify the 40-pound requirement as a qualification standard for that function. Instead, the employee in question was found unqualified without requiring the employer to show that the job required lifting such weights.

I could go on. Professor Travis has equally interesting things to say about the direct threat defense (you guessed it, not posing a threat to oneself or others is an essential function) and whether it makes any sense to require a regarded as plaintiff to prove that he or she is otherwise qualified (it doesn’t, even if the statute seems to so require). But I’ve written enough to suggest that this article is well worth the read for those interested in the future of the Americans with Disabilities Act.

Cite as: Charles A. Sullivan, “Otherwise Unqualified” Individual with a Disability, JOTWELL (August 4, 2015) (reviewing Michelle Travis, Disqualifying Universality Under the Americans with Disabilities Amendments Act, __ Mich. St. L. Rev. (forthcoming, 2015), available at SSRN), http://worklaw.jotwell.com/otherwise-unqualified-individual-with-a-disability/.
 
 

The Truth is Not Enough to Set Us Free

Erik J. Girvan, On Using the Psychological Science of Implicit Bias to Advance Anti-Discrimination Law, (2015), available at SSRN.

Legal scholars in a wide range of areas have used now well-settled developments in cognitive psychology to argue for doctrinal changes in the definition of actionable discrimination. Implicit biases have been shown to cause discrimination against minorities and women, yet the law has developed to penalize only fully self-conscious race and sex-based decisions. Legal scholars and many lawyers’ organizations have enthusiastically embraced the social science that demonstrates people act on biases when they do not always self-consciously realize it, and have engaged in massive educational efforts with the idea that education will change people’s views of what discrimination is and their behaviors that perpetuate it. But changes in legal doctrine have not followed.

In On Using the Psychological Science of Implicit Bias to Advance Anti-Discrimination Law, Erik Girvan draws on jurisprudential and psychological insights to explain why that is so, and he pledges to offer a path towards future research that will more likely lead to doctrinal change. In short the efforts have failed because scholars use classical legalist jurisprudence instead of legal realism and because scholars are victims of naïve realism. The classical legalist jurisprudential model fails to recognize the force of extra-legal influence on judges’ decision-making as explained by legal realism. And naïve realism is a social psychological theory of how people behave when they learn others do not share their beliefs. Naïve realists assume that education alone will change the doctrine.

The article provides a useful and thorough summary of the range and depth of the psychological literature on implicit biases. Describing replicated field experiments and studies of employer, police, and school official behavior, Girvan highlights the troubling results:

  • Black job applicants without a criminal record have about half the rate of success of white applicants with the same qualifications, and about equal success with white applicants who have a criminal record.
  • In the stop and frisk policy used by New York Police, the officers stopped white residents, who were one-third of the population, 10 percent of the time and black residents, who were less than a quarter of the population, more than 50 percent of the time; only 12 percent of any of the stops led to an arrest or summons; and weapons were found only 1.5 percent of the time, and weapons and contraband were found more often on white people than on black people.
  • Black children are more than 30 percent more likely to be disciplined for discretionary violations even controlling for demographic behaviors and despite the fact that they do not engage in more problem behavior than white children.

Despite these studies and experiments, employers, police officers, and school officials are rarely liable for discrimination. These experiments do not show that any particular actor’s purpose was to treat black people differently because they were black. That is what the legal doctrine requires. As Girvan shows, one reason that the legal doctrine developed this way was because the psychological model of discrimination at the time posited that discrimination was caused primarily by explicit biases, which were overt until the social norm against prejudice gained strength, and which remained but were hidden from public expressions after that. It was not until the 1990s that the study of stereotypes and automatic psychological processes developed to show how implicit biases changed perception, judgment, decision-making, and behavior in systematic ways that disadvantaged minorities. Legal scholars began to urge courts to adopt this behavioral realist approach in discrimination doctrine in the mid 1990s, assuming that education about this new evidence of how discrimination happens would compel the courts to keep pace. That assumption was simply wrong.

Implicit racial and sex-based biases are not the only psychological states that effect perceptions, judgments, and decision-making, though. There are a wide variety of other attitudes and beliefs that filter these processes as well. As Girvan explains, “Social psychologist[s] generalize this basic phenomenon in the concept of construal, the idea that: ‘The impact of any “objective” stimulus situation depends upon the personal and subjective meaning that the actor attaches to that situation.'” Naïve realism fails to consider this possibility in others or ourselves. The consequence is that we tend to believe 1. that we are unbiased; 2. that other rational people will share our perceptions and judgments if they have the same information; and 3. that if they don’t share them, it must be because those people lack the information, are irrational, or are biased. This description fits the efforts of legal scholars, lawyers, and lawyer organizations very well.

By pointing out the way that naïve realism explains the failure of doctrine to change, Girvan performs a valuable service to those working towards change. But he does not stop there. Girvan goes on to describe some of the challenges that face those working for change. For example, the social science research does not allow us to infer anything about what a particular actor did in a specific situation, which is what a case requires us to do; judges often do not feel comfortable shaping public policy, especially when that involves change; judges do not want to create more pressure on their already swollen dockets; the ideology of at least some judges perpetuates structures that disadvantage minorities; and judges are not sure how to remedy this kind of discrimination. In the end, Girvan counsels that describing the effect of implicit biases is clearly not enough and will never be enough to create change. Advocates must instead “actively seek out, test, and find ways to overcome those extrinsic factors preventing recognition of complete anti-discrimination rights.”

The description of the problem and summary of the reasons that the current approach has failed are thorough and well executed. The path he lays for the next phase of research and advocacy is less well developed, but that is likely in part because we are on the front end of the research and advocacy he recommends. Even without the results of this research, though, those of us who engage in this advocacy can find some suggestion for a change in tactics in the article and in other research on how to overcome the effect of biases.

Cite as: Marcia L. McCormick, The Truth is Not Enough to Set Us Free, JOTWELL (July 3, 2015) (reviewing Erik J. Girvan, On Using the Psychological Science of Implicit Bias to Advance Anti-Discrimination Law, (2015), available at SSRN), http://worklaw.jotwell.com/the-truth-is-not-enough-to-set-us-free/.
 
 

We Are What We Work

Where does the employee end and the employer begin? In The New Cognitive Property, Orly Lobel confronts us with employers’ ever-expanding reach into the craniums of their employees, both past and present. The article continues Lobel’s groundbreaking work into the intersections between employment law, intellectual property, and what she terms “human capital law.” Employers are bringing new legal tools to bear against employees to keep their ideas within the firm and prevent them from using their talents outside their current workplace. And as her research makes clear, the costs may be borne not only by these workers, but by our society and its capacity to innovate.

Lobel’s 2013 book Talent Wants to Be Free explained, for a more general and business-oriented audience, how restrictions on employees such as covenants not to compete, trade secrets, and the work-for-hire doctrine limit employees’ capacity to develop and use their human capital. As a result, workers are less able to develop this capital and less likely to want to do so. These themes are updated and further developed in The New Cognitive Property, which spends a great deal of time on the legal mechanisms themselves. Her discussion of human capital restrictions circa 2015 is an eye-opening read even for those well-versed in the traditional employer tools in this area. You may know about the shop-right doctrine, but did you know that employers are laying claim to employees’ ideas that are too abstract to be patented? You have likely heard about trade secret law, or even “inevitable disclosure,” but how about the criminalization of trade secret law, where one employee was sent to jail for emailing himself code that was largely open-source? And while covenants not to compete have a long and familiar lineage, Lobel brings us up to date with a dizzying array of post-employment restrictions: non-solicitation, non-dealing, non-poaching, and non-hiring clauses. Using a series of vivid examples, The New Cognitive Property artfully explores the manifold ways in which employers are claiming more and more of their employees’ human capital for themselves.

What dangers lurk in these tentacles that reach out to ensnare employee talent? Lobel explores the societal harms, focusing not on the direct economic losses to employees but rather on the larger ramifications. She cites to the loss in productivity when workers are not able to share their knowledge directly and in person. Much of human capital cannot be codified, patented, or written down—it is best shared person-to-person in the lab, at the office, or over coffee. The labyrinth of legal restrictions on human capital reduces the opportunities for the very sharing that creates the capital in the first place. In addition, Lobel fears that employees will under-invest in that capital if they see the labyrinth coming down the road. Her own research with On Amir provides evidence that employees will spend less energy and effort when asked to sign restrictions on future employment.1  It is not surprising to find that employees will respond rationally to the incentives in their economic environment.

In the article’s discussion of the “third enclosure movement,” Lobel describes what is most dangerous about these developments from a legal perspective. Drawing a comparison to the development of intellectual property law in the last century, she shows how employee human capital is being turned into property—cognitive property that belongs to the employer. Just as IP law has moved from its original justifications as temporary monopoly rights into the realm of property, ownership, and exclusion, Lobel sees human capital being staked out and claimed by employers as their own set of property interests. Highlighting this move from owning the outputs of innovation—such as artistic expressions and medical treatments—to owning the inputs of innovation—such as skills, experience, and know-how—is perhaps the article’s key theoretical contribution. And it should be deeply troubling to those who care about how we innovate and how the fruits of that innovation are distributed.

It is also important to recognize, however, that joint production requires choices about what belongs to whom. When we come together as individuals to collaborate as a group, we must decide what responsibilities are required of the individual members, and how we will divvy up the rewards of the collaboration. The economic literature on the theory of the firm explores the mechanics behind these collaborative groups. And to some extent, this scholarship is the other side of the coin from The New Cognitive Property. A primary concern within the theory of the firm research is opportunism—when one member seeks to hold up or exploit the group for undeserved economic gain. Lobel’s examples of employers taking ownership over employee ideas could be cast instead as groups attempting to prevent one of their members from making off with an unfairly large portion of the collective pie. After all, when the company asserts dominion over the lone employee’s human capital, it does so in the name of returning it to the group enterprise. And given the social science research on the collective nature of innovation—which Lobel herself references—it may be that giving more rights to individual employees would unduly encourage opportunism and improperly give one person the credit for something that rightfully belongs to many.

This is not to say that the new practices that Lobel surfaces are justifiable. The recent Silicon Valley “cognitive cartel,” in which employers such as Apple and Google agreed to a no-employee-poaching scheme, seems to be purely an effort to suppress employee wages and mobility. And employer tools may be used against workers who traditionally have not held the type of human knowledge capital that would justify their use—take, for example, the covenant not to compete signed by a Jimmy John’s delivery driver. But seen in their best light, legal doctrines such as trade secrets and the work-for-hire doctrine are efforts to ensure that group enterprises can retain and distribute their assets and revenues in accordance with group production norms. The group may overreach, but so may the individual; group governance requires a balance between these tensions. In the modern economy, we generally organize group production through the corporation, a legal entity governed by and centered on shareholders. The corporation sucks up employee contributions and allows shareholder-oriented management to distribute the rewards. In my view, we need to address this unfair construction of firm governance in order to address the root inequities that employees face. But even if properly constructed and governed with employee participation, firms would still require prohibitions against restraining trade or unduly taking advantage of individual employees, as Lobel’s research makes clear.

In The New Cognitive Property, Orly Lobel depicts a landscape in which employers are ever more aggressive in trying to stake their claims on the intangibles of employee human capital. That such a landscape seems threatening, even Orwellian, should prompt us to reconsider our current approaches to cognitive property and think anew about how we allocate the rights to information, human capital, and work itself.



  1. On Amir & Orly Lobel, Driving Performance: A Growth Theory of Noncompete Law, 16 Stan. Tech. L. Rev. 833, 852-55 (2013). []
Cite as: Matt Bodie, We Are What We Work, JOTWELL (June 5, 2015) (reviewing Orly Lobel, The New Cognitive Property: Human Capital Law and Reach of Intellectual Property, 93 Tex. L. Rev. 789 (2015)), http://worklaw.jotwell.com/we-are-what-we-work/.
 
 

The Symbiotic Relationship Between Privacy Law and Anti-Discrimination Law

Jessica L. Roberts, Protecting Privacy to Prevent Discrimination, 56 Wm. & Mary L. Rev. (forthcoming, 2015), available at SSRN.

Jessica Roberts’ upcoming article, Protecting Privacy to Prevent Discrimination, explores the pros and cons of enacting privacy protections to thwart discrimination. Using the Genetic Information Nondiscrimination Act (GINA) as her primary example, Roberts argues that the two areas of law may “operate symbiotically rather than separately.” Thus, privacy law may be used to further anti-discrimination goals and vice versa.

Roberts’ article contains a thoughtful discussion regarding the different principles underlying privacy law and anti-discrimination law. The article also raises interesting issues about the extent to which the right to privacy has, over time, evolved. As originally conceived, the privacy torts and their statutory counterparts sought to further the norm of autonomy. The wrong that resulted from an intrusion upon an area of solitude or the public disclosure of a private fact was the invasion of privacy itself. But Roberts suggests that privacy law may also be used as a means of preventing and addressing more tangible harms occurring in the employment context by working in harmony with anti-discrimination principles.

As an obvious example, Roberts notes that privacy law may alleviate the “challenging burden” a discrimination plaintiff must carry of establishing an intent to discriminate on the part of a defendant. In contrast, privacy law requires a plaintiff to show only “that the covered entity inappropriately obtained, or attempted to obtain, the protected information.” Roberts suggests that anti-discrimination law could take a cue from privacy law and specifically prohibit prospective employers from inquiring or otherwise acquiring information about protected characteristics during the interview process, thereby denying employers information that they might otherwise use to discriminate. GINA’s ban on inquiry into an individual’s genetic information is one example of such an approach. But Roberts suggests the same idea could be extended to other laws to cover situations where a particular characteristic is not always readily perceptible, such as an individual’s religion. In this respect, privacy law may “help stop discrimination whenever the nature of the protected status is not completely known to the potential discriminator.”

At the same time, Roberts notes that there are potential limitations on the ability of privacy law to address discrimination. Her discussion of the benefits and drawbacks of the approach she describes caused me to think of another potential limitation: the possibility that a court might import anti-discrimination principles into a privacy provision. For example, the Americans with Disabilities Act (ADA) contains numerous restrictions on the ability of employers to inquire into the extent and existence of an individual’s disability. For instance, an employer may not inquire into the existence of a disability prior to making a conditional job offer. On its face, this provision would seem to imply that the wrong is complete upon the asking of the prohibited question, no matter whether the applicant’s answer caused the applicant not to be hired. Regardless of whether the underlying norm of the provision is one of autonomy or anti-discrimination, the applicant in this situation would seem to have a strong argument for nominal damages. Yet, there is case law that rejects this view and holds that there must be a “tangible injury”—typically expressed in terms of “an adverse employment action”—before a plaintiff is entitled to damages for a violation of this provision of the ADA. See, e.g., Cossette v. Minn. Power & Light, 188 F.3d 964, 971 (8th Cir. 1999); Griffin v. Steeltek, Inc., 160 F.3d 591, 594-95 (10th Cir. 1998).

By importing a discrimination framework into what is, on its face, a privacy provision, courts might limit the effectiveness of the privacy provisions in combatting discrimination. None of which is to say that Roberts is misguided. Instead, by raising questions about the ability of privacy law and anti-discrimination law to function in a symbiotic manner, Roberts’ article raises a host of fascinating issues and caused me to think more carefully about the potential uses of privacy law in combating discrimination. And at a time when the traditional framework for discrimination claims sometimes feels stagnant, Roberts’ article offers fresh insight into the nature of discrimination law and privacy.

Cite as: Alex B. Long, The Symbiotic Relationship Between Privacy Law and Anti-Discrimination Law, JOTWELL (May 1, 2015) (reviewing Jessica L. Roberts, Protecting Privacy to Prevent Discrimination, 56 Wm. & Mary L. Rev. (forthcoming, 2015), available at SSRN), http://worklaw.jotwell.com/the-symbiotic-relationship-between-privacy-law-and-anti-discrimination-law/.
 
 

Reaching Outside the Box to Ensure Equal Opportunity

In “Beyond Title VII: Rethinking Race, Ex-offender Status, and Employment Discrimination in the Information Age,” Professor Kimani Paul-Emile sets forth a compelling analysis of the harm and prejudice engendered toward minority populations by employers’ use of criminal background inquiries. She then proposes a novel regulatory scheme whereby employers would evaluate job applicants for employment fitness prior to factoring in any type of criminal background.

Whether or not one ultimately comes down on the side of regulating employer criminal background inquiries and subsequent actions taken on the basis of those inquiries, there is undeniable appeal in at least considering this scheme, which Professor Paul-Emile calls the Health Law Framework. Her framework is interesting because it transcends the traditional realm of regulation in this area—Title VII and the Fair Credit Reporting Act (FCRA)—and borrows from the arena of health law, specifically the Americans with Disabilities Act (ADA) and the Genetic Information Nondiscrimination Act (GINA), to forge a thoughtful, integrated proposed mechanism for regulating employer use of criminal background inquiries.

A comprehensive history and status of the regulation of employers’ use of criminal background inquiries provides the perfect launching pad for the article’s proposal. The article also does an excellent job of setting forth how and why there came to be so many inaccuracies in criminal history reports, as well as the ramifications of these inaccuracies. It also provides an illuminating discussion of the stigmatization attendant to having a criminal background of virtually any kind, and why this stigmatization engenders discrimination. Noting that more than 25% of Americans have a criminal record, Professor Paul-Emile shines a light on what she refers to as “[a] rapidly expanding for-profit industry [that] collects these records and compiles them into electronic databases, creating ready access to millions of computerized criminal history records” for the nearly 92% of employers who decide to access the criminal histories of job applicants. And yet, as she points out, when an employer filters applicants based on their criminal histories—using an applicant’s criminal background as a proxy for her fitness for a position, rather than her skill sets and work experience—not only do applicants lose out on opportunities that they may deserve, but employers can lose out on the chance to hire the best applicants.

Moreover, the discriminatory disparate impact and invidious stigmatization that criminal background screenings by employers can engender has not gone unnoticed—even by the EEOC. Professor Paul-Emile’s approach to this much-discussed problem is not only fresh and novel, it is thoughtful. She starts by both exhorting and applauding the EEOC’s attempts to grapple with the harm that criminal record employment inquiries can confer on minority populations, while simultaneously remaining critical of the agency’s not having done enough. After critiquing the law’s reliance on the FRCA and Title VII to address the discrimination that ensues from employers’ use of criminal background inquiries in hiring, Professor Paul-Emile commences her discussion of the two laws that form the basis of her Health Law Framework: GINA and the ADA.

Professor Paul-Emile’s proposed framework takes into account not only the welfare of job applicants with criminal records, but also that of employers with misgivings about hiring those with criminal records, and the general public. The general public, of course, has overriding interests that Professor Paul-Emile seeks to address, like workplace danger and the misclassification of applicants without a criminal record. What Professor Paul-Emile proposes is to combine the ADA’s core principles of reasonable accommodation, risk management, and the avoidance of stigmatization with GINA’s emphasis on, as she puts it, “regulating the flow of information regarding an invisible yet stigmatized status that can form the basis of discriminatory treatment.” Her proposal, she notes, guards the job-related welfare of people of color, affords employers the ability to retain the prerogative of hiring based on traditional criteria without, as she again puts it, “engaging in invidious discrimination, or contributing to the establishment of an enduring underclass of individuals with criminal records.”

Probably the most incisive and salient point the author makes in the article is the one she makes when she explains why the ADA and GINA (the health law statutes) may be more effective to grapple with the issue she is addressing than the traditionally-used FCRA and Title VII. The health law statutes, Professor Paul-Emile explains, are distinct from the FCRA and Title VII in that: 1) they attempt to capture discrimination that is “based on a trait or condition that, like the existence of a criminal record, may not be readily apparent . . . , but which carries a powerful social stigma,” 2) they cover disabling conditions, which, unlike Title VII’s protected class statuses, may, in fact, be a rational basis upon which to exclude someone from employment, much like an applicant’s criminal background; and 3) they have what Professor Paul Emile terms “established doctrinal schemes regulating the flow of information” upon which an employer may base discrimination while simultaneously affording a fair chance to all applicants. Her incorporation of the ADA’s “reasonable accommodation” mandate into the framework is really interesting, and serves her stated goal of ensuring access to employment for those who truly need it. Her framework is well thought out, and the way in which she assesses its benefits and even anticipates probable challenges and criticism is excellent.

Truthfully, I think the issue of criminal background checks in employment is one that is complex and not easily resolved. However, irrespective of where one comes out on the issue, it is refreshing to see someone approach such a much-discussed topic with an original, concrete solution that 1) spurs thought and discourse; 2) compels a close examination of the policy arguments, incentives, and deterrents at play; and 3) tries to factor in the interests of all involved, as well as that of society. Scholarship is supposed to make us think and reconsider our initial positions on issues, and this piece does just that. That is why it is “liked lots.”

Cite as: Kerri Stone, Reaching Outside the Box to Ensure Equal Opportunity, JOTWELL (April 8, 2015) (reviewing Kimani Paul-Emile, Beyond Title VII: Rethinking Race, Ex-Offender Status, and Employment Discrimination, 100 Va. L. Rev. 893 (2014)), http://worklaw.jotwell.com/reaching-outside-the-box-to-ensure-equal-opportunity/.