More Hair-Raising Decisions, and How Professor Wendy Greene Combs Through Their Flaws

D. Wendy Greene, Black Women Can't Have Blonde Hair . . . in the Workplace, 14 J. Gender Race & Just. 405 (2011), available at SSRN.

If you are looking for an interesting and timely employment discrimination article to read, please consider Black Women Can’t Have Blonde Hair . . . in the Workplace, by Professor Wendy Greene of Cumberland, Samford University, School of Law. In that article, Professor Greene builds upon the work that she began in her article Title VII: What’s Hair (and Other Race Based Characteristics) Got to Do With It1 where she argued that characteristics that are commonly associated with a particular racial or ethnic group should fall under Title VII’s current protected categories of race, color, and national origin. Professor Greene also builds upon a seminal work in Critical Race Theory, A Hair Piece: Perspectives on the Intersection of Race and Gender2, which was written by Professor Paulette Caldwell of New York University School of Law more than twenty years ago.

In A Hair Piece, Professor Caldwell used the case Rogers v. American Airlines to expose the ways in which employer grooming codes can be used to discriminate against black women at the intersection of race and gender. In Rogers, a black female employee of American Airlines filed a lawsuit under Title VII, arguing that her employer discriminated against “her as a woman, and more specifically, a black woman” through a grooming policy that prohibited employees who had customer contact from wearing all-braided hairstyles. In dismissing Rogers’s claims based on American Airlines’s appearance grooming regulations, the district court provided two basic reasons for its decision (without actually ever addressing the plaintiff’s intersectional discrimination claim): (1) that the challenged appearance code did “not regulate on the basis of any immutable characteristic” and (2) that the challenged policy applied equally to both races and sexes. Professor Caldwell astutely argued that the flaw in Rogers was that it rested upon the premise that racism and sexism existed and operated separately and independently from each other.

The year 2011—the year in which Professor Greene published her Black Women Can’t Have Blonde Hair . . . in the Workplace article—marked the twentieth anniversary of the publication of Professor Caldwell’s seminal Hair Piece article. It also marked the thirtieth anniversary of the Rogers v. American Airlines decision. The upcoming anniversary of both Professor Caldwell’s article and the Rogers decision inspired me to revisit the question of race and gender discrimination based upon hair restrictions in employer grooming codes.3

Professor Greene, too, was moved to write about this form of discrimination against black women that has not changed either in its practice by employers or its recognition by the courts for twenty years. When I asked Professor Greene about her motivations for writing Black Women Can’t Have Blonde Hair . . . in the Workplace, she wrote the following to me:

Reading the blonde hair cases struck a personal chord with me as my mother at the time was wearing a short dyed blonde hair style, and my aunt was born with blondish-red hair; for as long as I can remember, my aunt’s hair has always been some shade of blonde. The personal/legal issue that arose in reading these cases for me is: per the immutability doctrine that courts have advanced uncritically, why should my mother not be protected against an employer’s decision that her hair is “extreme” because she is a Black woman wearing blonde hair yet my aunt theoretically could be protected against such a prohibition, because her blonde hair was “natural”? Shouldn’t both women be protected under the law? In both cases, the prohibition stems from this notion that only white women can don blonde hair, as blonde hair is presumed natural only for white women. Accordingly, a prohibition against blonde hair enforced against a Black woman is not simply about her hair color but has everything to do with her race, color, and gender—her socially constructed status as a Black woman. Thus, the viability of Black women’s challenges against employers’ hair regulations under our discrimination laws should not hinge upon this legal fiction of immutability.

Interestingly, at the time I was writing this article, my mother was making a community-wide presentation in my hometown. After her presentation, an Egyptian woman initiated a conversation with my mother, commending her on her presentation. During the conversation, however, she also expressed to my mother (who was wearing blonde hair at the time) that as an African woman she found it “offensive” when Black American women wore blonde hair. My mother engaged her further on her beliefs and mentioned that her thoughts were quite timely, as her daughter was currently writing an article on this very issue of race/gender discrimination with respect to the discrimination Black women encountered when they wore blonde hair in the workplace. This conversation reminded me very much of the Bryant case and forced me to ponder hypothetically: what if my mother worked for this Egyptian woman who held very similar beliefs as the supervisor in the Bryant case? What if other Black women worked with/for her and she imposed her ideas about hair colors Black women should wear and thereby excluded Black women from employment opportunities, harassed Black women, and/or denied privileges of employment in the process? Do our courts and our antidiscrimination laws protect Black women, like my mother, from such discrimination?

As Professor Greene spells out so nicely in her article, the answer to her questions, even twenty years after Rogers, is a resounding no.

In her article, Professor Greene not only examines cases since Rogers that involve black women who wear natural hairstyles like braids, twists, and locks, but also introduces a new subset of “hair stories” involving black women who are barred from wearing blonde hair in the workplace, such as Burchette v. Abercrombie & Fitch Stores, Santee v. Windsor Court Hotel, and Bryant v. BEGIN Manage Program. Through her overview of “hair cases,” Professor Greene illustrates that courts, by essentially upholding employers’ regulations on braids, locks, and twists, have severely constrained “Black women’s freedom, choice, and dignity” and have “constructed and reified a very narrow space in which Black women can express their natural or chosen style or color without reprobation, stigmatization, or exclusion.”

In so doing, Professor Greene demonstrates how courts have limited grooming-code-based, employment discrimination claims brought by black women in one major way: by adopting an “immutability doctrine” in race discrimination cases, in which Title VII remedies discrimination only when based solely upon an immutable characteristic such as skin color. Professor Greene highlights that, when adverse employment decisions are made due to the confluence of “immutable” and mutable characteristics, such as hair, courts repeatedly find plaintiffs’ challenges to these employment decisions to be outside of the purview of anti-discrimination law and “immaterial” to equal employment opportunity.

In the end, Professor Greene argues that a few key factors, such as an intersectional analysis; race and gender-based privilege; race and gender-based stigmatization; an acknowledgment that mutable characteristics are racialized; an understanding of differential treatment within race and gender groups; and lastly an understanding that hair regulations can impact a Black woman’s equal employment opportunities in tangible ways, are missing from courts’ analyses of black women’s claims of discrimination based on hair regulations. She concludes by calling for renewed attention to the intersectional, race, color, and gender-based discriminatory harms that black women experience due to the enactment and enforcement of formal and informal hair regulations in the workplace.



  1. 79 U. Colo. L. Rev. 1356 (2008), []
  2. 1991 Duke L.J. 365 []
  3. Angela Onwuachi-Willig, Another Hair Piece: Exploring New Strands of Analysis Under Title VII, 98 Geo. L.J. 1079, 1103 (2010). []
 
 

Choose or Lose

• Zev J. Eigen & David Sherwyn, A Moral/Contractual Approach to Labor Law Reform, 63 Hastings L.J. 695 (2012).
•  Brishen Rogers, Passion and Reason in Labor Law, 47 Harv. Civ. Rts.-Civ. Lib. L. Rev. 313 (2012).

The existential dilemma of modern labor law has been the shrinking numbers of employees who vote for union representation.  Last year unions represented only 11.3 percent of U.S. employees—just 6.6 percent in the private sector.  Labor law scholars have long attempted to account for the trend; indeed, rumors about the death of labor law have been around for at least twenty years.  One might think that the academic ground concerning the decision to join or not join a union would be well-plowed—so plowed over, in fact, that the land would no longer be fertile.  But two recent articles not only belie this claim, they also show the continuing importance of the representation decision to our conceptions of workplace justice.

In A Moral/Contractual Approach to Labor Law Reform, Eigen and Sherwyn seek to find middle ground between the union-side story and the management-side story as to those declining percentages.  They reject the notion that a fairer labor law system would be one in which unions enjoyed higher success rates.  Instead, they argue that representation elections should be fair, and they define a fair system as one that “will result in employees believing they had enough information to make an informed decision, that they were respected, and that they were not intimidated, threatened, or coerced.”  (p. 712) Although they acknowledge the well-regarded labor law critique by Paul Weiler and others that workers are insufficiently protected against coercive employer tactics during the representation campaign, they also contend that unions have “failed to adapt with the times.”  (p. 719)  According to Eigen and Sherwyn, under the current system workers are trapped in tug of war in which both unions and employers can lie, manipulate, and coerce their way to victory.  Card check neutrality agreements, in their view, make matters even worse: since the union must collude with the employer to put such an agreement into effect, they argue that such agreements constitute improper employer support to the union in violation of NLRA § 8(a)(2).1  Instead of shortening or eliminating the representation campaign, Eigen and Sherwyn argue that labor organizations and employers should agree to the “Principles for Ethical Conduct During Union Representation Campaigns” as set forth by the Institute for Employee Choice.  The Principles require truthfulness; prohibit discharges, threats, and bribes; and call for equal time and access for both sides.  Eigen and Sherwyn acknowledge some question about how the Principles should be enforced; they reject codifying them as regulatory requirements, but are equivocal between providing legal incentives for compliance and just simply leaving them as a contractual option.  Here, Eigen and Sherwyn rely on past research (including this paper by Eigen) to argue that making the Principles mandatory will undercut the moral norms that might render them more effective in the workplace than legal sanctions.  Ultimately, they hope that joint agreement to the Principles will make all parties, but particularly employees, better off as a result.

With their focus on providing time and information for employee deliberation free from coercion or influence, Eigen and Sherwyn implicitly use a cost-benefit approach in framing the representation decision.  Brishen Rogers takes on this model in Passion and Reason in Labor Law, in which he rejects the notion of cool calculation in favor of a hotter process.  Rather than taking workers’ preferences as exogenously determined and static, Rogers argues that the primary goal of an organizing campaign is to empower workers as a group and thereby change their understandings—and desires—about their role in the workplace.  Although he does not assert that the standard cost-benefit model is directly flawed, he does argue that its (implied) focus on a calm, deliberative process fails to include the powerful emotional and collaborative elements that drive many union campaigns.  Rogers is careful and couched in his suggestions for reform, but his primary point seems to be that a union is less a service to be purchased, and rather a movement to be joined.  Union organizers may spark social cascades and induce group polarization not to make employees buy in irrationally, but rather to overcome fears and norms against unionization that have been entrenched within the law and society.  In fact, Rogers argues that the workers themselves are transformed into a unit that “acts like a union”—meaning that the workers have assumed ownership of their collective relationship.  Thus, instead of an individualized cost-benefit analysis, the choice to join the union is based on joint action that seeks to bond the workers together and create a new process for channeling workplace power dynamics.

The contractual, cost-benefit approach of Eigen and Sherwyn may seem worlds away from the passionate, communitarian approach proffered by Rogers.  But both, in a sense, are looking for the representation election to provide more than simply an up-or-down decision on the union question.  Rogers is looking for workers to transform their relationships not only with their employer but also each other.  And Eigen and Sherwyn are looking to empower workers to make decisions in an environment with sufficient information and free of intimidation.  In fact, they propose using a commissioned study of workers involved in various types of representation election regimes to determine which method works best.  Both articles are imagining a world in which the actual decision seems somewhat secondary—it is the process of getting to that decision that matters.  However, both articles also cast doubt on the end results of that process.  Eigen and Sherwyn assume that voluntary compliance with principles of neutrality, honesty, and lack of coercion will be sufficient to arm employees with the tools they need to make the best representation decision.  But they fail to explain what kinds of truthful information would be useful to make the decision, and whether employees are in a good position to assess that information themselves.  Rogers’ model stems in part from actual organizing experiences (including his own), and it smacks more of the hurly-burly of a typical campaign.  But Rogers seems to assume that the passion and solidarity generated by union organizers can have only salutary effects.  Emotional and social appeals have been used for a lot of purposes, from selling gold coins to evangelizing for converts.  According to Rogers, the very process of union organizing will create workplace democracy, at least in some form.  But others may not be as sanguine that a campaign carried on by experienced operatives will always take its participants to a better place.

Both A Moral/Contractual Approach and Passion and Reason delve more deeply into the process by which employees decide whether to join a union.  While much about this process remains unknown, we are fortunate to have two new frames of observation provided by these talented scholars.



  1. FN: They do acknowledge that such an assessment is not supported by recent Board or judicial authority. []
 
 

The Uncertain Impact of Wal-Mart v. Dukes

Elizabeth Tippett, Robbing a Barren Vault: the Implications of Dukes v. Wal-Mart for Cases Challenging Subjective Employment Practices, 29 Hofstra Lab. & Emp. L. J. 433 (2012).

Melissa Hart, Civil Rights and Systemic Wrongs, 32 Berk. J. of Emp. & Lab. Law, 455 (2011).

It has been less than two years since the Supreme Court’s controversial decision in Wal-Mart v. Dukes, 131 S.Ct. 2541 (2011). During this short period the Court’s opinion has been interpreted by numerous lower courts. It also, not surprisingly, has been the subject of a substantial amount of commentary in law reviews and numerous proposals for legislative reform to restore a promise of class action challenges to employment discrimination that the Dukes decision allegedly shattered. Drawing from this commentary, I would choose these two very different articles as useful guides for tracking the impact of Dukes on employment discrimination class action litigation. The articles, in my view, together make the case that at least in the absence of legislative or judicial qualification, the Dukes decision’s 5-4 split holding on the commonality requirement in FRCP 23(a)(2) may have less of an impact than the Court’s unanimous dicta on the limited remedies allowed for Rule 23(b)(2) classes and the unavailability of statistical modeling to facilitate the certification of Rule 23(b)(3) classes.

Professor Tippett’s article provides support for questioning the impact on employment discrimination litigation of the Court’s holding that the plaintiffs in Dukes failed to provide support for there being a question of law or fact that would have a common answer for all members of the class of female nation-wide Wal-Mart employees for whom class certification was sought. Tippett does not attempt to narrow the thrust of Justice Scalia’s opinion for the Dukes majority. She recognizes language in the opinion that holds “the bare” delegation of discretion does not qualify as a “specific employment practice” open to disparate impact challenge as a subjective employment practice under the Court’s prior decision in Watson v. Fort Worth Bank & Trust, 487 U.S. 977 (1988). Tippett also understands Scalia’s opinion broadly to preclude systemic disparate treatment pattern or practice claims being based on “a decentralized policy of subjective decision-making alone.”

Professor Tippett’s questioning of the impact of the Dukes holding instead is based on her comprehensive review of all cases filed from 2005 to mid-2011 making either disparate impact or pattern or practice claims against subjective employment practices.  She concludes that such cases were “very uncommon” pre-Dukes and that “about half” of the cases that achieved certification or survived summary judgment could do so post-Dukes. She also isolates characteristics of those cases that achieved certification that would distinguish Dukes, including the limitation of the class to a single city or facility or to those subject to a single or small group of decision-makers, and the decision-makers’ disregard of possible objective criteria. Tippett’s methodology had limitations, at least some of which she fully recognizes. Yet, I think her study provides a template or basis for comparison with post-Dukes class certification decisions in the lower courts. Are those decisions certifying classes that challenge the unguided discretion of a single or small group of decision-makers at a particular facility in a particular district? Are the decisions certifying classes that challenge other subjective practices than “bare” delegation, including the subjective application of objective criteria?

The impact of Dukes on employment discrimination litigation, however, may not be limited to its effects on the types of cases challenging subjective employment practices that can meet the standards it sets for achieving “commonality” under Rule 23(a)(2). It is of course not sufficient for class certification to meet the prerequisites, including commonality, set forth in Rule 23(a). Class certification also requires fitting in one of the three categories defined in Rule 23(b). Because Rule 23(b)(1) presumably does not offer a fit for employment discrimination classes, the Dukes Court’s unanimous conclusion that classes cannot be certified under Rule 23(b)(2) where any form of individualized monetary relief is sought makes the standards for certification under (b)(3) critical. Professor Hart’s succinct article, in my view, appropriately highlights the threat that the Dukes Court’s accompanying dicta against the use of statistical modeling in Title VII cases will make it “nearly impossible” in many employment discrimination cases to meet the (b)(3) standards of predominance and superiority, regardless of whether the cases challenge subjective or objective policies or practices. As Hart explains, Justice Scalia interpreted the Court’s decision in Teamsters v. United States, 431 U.S. 324 (1977) and section 706(g) of Title VII to require a determination through additional individualized proceedings of which particular members of the class are due monetary relief because of being actually injured by the discrimination. In most employment discrimination cases, the need for such individualized proceedings could make certification of a class of any significant size seem impractical. Hart thus views Justice Scalia’s rejection of the avoidance of individualized proceedings by any form of sampling to determine the aggregate level of class-wide damages to be distributed throughout the class to be as “troubling” as his treatment of commonality.

Professor Hart persuasively argues that Justice Scalia’s interpretation of Teamsters and of section 706(g) were incorrect. She explains further why statistical modeling may be both more efficient, and also fairer for a plaintiff class, while employers care only about their aggregate liability, rather than the identities of individual victims. Hart concludes not only with a proposal for legislative change, but also with the “hope” that courts will use their discretion under Rule 23(c)(4) to certify a class “with respect to particular issues” to allow certification of a (b)(2) class for purposes of obtaining injunctive relief against discriminatory practices without preclusion of subsequent individual actions for monetary relief.

Regardless of whether Professor Hart’s criticism of Justice Scalia’s analysis is fully correct, her article raises critical questions that must be answered by the lower courts before the impact of the Dukes decision can be fully assessed. For instance, to what extent will lower courts reject (b)(3) certification because of the prospect of burdensome individual proceedings, even though prior settlement is likely? How will the critical relationship between Rules 23(b)(3) and 23(c)(4) be resolved? The answers to questions like these posed by the court’s dicta against statistical modeling ultimately may be more important than those posed by the Court’s holding on commonality.

 
 

Res Ipsa Loquitur & Employment Discrimination?

William Corbett, Unmasking a Pretext for Res Ipsa Loquitur:  A Proposal to Let Employment Discrimination Speak for Itself,  62 Am. U.L. Rev. -- (forthcoming, 2013), available at SSRN.

In this article Professor William Corbett does an excellent job of explaining the “tortification” of discrimination law and how the McDonnell Douglas analysis can be viewed as a form of the res ipsa loquitur doctrine. Professor Corbett’s analysis of this issue provides a fresh look at a well-known tort doctrine, and its possible application to discrimination law.

In the first part of his article, Professor Corbett examines how employment discrimination has been transformed by tort law over time. He explains how, subsequent to the passage of Title VII, tort law has been “vigorously infused” into discrimination doctrine. Professor Corbett traces how this transformation has occurred over time — looking at how tort law principles can be found in Price Waterhouse v. Hopkins and section 1981a of the Civil Rights Act of 1991. He also demonstrates how the move toward tort law can be found in the types of claims being pursued by plaintiffs, as well as the limited availability of the class action mechanism for workforce victims. Finally, looking at a number of more recent Supreme Court cases, he shows how tort principles now play a major role in employment discrimination cases.

In the next section of the paper, Professor Corbett provides a unique look at how the three part burden shifting framework of McDonnell Douglas is “modeled on a tort analysis.” More specifically, he examines the connection between this framework and res ipsa loquitur, exploring the similarities between the two analyses. He concludes that res ipsa loquitur has much in common with McDonnell Douglas, “given its nebulous nature, reticence of courts to ease the usual litigation burdens of plaintiffs without justification, and the skepticism about the inference or presumption to be drawn based on surrogate questions. . . the doctrine is more trouble than it is worth.”

In the final section of the paper, Professor Corbett argues that—given the similarities (and inherent problems) of res ipsa loquitur and McDonnell Douglas—the time has come to do away with this framework. He maintains that the problems and confusion created by McDonnell Douglas suggest that the framework should be replaced. In its place, Professor Corbett advocates for mixed-motives analysis for employment discrimination claims. He explains why a mixed-motives analysis would be preferable for workplace claims, and examines the specific issues that would arise with attempting to import this analysis to age cases. Professor Corbett further examines the implications of his proposal for the same-decision defense.

This piece—just like the superb scholarship of Charles Sullivan and Sandra Sperino on the role of tort law in employment discrimination—provides a novel look at how we approach workplace misconduct. The idea Professor Corbett explores is fascinating and has practical implications: if the most significant test in employment discrimination law shares so much with a troubled tort doctrine, should we continue to embrace it? I personally disagree with Professor Corbett’s ultimate conclusion that we should abandon the McDonnell Douglas framework. Though I may be in the minority, in my view, there is a lot of value to the structure it creates, though it admittedly has its shortcomings. This is simply a difference of opinion, however, and Professor Corbett has identified and beautifully examined a critical parallel between employment discrimination and tort law. The importance of how the principles of tort law have found their way into workplace claims cannot be overstated. This piece provides a helpful look at how one specific tort doctrine in many ways parallels the most important employment discrimination framework. The question now is whether, “[l]ike the infamous barrel that fell from the warehouse and spawned res ipsa loquitur, McDonnell Douglas needs to be cast out of employment discrimination law.”

 
 

Is Arbitration Lawless?

W. Mark C. Weidemaier, Judging Lite: How Arbitrators Use and Create Precedent, 90 N. C. L. Rev. 1091 (2012), available at SSRN.

Ever since the Supreme Court, in Gilmer v. Interstate Johnson/Lane Corp., 500 U.S. 20 (1991), and Circuit City Stores, Inc. v. Adams, 532 U.S. 105 (2001), gave employers the green light to require their employees as a condition of employment to waive their right to sue for violations of employment statutes and to mandate arbitration of any claims that may arise, debate has flared over whether such employer-imposed arbitration mandates should be prohibited, allowed or regulated.  The debate intensified after the Supreme Court’s decision in 14 Penn Plaza, LLC v. Pyett, 556 U.S. 247 (2009), held that unions may waive employees’ rights to sue and require that they pursue their statutory claims through the collective bargaining agreement’s grievance and arbitration procedure.  The criticisms include the concern that widespread arbitration mandates will lead to a privatization of public law, with arbitrators that are not bound by public law authorities producing awards of no precedential value.

W. Mark C. Weidemaier’s article, Judging Lite: How Arbitrators Use and Create Precedent, provides empirical insight into the concerns regarding the privatization of public law.  Weidemaier worked from a database of 206 class action arbitrations, every class action award available through the American Arbitration Association (AAA) between 2003-2009; 203 randomly selected securities arbitration awards issued between 1995-2009 available through FINRA and its predecessors; 231 AAA employment arbitration awards randomly selected between 1999-2008, available on Lexis; and 208 labor arbitration awards rendered between 1980-2009, randomly selected from among awards published in the BNA Labor Arbitration Reports.  He analyzed these awards to gauge the extent to which arbitrators cited and engaged with precedent.

Weidemaier, not surprisingly, found very little citation to precedent in securities awards because reasoned opinions accompanying those awards are extremely rare.  Among labor awards, 48.6% cited to at least one precedent, as did 66.7% of employment awards, and 71.8% of class action awards.  Within those groups, 14.9% of labor awards cited only to judicial precedent; for class action awards it was 83.8% and for employment awards it was 98.7%.  On the other hand, 76.2% of labor awards that cited precedent cited arbitration precedent and 35.6% cited only arbitration precedent.  In contrast, only 15.5% of class awards cited arbitral precedent and only 1.4% of those awards cited only arbitral precedent.  Only 1.3% of employment awards cited arbitral precedent.

Weidemaier attributed the differences in types of authorities cited to the different nature of each type of arbitration.  Labor arbitration is concerned predominantly with interpreting and applying collective bargaining agreements and is frequently fact-based, making it more likely that arbitrators will not cite any precedent and more likely that when they do cite precedent, it will be other arbitration awards.  Employment awards are much more likely to be adjudicating statutory claims, resulting in arbitrators looking to judicial authority interpreting the statute.  Arbitral authority is far less relevant.  Class awards look more to judicial authority but many deal with whether class arbitration is permitted under the contract and, consequently, in Weidemaier’s view, they are more likely than employment awards to look to arbitral awards interpreting similar contracts.

Weidemaier randomly selected 25 cases in each group, excluding the securities arbitrations.  He analyzed in each case whether the arbitrator’s citation of precedent was “strong,” which he defined as whether it quoted more than a single word or phrase from the cited authority whether it devoted more than two sentences to discussing the authority, and whether it explicitly relied on the cited authority.  He found that 33.3% of citations in labor awards were strong, as were 30.1% of citations in class awards and 20.7% of citations in employment awards.  He found that 5.4% of citations in labor awards, 9.1% in class awards and 9.2% in employment awards distinguished the authority cited.

Finally, Weidemaier randomly selected 25 U.S. district court opinions from among those found in a Westlaw search looking for discrimination, harassment and retaliation cases, and compared them to the arbitration awards.  He found that district judges cited more precedents and had more strong citations than arbitrators. Hence the title of his article, Judging Lite, suggests that arbitrators are engaged with the public law but not with the same intensity as judges.

Candidly acknowledging many limitations to his study, Weidemaier found no evidence outside of securities arbitration that arbitrators were deciding cases in an ad hoc fashion.  Rather, he noted, the process has become highly legalized and arbitrators appear to be trying to follow the public law when it is at issue before them.  He also called on judges to engage with arbitral awards.  Recognizing that judicial review of arbitration awards is very limited, he suggests that judges discuss arbitral authority in their opinions, thereby providing valuable feedback to the arbitrator community.

W. Mark C. Weidemaier’s article is a valuable addition to the growing body of empirical studies of arbitration, particularly arbitration of statutory claims mandatorily imposed by a stronger party on a weaker party to a transaction.  It is part of a body of work that should be required reading for all participants in the on-going debate over arbitration mandates.

 
 

Public-Sector Unions, Public Employees: May You Live in Interesting Times

Joseph E. Slater, Public Sector Labor Law in the Age of Obama, 87 Ind. L. J. 189 (2012)

In 1959, Wisconsin became the first state to grant collective-bargaining rights to its public workers. The next half-century witnessed the rise of public-sector unions. As union density declined in the private sector, it increased in the public sector such that, by 2010, 7.6 million public-sector employees belonged to a union as compared with 7.1 million private-sector union workers. Many celebrated the public-sector union as the big success story. The fortune of public-sector unions and their members seemed, however, to turn on a dime with the 2010 mid-term elections. The past two years have witnessed some of the most pernicious attacks on public employees and their unions in the past half-century. Too contrived to be ironic, among the first and most virulent of these attacks began in Wisconsin.

Here’s where Professor Joseph Slater’s latest article, Public Sector Labor Law in the Age of Obama, begins. Professor Slater tackles four big issues: (1) recent political attacks resulting in legislative changes in the context of the current economic crisis and debate over public employee pensions; (2) bargaining and legal issues created by the current economic crisis; (3) the debate over whether and to what extent certain categories of employees (specifically Transportation Security Administration employees, police, and firefighters) should have collective-bargaining rights; and (4) the Missouri state constitutional requirement that employees have a right to bargain collectively.

In Part I, Professor Slater surveys the main reasons for recent political attacks on public-sector unions, carefully separating myth from fact. Myth: Greedy public-sector unions heavily contributed to state budget shortfalls by insisting on fat pension plans for their members. Fact: Most states set their employees pension plans by statute or regulation, not by collective bargaining. Fact: Public employee pension funds only account for 3.8% of state and local spending. Fact: Many state pension plans are underfunded. Fact: Most of the contributing causes to state pension underfunding—including state politicians’ having diverted state monies away from pension plans toward other projects, questionable actuarial practices, and stock market declines—were outside the control of public-sectors unions. Fact: Collective-bargaining rights are not correlated with state budget deficits.

Professor Slater also debunks the myth of the overly paid public servant, including the belief that public-sector pension plans are always too generous. According to Slater, the data reveal that most such pensions are modest and that states are increasingly cutting back on their contributions. These data must be judged in light of the fact that over one-third of all public employees are not eligible for social security. Along these lines, Slater recounts studies that have cogently contradicted the myth that public servants are over-paid. These studies, Slater explains, are more reliable because they break out categories of workers, comparing apples to apples rather than comparing private-sector janitors to public-sector lawyers. Accounting for education, experience, and other significant factors, these studies show that public servants remain undercompensated by several percentage points. This is true even when factoring in benefits, including pension plans.

Part I ends with a survey of states, most notably Wisconsin and Ohio, that have eliminated or attempted to eliminate collective-bargaining rights for public employees. In this section, Slater argues that, because such laws have no effect on budget deficits, they must be intended to harm unions as an institution.

These arguments naturally segue into Part II’s review of how the current economic crisis has shaped legal and bargaining issues. Slater details interest-arbitration cases and furlough disputes based on contract clauses to highlight the observation that public employers have been shifting the burden of budget management onto public employees.

To be sure, someone has to pay for budget deficits, which can be cut by reducing spending or increasing revenue, most notably through tax increases. Increasing revenue is difficult in a recessional era of unprecedented unemployment rates and a shrinking tax base. Blaming public employees for state budget deficits and reducing spending by cutting payroll—either by slashing public employee benefits or furloughing employees—is much more politically expedient than either tax increases or cutting popular public programs. This problem for public workers is exacerbated by the reality that most public employees cannot strike and many arbitrators have been persuaded, at least to some extent, that state governments need to cut expenses. But public officials who furlough without dialogue are taking the easy way out. Wouldn’t it be better for society to have an honest dialogue that revealed that public-sector unions have no control over the budget and that to the extent that unions gained benefits for public workers they did so through bargained-for exchanges. That means that public employees gave up something, perhaps wages, in exchange for delayed compensation in the form of benefits. Parts I & II of Slater’s article provide ample evidence to support such a dialogue.

Parts III and IV present several instances of the right to bargain among transportation safety employees, firefighters, police officers, and in general under one state’s constitution.  As Slater points out, after the 9/11 terrorist attacks, the Bush administration’s newly minted Department of Homeland Security (DHS) created the Transportation Security Administration (TSA).  Shortly thereafter, TSA Administrator James Loy issued an order forbidding TSA employees from engaging in collective bargaining. The stated rationale for this order was the employees’ “critical national security responsibilities.” This order, together with other moves by the Bush administration to decollectivize federal employees, has renewed debate over the question whether public servants in certain critical positions should be permitted to engage in collective bargaining—as a matter of public policy and of law. As of now, TSA employees are represented by the American Federation of Government Employees (AFGE) with limited collective-bargaining rights.  But this, of course, could change with a change in administration.

By contrast, as Slater points out, the proposed the Public Safety Employer-Employee Cooperation Act of 2009 would have granted collective-bargaining rights to public safety officers employed by state or local governments. The proposed bill is “a substantial departure from traditional public-sector labor law. The federal government has never attempted to grant collective bargaining rights to large groups of state and local government employees.” Perhaps for this reason, if passed, this bill is likely to come under constitutional challenge. Slater acknowledges that the bill is unlikely to pass, but if it did pass (and survived constitutional challenge), “this Act could be seen as a bold assertion of the importance of collective bargaining rights.”

Slater lastly explores the meaning of collective bargaining by focusing on the right to bargain collectively under Missouri’s constitution, which provides that “employees shall have the right to organize and to bargain collectively through representatives of their own choosing.” Although originally construed as not applying to public employees, the Missouri Supreme Court recently reversed its 60-year old decision, holding that the constitutional provision does, in fact, apply to public workers. Lower courts are now exploring what it means for public workers to have such a right.  Does the principle of exclusive representation apply? Apparently not. Does a system devised by the employer requiring employees in each school to select representatives and permitting the largest union to select a representative, a process the court called “collaborative bargaining,” meet the requirements of collective bargaining? The court held that it did not. These cases, Slater explains, allows us to re-explore the concept of collective bargaining. Is this concept some sort of platonic ideal or is it ever-evolving to meet the challenges and circumstances of the times?

In such interesting times, perhaps the answer to that question is  . . .  interesting.

 
 

Implicit Bias: Moving from Theory to the Courthouse

Jerry Kang, Mark Bennett, Devon Carbado, Pam Casey, Nilanjana Dasgupta, David Faigman, Rachel Godsil, Anthony G. Greenwald, Justin Levinson & Jennifer Mnookin, Implicit Bias in the Courtroom59 UCLA L. Rev. 1124 (2012).

Having a total of ten authors for one article would make this rather exceptional even without regard to the topic. That these authors participated together in a symposium on implicit bias is not a surprise. But what is unusual, if not exactly surprising, is that they together wrote this one article. This is not the typical scenario for the papers delivered at a conference. The ten include legal academics, scientists, researchers, and a sitting federal judge. Six are law professors, though two of them hold joint appointments. One is a research consultant for the National Center for State Courts, two are psychology professors and one is a federal district court judge. They all come to the study of implicit bias from their respective points of perspective but the article is a fully integrated article.

The question the article begins to answer is: What, if anything, should we do about implicit bias in the courtroom? The scientific literature on implicit bias and the role implicit bias might play has been the subject of considerable legal literature. Part I provides a clear, straightforward introduction to the science involved in understanding that implicit bias exists, what it is, and how it works. The article defines implicit attitudes and stereotypes as biases “not consciously accessible through introspection.” Accordingly, their impact on a person’s decision-making and behaviors does not depend on that person’s awareness of possessing these attitudes or stereotypes. Consequently, they can function automatically, including in ways that the person would not endorse as appropriate if he or she did have conscious awareness. If you remember, Ross Perot in the 1992 Presidential campaign gave a vivid example of implicit bias that gets disclosed unintentionally. While speaking at an NAACP meeting,  Perot addressed his audience several times as “you people” or “your people.” Especially since the topic of the speech was crime and illegal drugs, many perceived Perot as expressing a stereotypical view of African Americans as being identified with crime and drugs. He had no incentive to be avowedly racist and there is no indication that he was conscious of the obvious inference listeners drew based on the language he used.

Part I develops a full description of the key research upon which the concept of implicit bias has been based — the Implicit Association Test (IAT). The test shows those who take it pairings of pictures of either whites or African Americans and pictures presenting either negative and positive images. The test measures the time differences that test-takers take to deal with these different combinations of pictures.  Thousands of people have taken the test (if you haven’t, you can find it at https://implicit.harvard.edu/implicit). The huge amount of data that has been generated has proven to the satisfaction of the researchers that implicit bias is pervasive, large in magnitude, disassociated from explicit biases, and predictive of certain real-world behavior.  A meta-analysis of these studies found that implicit attitudes such as discrimination against African Americans predict certain behaviors better than measures of explicit bias.  In order to defuse emotionally loaded responses, the article uses examples, such as the presence or absence of implicit biases of a vegetarian.

Part II then traces two “trajectories,” with the first treating implicit bias in criminal trials and the second, which this post will deal with, giving “an empirical account of how implicit bias may potentially influence” employment discrimination litigation. First, in dealing with implicit discrimination in discrimination cases, the article digs much more deeply into the studies that take different approaches and show different facets of the existence and extent of implicit bias in the employment setting. Tester studies in which applications that are identical except for race or gender are sent to employers. The results reveal that, in 20 to 40 percent of the cases, the employers treat the subordinated group worse than the privileged one in terms of who get callbacks. Field experiments with actual applicants confirm that bias. Further studies correlate discriminatory employment evaluations with implicit bias. The next step is to show that additional studies have demonstrated that the mechanism by which this discrimination occurs is that evaluators engage in motivated reasoning – changing merit criteria “on the fly” to the advantage of the privileged group applicant but without realizing that the criteria have been changed, much less that they have been changed in order to advantage the privileged person.  In sum, these varied studies demonstrate that implicit motivations influence behavior which is then rationalized after the fact to avoid recognition that bias is at play.

In the next step of Part II the article describes how implicit bias operates at several steps in the litigation of discrimination cases. After Twombly and Iqbal, judges are now able to use their “judicial experience and common sense” to evaluate the “plausibility” of plaintiff’s claim of discrimination in the context of Rule 12(b)(6) motions to dismiss based on the pleadings. Judges, no less than the rest of us, are subject to the influence of implicit bias, which shapes their experience and common sense. Implicit bias has been shown by numerous studies to be particularly powerful when, as in the situation of a judge deciding a motion to dismiss without the benefit of the parties’ discovery, the decisionmaker lacks “sufficient individuating information.”  The lack of information about the actual case increases the risk that implicit bias will affect the decision. Recent statistical studies show that there has been a significant increase in the dismissal rate of discrimination cases at the pleading stage since Iqbal was decided. That is no surprise, but what these studies also show is that there is a significantly higher increase in the rate for discrimination cases compared with other types of civil litigation. Based on experiments replicating jury trials, studies show that juries are, like judges, likely to engage in motivated reasoning as well as “performance preference.” “Performance preference” involves the risk that implicit bias influences how the jurors evaluate the judges, attorneys and witnesses in the trial.

Part III – entitled “Interventions” – describes some strategies that can be used to decrease implicit bias in the courtroom. This is a daunting challenge since, by definition, we are not consciously aware of these biases that nevertheless influence our behavior. The article describes studies that show that increasing diversity, “the direct contact with countertypical people,” decreases the operation of implicit bias. Even increasing the manifestation of diversity in the courts through the kinds of pictures, posters, etc., that are on display can help.  Judges present a special challenge since a survey showed that 97 percent of those surveyed thought they were in the top quarter in avoiding “racial prejudice in decisionmaking.” Just as all the children can’t be above average, all the judges can’t be in the top 20 percent in terms of their objectivity. This sense of certainty that one is not subject to bias is particularly dangerous since studies demonstrate that, when someone “believes himself to be objective, such belief licenses him to act on his biases.” So, judges as a group are likely to be particularly vulnerable to implicit bias. A way to increase motivation to be fair and to avoid letting implicit bias influence decisionmaking is to increase a person’s scientific knowledge about implicit bias.  That can be done through individual study as well as part of the organized judicial education that helps train judges. As part of that education, judges can learn how to engage “in effortful, deliberative processing,” which includes reducing the level of one’s emotional state of mind when making decisions. Judges can also learn to “count,” or to consciously keep track of the number of situations in which implicit bias could play a role and to analyze whether or not implicit bias could have crept into the decisionmaking process.

A point not made in the article is that plaintiffs’ counsel might find it useful to include in their discrimination complaints significant information about implicit bias to help a judge minimize her implicit bias when deciding motions to dismiss under the new Iqbal plausibility test. In fact, I am surprised not to have seen a group that represents discrimination plaintiffs, such as the National Employment Lawyers Association, provide clear, straightforward factual information about the operation of implicit bias to be used to bolster plausibility arguments in motions to dismiss. Perhaps, this article can provide the framework for plaintiffs’ lawyers to educate judges about the plausibility of bias and of discrimination.

The article makes an interesting point by showing that studies do not support giving prospective jurors individualized screening tests such as the IAT. While the test-retest reliability of the IAT as to people generally is very well established, it is less so at the level of the individual test-takers. So, that leaves jury diversity and the education of jurors about implicit bias as the primary tools to try to debias the operation of the jury system.

This article takes us another step down the road toward integrating what science has shown us about implicit bias into law. There are more steps to be taken, including attempts to be able to figure out how IAT tests can be shown to be reliable at the individual level. Even without taking that step, articles such as this one are building a context for a fundamental legal question that has yet to be definitively answered. That question is whether action based on implicit bias is intentional discrimination for purposes of deciding disparate treatment discrimination cases. In the 19th Century, signs on the doors of Boston employers that “Irish need not apply,” were explicitly biased. Since then we have learned that bias influences the behavior of all of us in much less obvious ways. Yet its influence is discrimination.

Four of the authors of this article, along with many other experts in the field, also participated in a conference sponsored by the Charles Hamilton Houston Institute for Race & Justice at Harvard Law School on June 14, just before this article was published. That conference launched a book of edited essays about implicit bias and the law entitled Implicit Racial Bias Across the Law. So, the academic study of the impact of implicit bias on the law continues to grow, expand, and increase in credibility. Knowledge is necessary, but so is action.

 
 

Good Things Come in Small Packages

Margaret H. Lemos, Interpretive Methodology and Delegations to Courts: Are “Common-Law Statutes” Different?, in Intellectual Property and the Common Law (Shyam Balganesh ed., Cambridge University Press, 2012).

Slightly off the mainstream of employment law scholarship is Margaret Lemos’s Interpretive Methodology and Delegations to Courts: Are “Common-Law Statutes” Different. This is a terrific, creative piece in only 14 pages. I am especially pleased to be able to highlight it on Jotwell because it will appear in a chapter entitled Intellectual Property And The Common Law (Shyam Balganesh ed., Cambridge University Press, 2012), and therefore might well be missed by most employment law types.

Professor Lemos starts with a commonplace of statutory interpretation, asks why, and comes up with answers that make one reconsider fundamental beliefs. What more could one ask?

The commonplace is that the normal methods of interpretation (whatever they happen to be at the time) are inapplicable when it comes to “common law statutes.” The paradigmatic example of such a statute is the Sherman Act, which is generally viewed as an enabling act — an authorization by Congress to the courts to create jurisprudence of “restraint of trade” largely unconstrained by common law precedents, textualist fussiness, or any need to discern legislative intent. In contrast, “normal” statutes, such as Title VII, are subject to a process of “statutory interpretation,” which these days requires an elaborate parsing of words in order to determine what the enacting Congress intended by the language it chose.

“Common law statutes,” in short, are viewed as delegations of law-making power to courts, a perspective with a number of implications. One is doubt about whether what has been called the “superstrong” version of stare decisis usually applicable to statutory interpretation ought to apply.  Common law courts are normally thought to be able to overturn or modify their precedents when appropriate without assuming that legislative acquiescence indicates approval, and that would seem to be true of common law statutes.

Another implication arises from the relationship between delegations to the courts via such statutes and delegations to agencies under Chevron. Professor Lemos argues that, under Chevron, “statutory ambiguity  is ‘agency-liberating’ in the sense that it converts the administrative inquiry from a search for what the statute means to a determination of what it ought to mean.” This is also true, in her view, for “common law statutes,” but not so for “normal” statutes.  Professor Lemos therefore asks why statutory ambiguity – wherever it might be found — doesn’t create a like authority for the courts.  

Another way to frame this basic question is, what makes a particular enactment a “common law statute?”  Professor Lemos concludes that the two usual justifications – open-ended text and common law background — are wholly inadequate. Take open-ended text. It’s not that some statutes aren’t more open-ended than others but, rather, that all statutes have open-ended aspects that could be viewed as a delegation by Congress to the courts to fashion common law-like rules.  For example, “restraint of trade” may be undefined in the Sherman Act, but “discrimination” is also undefined in Title VII. Recognizing this would permit the courts more leeway to generate policy rules without departing from their role of implementing congressional commands – the command would be, in this case, to define “discrimination” in the traditional common law manner. As for common law background, the Sherman Act builds on common law notions of restraint of trade, but Title VII would not exist but for its common law foundation in the notion of “employment,” and the courts regularly draw on common law concepts for concepts such as causation (including, most recently, proximate cause).

In short, Professor Lemos argues that “neither of the proposed distinctions is persuasive, as the relevant features are shared by many other statutes that do not appear on the privileged list.”  Rather than reflecting categorical differences, statutes exist on a continuum with most laws having some aspects of what are typically viewed as common law statutes.

Professor Lemos does not cite the decision, but a good test case for her ideas is General Dynamics Land Systems. v. Cline, 540 U.S. 581 (2004), which asked whether the ADEA’s prohibition of age discrimination barred discrimination favoring older workers within the age 40+ protected class vis-a-vis younger workers also within the protected class. The majority held no, but it struggled with the language of the statute, which the majority found capable of either barring age discrimination against anybody over 40 or barring only discrimination against older workers within that group. Ultimately, the majority chose the latter meaning because of a number of “interpretive clues” in the statute, its legislative history, and what the majority called the “social history” of the law. The dissent (authored by Justice Thomas and joined by Justice Kennedy) would have adopted the broader meaning of discrimination because of the “plain language” of the statute; it also condemned the use of “social history,” which it labeled “the Court’s new approach to interpreting anti-discrimination statutes.”  Then there was Justice Scalia’s dissent, which relied heavily on the EEOC’s interpretation.

While the Court might well have reached the same result in Cline had it viewed “discrimination” through a common law lens, the result would certainly have been very different opinions, and ones that might have better come to grips with the policy question undergirding the semantic debate – should older workers be favored?

For the author, the fact that statutes exist on a continuum means we should reconsider the sharp line we now draw between “normal” and “common law” enactments.  We should focus instead on the real institutional questions posed by any statute: whether there is a delegation to courts of law-creation power and whether the courts are institutionally competent to resolve these questions. Thus, she asks whether the patent system is well left to the courts and whether, given the complexities of economic analysis, the courts are the appropriate body to fashion antitrust policy.

Closer to the employment law setting, she also points out that the antidiscrimination laws might be better suited to a common law approach: “with no agency presently empowered to play a strong role in the interpretation and implementation of Title VII, the practical need for judicial policymaking is at least as strong as in the fields of patent and antitrust.”

Hard to disagree with that!  Of course, and without too much of a quibble in what is after all, a Jotwell post, one wonders exactly what kind of public policy would emerge from a Court newly-freed of constraints in interpreting the antidiscrimination laws.

 
 

Expanding Our Vision — and the Law’s Coverage — to Include “Marginal Workers”

A strange tension exists in U.S. labor and employment law.  On one hand, the number of laws granting rights to employees has increased considerably in recent decades.  On the other hand, many have argued that these laws have fallen far short of their expected goals and have failed to adequately protect a significant number of workers.  In Marginal Workers, Ruben Garcia goes further than any previous work in describing the various ways in which these laws fail to protect some of the most vulnerable workers in the country.

Marginal workers are those who “fall through the margins of different laws that are supposed to protect them, but lack the political power to fix the holes in the legislation.”  (p. 4).  This includes, among others, immigrant workers in post-Hoffman Plastics limbo, temporary workers, noncitizens, and a variety of low-wage workers who are covered by statutes (including the FLSA, Title VII, and the NLRA) but often get inadequate protection from them.  This includes, but is not limited to, those who should be covered by the statute, but who have been improperly classified as independent contractors or as exempt from the FLSA or NLRA.  The default “employment at-will” rule means that even at best, employment laws are a “patchwork quilt with some rather large holes.” (p. 6).

The book is informed by both practical experience and theoretical knowledge.  Garcia effectively weaves the stories of real workers in real cases (some from his own practice experience) in with  discussions of “rights talk,” “intersectionality,” and the “mutually constitutive nature of law and society.”  In so doing, he addresses a wide range of scholarship from the left, right, and center.

The book is not, however, simply a list of complaints about the practical and theoretical limits of employment laws.  Garcia provides ideas that lead to practical suggestions.  He articulates a “civil rights” approach to union rights that (among other things) could have yielded an intriguingly different result in Emporium Capwell that, in turn, might have further facilitated the participation of women and minorities in unions.  He calls for an expanded vision of anti-discrimination laws — which may result, as he notes, in something like an end to employment at-will, but which would be rooted in political movements.  He links abuse of guest workers to the “democracy deficit”:  their lack of representation in the country where the abuse takes place.  Here, he proposes an international labor rights approach with actual enforcement mechanisms.  He properly rejects a dichotomy of strategies focusing only on statutory rights or only on political movements.  Fundamentally, Garcia does much to show how the ideal, “labor rights are human rights,” should and could be made more real for more marginal workers.   In so doing, he provides an impressive and provocative view of employment law as a whole.

 
 

Dis-torting Discrimination Law

Sandra F. Sperino, Discrimination Statutes, The Common Law, and Proximate Cause, 2013 U. Illinois L. Rev. 1 (forthcoming 2013) available at SSRN.

As courts increasingly import principles from common law torts into discrimination cases, Sandra Sperino’s new article, Discrimination Statutes, The Common Law, and Proximate Cause, is a welcome addition to a growing body of work pushing back against this trend. Her focus is on the Supreme Court’s recent forays into proximate cause in connection with federal employment statutes. Laying out the problems of the proximate cause doctrine and the features of statutory protections from employment discrimination, Sperino demonstrates that importing proximate cause is undesirable and an obstacle to enforcing Congress’ careful balance in enacting these statutes.

The article begins by describing what proximate cause is. Although the theoretical underpinnings of proximate cause are notoriously muddled, Sperino demonstrates that in a variety of ways, the doctrine appears to limit the reach of particular torts, depending on the type of tort at issue. As she notes, proximate cause is applied primarily in negligence actions in situations with multiple physical causes, where a potential plaintiff is far removed from the conduct of the defendant, or as a way to define the policy goals of the underlying cause of action. For intentional torts, proximate cause plays a much more limited role, in part because the actor’s state of mind makes the actor more blameworthy, and we are willing to extend liability farther.

The article’s bottom line is that these limiting and policy-expressing functions are simply not necessary for federal employment discrimination statutes, and in fact would interfere with their operation. Congress has built limits into these statutory regimes in a way that leaves no space for principles of proximate cause. Using Title VII as the primary example, Sperino shows how Congress defined the harm in a fairly specific and limited way, defined the causation standard, limited potential plaintiffs, and sped up the timeline for bringing an action.

One of the most important sections of the paper lays out the problems courts have had with causation much more fundamentally in the context of employment discrimination claims. While the bulk of the paper focuses on proximate cause, this concept is an added, more demanding limitation to the requirement of factual cause. There can be no liability if an employee’s protected status did not cause the adverse employment action the employee suffered. Generally speaking, the debate has focused on whether Title VII requires that protected status be a necessary cause (but-for the protected status, no result), a substantial cause (it made the result significantly more likely along with other causes), or just a contributing cause (it played some role in the process that led to the result but so did other causes). Much of this difficulty lies in the fact that the operative language seems to embody not just notions of causation, but also some form of state of mind.

Sperino also carefully debunks each of the arguments courts and commentators have raised in favor of importing proximate cause: there is no indication that Congress drew on common law torts in enacting these statutes; the statutory language the courts point to has been used by common law courts to refer to factual as well as proximate cause; and Congress most likely intended for all factually injured plaintiffs to recover because the statutes provide only very narrow protections. Finally, she demonstrates that employment discrimination claims are simply not analogous to common law torts. Some discrimination claims seem to create strict liability, and others require a higher mental standard than even intentional torts. Moreover, most torts deal with physical injuries. Employment discrimination, on the other hand, deals with economic injuries, dignity injuries, and more abstract injuries to equality norms and to groups.

To the extent that the article contains a weak point, it is in drawing on separation of powers principles but then treating all or nearly all judicial interpretations of Title VII (except for those related to proximate cause) as valid interpretations rather than the creation of law. Separation of powers arguments certainly have traction, especially in the federal context, because the role of the judiciary is more expressly limited than in states. Still, even there, the doctrine is somewhat problematic. While it is easy to define that principle at a high level – federal courts cannot exercise legislative power – and easy at the extremes to distinguish between a legislative action and a judicial action, it becomes challenging rather quickly to distinguish once there is some legislative action for a court to work with.

Consider Title VII itself. The Supreme Court suggested most recently in Ricci v. DeStefano that the Court had essentially legislated the disparate impact theory – the majority in that case used the term “interpret,” to describe the creation of the theory, but stated that the text did not expressly prohibit disparate impact and referred to disparate treatment as the “principle nondiscrimination provision” rooted in the text of Title VII. By casting doubt on the textual foundations of the disparate impact, the Court subtly drew on separation of powers principles to suggest that perhaps the adoption of that theory improperly stepped into legislative territory. Justice Ginsberg in her dissent appears to have accepted this implicit definition of the proper judicial role, but disagreed with the majority’s conclusions about what the text meant.

The primary institutional competence point that the article raises in this context, however, is well taken and powerful. The product that we get from a common law process is significantly different from the product produced by the legislative process. The common law process involves the slow accretion and development over time of a body of policies created to allocate the costs of injury in individual disputes. It was also, at least at one time, designed to embody local concerns and norms. The legislative process uses deliberation, active information gathering, and consideration of multiple policy objectives to produce a comprehensive policy solution to an identified problem. And at the national level, those national policies are designed to supplant local policies where the local policies would conflict with the national ones. Sperino’s article explains quite forcefully why it is that common law tort principles do conflict with the language and policy of the federal discrimination laws. I hope the courts are listening.