Employer Retaliation Policies and the Retaliation Catch-22

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

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

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

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

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

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

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

Cite as: Alex B. Long, Employer Retaliation Policies and the Retaliation Catch-22, JOTWELL (April 15, 2014) (reviewing Deborah L. Brake, Retaliation in an EEO World, 89 Ind. L.J. 115 (2014)), http://worklaw.jotwell.com/employer-retaliation-policies-and-the-retaliation-catch-22/.

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

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

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

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

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

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

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

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

Cite as: Kerri Stone, Fundamentally at Odds: Is the Sex Industry Compatible with the Mandates of Title VII?, JOTWELL (March 14, 2014) (reviewing Lua Kamál Yuille, Sex in the Sexy Workplace, 9 Nw. J.L. & Soc. Pol'y 88 (2013)), http://worklaw.jotwell.com/fundamentally-at-odds-is-the-sex-industry-compatible-with-the-mandates-of-title-vii/.

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

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

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

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

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

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

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

Cite as: Henry Chambers, Who, What, Why, When and Where: How Well Does the National Media Report on Sexual Harassment?, JOTWELL (February 12, 2014) (reviewing Joni Hersch & Beverly I. Moran, He Said, She Said, Let’s Hear What the Data Say: Sexual Harassment in the Media, Courts, EEOC, and Social Science, 101 Ky. L.J. 753 (2013), available at SSRN), http://worklaw.jotwell.com/who-what-why-when-and-where-how-well-does-the-national-media-report-on-sexual-harassment/.

Inequality in the Workplace and Beyond

Michael J. Zimmer, Inequality, Individualized Risk, and Insecurity, 2013 Wis. L. Rev. 1 (2013).

In his paper, which was presented as the Thomas E. Fairchild Lecture at the University of Wisconsin Law School, Professor Michael Zimmer does a superb job of explaining how employment has factored into the economic inequality that is so prevalent in our society. Professor Zimmer explains how the middle class is quickly disappearing from the workplace, and how economic mobility is quickly on the decline. Most importantly, he charts a course toward rectifying the existing problems.

In the first part of this paper, Professor Zimmer examines how the current economic volatility has created numerous difficulties for everyday workers. In particular, he explores how the permanent-type relationships between employers and employees are going by the wayside, as businesses have moved toward an independent contractor model that allows them greater flexibility in managing their workforce. As the majority of U.S. workers are employees-at-will, most employees today have little security in their paychecks or in their health and retirement benefits. Professor Zimmer also does an excellent job of exploring how unionization has waned across the country. Thus, while workers still have the ability to organize and overcome employment-at-will, it is becoming far less common for them to do so.

Professor Zimmer explains how risks of all kinds in the workplace have been transferred from employers to employees. He notes that the courts have made it more difficult for individuals to avail themselves of statutory exceptions to employment-at-will. He explains that benefits have been slashed across the board by employers at the same time that health care costs are rising. And, he describes how it is becoming increasingly difficult for workers to have the guarantee of a secure retirement as a result of these shifts.

Professor Zimmer also does an outstanding job of explaining the cause of the current inequality and he examines ways that it can be addressed in the future. In perhaps the most illuminating part of the paper, Professor Zimmer clearly describes a path forward that can resolve the overwhelming problems that he identifies. He explains how and why there has been a notable decline in our sense of a “collective identity.” In its place, there has been an emphasis on individualism that is not realistic or practical. This is largely because the decision makers in our society—who will often be employers controlling the destiny of their workers—are making “choices that allow them to strive to maximize their own economic gain.” This maximization of wealth for the few comes at the expense of the common worker and the poor in our society. This shift has only been supported by the government, which has been concerned with “maximizing the interests of the richest segment of our society, the top tenth of one percent.”

In the final section of the paper, Professor Zimmer explains how we must revisit the role of money in politics if we are to resolve the current inequalities that exist. In particular, campaign finance is an issue that must be closely examined. The focus in our country must be moved away from maximizing the wealth of the few and toward policies that will benefit all workers. Thus, “[r]educing the role of money in politics is a necessary prerequisite to addressing the real problems most of the people in this country face.” Professor Zimmer is realistic about the difficulties involved in making this shift. As he notes, “the task ahead is daunting” given the “flow of virtually unlimited amounts of money into politics.” Nonetheless, creating less risk for employees, greater security, and less inequality is a goal worth fighting for. Professor Zimmer’s novel examination of this problem is well considered, well researched, and well argued. His thesis is a sense of inspiration, and should serve as a wake-up call for workers everywhere that a new path must be pursued. As he properly concludes, “[t]here should always be hope.”

Cite as: Joseph Seiner, Inequality in the Workplace and Beyond, JOTWELL (January 14, 2014) (reviewing Michael J. Zimmer, Inequality, Individualized Risk, and Insecurity, 2013 Wis. L. Rev. 1 (2013)), http://worklaw.jotwell.com/inequality-in-the-workplace-and-beyond/.

I’m Shocked, Shocked To Find that Politics Is Going on in Here

Charles J. Morris, How the National Labor Relations Act Was Stolen and How it Can Be Recovered: Taft-Hartey Revisionism and the National Labor Relations Board's Appointment Process, 33 Berkeley J. Emp. & Lab. L. 1 (2012), available at SSRN.

Charles J. Morris, Professor Emeritus at Southern Methodist University Dedman School of Law, is a giant in the field of labor law. After graduating from Columbia Law School in 1948, he practiced in Dallas, Texas, for just shy of 20 years before receiving an academic appointment at SMU, where he taught for about a quarter-century, from 1967 until his retirement in 1991. During his first year in teaching, Professor Morris began service as a labor arbitrator. In 1978 President Carter appointed Morris to serve on the Federal Services Impasse Panel (FSIP), a post he held until 1983. Despite his retirement, Morris has remained an active scholar. Indeed, Cornell University Press published his magnum opus, The Blue Eagle at Work: Reclaiming Democratic Rights in the American Workplace in 2005, a book that earned him a place on the Right-to-Work’s Ten Most Wanted list.

In other words, Professor Morris is an active 90-year-old with a plethora of institutional knowledge about the Act. He started law school when the National Labor Relations Act (NLRA) was the Wagner Act. He graduated from law school after the passage of Taft-Hartley. He practiced law for two decades before teaching labor law for another quarter-century. He has been involved in labor-dispute resolution as an arbitrator and as a member of the FSIP. His labor law scholarship spans five decades. He has lived through almost the entire history of modern labor law. So when he writes about the subject that puzzles all labor scholars—why is union density so low—those in his field should at least consider his thoughts.

Professor Morris’s main argument is two-fold. The question—what’s wrong with the NLRA—is the wrong question. The real question is what’s wrong with the National Labor Relations Board (NLRB). Morris contends that organized management and its political allies have been able to steal the NLRA by appointing political leaders to the Board who do not share Congress’s purpose in enacting the NLRA, but instead have engaged in a misleading and perhaps disingenuous campaign to revise those purposes.

The article is beautifully written in the style of mid-twentieth-century prose that sports the liberal-arts education of halcyon days. Professor Morris’s article uses the tale of the six blind men and an elephant to make the following point. Congress passed the NLRA to encourage collective bargaining as a means for sustaining industrial peace. Shortly after Taft-Hartley was passed, union-density began its gradual decline from over 30 percent to just over 6 percent of the private-sector workforce today. This phenomenon has baffled academics and labor advocates who have identified several problems with the NLRA to explain this phenomenon. But like the blind men describing only that part of the elephant that they are touching, these thinkers describe only part of the story. If they were able to see the big picture they would understand the main problem. Presidential appointees since President Eisenhower have been increasingly politicized. Those who have been coopted by business interests have successfully messaged to the public that the NLRA serves the purpose of protecting the individual’s right to refrain from union activity, as opposed to protecting the collective right to engage in concerted activity.

Although long—it comes in at 72 law review pages—Professor Morris does an excellent job of succinctly explaining the main problems with the NLRA, as identified by labor scholars. Among them are the usual suspects: lengthy delays in representative and unfair labor practice (ULP) proceedings, ineffective remedies, lack of card check, unclear rules, absence of rules that encourage compliance, and “the absence of limitations on employers’ unqualified right to permanently replace economic strikers.” To these six reasons, Morris adds “widespread [lawful and unlawful] employer opposition to unions . . . ; decreases in rust-belt manufacturing combined with increases in the exportation of jobs to low-wage countries abroad; major changes in the patterns of employment;” and decreasing interest in unionization reveal part of the story of increasingly lower union-density rates. Unsatisfied with this story, Morris turns to what he views as the main reason for the decline in union-density rates—“the Act has not been fully enforced because Board majorities have not been consistently motivated to enforce the Act’s declared policy.”

Much of the meat of Professor Morris’s argument debunks the revisionist message. His argument is as follows. Neither the Taft-Hartley nor the Landrum-Griffin amendments disturbed the Wagner Act’s core provisions. Instead, “these [amendments] were primarily limitations on the exercise of economic power [of] unions [during] the collective-bargaining process.” Morris argues that the Act’s elegant and streamlined language coupled with flexible procedural mechanisms gave the Board “ample authority to enforce the core provisions of the Act and obtain positive results consistent with its policy.” Board appointees with political agendas, however, seized upon the right-to-refrain language added to Section 7 to revise the Act’s purposes from primarily protecting employees’ rights to engage in collective action to protecting the individual’s right to choose whether or not to engage in collective action.

Much of the rest of his article reads as a treasure-filled treatise for the labor scholar interested in the NLRA’s jurisprudential and historical development. For example, Professor Morris uses historical context to support his argument that the Taft-Hartley and Landrum-Griffin amendments were passed to show that those amendments were primarily union-regulatory acts. In particular, “following World War II there was considerable popular criticism of union power and a widely held belief that the NLRB had become one-sided and even influenced by Communists within the agency.” Morris concludes: “while exhibiting a preference for management, Taft-Hartley was not intended to equate individual bargaining with collective bargaining or to lessen the positive right of employees to engage in union and other collective activity or to elevate the negative right to refrain from such activity.”

Professor Morris ends with the following summary:

[The NLRA was] stolen through a synthesis of a long-standing policy of revisionism – which was largely unrecognized – and repetitive appointments of a critical number of Board members and General Counsels who were not committed to the Act’s basic policy of encouraging union organizing and collective bargaining. Consequently, the NLRB degenerated into a broken agency that for the most part failed to accomplish its fundamental purpose of facilitating the creation of democratic workplaces where employees, through their unions, could deal with management as joint partners in a civilized interactive process that seeks to create and maintain mutually satisfactory conditions of employment.

While he devotes only 5 of 72 pages to policy suggestions, the article’s main function is not to preach policy but to prove that politics has distracted from the agency’s mission. In any event, his main solution – members-only bargaining – is laid out in his book, The Blue Eagle at Work. Whether one agrees or disagrees with Professor Morris’s critique of (or solutions for) labor, this is legal scholarship at its best. Clear writing designed to establish a dialogue with practitioners and policy makers to improve the law. SMU should be proud to have such a productive member of its emeritus faculty.

Cite as: Anne Marie Lofaso, I’m Shocked, Shocked To Find that Politics Is Going on in Here, JOTWELL (December 2, 2013) (reviewing Charles J. Morris, How the National Labor Relations Act Was Stolen and How it Can Be Recovered: Taft-Hartey Revisionism and the National Labor Relations Board's Appointment Process, 33 Berkeley J. Emp. & Lab. L. 1 (2012), available at SSRN), http://worklaw.jotwell.com/im-shocked-shocked-to-find-that-politics-is-going-on-in-here/.

Losing the Battle, Winning the War?

Catherine Fisk & Adam Barry, Contingent Loyalty and Restrictive Exit: Commentary on the Restatement of Employment Law, 16 Empl. Rts. & Employ. Pol'y J. 413 (2012), available at SSRN.

As the Restatement of Employment Law (REL) wends its way towards final approval, most likely next May, the debates about it—both within and without the American Law Institute (ALI)—may seem like yesterday’s news. But the promulgation of a new Restatement, unlike the passage of a statute, is not the last word on a legal subject but rather the beginning of a struggle for court imprimatur. In this regard, the scholarship that analyzes REL as it grinds through the laborious ALI mill may prove to have greater influence in judicial venues than it does before the Institute. At least in the case of Contingent Loyalty and Restrictive Exit: Commentary on the Restatement of Employment Law by Catherine Fisk and Adam Barry, that’s a good thing.

At the 30,000 foot level, the authors view the REL as having “two inconsistent visions about the employment relationship and about employee mobility.” Chapter 2, dealing with termination of employment, “envisions employment as a commodity market in which employers and employees contract for the sale of labor and expertise and are free to terminate the relationship when they deem it in their interest to pursue more lucrative opportunities with other contracting partners.” In contrast, Chapter 8, governing employee obligations, “shackles employees with continuing obligations at and after the termination of employment.” Fisk & Barry summarize:

[These obligations] are quite asymmetrical. The employer owes no duty of loyalty to the employee and is free to pursue its self-interest by firing him to hire another for a lower wage or for better skills. Yet the employee’s ability to pursue her own self-interest by seeking better opportunities is limited. The employer can cast him or her onto the labor market whenever it is in the employer’s interest to do so, yet the employee is burdened with an expansive duty of loyalty [while employed] and can be contractually burdened with a non-compete agreement, making it hard for the employee to find alternate employment when he or she is back in the labor market.

While the article’s discussion of noncompetes is well worth reading in its own right, the Restatement is poised to break new ground in imposing a “duty of loyalty” on all employees, and here the article should trigger “not so fast” thoughts when the REL is cited to the courts.

A little background. While the duty of loyalty certainly did not originate with the Restatement, its common law reach and parameters are far from clear. Which employees have such a duty, and what that duty comprises varies radically from jurisdiction to jurisdiction and often from court to court. For example, all agree that employees cannot steal from their employers, but this is more often treated as simple conversion than disloyalty, and it’s not clear that the REL’s folding of “don’t steal” in with other commandments adds anything. Perhaps more critically, higher level employees often have “fiduciary” duties, which might be what is meant by a duty of loyalty1, but, if so, the REL expands this set of obligations to all employees, an expansion that the two authors think makes little sense. A separate question is the scope of the duty not to compete with one’s employer while still employed, which the REL also treats as a loyalty question, albeit one with more nuance than the “duty” framing might suggest.

Contingent Loyalty argues that the REL uses “loyalty” as a one-size-fits-all category that ignores historical origins and may eclipse important distinctions. While the final version of the Restatement might avoid some of the difficulties (for example, Chapter 8 acknowledges, somewhat vaguely, a higher level duty for higher level employees2, and the final Remedies chapter may further clarify the question), the current version is problematic.

For instance, Fisk & Barry write that the confusion in the courts as to competition by current employees might well justify a restatement, but conclude that “even in this core area, the duty of loyalty has no content apart from other laws—trade secrets, the corporate opportunity doctrine, and tort claims for interference with contract—that define the circumstances in which employee competition with a current employer is wrongful.” Further, “unifying” these disparate theories under the loyalty umbrella risks obscuring the requirements of each regime and inappropriately restricting employee endeavors:  “In a capitalist economy committed to free markets, employee competition that is not a misappropriation of trade secrets, a violation of the corporate opportunity doctrine, or interference with contract or with prospective business advantage should not be illegal.”

Focusing on a question where the REL could have made a real contribution—what activity during employment constitutes impermissible competition—Contingent Loyalty notes that neither the blackletter nor the comments shed much light on the dividing line. In fairness to the Reporters, the case law is similarly incoherent, but a Restatement should improve things, and the authors stress the failure of section 8.04(b) to clarify the distinction, with important consequences for potential entrepreneurs:

The comment vaguely says that permissible preparation “may . . . include announcing the employee’s impending departure” and that “employees can jointly agree to seek new employment or business opportunities,” but condemns efforts to “recruit other employees,” at least where the departures leave “the employer . . . crippled or materially damaged.” From this it appears that tort liability may turn on how effusive an employee was in explaining to coworkers the new job she proposes to take and the reasons she proposes to take it, or on whether the employee or the coworker was the first to suggest that the coworker might like to go too, or how it is that employees came to “jointly agree to seek new employment.”

My own critique of the REL in this regard was that it seemed to bar recruiting other employees to leave with you, but created what I call the BFF principle: you can take your best friends—so long as it doesn’t cripple the company.3 While this opens the door somewhat to employee competition, the concept is ultimately incapable of principled application, especially at the front end when an employee is considering going out on his own—with or without colleagues.

Especially where the law is incoherent, the ALI has the opportunity to bring to bear considerations beyond case-counting.  In this vein, the authors argue that focusing on damage to the employer’s business by several employees jumping ship together “is simply wrongheaded” since, in a market-based economy, tort liability should not protect businesses that fail to recruit and retain talent. Indeed, this seems just the other side of the at-will coin: the employer has failed to either sufficiently compensate employees or enter into long term contracts with key workers, and should not be bailed out by the law. The authors make similar arguments about the REL’s blessing of covenants not to compete.

There is much more in Contingent Loyalty worth reading, and, as I suggested, the REL’s final version may take into account some of its concerns. But the more interesting possibility is that, as the Restatement is trotted out, the policy debates that have played out in the law journals and on the floor of the Institute will be revisited in courtrooms across the country, and perhaps even in state legislatures.  In those venues, Fisk & Barry deserve a fair hearing.

  1. §9.09, cmt. A of Tentative Draft No. 6 describes the duty of loyalty as “a prime example of employee’s fiduciary duty owed to an employer.” []
  2. §8.08, cmt. A of  Tentative Draft No. 4 says “the obligations of [the duty of loyalty] vary according to the employer’s legitimate interest and the nature of the employee’s position, including whether the employee exercises managerial responsibilities . . . .”  In tension with §9.09, it goes on to say that “[s]ome courts refer to a “fiduciary” duty of loyalty when dealing with managerial employees . . . but not when dealing with nonmanagerial employees.” []
  3. §8.04 cmt. D bars “actively recruiting” co-workers, but not informing them of plans to compete. “In addition, a group of employees may agree among themselves to start or join a competing business” as long as so many are urged to depart that the employer’s business is “immediately crippled.” Ill. 5 identifies a group of “social friends since graduating from the same school.” []
Cite as: Charles A. Sullivan, Losing the Battle, Winning the War?, JOTWELL (October 30, 2013) (reviewing Catherine Fisk & Adam Barry, Contingent Loyalty and Restrictive Exit: Commentary on the Restatement of Employment Law, 16 Empl. Rts. & Employ. Pol'y J. 413 (2012), available at SSRN), http://worklaw.jotwell.com/losing-the-battle-winning-the-war/.

What Happened to the “Standard Employment Contract” and What Are Some Countries Doing About It?

Rethinking Workplace Regulation: Beyond the Standard Contract of Employment (Katherine V.W. Stone & Harry Arthurs eds., 2013).

This book is the result of a project funded by the Russell Sage Foundation that brought all of the contributors together in September 2010 in the outstanding setting of Bellagio, Italy. The contributors were an all-star group of 22 academics and practitioners from around the world. Ten are from law, five from industrial relations, and the rest from various social sciences and business. Despite the idyllic setting for their work, the result of their collaboration is a collection of papers that work very well together to focus on significant development in the world of work, the rise and fall of what they call the “standard employment contract” (SEC). After the end of World War II and until sometime in the 1990s, a large percentage of workers in most of the developed countries had SECs. They had an array of job rights including “decent wages, protections against unfair treatment at work, social insurance provided by the state or the employer and, notably, some degree of job security.” While not all workers had them, SECs “became one of the pillars of the postwar economic system.” The system was the basis of the creation of a substantial middle class made up of workers, mostly male, in large manufacturing enterprises.

What is also made clear is that, while SECs had been the norm, the factors that produced them were substantially different among these different countries. Some SEC systems were driven by legislative mandate, while others, like those in the United States, were the result of labor markets internal to individual enterprises where the mutual expectation of long term employment created an incentive for both the employer and its workers to invest in firm specific skills. While perhaps procrustean, the developed Organisation for Economic Co-operation and Developement (OECD) countries are based on three broad economic traditions— “liberal” market oriented societies like the United States and the United Kingdom; “corporatist” countries in continental Europe like France and Germany, in which the government sits at the bargaining table with labor and management; and “Nordic” social-market economies like Sweden and Denmark that have universal and extensive social benefits with significant wealth redistribution through taxation.

The SEC system, however, has “eroded dramatically over the last two or three decades.” It is being replaced by nonstandard employment “characterized by low pay, modest fringe benefits, little or no job security, limited training, few opportunities for career development and advancement, and little if any protection through unions or labor laws and regulations.” What, if anything, is being done about the resulting increase in insecurity and economic inequality is the focus of the book. “We believe that it is necessary to seek and possibly to find new ways to achieve the array of positive social and economic outcomes previously associated with the standard employment contract.”

The driving force for the erosion of the SEC norm is “[g]lobalization, technology, and new management strategies.” Instead of SECs being the norm, “increasing numbers of workers in advanced economies experience flexible, nonstandard, contingent, or precarious employment relations.” Globalization has resulted in expanded political power of enterprise because the “state has lost regulatory capacity, trade unions have lost influence, [so] private market actors have gained leverage over workers and the rules of the system.”

An extensive Appendix demonstrates beyond peradventure this shift to employment insecurity. An interesting feature of the Appendix, which reviews changes in employment in OECD countries, is that it demonstrates that there is not a single term that captures what this post-SEC employment relation looks like or how to define the employment relationship that has come to predominate. The reason no common term has emerged is that the context in which insecure employment relations develop is specific to the economies, cultures and laws of each country, even neighboring countries. If there ever was the need to convince anyone that labor and employment law is the paradigm of domestic law, the Appendix would be a good place to look. One further conclusion that I draw is that the development of more broadly applicable definitions may be a necessary threshold to addressing a comprehensive and presumably more effective response to the decline of the SEC.

While it is barely mentioned in this era of the dominance of austerity hawks, the best protection of workers in the formal labor market as well as those outside it is to have full employment economies. That is Plan A but it is not developed in the book.

Assuming Plan A is not politically possible in this era where business interests have so much economic and therefore political power, the book describes a number of possible Plan Bs that are already operating in some developed countries. In this era of gridlock politics, this book is a fresh reminder that it is possible for societies to address and hopefully redress serious economic and social problems.

Particularly in Europe, the term “flexicurity” has been thrown around as what Plan B should be. The flexible part of flexicurity is to allow employers to have more or less complete discretion to make employment decisions without regard to the job security of their workers. The security part is to provide workers with permanence in the labor market, even if there is no job security for individual workers with a particular enterprise, as well as providing strong social benefits and useful ongoing vocational training that are available during periods of unemployment. The Dutch and Danish “miracles” are examples of flexicurity at work. The Netherlands has very low unemployment vis-à-vis other OECD countries. It has decentralized collective bargaining down to the local level and has laws that encourage part-time, fixed-term and other non-standard work. About half of all workers hold non-standard jobs, but only 5% to 10% of them describe their situation as involuntary. Most non-standard workers may be satisfied with that status because the law requires equality with SEC workers as to wage rates and benefits.

The Danish version of flexicurity provides no job security by statute or contract. It has the highest percentage of workers in the EU who change jobs. And it has a high labor participation rate and low unemployment. Social benefits, however, are very generous, with workers entitled to unemployment benefits for two years at 90% of their prior income. After unemployment insurance runs out, social welfare benefits that are means-tested kick in with no time limit. The state has very active labor market policies but they impose strict availability criteria. Lifelong continuing vocational training is provided with the highest participation rate in the developed world. All of this is expensive, the highest among OECD countries, with 2.56% of Danish GDP spent on labor market protections. Enterprise gets at-will employment but at the cost of high taxes.

To give a taste of some of the other Plan Bs, Canada has government-funded “sector councils” made up of employers and representatives of workers who work together to expand employment and improve the lives of workers. Italy has some tripartite territorial pacts for some different geographic regions where representatives of the public, employers, and workers are tasked with undertaking numerous development projects with the interwoven goals of economic development and improved employment. Addressing a different problem, several Australian states impose legal liability on Australian enterprises that use supply chains for the labor rights of all workers in the chain, including those at the bottom. The union movements in several countries are trying to cope with the decline of union density and collective bargaining coverage. Japanese enterprise unions have started to recruit non-standard workers of their enterprises. New, community-based unions are being organized in Japan to bring union representation to the workers of smaller employers that have not previously had union representation. German unions are responding to the push by employers for local “derogation” provisions in sector wide collective bargaining by engaging the workers at the local workplaces in local bargaining to try to expand union membership.

The globalized economy of goods, services and investment has resulted in a global labor market. Several authors suggest that labor and employment laws and policies should follow the economy and reach across national borders. For example, it is suggested that the liability of all enterprises that operate supply chains for the workers at the bottom could be expanded transnationally. Only in the final chapter, however, is there a broader claim, not for specific transnational labor and employment law, but as a justification for the kind of cross-national scholarship that the book so ably presents. It is claimed that cross-national learning is valuable “to lay the intellectual foundations of a system of labor market regulation that might one day extend across national borders.” While that is true, it is also true that the increasingly globalized economy has weakened the division of economies on a national basis. The attempts of any one nation to address labor and employment issues, such as the erosion of the SEC, through national laws are very much limited by the impact of a globalized economy and labor market. Nations attempting to protect their workers face “race to the bottom” problems because of the very difficult collective action problem all nations face. Without directly saying so, Rethinking Workplace Regulation demonstrates that it is time to begin to shift the paradigm of labor and employment law as national law to a new transnational approach.

Cite as: Michael J. Zimmer, What Happened to the “Standard Employment Contract” and What Are Some Countries Doing About It?, JOTWELL (October 1, 2013) (reviewing Rethinking Workplace Regulation: Beyond the Standard Contract of Employment (Katherine V.W. Stone & Harry Arthurs eds., 2013)), http://worklaw.jotwell.com/what-happened-to-the-standard-employment-contract-and-what-are-some-countries-doing-about-it/.

What Casey Martin Has To Teach Us About Disability Discrimination In The Workplace

Nicole Buonocore Porter, Martinizing Title I of the Americans with Disabilities Act, 47 Ga. L. Rev. 527 (2013), available at SSRN.

For years, plaintiffs claiming discrimination under the Americans with Disabilities Act (ADA) routinely lost because they were unable to establish the existence of a disability. The result was that arguably the most important aspect of the ADA—the requirement that employers make reasonable accommodations to the known disabilities of their employees—went largely ignored in employment decisions and legal scholarship. All of that started to change with the passage of the ADA Amendments Act of 2008 (ADAAA). With the ADAAA, Congress expressly overruled some of the more restrictive interpretations of the definition of disability, thereby increasing the number of individuals who could claim protection from discrimination under the ADA. Congress was clear that this is the result it wanted and that the proper focus in ADA claims should not be on whether an individual has a disability, but whether the individual is qualified for the position in question, i.e., whether the individual can perform the essential functions of a position, with or without a reasonable accommodation.

Thus, the reasonable accommodation concept should increasingly take center stage in ADA cases. The problem, however, is that there has historically been so little focus on the concept in the employment context that there is considerable uncertainty as to what it means to say that an accommodation is or is not “reasonable.” Judge Richard Posner famously advanced a cost-benefit approach to the question of reasonableness, but his approach has had limited traction. Some judges have taken a case-specific, “I-know-it-when-I-see-it” approach, which leaves parties and their lawyers with little guidance. Nicole Buonocore Porter (Toledo) aims to address the problem of defining reasonableness in the accommodation context in her latest article, Martinizing Title I of the Americans with Disabilities Act.

Porter is not the first author to attempt to provide some clarity to the reasonable accommodation requirement. A couple of years ago, I reviewed Mark Weber’s Unreasonable Accommodation and Due Hardship, in which Weber made the case that, to some extent, the federal courts (including the Supreme Court in its decision in US Airways, Inc. v. Barnett, 535 U.S. 391 (2002)) had misconstrued the requirement. Porter does not try to swim upstream as Weber (persuasively) did. Instead, Porter attempts to synthesize the law of reasonable accommodation by drawing up the decisional law involving a different portion of the ADA, Title III.

Title III covers discrimination in public accommodations. The most famous and most detailed Title III decision to date is the Supreme Court’s decision in PGA Tour, Inc. v. Martin, 532 U.S. 661 (2001), involving golfer Casey Martin’s successful quest to be permitted to use a golf cart in PGA events. Title III speaks of “reasonable modifications” rather than “reasonable accommodations,” and as Porter acknowledges, a golf course is not a workplace (for most people at least). Nonetheless, Porter argues that the Court’s decision in Martin provides a useful framework for analyzing reasonable accommodation issues in employment discrimination cases.

In deciding whether the PGA was required to depart from its no-carts rule, the Court in Martin focused on whether allowing the use of a cart would fundamentally alter the nature of the PGA’s tournaments. The Court concluded that departing from any rule in a competitive setting might fundamentally alter the nature of the event in two ways: (1) by altering an essential aspect of the sport, and (2) by providing a competitor with a competitive advantage. Porter argues that a similar approach both explains the outcomes of most employment cases involving reasonable accommodation disputes and provides a useful approach for deciding future cases. Under Porter’s approach, an accommodation would be unreasonable (1) if it fundamentally alters the nature of the employer-employee relationship, or (2) if it gives an employee with a disability a competitive advantage over other employees. Without going into great detail, Porter provides examples of accommodations that would fall into the two categories, including some of the accommodations that have proven to be particularly troublesome, such as allowing an employee to work from home.

One may take issue with the burdens her approach would place on employers and other employees. But Porter deserves credit for attempting to articulate a standard that would aid courts and parties in their attempts to deal with the reasonable accommodation requirement. “Reasonableness” is an inherently ambiguous term and the ADA is a fairly complex statute. But given the crucial role that the reasonable accommodation/modification concept plays in the ADA and the increased role it will play following passage of the ADA Amendments Act, a unified approach to the concept might not be such a bad idea. Porter’s suggested approach gives courts and scholars something more tangible to deal with when considering accommodation issues. At a minimum, Porter has offered a potentially useful way to consider the issue and one that may aid courts in future cases.

Cite as: Alex B. Long, What Casey Martin Has To Teach Us About Disability Discrimination In The Workplace, JOTWELL (August 14, 2013) (reviewing Nicole Buonocore Porter, Martinizing Title I of the Americans with Disabilities Act, 47 Ga. L. Rev. 527 (2013), available at SSRN), http://worklaw.jotwell.com/what-casey-martin-has-to-teach-us-about-disability-discrimination-in-the-workplace/.

The Trouble with Heuristics in Sexual Harassment Litigation

Jessica A. Clarke, Inferring Desire, 63 Duke L.J. (forthcoming 2013), available at SSRN.

Fifteen years ago, the Supreme Court recognized that harassment between members of the same sex could be actionable under Title VII, in Oncale v. Sundowner Offshore Services, 523 U.S. 75, 80 (1998). Prior to that case, lower courts had struggled to determine whether such intra-group harassment could be because of sex. In its decision, the Supreme Court identified several heuristics, or evidentiary shortcuts that could be used to support an inference that the harassment was because of sex, including that the harasser was gay. If the harasser were gay, we could infer that the harasser desired the plaintiff sexually, and could further infer that the harasser would not have treated a member of the opposite sex the way the harasser treated the plaintiff. Focusing on this heuristic, Jessica Clarke’s new article, Inferring Desire, is an important contribution to the literature on sex discrimination, not only in this context, but also more broadly. In the article, she studies all of the same-sex harassment cases that have resulted in opinions since Oncale was decided. The article’s primary focus is on the large number cases in which the courts attempt to infer the sexual orientation of the harasser as part of the analysis, focusing on desire to the exclusion of other ways to prove that the harassment is because of sex. Clarke’s study reveals that the courts seem to posit an idealized romantic version of same-sex desire that privileges heterosexuality and camouflages sexism.

The article begins by explaining how the sexual orientation and desire heuristics work. As Clarke notes, the Supreme Court defined the critical issue in sexual harassment cases to be “whether members of one sex are exposed to disadvantageous terms or conditions of employment to which members of the other sex are not exposed.” It further outlined some ways this could be proven including that proposals of sexual activity could demonstrate the different treatment if “there were credible evidence that the harasser was homosexual,” and thus presumably motivated by sexual desire that would operate differently on the sexes. Although this was not the only route to proof of sex-different treatment, Clarke found that courts had relied on desire in allowing plaintiffs to proceed past summary judgment more often than all other reasons combined. Moreover, the courts conflated homosexuality with desire in most of those cases, which meant that they often engaged in extended analysis of the sexual orientation of the harasser.

Clarke delved further than the numbers, analyzing how the courts defined and divined the sexual orientation of the harasser. Overall, courts seemed to require that the harasser be out as gay at work before they would find credible evidence that the harasser was gay. This was a powerful finding. Without it, courts tended to find that there was no evidence that sexual conduct was motivated by desire and therefore no evidence that it was because of sex. Conversely, with it, the courts assumed that conduct the plaintiffs complained about was motivated by desire and because of sex, even if the conduct would not be interpreted as sexual in other contexts. Moreover, the picture of same-sex desire these courts perpetuate is an idealized version of romantic love that interprets the conduct at issue as attempts at earnest romance.

The article’s bottom line is that these heuristics and the view of homosexuality they perpetuate result in discrimination against sexual minorities in the workplace. Additionally, they cannot be justified by any of the normative theories on why harassment is discrimination and in fact distract us from the question of discrimination. Clarke thus urges courts to stop using desire as a heuristic in any sex harassment case. While the description of what courts have been doing in same sex harassment cases is important to our understanding of what is happening in this area, this section of the paper comparing the courts’ analyses to the normative question is arguably the most valuable contribution of this paper.

Clarke identifies the three primary theories of the harm of sexual harassment, in admittedly broad and stylized terms. The three schools of thought are these: harassment is sex discrimination (1) because it facilitates masculine domination; (2) because it perpetuates female disadvantage; or (3) because it constitutes sex differential treatment. Using desire as the heuristic does not satisfy the normative goals of the dominance theorists because cases that define harassment as caused by an idealized form of romantic love don’t see the way that humiliation, hostility, or threats of violent sexual assault between members of the same sex could perpetuate masculine domination and be sexual harassment. Conversely, in opposite sex contexts, this conduct would easily be seen to be discriminatory. The critique from the female disadvantage theory is similar. A focus on desire miscasts harassment as awkward attempts at romance rather than as an expression of hostility towards members of one sex or as a way to penalize employees for failing to conform to gender roles. Finally, even though it seems a better fit for the disparate treatment school, the desire heuristic is not actually being applied in the same-sex context; rather, sexual orientation is being used as a heuristic for desire so that sexual conduct by harassers who are not out as gay at work is not considered sex harassment even if their conduct strongly suggests they were motivated by sexual desire, and conduct by gay employees is found to be harassment even when that conduct would not be perceived as sexual or harassing in an opposite sex context. Essentially, all three schools of thought would criticize the focus on desire as distracting from the question of whether the conduct at issue was sex discrimination.

The paper ends by tracing some of the implications of these findings for other contexts where courts may have to define sexual orientation or make inferences about it. In this way, the main focus of the paper is made clearer, that the article’s critique is about the undertheorized nature of sexual orientation in law and the failure of courts or legislators to tailor a definition of sexual orientation to the purposes of the statute or program at issue.

To the extent that the article contains a weak point, it might be that the same could be said of sex or gender more broadly. Everywhere that sex is a classification, used legitimately or not, we have to ask what sex is. It is not clear whether it is a genetic question, a question about reproductive organs, or a behavioral question. And within each of those categories, there is significant variation. Sometimes genes, reproductive organs, and behaviors don’t line up in ways we expect. Thus, in many contexts, the courts are struggling to define what sex and gender mean. In discrimination law alone there is significant indeterminacy. For example, the Supreme Court decided in the early 1970s, and reaffirmed just a few years ago, that pregnancy and sex are distinct enough that discrimination on the basis of pregnancy is not usually discrimination on the basis of sex. And the sex stereotyping line of cases are creating some seemingly inconsistent results especially where issues involving sexual orientation or sexual identity might be concerned, but also where sex-linked conduct like caregiving is at issue.

Despite this small critique, Clarke’s article remains a very valuable contribution to the way courts are mishandling same sex harassment cases and the need to look for better understandings of what sexual orientation might be and how law might protect sexual minorities better. It also adds one potential facet to the discussion about what sex and gender encompass for purposes of legal analysis. And although Clarke explicitly declined to take a normative stand on the harm of harassment, I look forward to reading more about her normative theories in future work.

Cite as: Marcia L. McCormick, The Trouble with Heuristics in Sexual Harassment Litigation, JOTWELL (July 30, 2013) (reviewing Jessica A. Clarke, Inferring Desire, 63 Duke L.J. (forthcoming 2013), available at SSRN), http://worklaw.jotwell.com/the-trouble-with-heuristics-in-sexual-harassment-litigation/.

A Fresh Look at Dukes

Natalie Bucciarelli Pedersen, The Hazards of Dukes: The Substantive Consequences of a Procedural Decision, 44 U. Tol. L. Rev. 123 (2012) available at SSRN.

The Hazards of Dukes: The Substantive Consequences of a Procedural Decision, by Natalie Bucciarelli Pedersen—aside from having quite possibly the best title of any article, ever—is an important and informative reminder that one of the most newsworthy and talked about cases of the past decade, Wal-Mart Stores, Inc. v. Dukes, 131 S. Ct. 2541 (2011), has import and significance beyond the realm of class action lawsuits. Indeed, as Professor Pedersen makes clear, the Supreme Court “not only reversed the grant of class certification to one of the largest employment discrimination classes ever, but also indelibly altered the substance of employment discrimination law.” (P. 124.) The major contribution of this article is its original examination of the impact of the language and law in the Dukes opinion on substantive Title VII jurisprudence as it applies to the adjudication of disparate impact cases, systemic disparate treatment cases, and implicit bias cases that utilize social framework evidence.

As Professor Pedersen recounts, in 2011, the Supreme Court reversed a grant of class certification to some 1.5 million female Wal-Mart employees who claimed that they were victims of sex discrimination because of inequalities related to the employer’s salary, promotion, and management track policies and procedures. The policies and practices alleged, however, were not explicitly discriminatory. In making out their disparate impact claim, the plaintiffs pointed to the delegation of decision-making discretion to local managers when it came to pay and promotion decisions. In making out their disparate treatment claim, the plaintiffs alleged that despite knowing of the disparate impact conferred upon women by the unfettered discretion afforded to local managers, Wal-Mart intentionally failed to remedy the situation. The District Court certified a class of at least 1.5 million women, and the Ninth Circuit agreed that the class certification requirements set forth in Federal Rule of Civil Procedure 23(a) had been met. The Supreme Court, however, reversed the Ninth Circuit’s holding that class certification had been appropriate in the case, finding that the plaintiffs did not “depend upon a common contention.” (P. 128.)

Professor Pedersen departs from many other scholars’ analyses of Dukes by looking at the effect of the opinion on substantive employment discrimination law, and not on the future or mechanics of class action lawsuits.  For example, she contends that Dukes will affect cases brought under a disparate impact theory to protest subjective decision-making practices. Specifically, she notes that whereas the Supreme Court in its previous Watson decision had been receptive to the idea that a subjective selection or decision-making system could be the basis of a disparate impact claim, the Dukes Court “noting how the resolution of the class certification almost necessarily overlaps with the issues of the merits of the case, found that commonality does not exist because the plaintiffs’ claims ‘must depend upon a common contention—for example, the assertion of discriminatory bias on the part of the same supervisor.’” (P. 131.) The Dukes Court, according to Professor Pedersen, acknowledged that a general policy of discrimination could form the factual predicate for a viable claim, but noted that the policy needed to “manifest[] itself in hiring and promotion practices in the same general fashion, such as through entirely subjective decision making processes.” (P. 131.)

The article thus trumpets the impact of Dukes upon the substantive law of employment discrimination, starting with its effect on disparate impact. Professor Pedersen questions whether, in light of the Court’s “dismantl[ing of] the Watson precedent,” (P. 132), how any plaintiffs could “ever successfully argue that the delegation of subjective authority to supervisors has a disparate impact on a particular class of employees?” (P. 132.) Indeed, the treatment of the commonality element in Dukes makes one wonder whether employing disparate impact theory in cases in which unregulated subjective decision-making discretion is challenged will be unwieldy and untenable. Moreover, as the article points out, subjective bias is more likely to evade capture by existing legal frameworks when plaintiffs are held to impossibly high standards of articulating “a more specific practice than this delegation of authority.” (P. 134.)

The article also points to effects of the Dukes decision on systemic disparate treatment cases, noting that the Supreme Court in Dukes looks to have heightened the burden imposed on systemic disparate treatment plaintiffs, departing from the language from Teamsters that is conventionally invoked: “The Court demanded a policy that led to a common injury—seemingly ignoring the fact that the language of Title VII as interpreted in Teamsters calls for either a policy or a practice of discrimination. . . . The key to a pattern or practice of discrimination was never a policy of discrimination, but rather the regular employ of discriminatory intent. Dukes has changed this.” (P. 136-37.)

Finally, the article recites, Dukes reflects a much less receptive attitude of courts to social framework evidence, which consists of the results of social science research employed to create a context for aiding in the finding of a case’s factual issues. Referring to the Dukes Court’s “quick, but excoriating, dismissal of the social framework evidence,” the article concludes that the Court appeared to refuse to be receptive to any social framework evidence other than that which was restricted to “general knowledge and background without any application or linkage by a testifying expert to the facts of the case.” (P. 141.) Such a move, the article observes, “has staggering implications for employment discrimination cases,” (P. 141), because implicit bias cases tend to depend upon establishing a nexus between social psychology and specific employment practices.

The implications of Dukes for class action lawsuits have been discussed at length, but this article thoughtfully contemplates its ramifications for substantive employment discrimination law. It is good to see scholarship that is vigilant and that departs from what so many others are doing. This piece is observant and insightful, and it will be great to see what its author produces next as she monitors the legal landscape in this ever-changing field.

Cite as: Kerri Stone, A Fresh Look at Dukes, JOTWELL (July 15, 2013) (reviewing Natalie Bucciarelli Pedersen, The Hazards of Dukes: The Substantive Consequences of a Procedural Decision, 44 U. Tol. L. Rev. 123 (2012) available at SSRN), http://worklaw.jotwell.com/a-fresh-look-at-dukes-2/.