How should we apply constitutional protections to public employees? The state action doctrine exempts private employers from constitutional scrutiny. However, public employers are bound to abide by the Constitution in their exercise of power. Governments must protect the free speech and privacy rights of not only ordinary citizens but their own employees as well. The difficulties in matching up these rights with the employment relationship have long bedeviled courts. If a worker’s speech in the workplace had the same protections as a citizen’s in the square, or an office had the same protections against searches as a home, governments’ workforce management could quite easily break down. As a result, courts have increasingly turned to private sector norms to guide their application of these rights in the public sector.
In her article Market Norms and Constitutional Values in the Government Workplace, Pauline Kim critically evaluates this trend toward the “privatization” of constitutional norms. Kim argues that the Constitution is designed to provide important protections to governmental employees—protections that are justified by the differences between private and public employers. Focusing on First and Fourth Amendment protections, the article explains why speech and privacy rights are particularly important to public employees. Although Kim does not reach hard and fast doctrinal solutions, she does provide specific theoretical contributions to the literature for courts and academics to use in developing a deeper approach.
Kim first sets the scene by describing the academic and judicial forces that are bringing the regulation of public and private workplaces together. On one side, supporters of privacy and autonomy rights for private sector employees attempt to elide the differences so as to give private workers more protections. On the other side, critics of public sector employment rights seek to bring more market discipline to government agencies by importing private sector rules. Both sides have pushed the notion that public sector and private sector employment regulation should not be so different after all. Courts have turned to this approach themselves in order to deal with tricky issues of employee speech rights and privacy expectations. Recent Supreme Court decisions have held that if a particular employer action would have been reasonable in the private sector, it should be considered reasonable in the public sector, too—even in the face of constitutional protections.
The article turns to theory to show why this shouldn’t be the case. Kim leans on notions from law and economics in arguing that private sector employers are different than their public sector counterparts in critical respects. She notes that private employers have property rights in their business, and that capitalism provides a significant degree of economic liberty. Although these rights and liberties are justifiably limited, governmental employers have no such claim to private rights. The First Amendment, according to the general consensus, provides no speech rights to governments themselves. And while governments have interests in managing their workplaces and controlling their message, these interests do not have the same constitutional import as those of either public employees or private employers. In addition, government employers have a level of power and control that private employers do not have. While both public and private employers may compete against each other in subsets of the labor market, private companies must compete for customers and capital in a way that government agencies do not. If a private employer is too draconian in its speech or privacy policies, various markets can punish this employer and drive it out of business. Not so for government agencies. Elected officials can step in to correct bad practices, but improved speech and privacy protections for public workers make such corrections more likely by opening the channels of communication to these officials and the electorate that empowers them. Illustrating this principle, the article’s opening anecdote explains how FDA scientists were punished by their managers for publicizing allegations of misconduct and corruption at the agency. In retaliation, these employees were secretly surveilled and monitored to such a degree that sensitive family and health information was surreptitiously collected. Employee whistleblowing ultimately facilitated public oversight of the agency, but only after the employees suffered reputational attacks and serious invasions of their personal privacy.
It is this last point that Kim could, in fact, expand upon in making her case that the government is different as an employer. Although companies like Amazon and Facebook have tremendous resources and can wield significant power, they do not have the legal authority that government possesses. Leslie Knope may seem like a less intimidating employer than Jeffrey Bezos, but Jeffrey Bezos can’t have you arrested. Kim plays down the ultimate power of the government by focusing simply on the public employer’s power over employment. But as her initial example shows, it is the government’s power to go beyond the employment relationship, and into our personal lives and personal liberty, that seems most frightening. Constitutional restraints are appropriate for government because of government’s power. And although the average citizen stands in a different place than a government employee, both are ultimately vulnerable to state action and state power.
The article also raised another question for me that Kim did not directly address: should public employees be treated differently than private ones as to their collective bargaining rights? Right-to-work proponents have long argued that mandatory agency fees violate the First Amendment rights of dissenting employees. Proponents of public sector unions have argued for exclusive representation and fair-share fees by analogizing to the private sector model. Is this analogy also inappropriate? Should public employees have greater rights not only against their employer, but their union as well? Given the First Amendment ramifications, it would be interesting to explore the rights of employees in this context as well.
Pauline Kim’s dissection of speech and privacy rights for public employees shows that there are important reasons for protecting these employees with a strong constitutional framework. Her article makes a compelling case for reconsidering the trend towards fuzzing the line between public and private workers. Public employees are different. The Constitution protects individual citizens against the depredations of unconstrained government power. Because public employees can bear the brunt of the exercise of such power, they need the Constitution on their side.
Joni Hersch & Jennifer Bennett Shinall, Something to Talk About: Information Exchange Under Employment Law
, 165 U. Pa. L. Rev.
(forthcoming 2017), available at SSRN
Being finicky by nature, I sometimes take issue with those who claim that certain questions in the interview process are illegal. While that’s true for questions about disability under the ADA and genetic information under GINA, I’ve long resisted the conventional wisdom that asking a female applicant about her marital status or her plans for having children is illegal. I agree that, even putting aside all sorts of other reasons why raising such personal topics may not be a good idea, there are legal risks in such inquiries. But at most it would be illegal to ask only women the questions, and even that is incorrect. A violation of Title VII requires an adverse employment action, and such questions by themselves don’t count.
At this point I can hear a chorus of voices objecting that, while that’s technically true, such questions hand a rejected applicant a case on a silver platter: they indicate that the employer thinks gender is relevant to the hiring decision, and the failure to hire is the adverse employment action. Plus, given Title VII’s motivating factor liability, an employer might find itself in violation of the law even if it would have made the same decision in any event. So it’s risky to start down this road from a legal perspective and, given societal norms, it seems a bad idea from any number of other perspectives – although there are those who see such questions as valuable for employers in a variety of ways, such as signaling family-friendliness or allowing the employer to tout the advantages of its environment, such as good schools.
All of which is why Joni Hersch and Jennifer Bennett Shinall’s recent posting on SSRN, forthcoming in the University of Pennsylvania Law Review, is so interesting. Something to Talk About: Information Exchange Under Employment Law explores the phenomenon of “little or no information about family status being provided in pre-employment interviews,” reaching the counterintuitive conclusion that the result is reduced opportunities for women.
Now, I’m not so sure this problem is solvable. As the authors document, putting such topics off-limits is deeply woven into our culture, whether or not the impetus arose from legal sources such as EEOC guidance. And, absent the creation of some kind of privilege, management attorneys are never going to advise clients to raise such issues. Maybe more to the point, interviewers will be discouraged from discussing these questions even if the applicant is the one to raise them, which is one suggestion the authors make. Thus, while the pedant in me applauds the demonstration that these kinds of questions are not per se illegal, even when asked only of women, where we go with that observation is another issue.
Nevertheless, Hersch and Shinall’s piece provides a great read along two axes. The first is its empirical demonstration that “information exchange” is a good thing even on sensitive topics, and the second is its intriguing hypothesis of why that might be.
As to the former, the empirical piece is aimed at one aspect of the phenomenon the authors address, how to deal with career “pauses” or “breaks” due to child rearing. With 3000 subjects participating in a vignette study, the authors found that “otherwise identical applicants with a substantial gap in their work history who do not explain the personal family circumstances for their job search are far less likely to be hired than those who do.” This finding, assuming its accuracy, doesn’t reach the broader situations that I raised at the outset – discussions about marriage and family plans for those first entering the workforce – but their theoretical explanation suggests application to that setting also.
As to that theory, Hersch and Shinall argue that their findings are consistent with “the behavioral economics theory of ambiguity aversion (or the Ellsberg Paradox), which finds that individuals prefer known risks over unknown risks.” I’d be tempted to call it “the devil you know” phenomenon, but, by whatever name, it seems well established.
The piece, then, is somewhat in the vein of another counterintuitive article finding that employers who conduct criminal background checks are more likely to hire black applicants than employers that do not. In that research, the potential adverse consequence of such checks in terms of the likelihood of hiring African Americans are more than offset by the positive effect of eliminating “statistical discrimination.”
Although the theoretical explanations for the counterintuitive findings in both studies are framed somewhat differently, they are not inconsistent, and both suggest that more information will yield fairer results in terms of race or gender in hiring. Both are grounded in the notion that, absent fuller information, humans are likely to act in ways that will be disadvantageous to minorities and women. That means that both raise real questions about the unintended consequences of attempting to limit information flow in labor markets. If Hersch and Shinall are correct, a number of proposals – such as restricting employer use of credit information or limiting employer internet searches about applicants – might be counterproductive.
Given that this is Jotwell, it’s inappropriate to stir in too much criticism with praise for something I like a lot, but I’m not so sure about everything in the article: for example, the broad statement that the “dominant theoretical explanation for inferior labor market treatment of historically disadvantaged workers is statistical discrimination,” although maybe that’s because we have a somewhat different view of what “statistical discrimination” means.
Perhaps more seriously, I wonder about the consistency of one of the study’s findings with its prescriptions. The vignette study showed that those who provide some explanation for their “break” do better than those who don’t, but it also showed that those who provide a “financial” reason for their return to the labor market (divorce) do far better than those who say that they have been raising children. That would suggest that the “open and honest” conversations that the authors would encourage at the interview stage are not the optimal solution to the plight of women who are seeking reentry after pausing to raise children.
None of which should undercut the important contribution of the article in calling attention to psychological processes that can undercut even the best-intentioned of reforms. It truly is a careful and thought-provoking piece, which is all one can ask of scholarship.
Finally, I should also thank Steve Willborn, with whom I have been discussing the information question, on and off, for years, and who kindly offered some thoughts on this post.
Recent Supreme Court decisions that embrace corporate personhood in rights-bearing contexts have caused broad public debates. Non-lawyers have long accepted the view that a corporation is a legal entity separate from its owners and managers and that this entity should be treated by the law like a person sometimes, like for tax purposes, liability for injuries, and property ownership, for example. The idea that corporations might have some “rights” linked to those situations, like those that attend to property ownership, is also fairly well accepted. Despite that widespread acceptance, many balked when the Supreme Court held that corporations had additional rights that we tend to consider limited to humans, like the right to engage in political speech and practice religion. Complicating the debate, the Court provided little guidance on why corporations are like people in these situations, and why they might not always be in future cases.
Although the high-profile cases are not centrally about employment, they have serious worklaw overtones. If corporations have exactly the same speech rights as individuals, are they free to silence employees, like public employers often may? Do corporations have a substantive due process right not to pay minimum wages or privacy rights that could limit OSHA inspections or protect against disclosure of EEO or safety data to federal regulators? If corporations have religious beliefs and practices, can they insulate employment decisions from limits imposed by civil rights laws? Can they avoid paying minimum wages by designating some or all employees ministers? If corporations have a racial identity, does that affect their ability to engage in different kinds of affirmative action? These normative questions about the rights and responsibilities corporations have to their employees and, because of the way we use work to distribute social goods, to society, are central to the work of most worklaw scholars. Yet the ordinary tools of legal doctrine have not provided answers.
In Culture in Corporate Law, Gwendolyn Gordon explains how cultural anthropology provides the tools for keeping corporate law connected to social reality that worklaw scholars focus on. By using the concept of culture as an analytical tool, anthropologists can “analyze complexities of human communal behavior otherwise hidden from view” through the empirical method of ethnographic analysis, a long-term, in-depth qualitative study of group dynamics. Using these tools, the law can do a better job of laying out the rights and duties of corporations in our society.
The article compares how the concept of culture is used in legal scholarship and anthropology. As in many other areas, the legal concept of corporate culture as a static, single thing, is out of date. As a result, courts fail to take into account the relational aspects of the forces that make up the corporation in setting policies about corporations’ effects on human lives.
The article then uses the anthropological idea of culture to analyze changes to the jurisprudence of corporations based on the courts’ theories of the nature and dynamics of social groups in three cases: Citizens United; Carnell Construction Corp. v. Danville Redevelopment and Housing Authority, a recent Fourth Circuit case deciding that corporations could claim racial identities; and Hobby Lobby. These cases view corporations as deriving socially oriented characteristics from their associated individuals but remaining separate entities capable of singular “actions.” Corporations in Citizens United are individual speakers. In Hobby Lobby, they have beliefs, a concept usually limited to ensouled individuals. Gordon traces this view of the corporation-as-entity with the characteristics, social ties, civic commitments, and internal lives of the aggregated humans involved with it to earlier concepts of the socially entangled corporatist bureaucracies of Émile Durkheim and Adolf Berle. Gordon uses this prior work to show how the concept of the corporation “lends itself both to a salutary elasticity and toward particular conceptions of its place in society” (P. 358).
The article goes on to address the normative implications and theoretical challenges of using the lens of culture to examine corporate law and practice. Using an example from Gordon’s long-term fieldwork with a New Zealand corporation owned by Māori people, the article shows how the organic, internal relationships and dialogue among directors, managers, employees, shareholders, and other stakeholders combined with the external forces exerted on the corporation by the law combine to create a culturally Māori corporation rather than a corporation simply owned by Māori people. Using this work as an example, the article demonstrates how the courts’ thinner view of corporate personhood (as mostly conflated with the personal attributes of a small group of owners) lacks the attentiveness to social consequences that is vital in cultural analysis. Without that attentiveness, the doctrine is likely to cause the kinds of problems some worry about: for example, all of the freedom to act with none of the responsibility for the consequences of those actions.
In the conclusion, Gordon exhorts courts to engage in deeper analysis in cases involving corporations that claim personal rights. Although that deeper analysis is messy and ill-suited to creating broad rules of general applicability, Gordon argues that it is necessary. As she puts it,
The stakes here are high. Cultural theory does not merely allow us to describe more accurately the life and the law of corporations; it also contains normative implications. The Supreme Court’s simplified conceptualization of corporations supports doctrine that hurts important human interests, obscuring or enervating what should be rich conversations about heterogeneity, responsibility, and the admixture of business and social values. Serious attention to cultural analysis within corporate law will help us to identify better legal rules and build better institutions.
The conclusion could easily have been written by just about any worklaw scholar critical of the current legal approach to employment law. Gordon’s article suggests that we ought to engage more with the literature on cultural anthropology, and provides an accessible way in.
Cite as: Marcia L. McCormick, Culture as Keystone
(July 21, 2016) (reviewing Gwendolyn Gordon, Culture in Corporate Law or: A Black Corporation, a Christian Corporation, and a Māori Corporation Walk into a Bar ...
, 39 Seattle U. L. Rev.
353 (2016)), http://worklaw.jotwell.com/culture-as-keystone/
Rachel Arnow-Richman, Modifying At-Will Employment Contracts
, 57 B.C. L. Rev.
(forthcoming 2016), available at SSRN
I’m always pleasantly surprised when I stumble across a piece of scholarship that seeks to solve a doctrinal puzzle in the law. I’m even more pleasantly surprised when the puzzle in question is one that I’ve puzzled over myself. And I’m really pleasantly surprised when the author offers a convincing solution to the puzzle. Those are but three reasons why I like Rachel Arnow-Richman’s article Modifying At-Will Employment Contracts.
Arnow-Richman’s article explores the contractual enforceability of what she calls “mid-term modifications,” a set of non-negotiable contract terms offered by an employer after the start of an at-will employment relationship. These mid-term modifications often involve new terms that are less favorable to an employee, such as covenants not-to-compete or reduced benefits. The situation presents the type of conflict of competing interests that makes employment law so fascinating. Employees, whose employment status is already tenuous under the at-will employment rule, obviously want to be able to rely on “the deal” as to the terms and conditions of their employment when they first started to work. For their part, employers may have a legitimate need for flexibility in responding to changed circumstances. The law is then asked to produce an equitable solution to the conflict when an employer seeks to alter the deal after the relationship has commenced. But as Arnow-Richman demonstrates, “the common law has developed neither a coherent legal framework for analyzing mid-term modifications, nor a cogent theoretical basis for understanding existing doctrine.” (P. 3.)
For those who have taught the basic employment law survey course, the dilemma is probably a familiar one. Arnow-Richman lays out the two standard judicial approaches to the dilemma. Under the first (which Arnow-Richman refers to as the “unilateral modification” approach), courts permit employers to unilaterally offer new terms, reasoning that because at-will employment may be terminated at any time, continued employment constitutes consideration for any new terms. In contrast, other courts utilize what Arnow-Richman calls the “formal modification” approach. Under this approach, an employer must provide some additional form of consideration (a bonus, a pay increase, etc.) to support its modification. Arnow-Richman delves into the contract doctrine in the area, exploring the courts’ decisions to treat employment relationships as unilateral contracts and their focus on consideration. She concludes that the courts’ focus on consideration in this context is something of a relic. Instead, Arnow-Richman looks to more modern conceptions of good faith under the UCC and decisional law involving mid-term modifications of employment handbooks in crafting a proposed rule that strikes the appropriate balance. Ultimately, she advocates for a rule whereby “mid-term modifications unilaterally imposed by employers in at-will relationships should be enforceable only if the employer provides reasonable advance notice of the change.” (P. 5.) In so doing, she argues that her proposed rule “advances the principles of good faith and voluntariness that underlie contemporary contract modification law within the constraints of employment at will.”
One of the more refreshing features of the article is that Richman actually dives into the decisional law in an attempt to clarify what the courts are really doing. Instead of merely speculating about how courts approach mid-term modifications to employment relationships, Arnow-Richman digs into the cases and summarizes the different approaches courts take when considering the enforceability of different kinds of mid-term modifications. She looks at cases involving modifications in which employers attempt to impose non-compete agreements, arbitration agreements, and changes to existing employee handbooks and then examines the different ways in which courts respond to such attempts. Equally refreshing is the fact that Arnow-Richman is actually engaging in the type of doctrinal scholarship that sees value in wrestling with conflicting policy values in the face of uncertain case law in an attempt to propose a workable solution. As the issues confronting employers and employees in the modern workplace continue to evolve, the issues that the article explores continue to be of significant importance.
Arnow-Richman’s article also comes along at an interesting time in employment law. One of the things I most enjoy about teaching the basic Employment Law survey course is that the course involves a roughly equal mix of tort and contract law. Lately, tort law has taken on an increasingly dominant role, at least in the employment discrimination context. Arnow-Richman’s article is a useful reminder of the role that contract law plays in the law of the workplace and how that law needs to evolve to keep pace with the challenges facing employers and employees.
Charlotte Alexander, Anna Haley-Lock, and Nantiya Ruan, Stabilizing Low-Wage Work: Legal Remedies for Unpredictable Work Hours and Income Instability
, 50 Harv. C.R.-C.L. L. Rev.
1 (2015) available at SSRN
Many readers were introduced to the concept of “just-in-time scheduling” when the New York Times explored the exhausting and chaotic work life of a Starbucks barista in August 2014. But the practice is certainly not limited to Starbucks. In response to this broader trend, groups like “OUR Walmart” are calling not only for higher wages and more full-time jobs, but for predictable and dependable scheduling, and left-leaning states and cities are beginning to mandate predictable work schedules for at least some workers. This emerging locus of advocacy and media attention is also the subject of Stabilizing Low-Wage Work, a great new article by Charlotte Alexander, Anna Haley-Lock, and Nantiya Ruan. The article analyzes comprehensively not only the problem of “just-in-time” scheduling for low-wage workers, but also the potential for either collective bargaining or state and local law to solve that problem.
Adapted from the practice of just-in-time manufacturing, just-in-time scheduling refers to the now-common practice of adjusting staffing levels in response to current conditions. While it is a problem for workers with many types of jobs, it has particularly taken hold in the service sector where, the article reports, “almost 30 percent or workers” have schedules with “variable start and end times.” Moreover, as the article shows, modern technology has made just-in-time scheduling attractive; employers can monitor and anticipate customer demand in close to real-time, sending workers home or canceling their shifts altogether if potential customers are staying home. Conversely, employers may want to call people in at a moment’s notice; this requires employees to wait by the phone, but seldom results in on-call pay. Federal law, particularly the Fair Labor Standards Act, does little to address this problem; when that law was drafted, the greater problem was that employers frequently demanded excessively long hours from workers.
A particular strength of this article is the way it braids workers’ voices with empirical research, creating an compelling picture of the havoc that erratic scheduling can wreak on workers’ lives. Among these harms are some that readers would probably expect—lost time with family, childcare emergencies, insufficient income—and some that might be more surprising, including the risk that workers can drop below the threshold number of work hours required for TANF and childcare subsidy benefits when they are repeatedly sent home from scheduled shifts.
What is the solution? The article points to two responses already in place for some sets of workers but far too little-known. First, collective bargaining agreements often guarantee that workers are compensated for last-minute schedule changes, though their provisions may be subject to limiting interpretations by arbitrators. Interestingly, the authors show that American CBAs are much more employer-friendly than some of their international counterparts; remarkably, Danish and German CBAs require that retail employers provide notice of 16 and 26 weeks, respectively, of workers’ schedules.
Second, some states have call-in and/or send-home pay provisions. However, the authors note a paucity of case law interpreting these provisions (especially call-in pay laws), offering a “likely explanation” that “these laws are little-used and call-in pay rights under-enforced.” But the problems with these solutions do not end there—reflecting painstaking research, the authors show that even where states have adopted both call-in and send-home pay legislation, coverage is generally spotty, exceptions are numerous, and remedies are weak. Moreover, these statutes address just-in-time scheduling by providing disincentives but do not actually ban the practice or affirmatively guarantee workers a predictable schedule or a guaranteed number of work hours. And, perversely, these laws generally apply only when workers already have something resembling an established schedule; they do not provide protections from the most egregious scheduling practices, such as requiring workers to call in early in the morning to find out if they will work later that day.
Thus, the authors suggest a handful of common-sense reforms. They include: strengthening and broadening guaranteed pay provisions in state laws and CBAs; amending the FLSA to penalize employers’ use of fluctuating schedules; adopting a DOL interpretation of “on-call time” under the FLSA that would encompass workers who are unexpectedly called into work; and strengthening current union and worker campaigns for secure schedules. Certainly some of these proposals are more likely to come to pass than others in the current political environment, but that is a feature of the article, rather than a bug: it identifies multiple levers that would have maximum impact if all pulled together, but that will still help workers when pulled individually.
Some of the growing number of states and cities that have been focused on raising their minimum wages have now also turned their attention to the problem of erratic scheduling. This article will be valuable not only to advocates, but also to legislators in search of solutions and model language. (To the latter, I particularly commend the detailed tables at the end of the article, which list each state’s call-in and send-home pay laws, and from which I learned that Connecticut is alone in specifically protecting employees of “beauty shops” from last-minute call-ins or send-homes.) In sum, this article is a remarkably timely exploration of a significant problem, and also a joy to read.
Cite as: Charlotte Garden, A Cure for Just-In-Time Scheduling
(May 26, 2016) (reviewing Charlotte Alexander, Anna Haley-Lock, and Nantiya Ruan, Stabilizing Low-Wage Work: Legal Remedies for Unpredictable Work Hours and Income Instability
, 50 Harv. C.R.-C.L. L. Rev.
1 (2015) available at SSRN), http://worklaw.jotwell.com/a-cure-for-just-in-time-scheduling/
David Schraub, Dismissal
(2016), available at SSRN
In a recent article in The New York Times Magazine, sociologist Alice Goffman – author of an award-winning book that followed a group of African-American men in Philadelphia over six years – addressed accusations that her book presents an implausible account of police practices. When the magazine reporter sought corroboration from the police themselves about certain of these alleged practices, Goffman challenged the notion that “[t]he way to validate the claims in the book is by getting officials who are white men in power to corroborate them.” She continued, “The point of the book is for people who are written off and delegitimated to describe their own lives and to speak for themselves about the reality they face, and this is a reality that goes absolutely against the narratives of officials or middle-class people. So finding ‘legitimate’ people to validate the claims – it feels wrong to me on just about every level.”
In his new article, Dismissal, David Schraub takes aim at exactly the phenomenon that Goffman describes: the act of dismissal, by which “the interpretive frames proffered by [a] claimant [are portrayed] as illegitimate and the testimonial offerings of the claimant as irrational.” (p. 28.) (To be clear, neither Schraub nor this review engage with the substance of the criticisms of Goffman’s work, but rather to use her comments about corroboration and validation as a jumping-off point. Schraub does not discuss Goffman in his article.) Schraub is concerned both with courts’ dismissal of novel legal claims under Federal Rule of Civil Procedure 12(b), and with dismissal in its broader sense, “a decision (in any deliberative context) to dispense with a proffered claim prior to considering its merits.” (p. 3.)
An act of dismissal is profound, as it communicates that the dismissed claim, and the claimant, are unworthy of even minimal substantive recognition and engagement. Dismissal thus works a different harm than a loss on the merits, which occurs at the end of a process that gives the claimant a voice and leaves open the possibility of a successful adjudication. Schraub’s thoughtful unpacking of “dismissal” and its consequences fits well into the rich existing employment discrimination literature on the variety of subtle forms that discrimination can take and the fate of the plaintiffs who seek to make such claims in court. Just as Goffman describes the deligitimation of her subjects’ narratives, these plaintiffs may find their claims deligitimated and dismissed, as the version of discrimination that they present does not square with the one accepted by courts and society as a whole. Schraub’s portrayal of courts is ultimately positive, however, as he notes that, so long as a claim “adheres to certain preset conventions,” a court must give it at least an initial hearing, creating the possibility of eventual recognition, even if that recognition only comes after many dismissals. (p. 65.)
Schraub enters this discussion by examining the way in which judges and laypeople dismiss claims of race discrimination. In Schraub’s view, the act of dismissal, whether by a judge or a layperson, is fundamentally boundary-enforcing. Courts dismiss discrimination claims that push beyond what prior courts have deemed justiciable; laypeople’s dismissals – the accusation that the speaker is “playing the race card,” for example – enforce and perpetuate “deeply ingrained understandings regarding the meaning of discrimination[.]” (p. 5.) Schraub points out that the two forms of dismissal are interrelated. When courts mark off the boundaries of legally cognizable race discrimination, they influence the popular conception of what counts as a “legitimate” claim of racism, as “people take courts to be privileged speakers in articulations of our collective moral code.” (p. 63.) Popular conceptions of race discrimination claimants as manipulative complainers may also filter into the courtroom. Here, Schraub echoes observations by scholars such as Michael Selmi, who has noted that “courts often seem mired in a belief that [race discrimination] claims are generally unmeritorious, brought by whining plaintiffs who have been given too many, not too few, breaks along the way.” Thus, dismissal is a conservative act, used to shut down claims of discrimination that deviate from what courts and society have previously deemed to be valid.
Schraub also investigates the connections between dismissal and epistemology, or the ability to “know.” He notes that the act of dismissal can cause not only practical harm – the loss of a legal claim in court – but also a dignitary loss suffered by the claimant, a fundamental discounting of the claimant’s power to perceive and communicate his or her reality. The act of dismissal attacks the “testimonial contributions” of the claimant; it elevates the dismisser’s knowledge of the situation – attenuated and second-hand – over the first-hand knowledge of the person who claims race discrimination. Similar to Goffman, who wants to preserve people’s ability “to speak for themselves about the reality they face,” Schraub finds this troubling, an act of “epistemic injustice.” He summarizes, “Whom we credit as knowers—whose contentions gain a respectful hearing and whose fail to rise above the din—is a matter of significant consequence.” (p. 3–4.)
However, Schraub redeems courts in the end. As he observes, courts may not “shunt aside” a discrimination claim “simply because it is inconvenient or uncomfortable” (p. 65); they are institutionally bound to give even boundary-pushing claims at least an initial hearing. After enough hearings, courts may come around, and the “narratives of officials or middle-class people,” in Goffman’s words, may thus expand to encompass formerly dismissable claims of race discrimination, just as those narratives now recognize once-dismissable claims of sexual harassment as justiciable. Though he does not present his work in quite this way, Schraub is thus interested in the circumstances under which legal and popular understandings of discrimination stretch to accommodate changed conditions on the ground, the moments in which new forms of discrimination are recognized by courts and society. His work provides a valuable theoretical framework for thinking about these moments of recognition, and also about the many acts of dismissal that precede them.
Noah Zatz, Special Treatment Everywhere, Special Treatment Nowhere,
95 B.U. L. Rev.
1155 (2015), available at SSRN
This year’s law and scholarship of employment discrimination has invited critical thought, new strategies, and rethinking of traditional legal methods like never before. Among the most innovative pieces is Professor Noah Zatz’s Special Treatment Everywhere, Special Treatment Nowhere, 95 B.U. L. Rev. 1155 (2015). Zatz laments the defensive posture assumed by those on the vanguard of civil rights activism and litigation when, in his own words, “the best defense of civil rights law requires a strong offense.” (P. 1155.)
He proceeds to take issue with the notion that disparate treatment law ought to be color and status-blind, citing the law of affirmative action in particular, and noting that “rather than retreat from ‘special treatment accusations,’” those who wish to preserve and strengthen civil rights laws and protections ought to “name it and claim it,” (p. 1157) meaning confronting these accusations and keeping the law’s (and our) focus on the avoidance of disparate treatment without obsessing over whether this might necessarily invite or involve some special treatment. This eyes-on-the prize approach means endorsing proactive steps that can be taken not only by the courts, but by employers to preempt discrimination. It also means being vigilant about distinguishing legitimate, goal-advancing interventions—that many are quick to dismiss as special treatment—from “raw redistribution.” Ultimately, Professor Zatz concludes, a “[f]ailure to appreciate the remedial context” of affirmative action is precisely what will engender “reckless accusations of ‘special treatment.’” (P. 1157.)
Professor Zatz then observes that the work of trying actively to avoid the disparate treatment of employees can, itself, often be deemed special treatment. This, however, stems from a “failure to acknowledge the relevant nondiscriminatory baseline,” (p. 1158) and the restorative goals and effects of what is too often written off as discriminatory, “special” treatment or racial favoritism. Professor Zatz walks his readers through various scenarios that aim to highlight that the beneficiaries of the “special treatment” decried too readily by many are not benefiting because of their race, but because they have been discriminated against because of their race. His eloquent, well-reasoned analysis of an issue and arguments all too often glossed over in debates over affirmative action isolates and crystallizes precisely why affirmative action should not be blindly relegated to the realm of racial favoritism.
Through insightful illustrations and examples, Professor Zatz aims to isolate for his reader, and refocus his reader on, the notion of discrimination as a deviation from a desired baseline of nondiscrimination, and away from the notion of priority hiring or affirmative action as discriminatory, illicit special treatment. He is able to do this by exhorting his reader to consider the “discriminated against” status of one upon whom preferential treatment may be conferred, rather than that individual’s racial or other protected class status. In other words, the treatment is remedial, rather than illicit and suspect. As Professor Zatz puts it, “[t]he relevant baseline for evaluating the priority hiring has to be the world as it would have been without the supervisor’s initial disparate treatment, not the world created by that discrimination. If there is no better way to identify the true victim of discrimination, then either we just throw up our hands and accept the discriminatory status quo, or we modify it with imperfect tools.” (P. 1162.)
Professor Zatz also addresses some popular critiques of affirmative action, among them that to the extent that some of its beneficiaries are not actually the precise people who were unfairly deprived of employment because of their race, they are, in fact, being treated differently (preferentially) because of their race. He also addresses the critique that “innocent” members of non-discriminated-against groups, who neither engaged in nor benefited from discrimination may find themselves “displaced.” Professor Zatz answers that while affirmative action invariably allows some undesirable results, “to dismiss this remedy for its imperfections is to apply a double standard: the possible loss (of an accurate remedy) to the worker discriminated against is valued less than the possible loss (of an inaccurate remedy) to other workers….” (P. 1163.) Using illustrative examples of his invention and from actual cases, Professor Zatz emphasizes the notion that strategically, the best thing to do when advancing or justifying a remedy that objectors term affirmative action is to “own” the term, using it to strengthen what is being accomplished, rather than backing away from the concept.
Next, Professor Zatz expands his analysis to address claims that exist beyond traditional disparate treatment. Specifically, in his attempt to stave off criticism that such claims “invit[e] or require[e] special treatment,” he refocuses his reader on “the substance of the nondiscriminatory baseline,” invoking employer liability in third party harasser claims, the accommodation mandate of the Americans with Disabilities Act, and Title VII pregnancy disparate impact cases. (P. 1168) He notes that the imposition of liability in the former suggests that the alleged unlawful behavior “disrupts the nondiscriminatory baseline that the employer must maintain,” and that in each instance, “the special treatment accusation really functions as a stalking horse for an underlying dispute about the concept of discrimination.” (P. 1169.) He adds that the latter two share the facts that “(1) absent remedial action (“accommodation”) by their employers, individually identifiable workers face workplace harm because of their protected status, and (2) they face this harm even in the absence of disparate treatment by their employers.” (P. 1179.) In each case, his searching comparison between the principles at play in representative caselaw and the non-discrimination baseline proves insightful and illustrative of his ultimate argument that “special treatment” is not a trump card that nullifies the legitimacy of the remedy or claim against which it levied.
This piece’s careful and logical analysis highlights that which should be obvious to those too quick to dismiss affirmative action or certain remedies as just another way of discriminating against the rights of innocent third parties because of their race, sex, or other status: “Whenever we refuse to acknowledge the remedial character of employer action, these accusations emerge because remedies…are given out to those whose injury calls forth the remedy. When that injury is ignored, it mistakenly seems that the remedy was allocated based on race, sex, or disability, not based on subjection to race, sex, or disability discrimination.” (P. 1178.) (Emphasis added). He also eloquently demonstrates, through intricate examples and analysis, that race or other status consciousness is not only not tantamount to invidious discrimination, but it is often necessary to avoid or remedy invidious discrimination.
Leora F. Eisenstadt, Causation in Context
, 36 Berkeley J. Emp. & Lab. L.
1 (2015), available at SSRN
In Causation in Context, Professor Leora F. Eisenstadt harshly critiques Burrage v. United States, a case in which the Supreme Court imports some of its troublesome thinking on employment discrimination causation into a criminal law case. I like the article lots because it crosses two substantive areas and explains why causation, a tricky and core concept in both areas, does quite different work in each area. In the process, the article exposes the larger danger of misusing a powerful tool that judges, lawyers and law professors alike use – reasoning by analogy. Professor Eisenstadt implicitly suggests that reasoning by analogy is of little or no use if the court that is reasoning has an insufficient understanding of the underlying areas at issue and fails to recognize what makes the analogy inapt. If a court wants to use an employment discrimination concept in a criminal law area, the court needs to understand why the concept has been used—and whether the concept has been misused—in the employment discrimination area before deploying it in the criminal law area.
In short, the article considers how the Supreme Court in Burrage imported the but-for causation principle – the notion that a factor does not cause a result if the result would have occurred in the absence of the factor – that has been become prevalent in the employment discrimination area into a criminal law case. In the process, a principle used to determine whether intentional discrimination caused an adverse job action is now used in a criminal case to determine whether the use of an illicit drug caused a victim’s death. The article discusses the Court’s mistake in finding a false equivalency between causation in criminal law and causation in employment discrimination law. The false equivalency not only triggered an inappropriate use of an employment discrimination causation standard in the criminal law case; it may trigger a broader assumption that a principle used in one area of the law can be borrowed and used in other areas of the law. That could create problems if courts import concepts from other areas of law into an already complex employment discrimination arena.
Professor Eisenstadt begins her argument with a discussion of the history of the but-for causation standard in employment discrimination law, noting that factual causation has been a major issue in employment discrimination cases at least since the Supreme Court addressed the issue in Price Waterhouse v. Hopkins. The Price Waterhouse Court sought to determine what “because of” meant when multiple factors appeared to cause an adverse job action. The Court’s plurality opinion ultimately determined that in Title VII intentional discrimination cases, but-for causation was not the proper causation standard when multiple causes led to an adverse job action. Rather, the Court instituted a mixed motives standard that allowed recovery if an adverse job action was caused in part by unlawful bias, though the employer could avoid all liability if it could prove it would have made the same decision anyway. Congress resolved the issue in the Civil Rights Act of 1991 by codifying the motivating factor test. That test allows plaintiff to recover if unlawful bias is shown to have motivated the relevant job action, though recovery is limited if the defendant proves it would have made the same decision without use of the illegitimate factor.
Professor Eisenstadt then traces the Court’s installation of but-for causation in two recent employment discrimination mixed-motives cases. In Gross v. FBL Financial Services, the Court decided that but-for causation is required in mixed-motives Age Discrimination in Employment Act cases, resting its decision on the absence of an explicit motivating factor test in the ADEA. Though the Price Waterhouse Court had determined that “because of” in Title VII required a mixed-motives standard, the Gross Court concluded that similar language in the ADEA triggered a but-for causation standard. A few years later, the Court in University of Texas Southwestern Medical Center v. Nassar used the same analysis to require but-for causation in Title VII retaliation cases.
Professor Eisenstadt then discusses Burrage v. United States. The defendant in Burrage was a heroin dealer who faced an enhanced mandatory punishment if his buyer’s death resulted from the use of the heroin the defendant sold him. As the victim had taken multiple drugs, the medical examiner could determine that the heroin use was a contributing factor in the victim’s death, but could not determine that the heroin use was a but-for cause of the death. The jury was instructed that the heroin need only have been a contributing factor in the victim’s death. Relying in part on an analysis of but-for causation in employment discrimination cases, the Court decided that the statute at issue required but-for causation. The defendant prevailed.
Professor Eisenstadt criticizes the Court’s false equivalency of but-for causation in criminal law and employment discrimination law. After analyzing the multiple differences between how causation applies in the different areas of law, Eisenstadt concludes that the purpose of employment discrimination law is so different than the purpose of criminal law that importing an employment discrimination principle into criminal law is inappropriate. She suggests that the false equivalency could lead to the importation of principles from other areas of law into employment discrimination and notes that tort principles have already been imported into employment discrimination law.
She then describes problems that would attend importing criminal law principles, such as mens rea intent levels into employment discrimination law. Though intent is important in each area, intent serves different purposes in the two areas. For example, differing levels of criminal mens rea track differing levels of criminal culpability. That structure does not apply in the employment discrimination area. Similarly, importing criminal law fault principles into employment discrimination law could be very problematic. Though both areas consider fault, fault in criminal law carries a moralistic edge that focuses on the character of the defendant whereas fault in the employment discrimination area merely denotes employer responsibility.
Ultimately, Professor Eisenstadt suggests: “Instead of reflexively borrowing definitional concepts across fields of law, courts deciding employment cases should be focused on the specific goals of the law at issue, the relevant parties’ interests, and the practical implications of importing the concept into employment law.” (p. 41.)
I like this article not just because the subject matter is interesting to me as a criminal law and employment discrimination law professor, but because the article speaks to multiple audiences. It speaks to students who mistakenly think that causation in one context is the same as causation in every context. It speaks to judges who act as if causation is an easily understood concept that can be plugged into multiple areas without considering context. It speaks to professors who know that causation can be chameleon-like and want to see a well-reasoned explanation of the harms that can come from treating causation as a one-size fits all concept. Most of all, I like the article because it helps break down the silos that can be created in the academy. For those who believe that criminal law and employment discrimination law have little to do with one another, this article reminds us that judges may see connections between areas that academicians may not see. If we are to speak to and with judges, we may need to come out of our silos to discuss why the concepts that apply in one area of law should not be lightly transferred to another area of law and to discuss when such transfer is appropriate. This article helps foster this process.
I am most appreciative to have another article to assign to my employment discrimination and criminal law students that will get them thinking about causation and why it is such a tricky issue both in criminal law and in employment discrimination law. I encourage you to read this article.
Sanjukta Paul, The Enduring Ambiguities of Antitrust Liability for Worker Collective Action
, 47 Loy. U. Chi. L.J. ___ (forthcoming 2016), available at SSRN
As someone interested both in the history of workplace law and in modern forms of worker organization, but not especially well-versed in antitrust law, I was delighted to read, and learned a lot from, Sanjukta Paul’s excellent article. The piece starts with a troubling suggestion I have not seen seriously addressed elsewhere: antitrust law could be used against workers engaged in collective action if those workers are not traditional employees: e.g., against low-wage independent contractors. After showing this is a legitimate concern, Paul provides a rich description of the history of antitrust law (including but not limited to the “labor exemption”). She then makes a convincing argument that while current antitrust law could be applied to such collective action, it should not be. While her history is ultimately aimed at a modern issue, this is not “law office history.” Indeed, her detailed discussion of the development of both antitrust and labor law (a rare combination) would be a worthwhile contribution to the historical literature by itself. Linking it to a modern question makes the piece even more valuable.
Paul starts with a vignette about a 1999 federal antitrust investigation into potential price-fixing by striking port truck drivers who were not “employees.” This leads her to the early days of labor and antitrust. She argues that before the New Deal, courts “dominated by classicists who were concerned primarily with freedom of trade and contract, imported fundamentally hierarchical and coercive assumptions regarding workers” into the Sherman Act. (P. 2.) In so doing, the courts “relied upon status-based normative assumptions that violated their own freedom of contract principles.” (P. 2.) Worker collective action was thus presumptively illicit. The “labor exemption” the Supreme Court ultimately created in the 1940s was the exception, not the rule, and arguably might not apply to independent contractors.
But this interpretation is not required. Modern antitrust law is primarily concerned with economic efficiency (as opposed to freedom of contract), an approach that “necessarily imports a vision of the social good.” (P. 3.) Given that, antitrust policy should inquire into the “normative concerns implicated by worker organization for decent wages and working conditions.” (P. 3.) More broadly, Paul rejects the at-least-implicit assumption that workers’ right to organize should involve an exemption to be bargained for; instead, the fundamental question should be how regulation of markets interact with the regulation of labor.
The article does many things well. Paul demonstrates how the threat of antitrust liability in the 1999 trucker action and other cases inhibited the ability of contingent workers to act collectively, and how important the threat is in light of the growth of independent contractors — including low wage workers who are easily replaced. The problem is that modern antitrust law looks at “market actors” and may not distinguish between a massive corporation and a single truck driver. In this regard, she analyzes Federal Trade Comm’n v. Superior Ct. Trial Lawyers Ass’n, 493 U.S. 411 (1990), which found a Sherman Act violation when lawyers in DC collectively refused to take criminal assignments for indigent clients unless their fees were increased.
She also does an excellent job with the history of the “labor exemption,” ultimately forged in the 1940s from certain language in the Clayton Act and the Norris LaGuardia Act by the Apex Hosiery Co. and Hutcheson cases. Most interestingly, she points to a “minor strain” in Apex which Hutcheson ignored: the distinction between the labor market and the product market. While Hutcheson was a victory for labor, it removed the idea that the exemption should be based on the idea that labor is not an article of commerce; instead, it focused on “a list of exempted activities, for which no real principle” was offered. (P. 45.) This concept depended on the power and role of labor unions at the time, and later cases specifically held that independent contractors were not covered by the exemption.
Paul argues, though, that the original Sherman Act was not intended to apply to worker collective action, and further that the application of antitrust law to worker collective action rested on reasoning that older courts should not have accepted and that modern courts would not consciously accept. In the older period, theories of “freedom of contract” animated the law, yet the regulation of work was “the great exception to classicism’s clarion call of economic freedom.” (P. 21.) This was because of implicit notions about hierarchies at work; status, not contract controlled. Thus, workers, uniquely, were not permitted to compete vertically with capital by withholding their labor. After the Sherman Act, classicists argued that it would be “unfair” to apply antitrust law to capital but not labor. But this argument presupposed “the very social hierarchy that neutrally applied freedom of contract principles ought to have condemned . . . .” (P. 26.) It reflected worries that labor was already too powerful in relation to capital and simultaneously “obscured the subordination” intrinsic to contemporary laws regulating work. (P. 27.) This argument thus ascribed to workers the consequences, but not the benefits, of actual legal agency.
Notably, while in this era many union activities fell afoul of antitrust law, the business corporation in and of itself was not considered a restraint of trade. Corporations were single entities, while unions were combinations. Paul’s discussion of the rules and analysis of antitrust cases in this era shows that they used much of the same analysis (illegal means and/or illegal ends, presumptions of intimidation) as the conspiracy cases (more familiar to labor law scholars) of this era. For Paul, though, the key is the tension of the role of workers qua workers and their role as agents of commerce.
Today’s judges would not consciously rely on status-heavy notions of workers in disallowing collective action. Yet, modern antitrust law, even with the labor exemption, inherited the older conception of the social good. The modern justification for punishing worker collective action, like the classicist one, “rests on specific normative judgments that are neither politically neutral nor self-evident.” (P. 50.) Here, Paul interrogates the shifting rules governing “price-fixing.” (P. 50.) Older rules allowed some forms of cooperative behavior, but more recent cases restrict this by holding e.g., that lack of market power is not a defense to price-fixing (hence, the result in the trial lawyers’ case).
Still, this approach is not monolithic, and alternative approaches that could favor smaller actors could be revived and adopted. Among other possibilities, a traditional exception for professionals exists that could be broadened to other types of workers. Paul also suggests certain types of worker collective action could be protected by the First Amendment. She analogizes to Claiborne Hardware, questioning distinctions between economic and political boycotts, and also harkening back to older rules that looked at the imbalance of vertical market power.
Paul makes a fascinating and persuasive argument on an important topic, one that I have not seen others make. I liked this a lot.
In workplace law, we often see groups of workers that are marginalized by their employers or fellow employees. The treatment of these employees can dramatically affect the working environment.
In her article, Mutual Marginalization: Individuals with Disabilities and Workers with Caregiving Responsibilities, Nicole Buonocore Porter explores two specific groups that remain heavily stigmatized in modern society – those with caregiving responsibilities and those that have disabilities. Professor Porter highlights the connection between these employees and their treatment in the workplace. While the link between these two groups is not readily apparent, Professor Porter carefully addresses the disparate treatment of these two types of workers.
In her paper, Professor Porter discusses the “special treatment stigma” that both groups often suffer. Those with disabilities may face resentment by fellow employees when they receive work accommodations not offered to other workers. Similarly, pregnant workers often face a similar stigma, as co-workers and managers will anticipate that these employees will need special assistance. Both groups often experience discrimination in the hiring context, as employers may expect (either correctly or otherwise) that employment of these workers will raise operating costs.
As Professor Porter points out, the law extends broad protections to workers with disabilities. Under federal law, employers are required to reasonably accommodate these employees up to the point of undue hardship. The case law reveals that this statutory requirement has some actual teeth, and while often stigmatized, disabled workers still can receive favorable treatment under the law. At the same time, those workers with caregiving responsibilities do not enjoy the same types of protections. The Family and Medical Leave Act’s leave requirement applies only to larger employers, is limited to twelve weeks, and is unpaid. While the FMLA is an important first step for workers, it does not provide the same types of workplace protections afforded to those with disabilities. And Title VII does not provide any real relief for these workers. Some states and local jurisdictions have stepped in to offer additional protections, but this stigmatized group lacks significant benefits on a more broad-based level.
The parallel drawn between these two groups is revealing, and the article provides a refreshing look at this unexplored area of the law. Through her analysis, Professor Porter provides a “theoretical justification for the reasonable accommodation provision under the ADA” while arguing for a similar “accommodation mandate for workers with caregiving responsibilities.” (P. 2.) Professor Porter thus advocates for broader protections for caregivers, as this group has a substantial need for workplace accommodations. By justifying the accommodations given to workers with disabilities, Professor Porter explores why similar accommodations are needed for caregivers.
Like all of her scholarship, Professor Porter’s work expands upon important areas of the law. It draws a new connection between these two groups that are often stigmatized. And it serves as an important reminder of how federal law can effectively change the working environment for certain groups of employees. It is critical to continually reconsider the scope of these workplace protections, and to identify where the law can be more inclusive. Professor’s Porter’s work effectively hits upon all of these areas.