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Keeping Confidences: Where Workplace Abuse and Privacy Protection Intersect

Jayne S. Ressler, Workplace Anonymity, 70 Buff. L. Rev. 1495 (2022).

In Workplace Anonymity, Professor Jayne Ressler takes on the intersection of two critical workplace issues: toxic work environments and employee privacy. Citing workplace toxicity in the form of harassment, abuse, wage theft, and risk exposure among other things, Professor Ressler notes the failures of agencies like the Department of Labor, the Equal Employment Opportunity Commission, and the Occupational Safety and Health Administration, as well as government agencies and labor unions, to redress much of the toxicity that has fueled what has come to be known as the “Great Resignation” as the nation reeled from the pandemic.

The piece posits that fear of retaliation engenders a culture of silence around abuse and sets about examining reporting mechanisms. Ressler seeks to complement the suggestion of legal scholarship that employer access to certain private employee information be curbed, with a proposal “that uses information restrictions to report and document workplace misconduct ex post,” and proposes “anonymous reporting mechanisms concerning workplace misconduct” that would facilitate workplace redress and reform without the threat of retaliation. (P. 1497.)

I particularly enjoyed the organization and structure of this piece, proceeding as it does from the premise that work occupies a central role in the lives and identities of Americans. It then analyzes four categories of workplace misconduct: 1) wage theft, 2) invidious discrimination, 3) health and safety violations, and 4) challenges to high earning employees. Ressler argues that underreporting of workplace misconduct stems from victims’ or others’ fears of reprisal and demonstrates the inadequacies of both extant reporting mechanisms and retaliation law.

Finally, after the piece discusses current anonymity practices involving litigation plaintiffs, it posits its proposed solution: an expansion of anonymous reporting in the workplace to expose misconduct while protecting reporters. The piece rounds out and closes with a brief discussion of employers’ concerns about due process and principles of fairness and points to certain situations in which anonymity fails to be effective.

Overall, the piece presents a well-rounded and well-reasoned look at a somewhat intractable problem and injects some common sense solutions into the analysis, while being circumspect and realistic about the problem’s persistence. In doing so, Ressler provides an excellent discussion about the centrality of work in American life and culture. It raises issues and whole conversations about persistent workplace abuse and toxicity, and its analysis and proposal are thoughtful and worthy of serious consideration.

Significantly, the article combines personal anecdotes with well-researched documentation of trends to establish discussion points like pervasive employer misconduct, emotional and physical threats in the workplace, and the nature of victims’ often well-founded fear of reprisal when deciding whether to use reporting mechanisms.

Of particular note is the article’s section on employee concerns regarding retaliation and reprisal. This section lays bare the stark impact of the weaknesses in the law and the frailties of human nature that make this fear well-founded, documenting the phenomenon with both precision and humanity. “Approximately 60 percent of workplace misconduct remains unreported,” writes Ressler, “the driving reason for this silence is fear of retaliation.” (P. 1517.)

By breaking out the underreporting of various types of misconduct and going into depth in each, the piece exposes the specifics around so many types of hesitancy: that when it comes to reporting wage theft, health and safety violations, invidious discrimination, race discrimination, gender discrimination and sexual harassment, age discrimination, and what Professor Ressler terms “perils for the privileged” – and gives a comprehensive view of workplace underreporting. Professor Ressler’s ensuing exposure of the deficiencies of reporting mechanisms, safeguards, and whistleblower protections is equally eye-opening. Her discussion of anti-retaliation law is fresh and current.

Finally, the article’s main contribution to the literature is its review of the existing anonymity solution and Ressler’s proposal of a fresh, more comprehensive one. Current protocols that can protect the anonymity of litigation plaintiffs and provide for the extrajudicial reporting of misconduct provide the inspiration for the expansion into anonymity shields when reporting employer misconduct.

“Given the various hazards confronting the American worker, a robust system of anonymous reporting of workplace wrongdoing should be developed and implemented,” Ressler writes. “Furthermore, employees might fear alerting their employers about workplace issues that are not necessarily illegal misconduct but undesirable.” (Pp. 1545-46.)

Through a comprehensive discussion of extant protections, hypotheticals, and policy arguments, Professor Ressler makes a fine case in the context of each area of misconduct that she has previously identified and addressed. She also troubleshoots her own proposals by contouring and examining the limitations of anonymity and setting forth issues of fairness to employers that may pose problems, or at least countervailing concerns, as her proposals are implemented.

All in all, Professor Ressler, herself, summed it up perfectly when she wrote,

Broad categories of workplace misconduct surveyed in this Article, including wage theft, health and safety violations, and invidious discrimination, are all much more prevalent than what workers report. […] Under proper circumstances, and with adequate protections for employers in place, anonymous reporting could become a fundamental means to increase documentation of workplace misconduct–an essential first step toward needed workplace reform. (P. 1560.)

In this age, the intersection of workplace abuse remediation and workplace privacy seems a forward-thinking place upon which to set our sights.

Cite as: Kerri Lynn Stone, Keeping Confidences: Where Workplace Abuse and Privacy Protection Intersect, JOTWELL (April 25, 2023) (reviewing Jayne S. Ressler, Workplace Anonymity, 70 Buff. L. Rev. 1495 (2022)), https://worklaw.jotwell.com/keeping-confidences-where-workplace-abuse-and-privacy-protection-intersect/.

Technology, Disparate Impact, and Discrimination

Michael Selmi, Algorithms, Discrimination and the Law, 82 Ohio St. L. J. 611 (2021).

In Algorithms, Discrimination and the Law, Professor Michael Selmi performs an excellent analysis of the many controversial issues related to an employer’s use of algorithms in making employment-related decisions.

The use of algorithms in the workplace has garnered substantial academic discussion in recent years, as this type of technology has become more readily accessible to employers. The widespread use and reliance on technology to formulate employment-related decisions has created a host of workplace-related issues. At the forefront of these concerns is that the use of algorithms will discriminate against minority workers and applicants. These concerns are well-founded, and additional empirical work is needed to explore the parameters of this form of discrimination and to examine this important and emerging topic more broadly.

In his paper, Professor Selmi weighs in on the topic of algorithm use in workplace decision-making. His paper highlights the ways in which algorithm use could have a positive impact in the employment setting by reducing the role of human involvement in the process, which can be tinged with express or implied bias. Professor Selmi finds the failure of legal scholars to “eager[ly] embrace” these types of algorithms surprising, “[g]iven all that we know about human decision making, particularly its biased nature.” (Pp. 614-15.) In taking this critical approach to the existing scholarship, Professor Selmi addresses the two primary criticisms that are typically advanced about algorithms use: the potential that algorithms may themselves be discriminatory and the inability of the law to eradicate any discrimination associated with algorithms.

Professor Selmi approaches the first issue by asking the broad question of whether it is possible to construct these algorithms in a way where the results are less discriminatory than the traditional use of human review (which involves well-known biases). Examining and comparing traditional decision-making to a more technological-based approach, Professor Selmi concludes that “between an algorithm and a human, the smart money [on which will avoid discrimination] is likely on the algorithm.” (P. 617.)

Professor Selmi’s primary takeaway is that human decision-making has resulted in both express and implicit bias over the years and discrimination continues to pervade the workforce. Thus, while algorithms may still produce discriminatory results if they are flawed in their construction or use flawed data as inputs, there is also the largely unacknowledged possibility that these programs offer the potential to substantially curb discrimination if properly constructed. Essentially, there is no doubt that human decision-making results in discrimination. The use of algorithms, then, while not perfect, offers a potential opportunity to curb existing bias.

Professor Selmi further addresses the concern over the inability of the law to properly address discrimination where it occurs in this setting. He examines the frequent critique of disparate impact law, which addresses facially neutral policies or practices that have a discriminatory effect. He notes the existing academic concerns that the “inscrutable nature of algorithms will make any legal challenge ineffective.” (P. 618.)

Proessor Selmi responds to these concerns by distinguishing between two specific types of algorithms. First, he notes that where this technology is based on algorithms that are easily understood, there should be no new concerns about the application of disparate impact theory which has addressed these types of policies/practices for years.

The more challenging area is the second type of algorithm based on “black-box” formulations. Professor Selmi challenges the existing view that such black-box algorithms result in more difficult discrimination claims. Indeed, Professor Selmi notes that under disparate impact law, employers are required to establish that the algorithm is job-related and consistent with business necessity after a disparate impact is established. Thus, this theory is well-grounded in its ability to require employers to establish the validity of the algorithm. Additionally, Professor Selmi looks at the final step of disparate impact law; the ability of a plaintiff to articulate a less discriminatory approach. He surmises that there will be easily identifiable alternatives to many black-box algorithms that have a discriminatory impact.

Professor Selmi’s work is exceptionally well-researched and written, and the topic could not be more important as we see so many companies moving toward this type of decision-making model. Disparate impact law itself is an underexplored area of the law, and this piece further pushes the academic boundaries of the unintentional discrimination provisions. Professor Selmi’s willingness to take on directly the concern in this area is helpful in considering how employers should approach this topic. His novel and more nuanced view that “the concerns about the law’s impotency seem overstated,” and that workplace algorithms could be created in a way that result in “less discriminat[ion] than human actors” is critical in balancing the ongoing debate in this area. (Pp. 618-19.)

This piece is extraordinary in reframing this debate. It reimagines the role of algorithms in the workplace and the potential use of this technology to lessen any discriminatory effect. The essay pushes the boundaries of disparate law, applying it to the context of modern technology. There is far too little work in this area, and Professor Selmi’s piece is critical in opening an important dialogue in this important field.

Cite as: Joseph Seiner, Technology, Disparate Impact, and Discrimination, JOTWELL (March 22, 2023) (reviewing Michael Selmi, Algorithms, Discrimination and the Law, 82 Ohio St. L. J. 611 (2021)), https://worklaw.jotwell.com/technology-disparate-impact-and-discrimination/.

Critiquing the Critiques of Police Labor Arbitrations

Michael Z. Green, Black and Blue Police Arbitration Reforms, 84 Ohio St. L.J. 1 (forthcoming), available at SSRN.

Police unions are a contentious topic. Labor academics have debated whether limiting unions’ collective bargaining rights would reduce police misconduct, especially excessive force and racial discrimination. For example, compare Benjamin Sachs, Police Unions: It’s Time to Change the Law and End the Abuse, On Labor (June 4, 2020) with Martin Malin and Joseph Slater, In Defense of Police Collective Bargaining, Chicago Sun-Times (Aug. 12, 2020). Relevant here, a New York Times editorial called for abolishing labor arbitration in police discipline cases. To Hold Police Accountable, Ax the Arbitrators, N.Y. Times (Oct. 3, 2020).

These debates and the events that gave rise to them have already led to limits on police collective bargaining. For example, in 2020, the District of Columbia made discipline of police officers a management right not subject to negotiation. See Fraternal Order of Police, Metropolitan Police Dept. Labor Committee v. District of Columbia, 502 F. Supp. 3d 45 (D.D.C. 2020). Other states restricted who could act as an arbitrator in police discipline cases. See Washington State statute SB 5055 and Minnesota statute 626.892.

In this context, Michael Green’s article Black and Blue Police Arbitration Reforms makes a valuable and persuasive contribution. The article rebuts various attacks on labor arbitrators and police union arbitrations. It also offers reforms designed to give Black police officers a voice in a more transparent process. It suggests that police employers and unions negotiate agreements to consider public values in defining “just cause” disciplinary actions in which race matters.

The article begins with the tragic story of Derek Chauvin killing George Floyd. Notably, the local police union president, after Floyd’s death, suggested that Chauvin and other officers involved could see their discharges reversed by a labor arbitrator. Green cites a study that found that arbitrators sided with police officers in about half of all discharge cases in Minnesota. He asks whether this number seems intuitively wrong, especially given that unions tend to only arbitrate cases in which they think their side has a decent chance of winning.

Still, much scholarship and popular writing on this topic have argued that labor arbitration and labor arbitrators are a serious problem in this area. Throughout, Green makes powerful and nuanced arguments about what is, frankly, a problem with no easy and obvious solutions.

For example, he stresses the political power of police, which exists even where police unions lack collective bargaining rights. He notes that politicians have incentives to blame arbitrators. He emphasizes the important role of police employers: for example, their frequent inability or unwillingness to correctly discipline officers who engage in bad acts. He rebuts suggestions that professional arbitrators attempt to “curry favor with both sides.” He analyzes why arbitrators, using standard “just cause” analysis, reverse some employer discipline in cases involving police and other types of employees and finds no significant differences based on occupation. He explains that police receive protections in discipline from “Police Officer Bill of Rights” and civil service statutes independent from collective bargaining rules. He stresses the role of arbitrators in enforcing the rules to which the employer and union have agreed.

Green also offers positive proposals. He calls for more input from Black police officer groups and individuals (e.g., those affiliated with the National Black Police Association) in developing reforms, along with a greater focus on hiring Black officers from the communities they serve. He calls for promoting community policing and diversity. He gives examples of Black police officers and some police departments taking these approaches in various contexts. While these do not involve labor arbitrations, Green argues that the perspective of Black officers regarding arbitrations “would, at minimum, represent a nice next step to seeking some sustaining changes.” (P. 49.) He does not underestimate resistance to reform among many police union leaders, but he predicts that recent changes limiting police union disciplinary arbitrations may create incentives to compromise.

Green also praises negotiations in Philadelphia that created a Police Arbitration Board to ensure arbitrators are trained on implicit bias and that its arbitration roster consists of forty percent women and people of color. This contract also put a civilian on the police department’s disciplinary panel for the first time and provides for civilian participation in all aspects of discipline. He describes the pros and cons of making prior police disciplinary records open to the public. He also positively cites calls for more union-management partnerships in this area. The bottom line is that unions, police departments, and politicians need to work out solutions. The problem is not labor arbitrators.

I have some reservations about one suggested reform: making police labor negotiations and/or arbitrations open to the public to further transparency. While this proposal has been made elsewhere as well, in my view, the history of public-sector laws that required bargaining to be done in public meetings does not suggest that this will be useful. Nor do I think that making police discipline arbitrations public would be an effective mechanism for change. In neither situation would members of the public have any power to affect decisions (although Green does cite an example in Austin in which an advocacy group was able to encourage some reforms). While we have public trials, I wonder whether there would be pressure to make public negotiations and arbitrations for other types of employees, with the inherent additional costs and inefficiencies of doing so.

That aside, I have nothing but praise for this article. Too often, those debating these issues lack a sophisticated understanding of how labor arbitrations in general and in the police context actually work. Professor Green understands the law, the process, the problems, and the politics, and does an excellent job analyzing an extremely important issue. I liked this a lot.

Cite as: Joseph Slater, Critiquing the Critiques of Police Labor Arbitrations, JOTWELL (February 13, 2023) (reviewing Michael Z. Green, Black and Blue Police Arbitration Reforms, 84 Ohio St. L.J. 1 (forthcoming), available at SSRN), https://worklaw.jotwell.com/critiquing-the-critiques-of-police-labor-arbitrations/.

Between BlackRock and a Hard Place

Sanford Jacoby has achieved a truly rare feat: taking a narrow, specialized, and somewhat obscure topic and shaping it into a magisterial narrative that provides true understanding of the players and the drama involved. Labor in the Age of Finance is a tour de force that captures the labor movement’s efforts to muddle through during the ascendance of corporate finance without losing its way. This story has been told in bits and pieces, but never so comprehensively and never so completely. Jacoby marshals a mammoth number of news events, legal theories, political struggles, and vivid characters to recount how unions and their associated pension funds sought to advance their interests in a world hostile to–yet dependent upon–their participation.

For many decades now, the narrative for the labor movement has been one of pessimism and desolation. Since the 1960s, unions have represented a smaller and smaller percentage of private-sector employees, now hovering around six percent of the workforce. The fields of labor law and labor history have ruefully captured the movement’s downfall, with macro analyses and small portraits alike portraying the twilight of labor’s role in society.

At pretty much the same time, corporate shareholders began their ascendancy, as finance theory, corporate law, and a restive investor class combined to buoy shareholder fortunes. The notion that a corporation exists to maximize shareholder wealth went from a somewhat tawdry economic idea to the organizing principle of corporate governance. It should not be a surprise that workers’ wages and corporate profits have diverged significantly ever since, despite ongoing gains in workplace productivity.

In the 1980s, labor unions took a fairly pro-management and anti-shareholder approach to corporate governance issues. Labor supported the passage of state constituency statutes, which gave corporate leaders the freedom to consider the effects of their decisions on all company stakeholders, rather than just their shareholders. But in the 1990s, labor approached corporate and securities law with a new perspective. And that is the story that Jacoby tells in his book.

It’s impossible to provide a succinct and complete overview of Labor in the Age of Finance, as the accumulated material is truly astounding. Jacoby begins in the late 1800s, touching on the nascent labor movement’s relationship to finance and investing, and moves steadily but comprehensively through the New Deal, the birth of corporate governance, the Wall Street of the 1980s, and then on to the last 30 years, which occupies the bulk of the book. Jacoby situates unions and their affiliated pension funds within the evolving landscape of contemporary corporate governance, including mutual funds, private equity firms, shareholder consulting firms, and government regulators. He explains how unions attempted to find their footing as corporate governance advocates, wending their way through existing debates and starting new ones.

Between the early 1990s and the early 2000s, labor perspectives on finance took an almost 180-degree swing: from defending management against shareholder primacy and corporate raiders, to siding with shareholder activists who policed executive malfeasance and pursued shareholder value. Labor groups and pension managers switched sides to lend their support to pro-shareholder policies such as majority voting, non-staggered boards, say-on-pay, and proxy access. Jacoby documents the shift with incredible thoroughness. He brings alive the ideological debates, the internal struggles, the policy successes and failures, and the ultimate result: an approach to corporate governance that cracked down on executive misbehavior but also put shareholders in the catbird seat.

Labor in the Age of Finance is a comprehensive primer on the role that the labor movement and union-backed pension funds have played in shaping corporate governance over the past thirty years. It is jam-packed with so much information that at times, the narrative of a particular chapter can get lost in the details. But Jacoby is also careful to use certain concepts as organizing devices, especially the so-called corporate governance “cookbook:” a set of reforms that labor leaders supported during the 2000s as a series of scandals and crises rocked corporations and the economy. This idea of a policy cookbook assists in understanding labor’s change in perspective, as well as illustrating the limitations of that approach as it drifted further away from labor concerns and deeper into shareholder value.

Jacoby’s book should be considered essential reading for scholars in both labor and employment law, and corporate and securities law. It makes an excellent companion piece to David Webber’s 2018 book, The Rise of the Working-Class Shareholder: Labor’s Last Best Weapon. Webber makes a much more optimistic argument for the role of union-side pension funds in corporate governance, pointing out labor’s successes in fighting Wall Street fraud, reining in CEO power and pay, and blunting the power of hedge funds and private equity. His book demonstrates how labor’s capital fought against entrenched executives and short-sighted speculators to make a meaningful difference in policy. Even Webber must admit, however, that some pension funds adopted the “shareholder primacy” ideology too blindly, disregarding the interests of their own members to ensure stronger financial returns. Jacoby is more neutral on this point, concluding that unions adapted to a harsh climate to make the best of a bad situation. “The financial turn wasn’t heroic,” he acknowledges, leading to troubling tradeoffs and “the messy compromises of realpolitik.” (P. 224.)

This past year has been one of the most promising for the labor movement in quite some time, with strong popularity in public opinion polls and organizing successes at Starbucks, Amazon, Chipotle, and high-profile media companies. The ideology of shareholder primacy has taken significant flak, as millennial investors assert their interests in climate change, racial justice, and other social concerns beyond short-term wealth maximization.

It’s important to understand where we have been going for the last thirty years and how we’ve gotten to this point. I strongly recommend Labor in the Age of Finance and its compelling exploration of the labor movement’s efforts to stay afloat during more difficult and complicated times.

Cite as: Matt Bodie, Between BlackRock and a Hard Place, JOTWELL (January 11, 2023) (reviewing Sanford M. Jacoby, Labor in the Age of Finance: Pension, Politics, and Corporations from Deindustrialization to Dodd-Frank (2021)), https://worklaw.jotwell.com/between-blackrock-and-a-hard-place/.

Dueling Textualisms or Multimodal Analysis? Using Bostock to Show Why No One Is Really a Textualist

Anuj C. Desai, Text Is Not Enough, 93 U. Colo. L. Rev. 1 (2022).

In Text Is Not Enough, Anuj Desai analyzes the Supreme Court’s 2020 decision in Bostock v. Clayton County, which held that it is unlawful for employers to fire individuals merely because they are gay or transgender, to raise several points about the Court’s favorite interpretative tool, textualism. Professor Desai shows that—contrary to the “conventional wisdom” that the Bostock majority and dissenting opinions showcase “dueling examples of textualism”—textual analysis is insufficient to decide the question whether the term “sex” includes sexual orientation for purposes of Title VII. (P. 1.) Accordingly, “in difficult, contested cases, statutory interpretation is unavoidably a multimodal enterprise that involves consideration of, at least, text, semantic context, statutory purpose, history (statutory, legislative, social, and political), social context, precedent, moral judgment, and consequentialist reasoning.” (P. 3.)

Bostock comprises three consolidated cases, only two of which Professor Desai examines: Bostock itself, where the county employer discharged Gerald Lynn Bostock, a Child Welfare Services Coordinator, when his co-workers discovered that he played for a gay recreational softball league; and Altitude Express v. Zarda, where a skydiving company fired one of its instructors when a customer complained that he was gay.1 Both cases raise the legal question of whether employment discrimination because of sexual orientation constitutes discrimination “because of…sex” within the meaning of Section 703(a)(1) of Title VII.2 Justice Gorsuch’s majority opinion says yes; Justice Alito’s and Justice Kavanaugh’s dissenting opinions say no. All three Justices claim that the text answers the question to support their distinct conclusions.

Professor Desai sets up his argument in Part I. Part I.A. faithfully characterizes the textualist arguments of the majority and dissenting opinions. Part I.B. reviews the basic tenets of textualism: (1) judges must glean the “ordinary public meaning” of statutory text to determine the text’s communicative content from the reader’s vantage point; (2) textualism employs deductive reasoning—once judges determine the text’s objective, semantic meaning, they must apply that meaning to the facts. Accordingly, the deductive legal reasoning used in textualism is fundamentally distinct from the inductive legal reasoning of the common law, which compares the facts of a current case to those of previous cases to determine the outcome.

Professor Desai makes his crucial point in Part II: “Bostock shows that, notwithstanding the textualist rhetoric that pervades the case, cases involving statutory interpretation that reach the Supreme Court will inevitably require multiple modes of analysis.” (P. 13.) To support that conclusion, Part II.A shows how Title VII’s text cannot resolve the disagreement between the majority and dissenting opinions. Both sides use a comparator. Justice Gorsuch uses a straight-woman comparator: If Bostock were a straight woman, he would not have been fired. Therefore, Bostock was fired because of his sex. Justice Alito uses a gay-woman comparator to draw the opposite conclusion: If Bostock were a lesbian, he would have been fired. Therefore, Bostock was not fired because of his sex. Desai explains why neither comparator “depend[s] on the semantic meaning of Title VII’s language” (P. 18.):

Neither opinion appeals to the definition of any word or set of words to defend its comparator against the competing comparator. Both make a claim about the semantic meaning of the words; both depend on a claim that “because of” embodies but-for causation. Yet, to go from one argument to the other requires almost a gestalt shift in thinking. Nothing in the structure of the sentence or the definition of “sex” or “because of” or “discriminate” or even “individual” helps us choose which of the two comparators (straight woman v. gay woman) to select. In other words, even the comparator argument, the one that everyone seems to agree is a “textualist” argument, cannot be resolved with text.

Because the text cannot tell us which comparator is superior, judges must interpret the text using context. As Desai explains (II.B.), the majority and the dissents agree that they need not limit their interpretive analyses to linguistic context, but may instead review the social context, “ranging from statutory purpose to the broad moral, political, or social assumptions that drafters and readers would have shared at the time of the statute’s passage.” (P. 22.) For Alito, this means the societal norms in 1964, at which time it would have been “unimaginable” for anyone to think that Title VII protected gay individuals from discharge. Desai criticizes this view, not for going back in time but for

conflat[ing] the distinction between linguistic drift and drift in readers’ moral, political, or social assumptions about what the statutory language could possibly mean. His claim about 1964 seems stronger because of the unexpected real-world consequences of the plaintiffs’ comparator argument. The semantic meaning of the words has not relevantly changed since 1964, but social understandings of the world have. (P. 26.)

Desai spends the remainder of Part II explaining how “choos[ing] between the two comparator arguments…requires deciding about the appropriateness of particular analogies, the bread and butter of the common law.” There is no way to be a textualist in a case like Bostock, Desai claims, because in difficult cases judges must resort to common-law, analogical reasoning to illuminate meaning. He adds that the sex-stereotyping argument (II.C)—that the county fired Bostock because he failed to conform to gender norms—is logically equivalent to the comparator argument but grounded in precedent,3 not text. He also adds that the associational argument (II.D)—discriminating against Bostock for being gay is no different than discriminating against the Lovings for being in an interracial relationship4—is itself another comparator argument. While we have a word for people involved in same-sex relationships (e.g., gay, lesbian, homosexual) we have no equivalent word for people involved in interracial relationships (e.g., heteroracial?). Similarly, we have a not-so-nice word for interracial relationships (miscegenation) but no such equivalent word (miscegenosexual5) for same-sex relationships. These linguistic gaps mask the true force of the associational argument—that it is not truly textual but analogical.6

This leaves us with a completely new narrative. While Justice Scalia convinced even Justice Elena Kagan that “we’re all textualists now,” that narrative is misleading. Sure, we always start with the text in statutory-interpretation cases. But language is nuanced, and judges are not trained linguists. Accordingly, judicial temperament and values will always inform judicial disagreements over text. Professor Desai gives us pause to rethink the textualist paradigm and the force of its rhetoric—the claim that it is apolitical—by showing us just how political textualism really is. Bostock is a perfect vehicle for revealing the political side of textual interpretation.

  1. Professor Desai does not analyze the third case, which held that an employer violates Title VII’s prohibition against sex discrimination when it discharges employees because they are transgender. See E.E.O.C. v. R.G. & G.R. Harris Funeral Homes, Inc., rev’d, 884 F.3d 560 (6th Cir. 2018), affirmed sub nom. 140 S. Ct. 1731 (2020). As Professor Desai acknowledges, the analysis of transgender discrimination “arguably play[s] out differently” than that of sexual-orientation discrimination. (P. 4 n.7.)
  2. 42 U.S.C. § 2000e-2.
  3. See Price Waterhouse v. Hopkins.
  4. See Loving v. Virginia (striking down as unconstitutional violations of due process and equal protection state anti-miscegenation law banning interracial marriage).
  5. See Samuel A. Marcosson, Harassment on the Basis of Sexual Orientation: A Claim of Sex Discrimination Under Title VII, 81 Geo. L.J. 1, 6 (1992) (coining term miscegenosexual); see also Andrew Koppelman, Bostock, LGBT Discrimination, and the Subtractive Move, 105 Minn. L. Rev. Headnotes 1 (2020).
  6. Part III extends this analysis using analogies from sexual harassment law and grounded in Oncale v. Sundowner Offshore Servs.
Cite as: Anne Marie Lofaso, Dueling Textualisms or Multimodal Analysis? Using Bostock to Show Why No One Is Really a Textualist, JOTWELL (November 30, 2022) (reviewing Anuj C. Desai, Text Is Not Enough, 93 U. Colo. L. Rev. 1 (2022)), https://worklaw.jotwell.com/dueling-textualisms-or-multimodal-analysis-using-bostock-to-show-why-no-one-is-really-a-textualist/.

When Customers Become Bosses

Keith Cunningham-Parmeter, Discrimination by Algorithm: Employer Accountability for Biased Customer Reviews, 70 UCLA L. Rev. __ (forthcoming 2023), available at SSRN.

Among the things I like a lot are articles that make me question my original take on a topic. That is certainly true of Keith Cunningham-Parmeter’s Discrimination by Algorithm: Employer Accountability for Biased Customer Reviews. Some of his points are familiar (customer biases are pervasive and, employers, while paying lip service to antidiscrimination values, don’t deploy meaningful strategies to counteract such biased reviews). Others are increasingly accepted (such biases threaten to have more and more concrete employment consequences as technology allows them to be aggregated and acted upon in real time).

But I found most interesting Cunningham-Parmeter’s arguments as to how an employer might be liable for acting on customer reviews it knows (or could know) were discriminatory. And how an employer could avoid such liability but still retain the benefits of customer feedback. I’m not sure I’m totally persuaded on either point, but I gained a much better understanding of the dimensions of the problem and doctrinal challenges dealing with it under current law.

Discrimination by Algorithm’s paradigm case is the gig driver whose overall rating is hovering just over the platform’s automatic cut-off when a low customer review pushes the driver off the platform (although presumably any other low review factored into the rating would also be a but-for cause of the termination). Assuming a given “one star” review is biased, what does Title VII say about this situation? Prior scholarship noted possible disparate impact challenges to the use of customer reviews with such effects, but, as the author notes, a stumbling block is the business necessity defense.

Cunningham-Parmeter focuses instead on whether disparate treatment can be invoked. Under a disparate treatment theory, the customer would furnish the requisite intent to discriminate, and the employer would bear responsibility if it knows or could reasonably know about such bias.

However, agency law presents a challenge to employer liability. Since customers are not employees, how can any of their biases render the employer liable? Discrimination by Algorithm argues that “employer liability for biased customer ratings should depend on the level of delegated authority that customers receive when firms ask them to rate workers.” Cunningham-Parmeter draws a distinction between “action managers”–customers with the “functional authority to fire workers,” by virtue of the rating algorithm–and “advisory clients who provide input on a worker’s performance.” He argues that companies should be strictly liable for biased decisions by “action managers.” Liability can also follow in the “advisory client” context, but only for the firm’s failure to deal appropriately with the bias of such clients.

The latter is perhaps the easier to reconcile with current doctrine. Indeed, in the sexual harassment sphere, employers are often held liable for the actions of third parties, or, more accurately, for failing to deal appropriately with the actions of third parties such as customers. It doesn’t seem a huge jump to apply the same principle to biased customer reviews resulting in adverse actions. Further, the piece also explores “cat’s paw” cases and customer preference cases that, at a greater level of generality, arguably point in the same direction.

But strict liability for a biased customer review that tumbles a worker off an “algorithmic cliff” is harder to justify. Cunningham-Parmeter argues that “action managers are company agents not because firms employ them but because action managers possess the actual and apparent authority to deactivate workers.” While such a view has much to commend it from a theoretical perspective, Discrimination by Algorithm goes further to argue that adoption of this scheme is not such a “doctrinal leap” as some (including me!) might think.

Looking to Title VII’s language defining an “employer” to include “agents,” he explores the “agency theories of actual authority, apparent authority, and ratification [to] help courts analyze the delegated powers that action managers now possess.” I found ratification most plausible. Regardless of potential doctrinal limitations on authority, ratification applies when a principal agrees to be bound in return for receiving a benefit, which arguably embraces the benefit the employer obtains from the customer review.

As for the article’s critical last point–that employers can know, and, therefore, address the biases of customers submitting reviews–the problem is obvious once we’re past the “easy” (and probably rare) cases when the customer uses explicit racist or sexist language. The harder cases involve reviews that simply award a low rating with little or no comment or detail. Discrimination by Algorithm argues that firms could validate customer ratings either “by requesting additional information from users or by comparing negative ratings to objective performance criteria.” On the former point, he suggests asking customers to provide descriptive feedback along with numerical ratings. He makes a good case for the efficacy of such techniques in some cases, but clearly the value of some soft variables (e.g., “friendliness” as opposed to “oversharing”) will often limit this kind of monitoring. And, in many settings, it’s precisely such soft variables that distinguish good workers from bad ones.

That leaves us with “auditing” reviews to identify those that might be biased. This seems to be pretty much a statistical game: has the customer reviewed sufficient workers to make a statistical case of bias? The answer will often be no but maybe, contrary to my initial intuition, frequently yes: a customer who routinely uses, say, Uber or Door Dash will soon have a robust history of reviews and a pattern of under-rating (compared to other customers’ ratings) of protected class members might be easily ascertainable by the very technology that permits the rating to begin with. Excluding such reviews from the overall rating would be relatively easy and, given the small stakes in removing any given rating, largely cost-free.

I was, however, left with some puzzling questions that might be addressed in a later article. For example, does vicarious liability apply even if the auditing and other mechanisms don’t identify bias in a particular review but the worker somehow proves it to have operated? And, speaking of worker identification of a biased review, how is that to happen if, as is usually true, employers shield the identity of reviewers from their workers?

Bottom line: a very provocative read, which I liked a lot.

Cite as: Charles A. Sullivan, When Customers Become Bosses, JOTWELL (November 9, 2022) (reviewing Keith Cunningham-Parmeter, Discrimination by Algorithm: Employer Accountability for Biased Customer Reviews, 70 UCLA L. Rev. __ (forthcoming 2023), available at SSRN), https://worklaw.jotwell.com/when-customers-become-bosses/.

Reworking Seminal Ideas of Employer Causation of Unlawful Anti-Union Discrimination

Joshua Rosenberg Daneri & Paul Thomas, Wrong Line: Proposing a New Test for Discrimination under the National Labor Relations Act, 56 U. Mich. J. L. Reform _ (forthcoming 2023), available at SSRN.

No matter how clear a violation of labor law seems to be, it has to be proven within an administrative agency and upheld, if challenged, by a court. I litigated cases at the National Labor Relations Board (NLRB) for a decade and know full well that, despite how obvious unfair labor practices by Amazon or Starbucks may appear on the surface, they mean little if they cannot be proved before a federal Administrative Law Judge. Within the domain of federal labor law, theories of justice writ large must be fit to rules of evidence and concepts of causation. The recent article, Wrong Line: Proposing a New Test For Discrimination Under The National Labor Relations Act, written by NLRB agents Joshua D. Rosenberg Daneri and Paul A. Thomas (outside their affiliation with the agency) is exactly the kind of work that can help readers explore this fit.

In the kind of union organizing drive that observers are usually interested in, a union arrives on the scene and employees supporting the union are fired. Obviously, this kind of situation has nearly limitless variations. But common to most of them is the employer’s defense: that its decision to fire the employees was not motivated by anti-union considerations. These cases are the “bread and butter” of the NLRB, so how they get litigated is extremely important. The authors argue that the NLRB’s 1980 Wright Line decision, which established how judges are to consider evidence about employer motivation in unlawful termination cases, has for decades gotten these bread and butter “causation” cases wrong. In their view the NLRB should (and is legally able) to revisit Wright Line.

The way beginning labor specialists learn Wright Line is simple. One might even call it elementary. First, we must know what the National Labor Relations Act (NLRA) says (in relevant part) about firing employees who support a union: it is an “unfair labor practice” for an employer to act against an employee “by discrimination in regard to hire or tenure of employment or any term or condition of employment to encourage or discourage membership in any labor organization….” Wright Line in turn says that to prove that an employer violated this provision the NLRB must show that: an employee engaged in protected activity; the employer knew about the activity; and the employer “harbored animus toward both the Union and union activists.” Having established these elements of a “prima facie case”—and this is the important part—the burden shifts to the employer to show it would have taken the same action against the employee despite the known union activities.

Daneri and Thomas help us to recall that, in practical terms, the facially innocuous Wright Line test means that many employers found to have engaged in unlawful anti-union discrimination escape from cases without any legal finding of having violated the NLRA. In its greatest contribution to current scholarly dialogue, Wrong Line reminds readers that the Supreme Court, in its 1983 Transportation Management opinion, upheld the Wright Line test while cautioning that the NLRB could pursue “mixed motive” discrimination in employment differently. To the objecting employer it observed, “[w]e also assume that the Board might have considered a showing by the employer that the adverse action would have occurred in any event as not obviating a violation adjudication, but as going only to the permissible remedy, in which event the burden of proof could surely have been put on the employer.”

In other words, in very close cases in which an employer discriminates at least in part  “to encourage or discourage membership in any labor organization,” the NLRB could find a violation of the NLRA. So, if union organizer Jada is accused of stealing money from the cash register during an organizing drive and the employer pounces on the opportunity to fire her, the result of the case is not necessarily that Jada will lose her job or that the union will lose a top organizer. Rather, that is a question of appropriate remedy, following a finding that the employer has violated the NLRA. Suddenly, an employer who gets rid of the union supporter or organizer and repeatedly wins cases despite its anti-union conduct must now defend its actions as a wrongdoer with unclean hands—and even if the Board does not order that Jada be reinstated, it might order other remedies. This practitioner’s insight is one of the most important observations in all of labor law. That determined anti-union employers can repeatedly use Wright Line to get away with firing workers because of their union activity leaves labor law nearly meaningless.

I also appreciate very much the authors’ focus on what a legal standard like Wright Line—which often lets employers completely off the hook even when part of their motivation for firing a worker is anti-union animus—does to local regional NLRB offices tasked with investigating labor law violations. Often employers present facially plausible defenses for firing employees in dual motivation discharge scenarios. The regional office is under constant and relentless pressure to dispose of cases. This was as true in the era of Clinton/Gore, when I practiced, as in the era of Trump. (One should be under no delusions about the bipartisan, decades-long demolition of labor law). But imagine a regional office that had already found a violation of labor law as opposed to one facing a tough Wright Line defense that might completely scuttle a case later at a formal trial. Which regional office do you imagine is most likely to bore in harder on a case’s preliminary investigation? My money is on the former.

Elsewhere in the article there are statements about causation with which I do not necessarily agree. But those trees should not obscure the forest—Wright Line can and should be changed, and the Supreme Court has already endorsed the idea. Of course, the federal courts have changed since Wright Line, and nobody should underestimate the likelihood of employer and judicial resistance to change. However, this article is a valuable doorway to the debates to come.

Cite as: Michael C. Duff, Reworking Seminal Ideas of Employer Causation of Unlawful Anti-Union Discrimination, JOTWELL (November 3, 2022) (reviewing Joshua Rosenberg Daneri & Paul Thomas, Wrong Line: Proposing a New Test for Discrimination under the National Labor Relations Act, 56 U. Mich. J. L. Reform _ (forthcoming 2023), available at SSRN), https://worklaw.jotwell.com/reworking-seminal-ideas-of-employer-causation-of-unlawful-anti-union-discrimination/.

Should An Employer Be Allowed To Fully Insure Against Employment Discrimination It Facilitated?

Erin E. Meyers & Joni Hersch, Employment Practices Liability Insurance and Ex Post Moral Hazard, 106 Cornell L. Rev. 947 (2021).

In their article Employment Practices Liability Insurance and Ex Post Moral Hazard, Erin Meyers and Joni Hirsch argue employers should not be able to fully avoid employment discrimination liability through employment practices liability insurance (EPLI) when the liability results from employer-facilitated discrimination. The authors suggest full coverage under EPLI triggers ex post moral hazard–“[too little] care in reacting to wrongful employment acts” (P. 973) –and improperly lessens the deterrence employment discrimination liability promises. Their legislative solution would mandate employers pay part of the liability and allow public entities “the power to issue uninsurable fines” (P. 985) for liability stemming from employer-facilitated discrimination. The conditions would not apply to liability for employment discrimination by low-level employees for which the employer is vicariously liable.

The article is fascinating. Though it is as much an insurance article as an employment discrimination article, the definition of employer-facilitated discrimination is at the article’s core. The authors define employer-facilitated discrimination to include discrimination stemming from behavior the employer knew about but declined to address, and discrimination resulting from “a business’s failure to set up a reasonable reporting system for wrongful employment acts.” (Pp. 950-51.) That definition of employer facilitation is reasonable, but will necessarily cause employment-discrimination mavens to ponder if it is over-inclusive or under-inclusive. That is much of the article’s charm.

The relationship among liability insurance, moral hazard, and deterrence is at the heart of this article. Liability insurance arguably triggers ex ante moral hazard – the willingness to engage in risky behavior that might cause loss because such loss would be covered by insurance. EPLI coverage might trigger risky behavior by an employer, which might lead to employment discrimination liability, effectively negating employment discrimination law’s deterrent effect. Meyers and Hersch note EPLI does not appear to lead to ex ante moral hazard more than typical liability insurance, but they conclude it may cause ex post moral hazard – the refusal to address identifiable discrimination that may yield additional future employment discrimination liability because the future liability will be covered.

Using Harvey Weinstein’s (Weinstein) conduct and The Weinstein Company’s (TWC) reaction as an example, the authors argue a high-level executive’s long-term discriminatory behavior that is known to the company involves employer-facilitated discrimination, the liability from which EPLI should not fully cover. TWC’s lack of response to Weinstein’s ongoing discriminatory conduct reflects the ex post moral hazard EPLI incentivizes. Even though TWC appeared knowledgeable about and complicit in Weinstein’s behavior, TWC’s EPLI insurers offered to fully cover TWC’s employment discrimination liability stemming from Weinstein’s behavior. Meyers and Hersch argue an employer should not be allowed to use EPLI coverage to completely avoid liability for such conduct, suggesting full coverage under EPLI may yield coverups that risk additional employment discrimination, rather than investigations and an end to discriminatory conduct.

If Meyers and Hersch limited employer-facilitated conduct to behavior known to the employer, the article would still be interesting, but they also include behavior unknown to the employer due to an employer’s failure to create a reasonable system for reporting discrimination. The proper scope of employer-facilitated conduct is subject to debate. Discriminatory conduct by a high-level executive that likely would have been discovered and stopped if the employer had a reporting system in place arguably is employer-facilitated discrimination. If the primary way discriminatory behavior by high-level executives is brought to a company’s attention is through a reasonable reporting system, the failure to install a reasonable reporting system is a short step away from affirmatively refusing to address that discrimination. Further, reporting systems are common enough that declining to implement one arguably suggests indifference, implicitly inviting discriminatory behavior to continue. If the authors merely intend to suggest an employer’s ignorance of a high-level executive’s discrimination will not be a defense to limited insurance coverage in a case where a high-level executive has engaged in a pattern of discriminatory behavior that would have been uncovered if a reporting system had been in place, their approach is a sensible adjunct to their treatment of Weinstein’s behavior.

However, some might argue the employer facilitation should cover more territory, or less territory. If lack of a reporting system that leads to an employer’s ignorance of discrimination should be deemed employer facilitation in some cases, it could be deemed employer facilitation in all cases. Whether the perpetrator is a high-level executive, a mid-level manager, or lower-level employee, the employer could be deemed responsible for its lack of knowledge. This approach is sensible, but it may conflict with the authors’ suggestion that an employer’s negligent behavior can be fully covered by EPLI. (P. 950.) Unless the employer’s refusal to install a reporting system is an attempt to forestall reporting, its behavior appears negligent. However, if that is so for lower-level employees, it arguably could be so for higher level employees like Weinstein. This is a conundrum.

This Jot does not suggest the authors’ solution is lacking. Rather, it notes the difficulty in distinguishing between situations where an employer should or should not be allowed to fully insure against liability – that is, where discrimination occurred on its watch, versus where it facilitated the underlying discrimination. Meyers and Hersch argue employers should be partially financially responsible for discrimination they facilitate, but readers may disagree about where to place the boundaries of employer facilitation. That makes the article such an interesting read for those steeped in employment discrimination law.

More broadly, the article encourages the reader to think more deeply about corporate responsibility. There is much more to this article that cannot be addressed in this brief Jot. Read the article and you may have even more fun than I did.

Cite as: Henry L. Chambers, Jr., Should An Employer Be Allowed To Fully Insure Against Employment Discrimination It Facilitated?, JOTWELL (October 31, 2022) (reviewing Erin E. Meyers & Joni Hersch, Employment Practices Liability Insurance and Ex Post Moral Hazard, 106 Cornell L. Rev. 947 (2021)), https://worklaw.jotwell.com/should-an-employer-be-allowed-to-fully-insure-against-employment-discrimination-it-facilitated/.

Would You Like Rights With That?

Andrew Elmore & Kati. L. Griffith, Franchisor Power as Employment Control, 109 Cal. L. Rev. 1317 (2021).

Franchising is hardly a recent arrival to the American labor landscape, and yet there always seems to be something new and shocking to say about it. In Franchisor Power as Employment Control, Andrew Elmore and Kati L. Griffith weave together insights that have been percolating in legal and social science scholarship and add in some illuminating perspective for a new spin on the franchising model.

Unlike product franchising, which makes occasional appearances in the 1L Torts curriculum, business-format franchising receives little attention outside the work law universe. This has always struck me as odd: Tesla may still be considered a disruptor for selling directly to the public, but the type of product franchising strategy it’s famous for eschewing is now less ubiquitous—and less cultural influential—than the business-format franchising of a McDonald’s or a Domino’s. To a great and growing degree, we live in a franchised world, one where the sign on the door (or on the uniform, or delivery box) encourages us as consumers to see unitary corporate identity where there is none. At the same time, contracts and manuals demand that courts see independent and equally sophisticated actors where there are none. Despite this puzzling and omnipresent set of circumstances, business-format franchising continues to receive little attention in mainstream legal scholarship.

Elmore and Griffith bring some much-needed perspective to this situation, and in the rest of this Jot I’ll outline four ways in which their article contributes to both our understanding of business-format franchising and of work law more generally.

First, and alongside a growing cohort of work law scholars, Elmore and Griffith critique the exceptionally narrow understanding of freedom and control that have come to characterize American work law. Using the language of “direct” and “indirect” control, they show how courts have “often discount[ed] indirect control and require[d] evidence of direct, day-to-day supervision… to support a determination of joint employment.” (P. 1328.) This undue focus on “direct” control—essentially, a negative conception of freedom according to which only affirmative interference in another’s activity triggers liability—is something I’ve noticed in the gig work context as well, but it gets far too little attention in the franchising universe.

Second, and building on this first point, Elmore and Griffith offer nuts-and-bolts insight into how acutely control can be felt in the franchise context despite the absence of direct oversight. For instance, a Domino’s franchisee “stated that Domino’s reduced the score of one of his stores because an employee with an ingrown hair condition ‘didn’t have a doctor’s note’ to justify facial hair longer than an inch.” (P. 1354.) This kind of detail, which is usually only available through ethnographic social science is crucial to dismantling work law’s emphasis on negative freedom or direct control.1

Third, Elmore and Griffith gesture heavily towards the mileage employers get out of claims that they are merely protecting their “brand value.” They note, for instance, that the main purpose of “operations manuals is to ensure that food preparation and ‘brand standards’ are uniformly implemented in franchised restaurants,” and that courts often agree that this focus on brand maintenance changes the implications of franchisor control. (P. 1347.) Although I’ve been struck by the exculpatory power of brand management in the gig context, and although the legitimacy of brand maintenance is often asserted by franchising enthusiasts, this issue has received too little critical reception in work law literature. What remains to be seen is whether law can catch up to the way brand management is understood in business literature—particularly in services marketing scholarship—where brands are recognized as co-created by firms (or franchisors) and workers (or franchisee employees).

Despite these contributions to our understanding of both business-format franchising and other work relationships, the undoubted centerpiece of Elmore and Griffith’s article is its focus on the powerlessness of franchisees. Worker-friendly commentators have tended, quite understandably, to focus on the far ends of the franchise relationship: on the franchisor, or lead firm, and on the individual employee who has no direct contractual relationship with that lead firm. This kind of polar orientation makes sense since the goal of most critical commentary is to argue that the lead firm should incur greater liability than it currently does (somewhere not too far from zero) for the poor working conditions of the individual employee.

But what Elmore and Griffith do to unusual and excellent effect is to focus on the connection between the lead firm and the franchisee, clarifying just how powerless that intermediate actor actually is. “Franchisors’ power to control is embedded into the very structure of the franchising business model,” they write. (P. 1338.) This is unarguably true; even franchising’s supporters describe the model, appreciatively, as “a business form that borders on a dictatorship.”2 From their study of franchising contracts, Elmore and Griffith note that 34 of the 44 contracts “give the franchisor… broad power to terminate,” almost all (41 of 44) “give franchisors the sole discretion to decide whether to renew,” and 38 of 44 “contain a restriction on competitive behavior after contract termination.” (Pp. 1340–44.) This emphasis on the unseen middle of business-format franchising—the franchisee—is powerful. It conveys exactly why franchisors ought to be held responsible for so much of what occurs in their franchisees’ businesses: not only because the individual employees are so vulnerable (although they are) but also because the franchisees themselves are deeply vulnerable vis-à-vis their lead firms.

Altogether, Elmore and Griffith offer a valuable and comprehensive take on a longstanding problem in work law, and they do so in a way that offers ready applicability to other types of labor relationships.

  1. Robin Leidner, Fast Food Fast Talk: Service Work and the Routinization of Everyday Life (1993).
  2. William L. Killion, Putting Critical Decision Making Where It Belongs: Scouring the Franchise Agreement of the “D” Word, 24 Franchise L.J. 228 (2005).
Cite as: Deepa Das Acevedo, Would You Like Rights With That?, JOTWELL (September 29, 2022) (reviewing Andrew Elmore & Kati. L. Griffith, Franchisor Power as Employment Control, 109 Cal. L. Rev. 1317 (2021)), https://worklaw.jotwell.com/would-you-like-rights-with-that/.

Will NDAs Survive the #MeToo Era—and Does the Public Want Them To?

Gilat Juli Bachar, The Psychology of Secret Settlements, 73 Hastings L.J. 1 (2022).

I read Professor Gilat Bachar’s excellent article, The Psychology of Secret Settlements, when I was wrapping up my own settlement negotiations and finishing a law journal article about my experience with harassment and retaliation by a former supervisor. While I was contemplating whether to sign a settlement agreement, I searched for research about complainants’ considerations and public perception about confidentiality agreements. Professor Bachar’s research found  that both the severity of the wrongdoer’s misconduct and the victim’s financial status impact public support for Non-Disclosure Agreements (“NDAs” or “secret settlements”).1 Specifically, when the misconduct is more severe, and when the victim is more financially secure, the public opposes the use of NDAs; whereas when the misconduct is less severe, and when the victim is less financially secure, the public supports the use of NDAs. This public support, Professor Bachar argues, is important. If the public broadly endorses “sunlight laws” (laws limiting or altogether banning NDAs), these policies will be more effective, because less oversight and enforcement will be necessary. Professor Bachar’s empirical findings make important contributions in the area of employment litigation at a time when more states are enacting laws to restrict employers’ use of NDAs in employment discrimination cases.

In the #MeToo era, fifteen states have passed laws restricting or prohibiting the use of NDAs, either as a condition of employment or as part of a settlement agreement. However, as Professor Bachar argues, there are circumstances in which not just employers, but also mistreated employees, benefit from NDAs. Not only can victims potentially be “made whole” through financial settlements, but they may also seek confidentiality in order to avoid unwanted public attention and “victim blaming.” If one goal of the #MeToo movement, and the subsequent push to restrict the use of NDAs, is to affirm survivors, Professor Bachar asks, shouldn’t we respect their right to privacy, and support their desire to move on with their lives? Perhaps the obligation to blow the whistle on misconduct and to publicly identify harassers should not fall on victims. By restricting employers’ ability to trade money for silence, Professor Bachar argues, we may unintentionally disadvantage financially insecure victims who cannot afford to invest time and money in employment litigation.

Professor Bachar highlights two important tensions before introducing her research question, which asks, To what extent, and in what circumstances, do lay people support sexual harassment NDAs? The first tension is between the public’s interest in shining sunlight on misconduct, and the victim’s interest in confidentiality. The second tension is between the public’s right to know about misconduct, and its desire to know about it. Professor Bachar cites media reports from the 1980s about public hazards, which led to a wave of sunshine laws to prevent employers from concealing environmental hazards and dangerous products. She compares this to the recent rush to ban employment discrimination NDAs in the #MeToo era in order to protect the public against harassers.

In Professor Bachar’s study about public attitudes toward NDAs, she separated participants into four groups, in which they read a scenario depicting workplace sexual harassment and were then asked to approve or reject an NDA under the circumstances. The four categories were: sexual joke (low severity) and financially struggling victim; sexual joke and financially stable victim; exposing genitalia (high severity) and financially struggling victim; and exposing genitalia and financially stable victim. The study also asked participants to rate the relative importance of additional pieces of information to their support for an NDA, including whether the wrongdoer engaged in a pattern of harassment and whether the wrongdoer was terminated as a result of their behavior.

As I have detailed about my own experience, an individual’s decision about whether to sign an NDA in a case of workplace harassment can be very difficult. Beyond individual cases, Professor Bachar’s findings have important policy implications as we engage in public conversations about workplace misconduct in a variety of industries. First, if blanket confidentiality bans disproportionately harm financially unstable victims, it is important to create safeguards that protect victims’ ability to bargain. For example, laws could prevent employers from requiring NDAs in employment discrimination cases, but could still enable victims to choose them. Importantly, Professor Bachar argues that “allow[ing] victims to negotiate a settlement would help ensure confidentiality bans do not give rise to a chilling effect, discouraging victims who do not wish to speak out publicly from reporting the harassment they experienced.” (P. 40 n.1.)

Additionally, since Professor Bachar’s research suggests strong public opposition, among all political affiliations, to NDAs in cases of severe harassment, perhaps lawmakers advocating for sunshine laws should focus on banning NDAs in severe cases as an interim solution. However, as Professor Bachar concedes, it is important to define “severe” harassment, and further research is necessary. Professor Bachar’s findings also point to avenues for further study. She found that study participants seemed particularly interested in preventing “repeat offenders” from avoiding accountability for workplace misconduct. Further research should gauge how public support for NDAs is affected by information about the wrongdoer’s repeated misconduct.

Ultimately, the decision to sign an NDA, and the choice to speak publicly about one’s experience with workplace harassment, are deeply personal ones. I decided to share my story publicly in order to empower others. I was unwilling to sign an NDA that would restrict my writing, speaking, and advocacy. However, those are choices that not everyone would make. Professor Bachar’s research teases out some important factors—severity of wrongdoing and financial status of victims—that policymakers should consider as they explore the implications of sunshine laws for employment NDAs. However, both #MeToo advocacy work and legislation should consider the interests of marginalized victims, who may weigh confidentiality versus publicity concerns differently and be the least able to speak up for themselves.

  1. Professor Bachar uses the term “victim” rather than “survivor,” so I also use that terminology in this review.
Cite as: Aliza Shatzman, Will NDAs Survive the #MeToo Era—and Does the Public Want Them To?, JOTWELL (August 16, 2022) (reviewing Gilat Juli Bachar, The Psychology of Secret Settlements, 73 Hastings L.J. 1 (2022)), https://worklaw.jotwell.com/will-ndas-survive-the-metoo-era-and-does-the-public-want-them-to/.