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

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

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

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

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

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

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

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

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

Professor Morris ends with the following summary:

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

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

 
 

Losing the Battle, Winning the War?

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

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

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

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

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

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

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

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

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

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

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

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

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



  1. §9.09, cmt. A of Tentative Draft No. 6 describes the duty of loyalty as “a prime example of employee’s fiduciary duty owed to an employer.” []
  2. §8.08, cmt. A of  Tentative Draft No. 4 says “the obligations of [the duty of loyalty] vary according to the employer’s legitimate interest and the nature of the employee’s position, including whether the employee exercises managerial responsibilities . . . .”  In tension with §9.09, it goes on to say that “[s]ome courts refer to a “fiduciary” duty of loyalty when dealing with managerial employees . . . but not when dealing with nonmanagerial employees.” []
  3. §8.04 cmt. D bars “actively recruiting” co-workers, but not informing them of plans to compete. “In addition, a group of employees may agree among themselves to start or join a competing business” as long as so many are urged to depart that the employer’s business is “immediately crippled.” Ill. 5 identifies a group of “social friends since graduating from the same school.” []
 
 

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

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

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

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

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

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

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

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

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

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

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

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

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

 
 

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

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

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

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

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

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

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

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

 
 

The Trouble with Heuristics in Sexual Harassment Litigation

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

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

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

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

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

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

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

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

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

 
 

A Fresh Look at Dukes

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

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

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

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

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

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

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

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

 
 

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

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

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

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

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

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

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

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

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

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

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

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



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

Choose or Lose

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

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

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

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

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

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



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

The Uncertain Impact of Wal-Mart v. Dukes

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

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

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

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

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

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

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

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

 
 

Res Ipsa Loquitur & Employment Discrimination?

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

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

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

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

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

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