Worklaw

Alex B. Long

I’m still fascinated by employment retaliation cases.  Not so much traditional labor law.  I’ve generally lost interest.  But Michael C. Duff’s forthcoming essay on the possible implications of the National Labor Relations Board’s decision in Parexel International serves as a reminder to me (and others) that the NLRA might still have some role to play in addressing retaliation even in non-union workplaces.

Parexel involved an employee who claimed she was fired for complaining about what she believed was employer favoritism on the basis of nationality.  Her complaint was internal, the workplace was non-union, and she had not yet mentioned her concerns about favoritism to her co-workers, let alone sought to rally their support.  These facts take the case outside the range of the typical charge of interfering with the right to engage in concerted activities.  Moreover, as Duff chronicles, existing Board precedent was only somewhat helpful to the employee’s claim that she had been fired for exercising her right to engage in protected concerted activity.  Yet, the Board found the employer had violated by Section 8(a)(1) of the NLRA by seeking to prevent protected concerted activity.  In other words, the employer violated the Act by trying to nip concerted activity in the bud.

While approving of the outcome, Duff questions the Board’s application of existing precedent in Parexel and offers an alternative rationale for the Board’s decision.  Duff argues that even if the employee in Parexel had not actually engaged in protected concerted activity, Section 7 of the Act provides more expansive protection.  Section 7 guarantees the right to engage in concerted activities, and it was that right the Parexel employer interfered with, Duff argues.  Given the fact that one employee’s complaints of unlawful employer behavior may benefit other workers, it is reasonable to presume that other employees would support the employee’s actions.  Thus, “the stamping out of a lone complaining worker may represent an attack on the right of all workers to engage in concerted activity for their mutual aid or protection.”

There are actually numerous retaliation cases brought under anti-discrimination statutes that involve similar employer behavior.  The decisions split as to whether this type of “anticipatory retaliation” is unlawful.  Compare Beckel v. Wal-Mart Assocs., Inc., 301 F.3d 621, 624 (7th Cir. 2002) (stating that anticipatory retaliation can be unlawful under Title VII), with Booker v. Brown & Williamson Tobacco Co., 879 F.2d 1304, 1313 n.3 (6th Cir. 1989) (stating that anticipatory retaliation cannot be unlawful under Michigan Civil Rights Act).  Courts have also split on the related question of whether an employer who retaliates against employee on the mistaken belief that the employee has or is about to complain about employer behavior has engaged in unlawful retaliation.  Compare Brock v. Richardson, 812 F.2d 121, 125 (3d Cir. 1987) (holding mistaken belief retaliation to be unlawful under FLSA), with Ackel v. Nat’l Commc’ns, Inc., 339 F.3d 376, 385 (5th Cir. 2003) (holding mistaken belief retaliation to be lawful under Title VII).   Therefore, Duff’s new essay contributes to the dialogue on the increasingly relevant issue of workplace retaliation.

But Duff’s most significant contribution with this essay is his reminder of the fact that the NLRA may have a role to play in such cases.  Indeed, Duff argues that retaliation claims most naturally find their home in traditional labor law.  Anticipatory retaliation, Duff argues, represents “an attack on the right of all workers to engage in concerted activity for their mutual aid or protection.”  Since labor law is “the only body of law explaining to workers by virtue of its very existence that there is indeed safety (and power) in numbers,” labor law should have a role to play in addressing the problem.

Matt Bodie

Citizens United remains in the public consciousness long past the normal half-life for a Supreme Court decision.  The notion that “corporations are people” has become a punch line in a variety of contexts—proof of the absurdity of the Court’s opinion.  While the decision itself simply freed corporations from the constraint of political action committees in their election-related spending, it has engendered continued outrage and cynicism at both the political process and corporations themselves.  The fact that the opinion extended these rights to unions, as well, has received much less attention.  Perhaps more importantly, the decision has ramifications for the future of corporate and union political activity that are yet to be fully developed.  Two labor law scholars explore these ramifications in articles seeking to extend the principles of Citizens United to familiar labor law doctrines, with creative and thought-provoking results.

For Charlotte Garden, the Citizens United decision offers the opportunity to extend the argument she began in an early article¹: namely, that union speech deserves greater constitutional protection. In her Citizens, United piece, Garden uses the opinion as a springboard for reconsidering two significant restrictions on union speech: the prohibitions on union secondary activity and the objection rights of employees covered by union security clauses.  She argues that the distinction between “public-issue” picketing and boycotts (by groups such as the Westboro Baptist Church) and “economic” picketing and boycotts (by unions) is vulnerable in light of Citizen United, which held that the corporation’s motive is irrelevant to First Amendment protection.  Because both corporations and unions cannot be stopped from engaging in political speech, Garden suggests that union campaigns may be protected if they take on more public-interested oriented themes.  And she also points out that since Citizens United overrode the concerns of objecting shareholders to corporate political speech, that opinion undercuts the protections for employees who object to paying union dues that fund political speech. Although acknowledging that the analogy is “not an exact one,” Garden argues that protecting union objectors but not shareholder objectors is a tough distinction to maintain, given that in both cases speech rights are pitted against administrative burdens, but with differing results.

Benjamin Sachs explores this shareholder-employee distinction at length in Unions, Corporations, and Political Opt-Out Rights.  For Sachs, the symmetry of Citizens United in terms of union and corporate treasuries is a false one, given the asymmetrical opt-out rights.  Although quitting one’s job may seem a more significant burden than not investing in a stock, Sachs endeavors to show that, in terms of legal principle, the two burdens are more alike than has been appreciated.  Using philosophical notions of coercion, he argues that both the decision not to work and the decision not to invest have coercive features, and that in both cases economic power over certain economic opportunities is deployed to secure support for a political agenda.  He also points out that since states have significant control over the structure of corporate governance, there is no less state action in the corporate context than there is in the union context.  Rather than solving the asymmetry by liberating union treasuries, Sachs instead proposes that shareholder speech rights should be given more protection.  He discusses potential federal- or state-provided mechanisms for shareholders to remove their pro-rata share of assets from the pool of corporate money available for political speech.  He also argues that public employees should have the right to object to mandatory pension investments in funds that include corporate shares and, therefore, fund corporate speech.

Garden and Sachs do a nice job of problematizing the distinctions between corporate and union treasuries when it comes to political speech.  As they point out, economic power is used in both the union and the corporate context to secure support for political agendas.  However, I worry that their argument proves too much.  What do we do about other economic relationships?  The decision to purchase a car provides money for corporate political speech to the carmaker, as does the decision of employees to work for that carmaker.  Should consumers and employees have free speech opt-out rights, too?  It is hard to imagine where one might draw a principled distinction.

In my view, the best approach is to recognize that both unions and corporations engage in political speech to advance their economic interests.  SEIU did not support President Obama as an outside ideological lark; it supported him because it believed he would best promote its economic interests.  And its work paid off; during the time leading up to the passage of health care reform, no one had more access to the Oval Office than SEIU President Andy Stern.²  Because union representation is a heavily regulated industry, unions must give money to political candidates in furtherance of their economic interests.  Businesses understand this.³  Unions understand this as well.  It is the notion that political and representational funds can be segregated that needs to be pitched out the window.

Both Garden and Sachs have nicely used the Court’s analysis in Citizens United to raise questions about the future of corporate and union speech.  Their articles should push the Court to consider the ramifications of its decision beyond the immediate context.

1. See Charlotte Garden, Labor Values Are First Amendment Values: Why Union Comprehensive Campaigns Are Protected Speech, 79 Fordham L. Rev. 2617 (2011) [↩]
2. Chris Lehmann, Andy Stern: the New Face of Labor, Washingtonian, March 1, 2010, available here. [↩]
3. For a terrific exploration of this point, see Jill E. Fisch, How Do Corporations Play Politics?: The FedEx Story, 58 Vand. L. Rev. 1495 (2005). [↩]

Kerri Stone

Scholars who opine on issues of workplace discrimination know that the lifeblood of their scholarship is the work of those who conduct studies that capture and document the phenomena about which they write.  Those researchers who conduct such studies with an informed eye toward the law are thus invaluable to employment discrimination scholars, and it was with great interest that I read Gender Harassment: Broadening our Understanding of Sex-Based Harassment at Work by Emily A. Leskinen, Lilia M. Cortina, and Dana B. Kabat, 35 Law & Hum. Behav. 25 (2011).  The study, in the authors’ own words, seeks to “challenge[] the common legal and organizational practice of privileging sexual advance forms of sex-based harassment, while neglecting gender harassment.”

Citing to eminent scholars who have contended that gender harassment should be subsumed within the broader category of cognizable sexual harassment, the authors explain that gender harassment has been defined as “a form of hostile environment harassment that appears to be motivated by hostility toward individuals who violate gender ideals rather than by desire for those who meet them.”  Simply put, it is “hostility that is devoid of sexual interest.”  Proffering some much needed empirical support for the notion that gender harassment is at least as deleterious, if not more so, than its actionable counterpart, the authors advance ideas that may not have entered cultural consciousness, but that need to be properly understood by legislators, judges, advocates, scholars, and all others who shape and affect the law of workplace discrimination.  So, for example, the authors’ research enables them to posit that sexual harassment, in what they call “traditionally male domains,” mostly consists of gender harassment absent any sexual advances.  This compelling finding necessitates a shift in the popular conception of what sex-based harassment in the workplace truly looks like.  Moreover, the authors’ research enables them to posit that the negative personal and professional impact of gender harassment in the workplace on women is immense.

The article begins with a thorough and thoughtful recitation of the relevant types of harassing behavior and the relevant legal history of and perspectives on that which is cognizable harassment.  It concludes that while not formally precluded from inclusion in the category of actionable sexual harassment, gender harassment has been “routinely . . . neglected by the law,” with many federal judges averse or even hostile to the idea that “anti-female animus,” unacted upon, was ever intended by lawmakers to run afoul of Title VII. It discusses the failure of researchers and the subjects of their studies alike to recognize gender harassment as sexual harassment or as being as pernicious as sexual harassment.  It explores the ways in which and the reasons why gender harassment is corrosive to so many women’s sense of wellbeing in the workplace, observing that it transmits a message to women “that they are inadequate, out of place, and unable to perform at the level of men.”

With all of this in mind, the researchers developed two hypotheses: 1) that gender harassment, absent unwanted sexual overtures, would be the most commonly experienced type of sex-based harassment experienced by women; and 2) that even when women experienced gender harassment without a trace of sex-based harassment, they would report negative professional and personal results.  Moreover, the researchers carefully selected two traditionally male-dominated workplaces as the backdrop for their studies: the U.S. military and federal legal practice.  Their findings were compelling: the most common type of harassment experienced by women in the military and in federal legal practice was, in fact, gender harassment without sexual coercion or attention.  As the researchers put it, gender harassment “is not about misguided attempts to draw women into sexual relationships; quite the contrary, it rejects women and attempts to drive them out of jobs . . . .”  Further, gender harassment absent sexual behavior was, in fact, shown to have numerous negative outcomes, including, among others, lower levels of performance at work, psychological well-being, and professional and personal satisfaction.

In light of Title VII’s broad remedial goals, the work of those like Leskinen, Cortina, and Kabat is essential to advancing the jurisprudence that will permit the law to comport with the realities of the modern American workplace.  There should be much more work like theirs to support and further thought and scholarship in this field.

Henry Chambers

In Wal-Mart Matters, 46 Wake Forest L. Rev. 95 (2011), Lesley Wexler challenges the law and economic orthodoxy that suggests that inefficient employment discrimination tends to be driven out of the marketplace.  The typical rationale is that employers who discriminate will have higher costs of production based on their inefficient discrimination and will necessarily be less competitive than their competitors.  Professor Wexler describes how systematic sexual discrimination can exist indefinitely even when an employer’s successful business model focuses almost exclusively on efficiency and providing the lowest cost goods in the marketpalce.  Wal-Mart Matters is an article that I like lots because it discusses employment discrimination and law and economics in challenging a point of orthodoxy and explaining why the orthodoxy may not be convincing or correct in a particular situation.  To be clear, the article is not an exhaustive treatment of the issues and does not appear intended to be.  However, it makes the reader think  about how a theoretical point regarding markets may not work as well as expected in a real-world market.  The subject matter is of particular interest to me because I teach employment discrimination and have taught law and economics.  However, the article ought to be of interest to a wide variety of law professors and legal commentators.

The article is timely, but its title is a little unfortunate.  Given the article’s timing, its title may suggest to some that it is about the Wal-Mart litigation that was decided by the Supreme Court this past year.  Though Wal-Mart and its practices are at the core of this article, the litigation is only a point of departure.  Rather than analyze the substance of the class action against Wal-Mart, Professor Wexler asks that the reader assume that the allegations of sex discrimination in pay and promotion that are at the core of the litigation are supported or supportable.  Professor Wexler then examines how a widespread practice of seemingly irrational sex discrimination could exist at Wal-Mart given law and economics principles that claim that irrational discrimination will be driven out of the marketplace and given that Wal-Mart appears to follow a practice that focuses on efficiency as a business model.

Professor Wexler first discusses Wal-Mart’s corporate policies and suggests that Wal-Mart’s professed business model focused on efficiency is real.  That focus on efficiency allows Wal-Mart to squeeze as much productivity out of its workers and as much profit out of its business as possible. The result appears to be lower prices, significant market share and significant profits.  As Professor Wexler indicates, “The decision to focus on costs as a business model is rational and one that a fully competitive market would likely reward if a company could maintain low-price leadership.” (P. at 101).

The article then notes that a focus on lowering costs can trigger rational discrimination.  Indeed, a preference for low costs through hiring low cost workers is consistent with a focus on efficiency and rational discrimination.  Attempts to avoid workers with disabilities who need to be accommodated may lower costs if the employer is not caught.  Workers who are more likely to join unions or are less likely to conform to corporate culture may be viewed as more costly than other workers.  Not hiring them may lower costs.  Workers who may be thought to be likely to get pregnant or likely to leave the workforce may be thought more costly.  A low-cost employer may rationally and sometimes legally or illegally discriminate against all such workers mentioned above.  That type of discrimination can be pervasive precisely because it is rational.  Indeed, economic arguments recognize that rational discrimination may not be driven out of a competitive marketplace without regulation precisely because it is rational.

However, the article focuses on supposed irrational discrimination, the type of pervasive and widespread discrimination alleged in the Wal-Mart class action.  The Wal-Mart plaintiffs claimed that Wal-Mart’s “uniform corporate culture” includes gender stereotyping that has led to various assumptions that trigger discrimination.  Those assumptions include that customers and employees may prefer to work in somewhat sex-segregated departments.  Such assumptions may have led to assignments that left women in lower-paid departments at Wal-Mart.  Similarly, plaintiffs claimed that many Wal-Mart managers assumed that women were or should be secondary wage-earners in their families and could be paid accordingly.  These stereotypes, if applied systematically, could lead to the widespread sex-based pay and promotions disparities the class claimed.  However, such systematic discrimination would also appear to lead to pay and promotions being mismatched to Wal-Mart’s most productive workers.  That type of discrimination would appear to be the type that Wal-Mart would abhor as an efficiency-based business.  It is also the type of discrimination that law and economics scholars suggest would be driven out of the competitive marketplace as those who were undercompensated for their skills would move to competitors who would compensate them properly for their talents.

Law and economics principles tell us that, over time, firms that pay based on something other than merit would arguably have an overpaid or underperforming workforce.  That would drive those firms’ costs up and make them less efficient and less profitable than their competitors.  Given Wal-Mart’s focus on efficiency and market position, the discrimination asserted in the lawsuit would seem inconsistent with economic theory and the reality of Wal-Mart’s focus on efficiency and low-cost production.

The article then explains how broad and pervasive sex discrimination could persist at Wal-Mart.  Professor Wexler posits a market failure in Wal-Mart’s case.  Market failure suggests that the market in which Wal-Mart operates does not operate as a perfectly competitive market.  This is a sensible conjecture.  Economists rarely assert that markets are perfectly competitive; they merely explain what would happen if a market were perfectly competitive.  Consequently, analyzing what might occur when the conditions necessary for a perfectly competitive market are not met is sensible.

The article suggests that the typical factors that might normally police discrimination and help drive it out of Wal-Mart may not exist.  Professor Wexler posits that Wal-Mart’s workers may not perceive any incentive to push to change policy.  In addition, they may have insufficient information or power to alter policy.  Additionally, market competition may not serve to alter Wal-Mart’s putative behavior.  Wal-Mart’s market position and the possibility that its competitors have similar policies may allow irrational discrimination to persist. Lastly, Professor Wexler suggests that consumers may not know about Wal-Mart’s practices or may not care enough given the benefits Wal-Mart confers in lower prices to collectively pressure Wal-Mart to change putative discrimination.  After suggesting that Wal-Mart is not functioning in a perfectly competitive market, the article suggests that the claim that discrimination will be driven out of a perfectly competitive market may not be applicable in Wal-Mart’s situation.

I like Professor Wexler’s challenge to a typical oversimplification that some make regarding law and economics.  By focusing on how markets actually work rather than on how markets that are perfectly functioning might work, Professor Wexler provides useful analysis of the real world.  Economic analysis is a wonderful tool for describing many varied types of situations.  However, some academics rarely use the entire economics toolbox.  Professor Wexler starts to do so by using market failure – another tool in the economist’s toolbox – to analyze the plausibility of the claims made in the Wal-Mart class litigation.  Challenging a standard analysis with additional analysis that sharpens and explains issues is what law professors do best.  Here, the sharpening of issues helps provides a possible explanation of how widespread sex discrimination may exist in a firm committed to efficiency even when such sex discrimination itself may be inefficient.  That is why Professor Wexler’s article is one I like lots.

Michael C. Harper

It is probably fair to generalize that the best American legal scholarship in the fields of labor, employment, and employment discrimination law has found little inspiration in the study of comparative law. Hugh Collins’s analytic and insightful but succinct overview of British employment law — republished in 2010 in a second edition to account for significant developments in response to European Union law — should teach any perceptive American reader that this need not be the case. This two hundred sixty page volume demonstrates that studying how other developed countries have addressed common issues presented by the employment relationship not only can help define practical and conceptual problems for American law to address but also can help spark creative thinking about solutions.

Professor Collins, who has served as general editor of the Modern Law Review and twice successfully led the law department at the London School of Economics, places the employment law of Britain in both an historical and political-social context. The historical context includes our common nineteenth century liberal tradition of free contracting and our common twentieth century response of industrial pluralism to the “commodification” of labor and the resultant threats to economic and political stability. The political-social context includes the sometimes divergent influences from America and Europe, with the latter becoming more dominant through European Union directives.

The volume has great breadth, ranging from employment discrimination law to labor relations law, from wrongful dismissal law to privacy law, from restrictions on employee competition to health and safety law. Collins covers all topics treated in any common American law course in labor, employment, or employment discrimination law. The book does not purport, however, to be a comprehensive treatise or any kind of definitive research source for those unfamiliar with British law. Instead, it is a descriptive and prescriptive review and conceptual organization of a field of law by a clever intellectual, equally comfortable with the tools of legal analysis and the findings of modern social science.

In an attempt to provide a conceptual underpinning for his review, Collins, who is also a scholar of contract law, illuminates what is distinct about the employment contractual relationship, including its general take-it or leave-it quality, its usual incompleteness and necessary assignment of authority, its frequent expectation of relatively long duration, and its necessary attendant distributive and time-control issues. Collins then uses three complementary goals of European Union law to organize the legal topics he addresses under three general headings: social inclusion (which features employment discrimination law); competitiveness (which features labor relations law as well as wrongful dismissal and economic security law); and citizenship (which features rights-based principles, including those protecting freedom of speech and association and privacy).

The book is written at a level of generality that makes a comparison with American law both easy and instructive. The description of the current British law governing collective bargaining, for instance, reveals its close tracking of the American system of work-place, rather than sector-wide, bargaining through exclusive agents who must fight employer resistance to achieve recognition and then rely on their own economic leverage rather than the coercive power of a state regulator to achieve more favorable terms for their constituents. This description also reveals the same limitations of the system in an age of global competitiveness and capital mobility. Yet, one difference in the systems, as presented by Collins, is suggestive of a possible change in American law that could help revivify American labor. Collins stresses that British law allows employers “to negotiate a recognition agreement that confines the scope of collective bargaining to topics where the employer can perceive advantages in more cooperation and consultation,” even while avoiding a topic such as pay. Imagine the possibilities for growth for American labor unions, protected by a robust section 8(a)(2) from the competition of company unions, if employers were both free of the constraints of Majestic Weaving and also desirous of some benefit that a union could provide, such as a fair arbitration system to handle employment discrimination grievances in the wake of Pyett.

Collins’s review of the British law governing the topics encompassed by American employment discrimination law also is both instructive and suggestive. The development of British law has generally followed the lead of American law on these topics, disparate treatment is denominated direct discrimination, disparate impact is termed indirect discrimination, retaliation is victimization, and affirmative action is positive discrimination. The concepts are the same, however, and the defenses seem to be similar as well, though all encompassed within an ostensibly vague principle of proportionality derived from European Union law. As described by Collins, British employment discrimination law highlights the same legal problems, but seems not to have offered solutions beyond those offered by American law, except perhaps for the problem of unequal pay for work of comparable value. Here, the more flexible concept of proportionality may offer a balance that allows employers to account for labor market constraints without being completely unfettered in the depression of wages in female-dominated jobs.

Perhaps the most interesting and suggestive section of the volume for American readers is the treatment of British law on discipline and dismissal, including chapters on wrongful dismissal and on economic dismissals. British law on these topics, though derived from similar common law traditions, has been more influenced by the European Union and thus varies more from American law than do current British labor or employment discrimination law. Collins description of British dismissal law is sufficiently rich to infer multiple ideas for legislation to mitigate the less employee-protective American common law. But Collins does not overstate the efficacy of the British variations. As a good lawyer, he understands the importance of limited remedies and the lack of bite in standards like a “band-of-reasonable responses” test for assessing employer reasons for disciplinary dismissals. Thus, even while his description of British law suggests possible reforms in American law, Collins highlights potential difficult unresolved issues such reforms would present.

Collins, I should add, is a felicitous writer. If one reads this volume as one should, not as some heavy tool for research, but for inspiration, as one might read a good novel or history, it reads as easily and with as much, or at least almost as much, forward impetus. I can suggest some good relevant British novels or histories for inspiration for those who wish to email me. For those who wish inspiration from a book on law, however, I suggest this work.

Paul M. Secunda

One of the more noticeable effects of the on-going global financial crisis is the increased attention being paid to the amount of money being spent by state governments on public pension plans. Unlike private sector pension plans, which are governed by the federal Employee Retirement Income Security Act of 1974 (ERISA), public pensions are instead covered by a vast array of complex state laws and regulations.  So while most people are pointing out that something must be done about the burgeoning public pension funding deficits, many have been stymied about how to undertake the amendment of these plans in a legal fashion.

Part of the problem is that states have adopted different legal theories to protect public pension rights. To some states, pension rights are property rights, while in other states, pension rights are contractual in nature.  Still a few states adhere to the traditional approach and see public pensions as mere gratuities.  In any event, and as many states have found out much to their dismay, the business of amending a public pension plan is a tricky one, filled with legal minefields. Just ask the states of Colorado, Minnesota, and South Dakota, which have been all sued after seeking to reduce the annual cost-of-living- adjustment (COLA) for current retirees.

All this chaos in the public pension plan world requires some ordering principles. At least as far as organizing states’ various legal approaches to public pension plans, Amy Monahan’s paper, Public Pension Plan Reform: The Legal Framework, does exactly that.  Understanding that many states are either currently going through a process, or contemplating a process, to amend their public pension plans to save money in these difficult economic times, Monahan first explains the difference between private pension plans and public pension plans, and then effectively explains the primary legal approaches states have taken to protect public employee pension rights.

As Monahan points out, regardless of which legal theory a state has adopted to protect pension rights, most state pension plans in the United States have done a poor job securing the retirement security of its public employees.  More specifically, because “each state’s law is responsible for setting the applicable limits on changes to its own public pension plans,”  these “approaches are generally far less clear than the federal approach, often provide less flexibility, and are often administratively unwieldy.” (P. 619)

Monahan does an excellent job surveying the typical approaches to amending public pension plans and pointing out many of the problems with these approaches, especially in financially difficult times.  For example, where states treat their pension promises as contracts, she discusses federal and state constitutional contract clause challenges when states seek to amend their state pension plans. She points out, quite rightly, that such states are subject to these constitutional challenges because pension changes tend to cause a substantial impairment of the contract without being able to show that it was reasonable and necessary to an important public purpose (i.e., saving money alone has not been deemed an important public purpose).  The upshot is that it is very difficult for states with pensions based on contractual theories to reform their public pension plans even when the need to do so is obvious and dire. On the other hand, public employee’s pension rights are protected too little where states have adopted property theories because challenges to pension reforms based on the Takings Clause or based on substantive and procedural due process have generally proved to be unsuccessful.

Although a few previous articles have discussed legal issues surrounding public pension reform, what sets Monahan’s article apart is its comprehensiveness, clarity, and innovation in setting out new suggestions for reform.  More precisely, Monahan suggests that a specific version of the contract approach be adopted by states.  Identifying the problem with current contract-based approaches as being the lack of a definite time period, she maintains that states should find “a contract to exist but specify[ ] that the contract is formed on an ongoing basis as services are performed.” (P. 642)  The advantage of this approach is that it allows either side to modify the terms of the contract and makes future pension reform possible.  In other words, pension plan participants would be protected in already accrued benefits, but public employers would have more flexibility in changing the future rate of benefit accrual.   Monahan’s overall point is that, “advocates for reform [should] . . . argue for jurisprudential changes based on changing conditions.  Public sector plans have not kept pace with the market as a whole, in large part because state jurisprudence has fixed such plans in time.” (P. 646).

Although I believe Monahan’s paper to be an indispensable read for anyone contemplating the legal problems surrounding the amendment of public pension plans, I do have some minor criticisms.  First, some states, like Wisconsin, have adopted more than one type of legal theory upon which to base their public pension plans. Some case law in Wisconsin recognizes the contractual basis of pension rights, while other cases focus on pension rights as property rights.  Does such a hybrid approach do a better job of protecting accrued pension rights while at the same time providing public employers the needed flexibility to amend plans in difficult financial times?

Second, I would have liked more discussion about whether public pension plans should switch from a defined benefit approach to a defined contribution approach as part of the solution to the larger problem of underfunded public pension plans.  A high percentage of private-sector pension plans are now defined contribution plans, meaning that employers are generally not responsible for having sufficient funds on hand when employees retire. These employers simply make a one-time contribution and there are no subsequent pension funding responsibilities. On the other hand, because most public pension plans are defined benefit plans, employers are responsible for maintaining the financial health and actuarial soundness of these plans so that sufficient funds exist to pay their employees pensions during their retirements.  For instance, would a shift to defined contribution plans in the public sector solve the financial issues without undermining the “significant labor market effects [of] influencing who enters public service and how long they remain employed[?]” (P. 618)

Nevertheless, with these additional ideas for extending the reach of this article placed to one side, Monahan acquits herself exceedingly well in reviewing this complex, and often neglected, regulatory landscape.  Additionally, we certainly concur in believing that the time is well past nigh “for state courts to revisit their public pension plan jurisprudence.” (P. 646)

Joseph Seiner

In Bell Atlantic v. Twombly, 127 S. Ct. 1955 (2007), and Ashcroft v. Iqbal, 129 S. Ct. 1937 (2009), the Supreme Court substantially altered the pleading standard for civil litigants.  To proceed with a civil claim, plaintiffs must now allege enough facts in the complaint to state a “plausible” claim for relief. In her article, Front Loading and Heavy Lifting: How Pre-Dismissal Discovery Can Address the Detrimental Effect of Iqbal on Civil Rights Cases, Professor Suzette Malveaux  superbly discusses how these recent cases have had a particularly dramatic impact on civil rights litigation.  The impact of Iqbal on this area of the law is often overlooked, and she does an excellent job of explaining how the plausibility standard will impact these litigants.

In her Article, Professor Malveaux begins by critiquing the Iqbal case, highlighting some of the many problems with this decision.  She notes that the Iqbal Court failed to consider the allegations in the case “as a whole,” that in practicality it is often difficult to separate out conclusory from nonconclusory assertions as the decision requires, and that the standard adopted by the Court appears to be a “probability test” rather than a plausibility inquiry. (P. 81-83.) She further accuses the Court of endorsing “judicial fact-finding” at the early stages of the proceedings. (P. 84.)

As Professor Malveaux correctly observes, “[w]hile the Federal Rules of Civil Procedure are trans-substantive, their impact is not.” (P. 67.)  One area where that impact has been noticeable is in the civil rights context.  Professor Malveaux believes that the plausibility standard “threatens the viability of potentially meritorious civil rights claims.”  (P. 85.) In her paper, she highlights how these claims are particularly susceptible to dismissal under the Court’s plausibility analysis.  Most notably, intentional discrimination claims often involve the pleading of factual information that is consistent with both lawful and unlawful conduct.  Similarly, it can be difficult for plaintiffs – without access to discovery – to plead facts supporting intentional discrimination.  This is true because discrimination is often “subtle” and the facts which would typically support this type of claim are “often in [the defendant’s] exclusive possession.” (P. 89-91.)  Finally, determining plausibility is a subjective process, and “personal perception, rather than the law, threatens to become outcome determinative.” (P. 93.) This may be particularly problematic for civil rights plaintiffs, as the judiciary can be hostile to such claims.

Professor Malveaux does an excellent job of identifying the difficulty civil rights plaintiffs face with the new plausibility standard.  Her paper goes further, however, and provides a potential solution to this problem.  Professor Malveaux argues that permitting some discovery early in the proceedings will help alleviate many of the difficulties faced by plaintiffs – a process that she terms “plausibility discovery.” (P. 108.) She maintains that this approach is necessary “to insure that the trans-substantive application of the Rules does not work an injustice against those cases involving informational inequities.” (P. 108.) Professor Malveaux further outlines what this type of “narrow, targeted plausibility discovery at the pleadings stage” might look like. (P. 108.) More specifically, she explores how pre-merits discovery has been permitted to proceed in various other contexts, including class-certification, qualified immunity, and jurisdictional disputes.  She concludes that where necessary, judges have already “adeptly managed” this type of discovery.  (P. 122.) Professor Malveaux further discusses how plausibility discovery comports with both the federal rules and policy considerations, and effectively explains how this process could work in practice.

The plausibility standard announced by the Supreme Court has generated significant confusion and debate both in the courts and in academia.  Professor Malveaux’s contribution to this debate is substantial.  The impact of the Court’s standard on civil rights claims is one of the most important issues currently facing plaintiffs, and Professor  Malveaux does an outstanding job of identifying the potential problems in this area, as well as offering a workable solution.  Plausibility discovery is itself quite plausible, and it should be closely considered by the courts to allow valid civil rights claims to proceed.  This paper was one of several excellent pieces in a symposium issue of the Lewis & Clark Law Review.  All of these articles can be downloaded here.

Matt Bodie

How and why do workers join unions?  These most basic questions remain the source of significant academic and policy debate.  Over the past two decades, unions, employers, and scholars have refocused on the importance of organizing and, in turn, the law relating to employee representational choice.  The Employee Free Choice Act—currently in legislative limbo—would dramatically change the current structure by allowing unions to collect signature cards from a majority of the workers to be represented.  Under the current system, however, unions must provide signature cards from at least thirty percent of the employees in order to move on to a secret ballot election.  In the campaign period before the election, both parties are allowed to press their case vigorously—within limits.  In a notable turn of phrase, the NLRB endeavors to establish “laboratory conditions” during the campaign period in order to determine the “uninhibited desires” of employees.  General Shoe Corp., 77 N.L.R.B. 124, 127 (1948).  As it turns out, establishing laboratory conditions is largely confined to a series of prohibitions: no threats, no bribes, no racially inflammatory speech.  There is no obligation to insure that employees have the information they need to make a proper decision.

In Communication Breakdown, Professor Hirsch takes a new and compelling angle on this regulatory approach.  While recognizing the importance of protections against coercion, he argues that the law has thus far overlooked the importance of positive employee discourse.  He makes his case systematically.  First, Hirsch marshals economic and psychological concepts to support the critical role of discourse in group cooperation.  Using the work of scholars such as Olson, Ostrom, Axelrod, and Bar-Tal, Hirsch convincingly demonstrates how communication of information between interested parties is a critical catalyst to collective action.  Without communication, parties cannot identify and evaluate collective interests or develop a plan of concerted action.  Information-packed communication exchange—which Hirsch calls “discourse”—must be protected and even encouraged in order for employees to determine whether they would benefit from unionization.

Communication Breakdown then analyzes the existing labor law doctrine on workplace communication and finds it mostly missing.  Hirsch has a real talent for explicating the work of the NLRB and courts in labor law.  Here, he first discusses the hurdles to employee communication posed by the modern workplace: increased employee mobility, lower job security, and increased workplace complexity.  He notes that while electronic communication can overcome some barriers to discourse, face-to-face speech is particularly important in establishing trust.  (He uses psychological research here to convincing effect.)  The law has largely failed to address these challenges, and instead has ignored them or made them worse.  Hirsch works through many of the doctrines surrounding employee speech and representation campaigns and finds that they fail to account for the role of discourse.  He takes on card-check certification and points out the weaknesses in that system’s ability to provide for information exchange amongst employees, employers, and unions.  He then evaluates several potential ways in which the NLRB might better foment and support employee discourse on workplace issues.  Indeed, the Board has already moved to implement one of Hirsch’s suggested reforms—a notice posting describing NLRA rights—through a proposed rulemaking.

There are many things to like about Hirsch’s approach in Communication Breakdown (even beyond the Zeppelin reference).  First, he begins his analysis with an interdisciplinary inquiry into the actual structure of employee cooperation and coordination.  He then moves from the economic and psychological models into doctrinal dissection, and he expertly shows how theory points up the weaknesses of the current regulation.  This blend of interdisciplinary and doctrinal analysis is in the best law review tradition, and it moves the ball significantly in the literature on employee representational choice.  Second, Hirsch is not afraid to go where the analysis leads him, even if it may transgress traditional ideological categories in the bar and academy.  For example, Hirsch points out some weaknesses in the card-check approach, even though that approach is extremely popular with academics.  His critique is nuanced, subtle, and balanced; that is his modus operandi.  But in a field that can be polarized and polarizing, Hirsch follows his scholarly lodestar.  Third, Hirsch opens up a new avenue for future analysis.  His definition and categorization of “discourse” provides a new way for scholars to approach the issue of employee choice.  Communication Breakdown demonstrates that innovation in labor law is alive and well, and need not be at the expense of rigor or pragmatism.

In this seemingly post-EFCA era, perhaps it is time for a new discourse between academics and policymakers on better ways to manage employee representational choice.  Communication Breakdown will be an important part of that conversation.

Samuel Estreicher

Much has been written about arbitration of employment disputes in the nonunion sector.  Much of this literature is theoretical and declamatory, rarely involving an examination of actual institutional arrangements, outcomes and perceptions.¹ Some work has been done on outcomes in nonunion arbitrations, but these are hobbled by the inability to track the path different claims may take, including withdrawal and settlement.² Employee perceptions have been studied in the union sector, but almost nothing has been done in nonunion companies, and certainly nothing that is able to provide a direct measure of innovations in alternative dispute resolution (“ADR”)  systems in a given workplace.

Armed with a Ph.D. in Management from the Sloan School at MIT, his J.D. degree from Cornell, and management labor-side experience at Twentieth Century Fox and several  law firms,  Zev Eigen of  Northwestern University School of Law is uniquely positioned and likely to improve this state of affairs in the study of the nonunion workplace.   Eigen understands economics and the importance of revealed behavior but he is equally sensitive to the insights of psychologists like my colleague Tom Tyler. Perceptions of fairness affect behaviors, which have feedback effects for each other.

Eigen’s first work as a law teacher built on his dissertation, under Tom Kochan of MIT’s supervision.  It was a study of employee perceptions of the fairness of adhesive contracts, The Devil in the Details: The Interrelationship among Citizenship, Rule of Law and Form-Adhesive Contracts, 41 Conn. L. Rev. 381 (2008).

In the work under review, Eigen and his coauthor, Adam Litwin, have obtained access to a truly remarkable data set spanning more than 100,000 workers and more than 1,000 locations across the United States provided by a large nonunion company, which they have dubbed “Gilda”s, Inc.”   The authors use employee surveys commenced before the company introduced a four-step ADR system and continuing for several years afterwards—permitted ‘before and after” comparisons of employee perceptions.   The four steps of the ADR system were (1) employee initiation of a claim with management, (2) appeal to the HR department, (3) further appeal to either a peer review panel or unilateral determination by higher-level HR management, and (4) if still not satisfied, resort to final, binding arbitration.

Eigen and Litwin are interested in employee perceptions of voice and justice.  “Procedural justice” is a measure of how employees perceive the fairness of the procedures employed in a particular system; “interactive justice,” the authors tell us, is a measure of employee perceptions of how well their interests are being taken into account by management in making decisions. They find that the company’s introduction of a formal 4-step ADR system culminating in arbitration resulted in a decrease in “perceived formal procedural justice” but an increase in “perceived informal procedural justice” as well as an increase in “perceived interactive justice.”

One would expect, in theory, to find all three measures advancing in the same direction.   It is especially interesting that employees are able to distinguish between the quality of the formal procedural justice they are receiving in the employer’s decision-making process from the quality of the informal procedural justice of those procedures, but one would think that the direction should be other way—that perceptions of formal justice are increasing while perhaps the discretion of management and perhaps other informal processes are on the decline.  Moreover, the introduction of the new ADR system has no discernible impact on employees’ organizational commitment—another counterintuitive result.

Explaining these results will take further work. The authors suggest that employees are perceiving a kind of low-level resistance to the new program by their immediate supervisors: “Immediate supervisors might be incentivized to encourage their employees to trust them to resolve claims instead of allowing HR or Gilda’s as a corporate entity to do so.  Perhaps local managers are actively encouraging employees to trust them, which could be interpreted implicitly as being encouraged to distrust Gilda’s DRS or the company writ large.”  (p. 15) This dynamic is consistent with low-level supervision’s disquiet with the formal processes introduced by union contracts.

I applaud the coauthors, and especially Professor Eigen, for an important contribution to our understanding of ADR in the nonunion workplace.  I look forward to further contributions by Zev Eigen.

1. See Samuel Estreicher, In Defense of Theory : Notes on the Production of Legal Scholarship, 10 The Green Bag 2d 49, 51-53 (2006). [↩]
2. See Alexander J.S. Colvin, An Empirical Study of Employment Arbitration:  Case Outcomes and Processes; David S. Sherwyn, Samuel Estreicher & Michael Heise, Assessing the Case for Employment Arbitration:  A New Path for Empirical Research, 57 Stanford L. Rev. 1557 (2005). [↩]

Charles A. Sullivan

One might question the wisdom of a young, not-yet-on-the-market, scholar basically arguing that most of us in her field—including me—have been wrong in important ways. But wise or not, Katie Eyer’s article, That’s Not Discrimination: American Beliefs and the Limits of Anti-Discrimination Law (forthcoming in the Minnesota Law Review) is a remarkable piece of research and exposition. She has an ability to deal with complicated issues in a lucid and spritely prose style. I almost enjoyed being informed how wrong I was!

Katie’s a Research Scholar at Penn and her piece starts with the conventional wisdom of 21^st century employment discrimination law: there’s a lot of bias out there, maybe mostly of the unconscious type, but, in any event, pretty pervasive. While scholars like myself have proposed ways to deal with this reality insofar as federal judges are concerned, Katie suggests a deeper problem: “most people in most factual circumstances are unwilling to make robust attributions to discrimination.”

The implications of this should be obvious, but haven’t been: even if various academic schemes successfully dodged the Scylla of judicial gatekeepers, plaintiffs would still run afoul of the Charybdis of juries being resistant to inferring discrimination – “[E]ven when there is substantial evidence of traditional invidious discriminatory intent (including so-called “direct evidence”), most people will decline to make attributions of discrimination.” In fact, the author finds judicial and lay attitudes remarkably similar as regards the likelihood of discrimination.

If true, this reality would certainly put pain to efforts to deal with cognitive bias or discriminatory workplace cultures, at least efforts that rely on traditional litigation for vindication. Not only are such efforts not likely to do any good but they may do harm “by further expanding the capaciousness of discrimination doctrine” and thus widening the chasm between it and popular perceptions.

And Katie makes a persuasive case. Although others have observed the increasingly reluctance of society to believe that remaining inequalities are the result of intentional discrimination, That’s Not Discrimination undertakes an in-depth discussion of the psychological literature. That research shows that both minorities and the majority are unwilling to attribute negative outcomes to discrimination. For example, she cites a study in which mock jurors were presented evidence of discrimination that plaintiffs’ attorneys would salivate over (including plaintiff’s boss saying that “women should only be in subservient positions” and that he wanted to replace women with men). Almost half the “jurors” nevertheless found against the plaintiff. Other studies show that subjects themselves attribute their failures to discrimination far less often than the evidence presented to them would seem to support.

The article explores possible reasons for this phenomenon, including the cognitive dissonance that would result from discrimination existing in nation widely thought to be a meritocracy. But I can’t do justice to her analysis in this short review, so I won’t try.

However, I do want to highlight her central normative argument. She concludes her descriptive discussion by arguing that “crediting the findings of psychology scholars, both of the most commonly suggested types of reform seem likely to have significant limitations as mechanisms for meaningfully improving outcomes for discrimination litigants.” I think this is euphemistic way of saying many of us are barking up the wrong tree.

So what’s the right tree?  It’s here (as is often the case) that her critique flags. She argues for greater resort to “extra-discrimination remedies.”  No, that doesn’t mean even more discrimination. It means looking to “virtually any remedy for group-based inequality that are not founded in discrimination claims,” such as anti-poverty initiatives and just cause legislation. She then provides a laundry list of other examples, including the FMLA, school-based antibullying legislation, and common law claims. She believes that, while such situations would logically seem to also conflict with deeply-held notions of America as a meritocracy, such claims are not viewed as being as far-fetched as discrimination claims, which trigger “uniquely hostile responses.”

She does anticipate one objection to de-racing and de-sexing discrimination laws: “Most individuals who are deeply invested in the antidiscrimination enterprise  . . . care about discrimination because it is discrimination.”  But with a certain heartlessness she responds that it’s not like you guys are winning a lot of victories under the current regime.

It’s hard to disagree with either Katie’s observation or her rebuttal of the likely response, but I have another reservation: I’m not so sure that employee-leaning scholars and practitioners are doing so well in employment law read broadly. Actually just the opposite.

I hope the somewhat breezy tone of this review doesn’t suggest that I am not a very big fan of this article.  I am. Whether or not I agree with Katie, That’s Not Discrimination is a thought-provoking piece well worth a read. I anticipate that Katie will be an important, and welcome, new voice in the academy’s employment precincts.