As the Reporter primarily responsible for the chapter defining the employment relationship in the recently completed Restatement of Employment Law, I thought I had fully considered and taken account of the origins and various instances of judicial confusion in distinguishing employees from independent contractors. Thus, I was especially surprised to have my understanding of the confusion substantially enhanced by Julia Tomassetti’s recent conceptually deep article. Tomassetti argues that an understanding of the unusual and contradictory nature of employment contracts and their development is necessary to explain judicial confusion when defining employment, and that it is not sufficient simply to highlight the challenges posed for courts by the nontraditional work relationships in the modern economy and the many multifactor indeterminate tests that have been developed to supplement the traditional but inadequate “right to control the means and manner of work” test.
Tomassetti contends that the principal source of judicial confusion derives from the law’s presumption that the traditional master-servant relationship is incorporated into employment-at-will relationships. These relationships entail the employer’s ongoing discretionary control over the employee’s means of production, while concomitantly providing the non-indentured “free labor” servant with the leverage of a right of exit at any time. This atypical type of indefinite contract has seemed to courts different than service contracts containing work specifications even when those specifications seem to cover not only what is produced (the ends) but also how production is to be accomplished (the means). Tomassetti provides many examples of courts rejecting employment status for service relationships defined by what she terms “upfront contractual specifications” (UCS) that would entail employment status if the specifications were imposed by employers through the ongoing exercise of their contractually presumed discretionary control. The courts, viewing contracts as the products of bilateral negotiations, assert that the specifications express a bargain between businesses, regardless of how bad a bargain the terms express for the service provider.
Tomassetti’s argument has two main components: first, a historical analysis of the unusual and contradictory nature of employment contracts; and second, a demonstration of how courts have been confused by this nature when denying employee status to workers whose means of work is controlled by their contracting partners through “upfront contractual specifications”. For her historical analysis, Tomassetti, who has a doctorate in sociology as well as a law degree, draws heavily from the work of other scholars, notably the great institutional labor economist, John R. Commons, and the labor law historian, Christopher Tomlins. Tomassetti explains that employment is both a “contract between civic equals,” as is any contract, and also “a relationship between a subordinate and superior” deriving from the historical choice of the master-servant template. Relying on Commons, she stresses that employers and employees are “continuously” and “simultaneously” bargaining and producing as the employees work and the employers direct. Control through contractual specifications, rather than only through continuing bargaining, however, highlights the contract part of the relationship, and thus provides courts with a rationale for accepting the subordinate-superior relationship as one between independent “civic equals.”
Tomassetti’s article provides many examples of how courts use contractual specifications, including ones that control the means and manner of production, as justifications for denying employment status. Some of these examples are from cases challenging FedEx’s classifications of its drivers as employees despite the contractual specification of work time, compensation, routes, and work details. Other examples provide even more blatant examples of judicial confusion, with courts making assertions such as: “setting out in detail…obligations…is nothing more than the freedom of contract” that “is significantly different than the discretionary control an employer exercises daily over its employees’ conduct.” Tomassetti, moreover, notes further examples of what she terms “meso formalism” where courts reject as evidence of employment status even contractual terms that require workers to obey or cooperate with the discretionary orders of the agents of putative employers.
Tomassetti’s project is only to explain the “unintelligibility” of the law defining the employment relationship. She does not offer alternative intelligible doctrine or tests or even express views on what should determine the scope of laws protecting or securing rights for employees. She does no more than introduce the concept of “capitalist exploitation,” ascribed to both Weber and Marx, and then note that it can be based on definite contractual terms as well as on the imposition of an employer’s superior bargaining power in production.
I believe, however, that her explanation can be used to support a reformist agenda, like that embodied in the Restatement of Employment Law, to articulate more determinate doctrine that does not founder on the distinction between contractual and production control her examples highlight. The unintelligibility of legal doctrine is not inevitable, even if the misuse of the doctrine by elite-sympathetic judges is. Despite Tomassetti’s conclusions, even the inadequate means versus ends distinction, so important to the traditional doctrine, is not rendered unintelligible by its misuse by judges using contract law to protect the discretion of employers. Distinctions can be made and should be made. Some service contractual relationships, even when bargaining leverage is not equal, are less likely than others to benefit from protections fashioned for employees. At least, whether such protections should apply may require different policy balances.
Tomassetti’s unwillingness to offer a route around doctrinal confusion or the contradictions of the employment contract does not detract from her contributions in this article. The article’s unusually creative and deep analysis demanded my attention, and I think should demand that of all concerned about this increasingly important issue in employment law.
I have long admired Professor Michelle Travis’s work, but I was impressed all over again by her recent SSRN article, Disqualifying Universality Under the Americans with Disabilities Amendments Act, to be published in the Michigan State Law Review. There’s a lot to like in her piece, and I can’t begin to capture the entire article, but I do see a theme—“hidden in plain sight”—which I’ll try to sketch out here.
Professor Travis’s overarching argument is that the qualification question has become the emerging gatekeeper for ADA claims, threatening to replace the “disability” barrier that the courts erected and that Congress demolished with passage of the ADAAA. In a nutshell, because courts are putting the burden of persuasion on the employee to establish that she is a “qualified individual,” and that qualification requires an ability to perform the “essential functions” of the job, what is “essential” is often outcome determinative for ADA plaintiffs.
She’s not the first to notice this, of course, since Professor Travis builds on the empirical work of Steve Befort and Nicole Porter. But she makes several contributions, one of which is to trace the troop movements in the qualification counterrevolution. She does this by documenting the advice peddled by management law firms and human resources organizations in reaction to the ADAAA. That’s what I mean by hidden in plain sight: we all have seen individual examples of this, but I at least had no idea on how grand a scale or how effective this movement has become. A critical strategy is to advise employers to rewrite job descriptions to throw in the kitchen sink, that is, to include all possible functions as essential, including mental, not merely physical, functions; employers were also advised to frame environmental factors (such as tolerating excessive noise or high temperatures) as essential functions. The more comprehensive the list, the more likely a disabled individual will be unable to perform one or more of the items on it. (Although hopefully the Achilles heel of this strategy is the likelihood that others operating under the same job description aren’t performing the same tasks or under the same conditions.)
A second contribution of Professor Travis is in exploring how management attorneys have pushed the courts to give deference to employer job descriptions in deciding what is—and is not—essential. And more importantly, how much deference post-ADAAA lower courts have accorded them. Although the statute itself requires a court to give “consideration” to such descriptions, it does not require deference. Indeed, as Professor Travis makes clear, deference is contrary to the thrust of the ADA. Nevertheless, the article demonstrates that that is how job descriptions are being treated across a number of cases. Speaking of making the fox the keeper of the henhouse. Again, a phenomenon that I, at least, did not appreciate until I read Disqualifying Universality.
Professor Travis even reports several decisions that basically allow the employer to define an essential function as not being disabled! This is an extreme example of confusing the function—the tasks entailed in the position—with the qualifications of the employee in question, which leads to her third point. Building again on Nicole Porter’s work, she finds that the courts are conflating the function question with both employer norms about when and where the function is to be performed and with the employee’s qualifications to perform that function.
With respect to the former, defining a job as requiring an employee’s presence at a particular time and place means that an employee who can’t work a particular schedule is unqualified, and therefore not protected by the statute—regardless of whether he could perform the tasks involved from a distance. This is not exactly news, Professor Travis having dealt with this issue at length before, but recent events make it worth flagging. I refer specifically to EEOC v. Ford Motor Co., where the en banc Sixth Circuit just reversed a panel decision that challenged the prevailing wisdom that regular attendance was an essential function for all, or almost all, jobs
But the second conflation—the tendency of the courts to mischaracterize qualification standards as job functions—is a troubling development that went largely unnoticed in the literature before Professor Travis raised it. The statute requires that qualification standards be justified as a business necessity, but Professor Travis points out that this scrutiny can be avoided if what ought to be a qualification standard is instead viewed as an essential function. She cites several examples, one being a district court decision deferring to the employer’s job description by finding that lifting 40 pounds was an essential function. Had the court proceeded correctly, lifting would have been the essential function and the employer would have had to justify the 40-pound requirement as a qualification standard for that function. Instead, the employee in question was found unqualified without requiring the employer to show that the job required lifting such weights.
I could go on. Professor Travis has equally interesting things to say about the direct threat defense (you guessed it, not posing a threat to oneself or others is an essential function) and whether it makes any sense to require a regarded as plaintiff to prove that he or she is otherwise qualified (it doesn’t, even if the statute seems to so require). But I’ve written enough to suggest that this article is well worth the read for those interested in the future of the Americans with Disabilities Act.
Legal scholars in a wide range of areas have used now well-settled developments in cognitive psychology to argue for doctrinal changes in the definition of actionable discrimination. Implicit biases have been shown to cause discrimination against minorities and women, yet the law has developed to penalize only fully self-conscious race and sex-based decisions. Legal scholars and many lawyers’ organizations have enthusiastically embraced the social science that demonstrates people act on biases when they do not always self-consciously realize it, and have engaged in massive educational efforts with the idea that education will change people’s views of what discrimination is and their behaviors that perpetuate it. But changes in legal doctrine have not followed.
In On Using the Psychological Science of Implicit Bias to Advance Anti-Discrimination Law, Erik Girvan draws on jurisprudential and psychological insights to explain why that is so, and he pledges to offer a path towards future research that will more likely lead to doctrinal change. In short the efforts have failed because scholars use classical legalist jurisprudence instead of legal realism and because scholars are victims of naïve realism. The classical legalist jurisprudential model fails to recognize the force of extra-legal influence on judges’ decision-making as explained by legal realism. And naïve realism is a social psychological theory of how people behave when they learn others do not share their beliefs. Naïve realists assume that education alone will change the doctrine.
The article provides a useful and thorough summary of the range and depth of the psychological literature on implicit biases. Describing replicated field experiments and studies of employer, police, and school official behavior, Girvan highlights the troubling results:
- Black job applicants without a criminal record have about half the rate of success of white applicants with the same qualifications, and about equal success with white applicants who have a criminal record.
- In the stop and frisk policy used by New York Police, the officers stopped white residents, who were one-third of the population, 10 percent of the time and black residents, who were less than a quarter of the population, more than 50 percent of the time; only 12 percent of any of the stops led to an arrest or summons; and weapons were found only 1.5 percent of the time, and weapons and contraband were found more often on white people than on black people.
- Black children are more than 30 percent more likely to be disciplined for discretionary violations even controlling for demographic behaviors and despite the fact that they do not engage in more problem behavior than white children.
Despite these studies and experiments, employers, police officers, and school officials are rarely liable for discrimination. These experiments do not show that any particular actor’s purpose was to treat black people differently because they were black. That is what the legal doctrine requires. As Girvan shows, one reason that the legal doctrine developed this way was because the psychological model of discrimination at the time posited that discrimination was caused primarily by explicit biases, which were overt until the social norm against prejudice gained strength, and which remained but were hidden from public expressions after that. It was not until the 1990s that the study of stereotypes and automatic psychological processes developed to show how implicit biases changed perception, judgment, decision-making, and behavior in systematic ways that disadvantaged minorities. Legal scholars began to urge courts to adopt this behavioral realist approach in discrimination doctrine in the mid 1990s, assuming that education about this new evidence of how discrimination happens would compel the courts to keep pace. That assumption was simply wrong.
Implicit racial and sex-based biases are not the only psychological states that effect perceptions, judgments, and decision-making, though. There are a wide variety of other attitudes and beliefs that filter these processes as well. As Girvan explains, “Social psychologist[s] generalize this basic phenomenon in the concept of construal, the idea that: ‘The impact of any “objective” stimulus situation depends upon the personal and subjective meaning that the actor attaches to that situation.'” Naïve realism fails to consider this possibility in others or ourselves. The consequence is that we tend to believe 1. that we are unbiased; 2. that other rational people will share our perceptions and judgments if they have the same information; and 3. that if they don’t share them, it must be because those people lack the information, are irrational, or are biased. This description fits the efforts of legal scholars, lawyers, and lawyer organizations very well.
By pointing out the way that naïve realism explains the failure of doctrine to change, Girvan performs a valuable service to those working towards change. But he does not stop there. Girvan goes on to describe some of the challenges that face those working for change. For example, the social science research does not allow us to infer anything about what a particular actor did in a specific situation, which is what a case requires us to do; judges often do not feel comfortable shaping public policy, especially when that involves change; judges do not want to create more pressure on their already swollen dockets; the ideology of at least some judges perpetuates structures that disadvantage minorities; and judges are not sure how to remedy this kind of discrimination. In the end, Girvan counsels that describing the effect of implicit biases is clearly not enough and will never be enough to create change. Advocates must instead “actively seek out, test, and find ways to overcome those extrinsic factors preventing recognition of complete anti-discrimination rights.”
The description of the problem and summary of the reasons that the current approach has failed are thorough and well executed. The path he lays for the next phase of research and advocacy is less well developed, but that is likely in part because we are on the front end of the research and advocacy he recommends. Even without the results of this research, though, those of us who engage in this advocacy can find some suggestion for a change in tactics in the article and in other research on how to overcome the effect of biases.
Where does the employee end and the employer begin? In The New Cognitive Property, Orly Lobel confronts us with employers’ ever-expanding reach into the craniums of their employees, both past and present. The article continues Lobel’s groundbreaking work into the intersections between employment law, intellectual property, and what she terms “human capital law.” Employers are bringing new legal tools to bear against employees to keep their ideas within the firm and prevent them from using their talents outside their current workplace. And as her research makes clear, the costs may be borne not only by these workers, but by our society and its capacity to innovate.
Lobel’s 2013 book Talent Wants to Be Free explained, for a more general and business-oriented audience, how restrictions on employees such as covenants not to compete, trade secrets, and the work-for-hire doctrine limit employees’ capacity to develop and use their human capital. As a result, workers are less able to develop this capital and less likely to want to do so. These themes are updated and further developed in The New Cognitive Property, which spends a great deal of time on the legal mechanisms themselves. Her discussion of human capital restrictions circa 2015 is an eye-opening read even for those well-versed in the traditional employer tools in this area. You may know about the shop-right doctrine, but did you know that employers are laying claim to employees’ ideas that are too abstract to be patented? You have likely heard about trade secret law, or even “inevitable disclosure,” but how about the criminalization of trade secret law, where one employee was sent to jail for emailing himself code that was largely open-source? And while covenants not to compete have a long and familiar lineage, Lobel brings us up to date with a dizzying array of post-employment restrictions: non-solicitation, non-dealing, non-poaching, and non-hiring clauses. Using a series of vivid examples, The New Cognitive Property artfully explores the manifold ways in which employers are claiming more and more of their employees’ human capital for themselves.
What dangers lurk in these tentacles that reach out to ensnare employee talent? Lobel explores the societal harms, focusing not on the direct economic losses to employees but rather on the larger ramifications. She cites to the loss in productivity when workers are not able to share their knowledge directly and in person. Much of human capital cannot be codified, patented, or written down—it is best shared person-to-person in the lab, at the office, or over coffee. The labyrinth of legal restrictions on human capital reduces the opportunities for the very sharing that creates the capital in the first place. In addition, Lobel fears that employees will under-invest in that capital if they see the labyrinth coming down the road. Her own research with On Amir provides evidence that employees will spend less energy and effort when asked to sign restrictions on future employment.1 It is not surprising to find that employees will respond rationally to the incentives in their economic environment.
In the article’s discussion of the “third enclosure movement,” Lobel describes what is most dangerous about these developments from a legal perspective. Drawing a comparison to the development of intellectual property law in the last century, she shows how employee human capital is being turned into property—cognitive property that belongs to the employer. Just as IP law has moved from its original justifications as temporary monopoly rights into the realm of property, ownership, and exclusion, Lobel sees human capital being staked out and claimed by employers as their own set of property interests. Highlighting this move from owning the outputs of innovation—such as artistic expressions and medical treatments—to owning the inputs of innovation—such as skills, experience, and know-how—is perhaps the article’s key theoretical contribution. And it should be deeply troubling to those who care about how we innovate and how the fruits of that innovation are distributed.
It is also important to recognize, however, that joint production requires choices about what belongs to whom. When we come together as individuals to collaborate as a group, we must decide what responsibilities are required of the individual members, and how we will divvy up the rewards of the collaboration. The economic literature on the theory of the firm explores the mechanics behind these collaborative groups. And to some extent, this scholarship is the other side of the coin from The New Cognitive Property. A primary concern within the theory of the firm research is opportunism—when one member seeks to hold up or exploit the group for undeserved economic gain. Lobel’s examples of employers taking ownership over employee ideas could be cast instead as groups attempting to prevent one of their members from making off with an unfairly large portion of the collective pie. After all, when the company asserts dominion over the lone employee’s human capital, it does so in the name of returning it to the group enterprise. And given the social science research on the collective nature of innovation—which Lobel herself references—it may be that giving more rights to individual employees would unduly encourage opportunism and improperly give one person the credit for something that rightfully belongs to many.
This is not to say that the new practices that Lobel surfaces are justifiable. The recent Silicon Valley “cognitive cartel,” in which employers such as Apple and Google agreed to a no-employee-poaching scheme, seems to be purely an effort to suppress employee wages and mobility. And employer tools may be used against workers who traditionally have not held the type of human knowledge capital that would justify their use—take, for example, the covenant not to compete signed by a Jimmy John’s delivery driver. But seen in their best light, legal doctrines such as trade secrets and the work-for-hire doctrine are efforts to ensure that group enterprises can retain and distribute their assets and revenues in accordance with group production norms. The group may overreach, but so may the individual; group governance requires a balance between these tensions. In the modern economy, we generally organize group production through the corporation, a legal entity governed by and centered on shareholders. The corporation sucks up employee contributions and allows shareholder-oriented management to distribute the rewards. In my view, we need to address this unfair construction of firm governance in order to address the root inequities that employees face. But even if properly constructed and governed with employee participation, firms would still require prohibitions against restraining trade or unduly taking advantage of individual employees, as Lobel’s research makes clear.
In The New Cognitive Property, Orly Lobel depicts a landscape in which employers are ever more aggressive in trying to stake their claims on the intangibles of employee human capital. That such a landscape seems threatening, even Orwellian, should prompt us to reconsider our current approaches to cognitive property and think anew about how we allocate the rights to information, human capital, and work itself.
- On Amir & Orly Lobel, Driving Performance: A Growth Theory of Noncompete Law, 16 Stan. Tech. L. Rev. 833, 852-55 (2013). [↩]
Jessica Roberts’ upcoming article, Protecting Privacy to Prevent Discrimination, explores the pros and cons of enacting privacy protections to thwart discrimination. Using the Genetic Information Nondiscrimination Act (GINA) as her primary example, Roberts argues that the two areas of law may “operate symbiotically rather than separately.” Thus, privacy law may be used to further anti-discrimination goals and vice versa.
Roberts’ article contains a thoughtful discussion regarding the different principles underlying privacy law and anti-discrimination law. The article also raises interesting issues about the extent to which the right to privacy has, over time, evolved. As originally conceived, the privacy torts and their statutory counterparts sought to further the norm of autonomy. The wrong that resulted from an intrusion upon an area of solitude or the public disclosure of a private fact was the invasion of privacy itself. But Roberts suggests that privacy law may also be used as a means of preventing and addressing more tangible harms occurring in the employment context by working in harmony with anti-discrimination principles.
As an obvious example, Roberts notes that privacy law may alleviate the “challenging burden” a discrimination plaintiff must carry of establishing an intent to discriminate on the part of a defendant. In contrast, privacy law requires a plaintiff to show only “that the covered entity inappropriately obtained, or attempted to obtain, the protected information.” Roberts suggests that anti-discrimination law could take a cue from privacy law and specifically prohibit prospective employers from inquiring or otherwise acquiring information about protected characteristics during the interview process, thereby denying employers information that they might otherwise use to discriminate. GINA’s ban on inquiry into an individual’s genetic information is one example of such an approach. But Roberts suggests the same idea could be extended to other laws to cover situations where a particular characteristic is not always readily perceptible, such as an individual’s religion. In this respect, privacy law may “help stop discrimination whenever the nature of the protected status is not completely known to the potential discriminator.”
At the same time, Roberts notes that there are potential limitations on the ability of privacy law to address discrimination. Her discussion of the benefits and drawbacks of the approach she describes caused me to think of another potential limitation: the possibility that a court might import anti-discrimination principles into a privacy provision. For example, the Americans with Disabilities Act (ADA) contains numerous restrictions on the ability of employers to inquire into the extent and existence of an individual’s disability. For instance, an employer may not inquire into the existence of a disability prior to making a conditional job offer. On its face, this provision would seem to imply that the wrong is complete upon the asking of the prohibited question, no matter whether the applicant’s answer caused the applicant not to be hired. Regardless of whether the underlying norm of the provision is one of autonomy or anti-discrimination, the applicant in this situation would seem to have a strong argument for nominal damages. Yet, there is case law that rejects this view and holds that there must be a “tangible injury”—typically expressed in terms of “an adverse employment action”—before a plaintiff is entitled to damages for a violation of this provision of the ADA. See, e.g., Cossette v. Minn. Power & Light, 188 F.3d 964, 971 (8th Cir. 1999); Griffin v. Steeltek, Inc., 160 F.3d 591, 594-95 (10th Cir. 1998).
By importing a discrimination framework into what is, on its face, a privacy provision, courts might limit the effectiveness of the privacy provisions in combatting discrimination. None of which is to say that Roberts is misguided. Instead, by raising questions about the ability of privacy law and anti-discrimination law to function in a symbiotic manner, Roberts’ article raises a host of fascinating issues and caused me to think more carefully about the potential uses of privacy law in combating discrimination. And at a time when the traditional framework for discrimination claims sometimes feels stagnant, Roberts’ article offers fresh insight into the nature of discrimination law and privacy.
In “Beyond Title VII: Rethinking Race, Ex-offender Status, and Employment Discrimination in the Information Age,” Professor Kimani Paul-Emile sets forth a compelling analysis of the harm and prejudice engendered toward minority populations by employers’ use of criminal background inquiries. She then proposes a novel regulatory scheme whereby employers would evaluate job applicants for employment fitness prior to factoring in any type of criminal background.
Whether or not one ultimately comes down on the side of regulating employer criminal background inquiries and subsequent actions taken on the basis of those inquiries, there is undeniable appeal in at least considering this scheme, which Professor Paul-Emile calls the Health Law Framework. Her framework is interesting because it transcends the traditional realm of regulation in this area—Title VII and the Fair Credit Reporting Act (FCRA)—and borrows from the arena of health law, specifically the Americans with Disabilities Act (ADA) and the Genetic Information Nondiscrimination Act (GINA), to forge a thoughtful, integrated proposed mechanism for regulating employer use of criminal background inquiries.
A comprehensive history and status of the regulation of employers’ use of criminal background inquiries provides the perfect launching pad for the article’s proposal. The article also does an excellent job of setting forth how and why there came to be so many inaccuracies in criminal history reports, as well as the ramifications of these inaccuracies. It also provides an illuminating discussion of the stigmatization attendant to having a criminal background of virtually any kind, and why this stigmatization engenders discrimination. Noting that more than 25% of Americans have a criminal record, Professor Paul-Emile shines a light on what she refers to as “[a] rapidly expanding for-profit industry [that] collects these records and compiles them into electronic databases, creating ready access to millions of computerized criminal history records” for the nearly 92% of employers who decide to access the criminal histories of job applicants. And yet, as she points out, when an employer filters applicants based on their criminal histories—using an applicant’s criminal background as a proxy for her fitness for a position, rather than her skill sets and work experience—not only do applicants lose out on opportunities that they may deserve, but employers can lose out on the chance to hire the best applicants.
Moreover, the discriminatory disparate impact and invidious stigmatization that criminal background screenings by employers can engender has not gone unnoticed—even by the EEOC. Professor Paul-Emile’s approach to this much-discussed problem is not only fresh and novel, it is thoughtful. She starts by both exhorting and applauding the EEOC’s attempts to grapple with the harm that criminal record employment inquiries can confer on minority populations, while simultaneously remaining critical of the agency’s not having done enough. After critiquing the law’s reliance on the FRCA and Title VII to address the discrimination that ensues from employers’ use of criminal background inquiries in hiring, Professor Paul-Emile commences her discussion of the two laws that form the basis of her Health Law Framework: GINA and the ADA.
Professor Paul-Emile’s proposed framework takes into account not only the welfare of job applicants with criminal records, but also that of employers with misgivings about hiring those with criminal records, and the general public. The general public, of course, has overriding interests that Professor Paul-Emile seeks to address, like workplace danger and the misclassification of applicants without a criminal record. What Professor Paul-Emile proposes is to combine the ADA’s core principles of reasonable accommodation, risk management, and the avoidance of stigmatization with GINA’s emphasis on, as she puts it, “regulating the flow of information regarding an invisible yet stigmatized status that can form the basis of discriminatory treatment.” Her proposal, she notes, guards the job-related welfare of people of color, affords employers the ability to retain the prerogative of hiring based on traditional criteria without, as she again puts it, “engaging in invidious discrimination, or contributing to the establishment of an enduring underclass of individuals with criminal records.”
Probably the most incisive and salient point the author makes in the article is the one she makes when she explains why the ADA and GINA (the health law statutes) may be more effective to grapple with the issue she is addressing than the traditionally-used FCRA and Title VII. The health law statutes, Professor Paul-Emile explains, are distinct from the FCRA and Title VII in that: 1) they attempt to capture discrimination that is “based on a trait or condition that, like the existence of a criminal record, may not be readily apparent . . . , but which carries a powerful social stigma,” 2) they cover disabling conditions, which, unlike Title VII’s protected class statuses, may, in fact, be a rational basis upon which to exclude someone from employment, much like an applicant’s criminal background; and 3) they have what Professor Paul Emile terms “established doctrinal schemes regulating the flow of information” upon which an employer may base discrimination while simultaneously affording a fair chance to all applicants. Her incorporation of the ADA’s “reasonable accommodation” mandate into the framework is really interesting, and serves her stated goal of ensuring access to employment for those who truly need it. Her framework is well thought out, and the way in which she assesses its benefits and even anticipates probable challenges and criticism is excellent.
Truthfully, I think the issue of criminal background checks in employment is one that is complex and not easily resolved. However, irrespective of where one comes out on the issue, it is refreshing to see someone approach such a much-discussed topic with an original, concrete solution that 1) spurs thought and discourse; 2) compels a close examination of the policy arguments, incentives, and deterrents at play; and 3) tries to factor in the interests of all involved, as well as that of society. Scholarship is supposed to make us think and reconsider our initial positions on issues, and this piece does just that. That is why it is “liked lots.”
Sophia Z. Lee’s new book, The Workplace Constitution: From the New Deal to the New Right, traces a fifty-year history of the tumultuous battle over whether and when the Constitution should apply to employees working at private sector jobs. This is in part a story about the Supreme Court, but Lee also reveals a fascinating account of rapidly shifting alliances and tensions between and among civil rights groups, unions, employers, the right-to-work movement, and administrative agencies. With all of these players, Lee’s book could have easily gotten bogged down in details. Instead, it beautifully brings to life lawyers’ and activists’ deliberations over whether their interests would be well-served by the application of constitutional law in private workplaces, against the backdrop of changing constitutional jurisprudence and shifting legislative and regulatory priorities.
Of course, the end of the story will be familiar to many readers—after some hopeful starts for liberal and conservative supporters of the Workplace Constitution during the 1960s and early 1970s, it nearly disappeared after the Burger and Rehnquist Courts issued a series of narrow state action decisions. As Lee explains, this development was ultimately not unwelcome to many civil rights groups—this about-face was linked to the Court’s growing tendency to strike down governmental affirmative action plans on constitutional grounds, which meant voluntary affirmative action plans at private workplaces would also be threatened if the constitution applied there. But along the way, Lee opens a window on what might have been, describing administrative agencies’ creative uses of constitutional law to promote diversity within the entities they regulated. The FCC and the NLRB get the most airtime here, and the FCC’s efforts in particular were almost breathtaking: spurred on by activists, that agency concluded that it had the constitutional authority—or even the constitutional duty—to condition dozens of station’s licenses on the adoption of affirmative action programs, including educational programs designed to create a pipeline of qualified applicants. These programs yielded documented results; if they had been continued, today’s workforce diversity might be much improved, especially within highly regulated industries.
Lee’s book is also invaluable for its description of the birth of the right-to-work movement, and its push for a workplace Constitution that would include a right to refrain from union representation and/or union dues. In terms of their support for a broad state action doctrine, the various right-to-work advocates whom Lee describes are more consistent than any of the other movement or government actors that figure prominently in the book. But their other shifts, and those that take place around them, are fascinating. I will relate just two examples of many included in the book. First, the relationship of right-to-work groups with civil rights groups can best be described as uneasy, with the latter invested in fighting racially discriminatory local unions, but also seeking to preserve workers’ abilities to improve their lot through collective bargaining; as these priorities shifted in relation to one another, so did the relationships between the various movement organizations and minority workers. Second, employers sometimes fractured with right-to-work groups over state action; the prospect of depleting union coffers or decertifying locals that were (sometimes strategically) accused of discrimination was certainly appealing to many employers, but a robust workplace Constitution was also fraught with other perils for them.
As Mark Twain may have said, “history doesn’t repeat itself, but it often rhymes.” It is impossible to read Lee’s book without reflecting on the increasing number of constitutional challenges to union agency fee agreements, and the remarkable degree to which they are mirror images of prior battles. For example, the right-to-work movement got one of its earliest public faces—Cecile B. DeMille—when he refused to pay and then challenged in court a $1 special assessment earmarked by the American Federation of Radio Artists to fight a California ballot initiative. (The initiative would have amended the state constitution to ban closed shops.) Almost 70 years later, the Supreme Court used another case about a union special assessment, also levied to fight a California ballot initiative, to give opponents of agency shops new hope. In Knox v. SEIU Local 1000, the Court held that the union had to obtain affirmative consent from non-members before charging the assessment, and suggested it might be willing to go much farther to protect union dissenters. Much litigation has followed Knox, including last year’s Harris v. Quinn, where the Court held that “partial public employees” could not be required to pay for union representation. In another pending case, Serna v. Transport Workers of America, private-sector plaintiffs seek to build on Knox to win an “opt in” default for employee contributions to union political spending in workplaces governed by the Railway Labor Act—a remedy that the Supreme Court denied in the 1961 case International Association of Machinists v. Street. As Lee explains, right-to-work advocates saw Street as an overall loss, given their hope “for a regime in which union members would have to opt in, [as they were] convinced that that it would have a far greater impact on union coffers.”
While civil rights advocates have mostly abandoned their quest for a workplace Constitution, the right-to-work movement’s efforts to expand the workplace Constitution seem to be picking up steam. Lee’s book is thus especially timely, revealing the intricate backstory preceding these coming constitutional conflicts.
Matthew Finkin’s article, From Weight Checking to Wage Checking: Arming Workers to Combat Wage Theft, reaches back to the late nineteenth and early twentieth centuries for a solution to the very current problem of wage theft for low-wage workers. Finkin proposes a modern-day version of the “checkweighman” laws that enabled coal miners to select an independent checker to verify their wages.
Finkin begins by defining “wage theft” as a set of employer practices “that result in employees taking home less than they are legally entitled to under federal and state law.” Employers may pay sub-minimum wages, refuse to pay for “off the clock” time, fail to pay overtime at all or at the correct rate, steal tips, or fail to pay any wages whatsoever. Finkin summarizes the current research on wage theft, including now-DOL Wage and Hour Administrator David Weil’s valuable work on federal wage and hour violations and Annette Bernhardt, Trey Spiller, and Diana Polson’s excellent study of employment law violations experienced by low-wage, front-line workers in Chicago, New York, and Los Angeles. Drawing on this and other scholarship, Finkin concludes that wage theft is rampant, checked neither by government oversight nor by workers, who have too much to lose to take on the costly, risky proposition of suing their employers. Finkin thus characterizes wage theft as both feasible and attractive to employers; stealing wages from the workers who can least afford it has become—and likely always was—a good business proposition.
Finkin briefly reviews an array of possible solutions, including increasing the budgets of underresourced government inspectorates; strengthening the underlying employment laws; enhancing employer self-regulation; creating public-private partnerships that deputize outside agencies as watchdogs; and fostering various forms of worker mobilization, including unionization and worker centers. Finding each of these wanting, he then turns to a novel and little-known (at least by me) set of laws: coal mining’s checkweighmen laws.
Enacted by thirteen U.S. states (and still in force today in Alabama, Illinois, Missouri, Pennsylvania, Tennessee, and West Virginia), these laws gave coal miners—who were paid by the load or ton of coal mined—the right to hire, at their own expense, an outside “checkweighman” who would verify the amount or weight of coal mined by each worker. This honest accounting of production foreclosed opportunities for employers’ cheating in the determination of workers’ pay. In addition, at least some state laws, like West Virginia’s, were not limited to miners, but enabled workers in any “enterprise employing labor, [where the wage] depends upon the amount produced by weight or measure” to select a “checkweighman or measurer.”
Finkin considers this insertion of another set of eyes into the wage determination process a valuable check against wage theft for those workers who are paid according to their production. He proposes a modern wage checker law that would extend this concept to all hourly workers and attempts to work out the logistics of such a law: the determination of a wage checker’s eligibility, her authority, the manner of her selection, and the matter of her financing. He also considers whether such a law would be preempted by the NLRA, but makes quick work of that question, concluding that a wage checker’s function (legal compliance) is distinct from the function of the collective bargaining process (negotiating a labor agreement). Finally, Finkin concludes with a lovely passage about his proposal’s broader salutary effects: increasing worker agency through the selection of a wage checker “may manifest the possible and stimulate the desire for something more, to be achieved by further collective action or, conceivably, by collective bargaining: better health and safety conditions; a more stable work life, not subject to sudden change in scheduled time; freedom from abuse and retaliation.”
As someone who writes about wage and hour law and the barriers that low-wage workers face in enforcing their rights, I was intrigued by the concept of a wage checker; it brought to mind other monitor-type proposals, such as Zev Eigen’s ideas about how to improve FLSA enforcement by using readily available technology to analyze a company’s payroll data and flag FLSA violations. However, that there is even a need for a wage checker is itself a discouraging conclusion, revealing the profound failure of the existing mechanisms for protecting low-wage workers’ rights: unionization, private litigation, and government inspection and enforcement. Adding a wage checker law to these other systems would likely help matters, but I wonder whether wage checkers would be hampered by the same old set of tactics used by union-busting employers: scaring workers away from choosing a wage checker in the first place; interfering with the selection process; pressuring or interfering with wage checkers’ performance of their duties.
To end on a positive note, however, what is particularly tantalizing about Finkin’s article is the ability for advocates, right now, to use the checkweighmen laws that remain on six states’ books. Some of the lowest-paid workers in our economy are paid by unit of production: garment workers, farmworkers, truckers, and construction workers. It is likely no coincidence that many of these same industries appear at the top of researchers’ lists of wage theft perpetrators. Given that some of these laws reach beyond coal mining to cover all piece-rate pay, worker advocates today could add the wage checker to their arsenal of weapons for combating wage theft.
In The Trouble with Torgerson: The Latest Effort to Summarily Adjudicate Employment Discrimination Cases, Professor Theresa M. Beiner challenges a relatively recent Eighth Circuit case, Torgerson v. City of Rochester, 643 F.3d 1031 (8th Cir. 2011), that argues that employment discrimination cases are no poorer candidates for summary judgment adjudication than other cases. Professor Beiner argues that employment discrimination cases tend to be ill-suited for summary judgment because they usually involve intent issues, which are ill-suited for summary adjudication. In addition, they involve claims of discrimination, which can be more difficult to resolve on summary judgment than at trial because of issues related to implicit bias.
The article is a part of the Nevada Law Journal’s Symposium on the 50th Anniversary of Title VII. The entire symposium is worth a read, with contributions addressing subjects including harassment, retaliation, and employer policies on using employee criminal records. Indeed, some of the other articles also qualify as TWELL (things we love lots).
I like this article because it is a tightly argued piece that explores the interplay between substance and procedure. Many scholars rightly worry about whether legislatures have passed appropriate laws and whether courts are interpreting the substance of those laws correctly. However, whether justice is done depends on the right laws being interpreted correctly and enforced properly. The enforcement step matters just as much as the other steps, and possibly more, as the public may stop paying attention once laws are passed and appear to be interpreted properly.
Professor Beiner addresses an issue that is not new—the willingness of federal courts to grant summary judgment in employment discrimination cases—but does so in a fresh way. Often, scholars simply lament that courts seem overly willing to grant summary judgment in employment discrimination cases. However, Beiner goes deeper. Using the Torgerson court’s assertion as a starting point, Professor Beiner explains that while the court was technically correct that no rule requires that employment discrimination be treated as poor candidates for summary judgment, the nature of most employment discrimination cases makes them poor candidates. Employment discrimination cases tend to involve employer intent. Even though intent issues and other issues of fact can be decided on summary judgment when appropriate, courts have often viewed intent and motive issues as more difficult to determine on summary judgment than other issues. Discerning a defendant’s intent with certainty may require that factfinders make credibility determinations and inferences—decisions that cannot appropriately occur at summary judgment. The nature of the inquiry involved in most employment discrimination cases, not the fact that they are employment discrimination cases, makes these cases poor candidates for summary judgment.
Beiner then surveys courts’ approaches to the issue. Some courts grant summary judgment in employment discrimination cases, even as they suggest caution when doing so. Some courts suggest no particular caution should be taken with respect to employment discrimination cases and appear to require a higher bar for employment discrimination plaintiffs than necessary to create a genuine issue of material fact. Other courts appear confused in that they suggest that employment discrimination cases are not good candidates for summary judgment, then grant summary judgment on bases that seem insufficient given the courts’ concerns.
After surveying the different approaches that courts take, the article discusses both how psychology, bias and judicial decisionmaking may explain the differing approaches and why sensitivity to those issues is necessary. It notes that judicial bias against employment discrimination cases may explain how and why judges use summary judgment to dispose of employment discrimination cases that might be meritorious, but also notes that the issue is more complicated than the mere presence of possible judicial animus. Judges and other people have implicit biases that may guide their decisionmaking whether they want those biases to do so or not. Implicit bias can help explain why good-intentioned people, including judges, may fail to discern discrimination when discrimination has occurred. Such bias is particularly problematic when factual uncertainty exists because even though many with implicit biases can discern discrimination when the facts are clear, they may rely on implicit biases against finding discrimination when the facts are unclear. Factual uncertainty regarding an employer’s intent to discriminate may be more likely to exist when a party has moved for summary judgment and a decision is made on the motions than at trial where a factfinder may have an opportunity to analyze the motivation of the employer’s decisionmaker. That makes implicit bias a particularly serious concern regarding employment discrimination cases that may be decided on summary judgment.
The concern is particularly troublesome because employment discrimination doctrine does not incorporate insights from implicit bias research. Employment discrimination doctrine suggests that an employer’s mental processes are transparent and can be evaluated relatively easily. Conversely, research on implicit bias suggests that an employer’s mental processes are often opaque. Though a trial will not necessarily make an opaque mental process clear, it is more likely to make an opaque mental process clear than summary judgment papers will. Consequently, Professor Beiner concludes that discrimination doctrine ought to take the teachings of cognitive psychology and implicit bias into account before courts determine that employment discrimination cases that typically involve intent issues are just as reasonably decided at summary judgment as other cases.
The article analyzes a seemingly uncontroversial assertion from a court—that employment discrimination cases should not be treated as particularly poor candidates for summary judgment —and explains that not only is the assertion misleading in context, the mindset and doctrine that underlie the assertion may stunt the proper application of employment discrimination law. The article is relatively short, but is packed with thoughts. It is well-researched, but not unduly larded with citations.
I have worked in this vineyard for years. Many commentators have written interesting articles about how procedure combines with doctrine to support or harm employment discrimination claims. With her article, Professor Beiner takes a fresh look at a mixed issue of procedure and substance through a psychological lens. In the process, she explains once more, but with new insight, why courts that are eager to grant summary judgment in employment discrimination cases should not be. That is excellent legal scholarship and is a thing I love lots.