In her article, Temporary Termination: A Layoff Law Blueprint for the COVID Era, Professor Arnow-Richman argues “that the exigencies of the pandemic bring to light a long-neglected flaw in the pre-existing regulatory framework: there is no reliable just-in-time source of continued pay, nor any form of separation rights, for laid-off workers.” (P. 20.) The article is divided into three main sections. First, it describes the dearth of protections for laid-off workers. Second, it explains the legal significance this gap holds in protecting laid-off workers. Third, it “sketches a new law of layoffs focused on income continuity and job attachment.” (P. 4.)
In Part I (Pp. 5–12), The Economic Termination Gap, Professor Arnow-Richman explains that there are few federal (or state) protections for workers whose employment is terminated, permanently or temporarily, for economic reasons. The one federal right that Congress has created is a limited right to advance notice of job termination under the Worker Adjustment and Retraining Notification (WARN) Act, 29 U.S.C. §§ 2101-2109. The WARN Act requires certain large employers to provide 60-days’ advance notice of job loss resulting from a plant closing or mass layoff, as those terms are statutorily defined.
But like all labor statutes, the WARN Act is only as good as the breadth of its protection. Professor Arnow-Richman points out that the Act is limited even in the best of circumstances—it applies only to employers with at least one hundred workers that either close a plant affecting at least fifty workers or order a mass layoff affecting at least fifty workers and comprising one-third of the employer’s workforce. But even if those conditions are met, then workers still may not be entitled to advance notice if an exception applies. Professor Arnow-Richman explains, the WARN Act’s advance notice provision does not apply to temporary employment separations during a pandemic precisely because the unforeseen business circumstances (UBC) exception can be successfully invoked by the employer. This result highlights that the WARN Act’s “fundamental goal” of “re-employment” undercuts another value underlying work, “income continuity.” The latter turns out to be significantly more important during an infectious disease pandemic when no one can safely work. (Pp. 11–12.) In effect, the WARN Act is inadequate in dealing with temporary job losses resulting from such outbreaks.
In Part II (Pp. 12–19), The Income Continuity Crisis, Professor Arnow-Richman explains the significance of this income replacement gap for “COVID-affected workers—individuals whose jobs have been temporarily or permanently eliminated due to the pandemic.” (P. 4.) In Section II.A., Arnow-Richman starts with the acknowledgement that some employers will voluntarily provide severance pay for workers who are temporarily or permanently laid off resulting from a world-wide pandemic. These voluntary payments come in two forms: informal and formal. Under informal agreements, such as those contained in employee manuals, the employer can generally and legally modify or suspend such payments under state law. Arnow-Richman explains that most workers will fall into this category if they are fortunate enough even to have access to voluntary severance payments, which “turns on the employer’s internal policies or practice” and therefore “depends on the employer’s unilateral choices about how it wants to handle terminations.” (P. 13.)
Formal agreements also come in two types. First are actual contracts such as severance pay provided in collective-bargaining agreements and those provided by contract typically for firm executives. Second are “[t]hose . . . more formalized and more complex [agreements that] likely qualify as welfare plans under the Employee Retirement Income Security Act (ERISA).” (P. 14.) Whether formal or informal, these agreements cover a fraction of the U.S. labor force and therefore fail to provide the blanket income continuity that Professor Arnow-Richman suggests.
In Section II.B., Arnow-Richman discusses public benefits for income replacement, which includes unemployment insurance (UI) and the “Federal Pandemic Unemployment Compensation (FPUC) program authorized under the CARES Act, [which] provided an additional $600 per week to any worker receiving UI.” (Pp. 16–18.) Although the FPUC gave workers access to income replacement in terms of “increasing the amount and availability of income continuity,” there were such “extraordinary delays” in both applying for and waiting for benefits that many workers simply gave up, never to collect the benefit. (Pp. 18–19.)
In Part III (Pp. 19–29), Professor Arnow-Richman explains that her “purpose is not to critique either the corporate or government response to what are truly unprecedented circumstances.” Rather, her point is to highlight the deficiencies of the WARN Act in providing income replacement during pandemics and other circumstances that may trigger an exception. (P. 20.) Her solution, some of which she has written about in prior articles, is two-fold. First, “Congress should enact a ‘law of layoffs’ that would require employers to provide severance pay to terminated workers where they are either unable or choose not to provide advance notice of termination.” (P. 20, Pp. 20–23.) Second, she “propose[s] the creation of a deferral option, like what exists in Canada, for terminations formally classified as temporary. Workers would receive streamlined access to UI during the temporary period, after which employers could choose either to reinstate them or pay their deferred severance obligation.” (P. 20, Pp. 23–29.) These triggering events would avoid some of the disastrous results that occurred while workers waited for their COVID benefits due to administrative delay.
Mass economic dismissals are ubiquitous in the history of capitalist economies. In these circumstances, employers, employees, and local communities suffer when a plant closes, or a mass economic dismissal is effectuated. This is especially true in economic circumstances that are not localized, such as is the case in a world-wide pandemic. Mass economic dismissals are difficult problems to solve because typically no one is at fault and therefore there is no actor on which efficiently to place the duty of income replacement for the workers. Add to that a pandemic and even the government may not be able to handle the situation. This article is an excellent start to a conversation about how to handle these types of situations in the future, before they recreate the type of suffering that we all witnessed in 2020.
Gali Racabi, Abolish the Employer Prerogative, Unleash Work Law
, 43 Berkley J. Emp. & Lab. L.
__ (forthcoming), available at SSRN
What is an “employer,” and what can it do? And what role does law play in answering those questions? In this understated yet radical new piece—Abolish the Employer Prerogative, Unleash Work Law—Gali Racabi analyzes the law’s basic concepts for governing the workplace. Digging deep into the substratum of the law’s framework, he excavates the idea of the “employer prerogative”: namely, that the employer’s designated representatives have “the legal authority to make unilateral decisions in the workplace.” (P. 4.) Racabi’s simple proposal is to end this prerogative and consider alternative ways of allocating workplace power. His concept is both simple and staggering: a complete reorganization of the governance of firms within our economy.
Abolishing the Employer’s Prerogative is centered on a notion that is so much a part of our common cultural and economic understandings that it may even take a moment to realize what it is. Our economy delegates control over economic activity and decision-making to individual firms. Firms are a little hard to define, as they are economic (and not scientific) phenomena, but essentially they are the businesses that we work for, buy from, and contract with when engaging in our economic lives. We rely on firms to organize our behavior such that we can carry on extensive, long-lasting economic engagements within the rubric of a firm, rather than simply a market. The theory of the firm has proven a useful yet frustrating subfield of economics, as economic methodologies have not always proven suitable for the subtle, complex intricacies of interpersonal cooperation and competition that are contained within the firm.
Our legal system has assigned the task of sorting out the very real issues of power and control over the firm to the laws that govern business entities. Out of the variety of potential types of such entities—common law partnerships, limited liability companies, cooperatives—by far the most popular are corporations. Corporations are governed by state law—with Delaware winning the race to the top or the bottom, depending on your perspective—and share a common set of governance mechanisms such as the board of directors, the exclusive shareholder franchise, and fiduciary duties. These governance mechanisms control all other aspects of the firm, including decisions with respect to employees. Those decisions are limited by regulations, including the many mandatory and default rules within employment, but the firm holds the primary discretion.
Racabi points out, however, that it doesn’t have to be this way. He explains how the law assumes that employers—which are almost always business entities under law—have the authority to decide how to run their businesses, absent some other legal constraint. Describing it as a “vast ocean of prerogative” (P. 7), Racabi methodically details the particular aspects of this discretion and the ways in which it is indulged, rather than cabined. The common law assumes employer power, most notably in the super-sticky employment at-will doctrine. Efforts to inject worker participation into the mix—most notably the Wagner Act—have been minimized and eroded by the prerogative’s exalted status. In a clever and important move, Racabi does not focus simply on at-will, which has received waves and waves of academic treatment. Instead, he points out how at-will undercuts contractual efforts to circumscribe the employer prerogative in other areas by allowing employers to rip up existing agreements at any time, rendering them close to meaningless. All roads lead back to the foundational principle that an “employer”—almost never an actual person, but instead a fictional entity—has the authority to run “its” business the way “it” wants.
Why does this system persist? Racabi focuses on two mechanisms that reinforce the prerogative: a “whack-a-mole” effect and a “cage/jeopardy” effect. Because those who run the business entity control the entity’s decision-making in other areas, they can dodge efforts to regulate the employment relationship by restructuring that relationship. And employers can also threaten to punish workers and the community by withdrawing or withholding the benefits generated by the firm’s business. Racabi illustrates these mechanisms with the example of Uber, which both endeavored to structure its relationship with workers to avoid employment responsibilities, and then used its economic power to threaten a withdrawal from California to get the state to change its laws.
So what are the alternatives? It seems mad-eyed to contemplate a world in which business entities do not control their own businesses. But again with calm and measured analysis, Racabi uncorks some wild possibilities: an employee prerogative, where decisions are made by “employee governance bodies” (Pp. 53-54); the social prerogative, in which representatives from the community, the workforce, and management have joint power; a no-default rule, where parties would interact as if in an arm’s-length market; a separation of powers model, where factions are balanced against each other using various internal institutions; and an ad hoc approach that would unbundle the collection of prerogatives over different areas and allocate different rules in each. In order to manage these reallocations of power, Racabi suggests a national agency to regulate systems within firms, or a legal right for firms to waive the default rule but only under conditions of collective bargaining.
Abolish the Employer Prerogative is quite a ride. Throughout we have Racabi’s even, contemplative tone as we swoop and whoosh through a complete reimagining of the basics of our economic system. As he correctly points out, his proposal may be anti-free-enterprise, at least as free enterprise has been practiced in this country, but it is definitely not a rejection of the market economy. He acknowledges that there may be a loss in economic efficiency, but he also points out that there is the potential for tremendous upside. And for those who might expect a cats-and-dogs-living-together level of chaos, he understands but does not seem too concerned. He knows there is much more to do—much more to consider, contemplate, and envision—before we get there.
Part of me wonders why Racabi didn’t talk about all the other things that would seem to be an essential part of this discussion he undertakes: the exclusion of workers from corporate governance; the potential of employee ownership and worker cooperatives; workplace practices such as quality work circles and holacracy that foster employee participation;; the allocation of rights in trademark, trade secrets, and other IP to the business entity; the role of antitrust in regulating coordination rights; the teaching that various theories of the firm might have to impart on his endeavor. In particular, it would be useful to hear more about the efforts of labor law to overcome the employer prerogative, and why those efforts have failed to this point. While he does touch on some of these briefly, of course all of these things are largely outside the scope of his article as constructed. They are not outside the scope of this dialogue, mind you, but they are outside of the article’s thesis: the law gives the employer the power to control its business and its workplace, but—emphatically—the law does not have to be this way.
In the article’s concluding paragraph, Racabi makes clear that he is not offering a detailed policy prescription; rather, his hope is “to provoke work law scholars, students, and activists into engaging in systemic, political, and imaginative thinking about the relationship between law and workplace power.” (P. 67.) I really enjoyed Racabi’s thoughtful and provocative piece, and I hope others take him up on his invitation to reimagine the way we organize the law of business and of the workplace.
There’s quite a fraught history of racial “passing” in the United States, until recently almost always of African Americans passing as white. In the past several years, however, the possibility of “reverse passing” has grabbed the headlines as individuals identified at birth as white have claimed Black or other racial identities. Rachel Dolezal and Jessica Krug are familiar examples, but not the only ones. The common reaction is to cry fraud and view the individuals as acting for some kind of economic advantage, freeriders on what is sometimes called “racial capitalism.” Even absent that, such conduct necessarily entails cultural appropriation and may preempt opportunities of “real” members of the passed-for group.
It’s not surprising, therefore, that such conduct has been widely condemned, a result reinforced by the questionable motives and conduct of some reverse passers. But what if a white person truly self-identifies as Black? And what if an employer seeks to terminate her because she is not “really” Black?
It’s this highly-charged question that Deepa Das Acevedo addresses in (Im)mutable Race, which draws on Bostock v. Clayton County to ask whether self-identification of race is ultimately so different–legally speaking–from self-identification of gender. She explores what contract law and Title VII have to say about this scenario.
As with most Jots, it’s impossible to capture the nuances of the piece in a short review, but it’s important to stress that the author does not equate the experiences of transgender and transracial (a term she uses mostly for lack of a better one, despite potential confusion with literature on transracial adoption) individuals, and she in fact believes that most of the headline-grabbing cases of reverse passing in recent years are “easy” cases because they do not involve sincere claims. As the author notes, progressive commentators have “arrived at near-universal consensus” that “reverse passers are liars, and they know they are liars.”
But many instances, or even most, is not necessarily all, and (Im)mutable Race takes seriously the “hard cases,” that is, the possibility that some individuals authentically self-identify with a race or ethnicity different from that into which they were born. And “[t]o disagree with them, critics must affirm that race is objective, immutable, and largely unmistakable” and do so in the face of the sociological consensus that there is no such thing as “race,” or, at least, that race as perceived in America is not merely a phenotype. After all, had Rachel Dolezal had even one great grandparent of undeniably Black background, it is very unlikely that we would label her as “passing” for Black. Otherwise, troubling questions of whether an individual is “Black enough” arise, reminiscent of the repellent history of mixed-race grading.
Das Acevedo explores the legal question potentially relevant in the employment contract context asking whether racial claims could allow voiding a durational contract for fraud or even allow employers to invoke “morals clauses” (commonly framed nowadays as bringing disrepute to employers, regardless of whether the conduct is immoral). But as she notes, most American employment is at-will, allowing termination for claiming a racial identity, accurately or inaccurately. The more likely challenge, then, would be based on Title VII or §1981, and the threshold question would be whether an employer discriminates on the basis of race by acting on the basis of a discrepancy between self-identified race and “real” race.
That’s where Bostock comes in. Das Acevedo recasts a now-famous passage of Justice Gorsuch’s majority opinion to make the point:
Today, we must decide whether an employer can fire someone simply for being transracial. The answer is clear. An employer who fires an individual for being transracial fires that person for traits or actions it would not have questioned in members of a different race. Race plays a necessary and undisguisable role in the decision, exactly what Title VII forbids.
(Im)mutability wades into this largely unchartered territory with a sensitive exploration of race and law that well repays the reader’s time. Far from a simple doctrinal piece, this article thoughtfully considers the meaning of race from both a social science and a legal perspective.
The article stresses that social science has “long questioned the claim that race is a stable identity marker such that there can be a fixed, objective, and observable truth.” But it also looks to recent legal scholarship arguing that law should reflect “‘the dignity concerns of individuals as they attempt to control the terms on which their bodies are assigned racial meaning.’ Prioritizing external assessments based on ancestry, phenotype, and behavior over more complex or fluid forms of self-identification is now widely viewed as defeating that mission.”
While the author is, like many others, skeptical of immutability arguments as a basis for justifying legal interventions, she argues that, if anything turns on the distinction, race is likely more changeable than sex. Nevertheless, Das Acevedo does not argue that “‘race and sex are the same’ or even that “‘being transracial and transgender are the same.’” Rather, she insists only that “our legal infrastructure can and should accommodate racial transformation” where it actually exists, that is, where an individual sincerely self-identifies as a race different from her birth race.
Das Acevedo spends time developing how to separate the two by deploying a technique called “cultivating attentiveness” which helps distinguish real instances of racial transformation from insincere ones. This is a Jot, so I’ll forbear criticism of this solution but found it less useful than her exposition of the problem.
It seems like a long time ago now, but most readers can probably recall the debate as to whether Barrack Obama was “really” Black. In part, that debate evaporated due to the racist reactions of many who opposed his election, not merely because of his political party but because of the color of his skin. Whatever else might be said, Das Acevedo should be recognized for seeking to shift the focus on race from racists to the individual and the possibility that, in a complicated and rapidly-changing world, racial self-identity may be more malleable than we are accustomed to think.
The article ends on a personal note. It acknowledges that some “will find it inappropriate that a cisgender, medium-hued South Asian American (really, Canadian) woman from an unquestionably privileged background is discussing matters of reverse passing or the tribulations of Black and not-quite-Black folk” while others might object to “anyone suggesting that racial transformation can be genuine, or to discuss it in the same breath as the nature and challenges of being transgender in the United States.” She’s probably right on both counts. But still others, including me, appreciate this thoughtful scholarly analysis of a phenomenon that is both challenging and increasingly common.
Amidst summer 2020’s momentous uprisings, a terminological tempest briefly arose over what counted as a “strike.” In the wake of a police attack on Jacob Blake in Kenosha, WI, the NBA’s Milwaukee Bucks, followed quickly by a host of professional athletes, collectively refused to work in solidarity with Black Lives Matter and in protest of anti-Black state violence. Many commentators eschewed the word “strike” on the ground that the actions, like Colin Kaepernick’s and other athletes’ earlier national anthem protests, were “political” in nature, not focused on the “economic” relationship between the workers and their own employer. That dispute raised fundamental questions about the nature of work and the function of worker organizing, questions addressed more generally by Diana S. Reddy’s outstanding recent Yale Law Journal Forum essay ‘There Is No Such Thing as an Illegal Strike’: Reconceptualizing the Strike in Law and Political Economy.
Reddy’s essay provides a magnificent and generative tour through the fraught relationship between the “economic” and the “political” in labor law via the topic of strikes. This wide-ranging and deep piece of scholarship briskly covers and knits together an impressive span of labor history, labor law, and social theory. It should draw the attention not only of labor law scholars but all those interested in the emergent Law and Political Economy movement.
Ultimately, Reddy argues for understanding strikes as “contentious politics.” This runs counter to their reigning sociolegal construction as an “economic weapon” in service of collective bargaining over the terms and conditions of strikers’ employment. To get there, she tacks back and forth between the actual operations of strike activity over time and the configurations of law and political economy in each period, both constraining and being influenced by strikes and labor movement broadly.
Beginning with the pre-New Deal period, Reddy emphasizes that strikes effectively politicized “the labor question,” placing it high on the agenda of government policymaking. Notably, this success came notwithstanding both the illegality of most strikes under the reigning legal regime and the related fact that they often failed to transform struck workplaces in the short-term. Many were crushed by state repression or other means. When the time came during the New Deal for the federal government to act decisively to answer the labor question in terms then-advocated by organized labor, those answers took the form of a conjoined economism and voluntarism; the labor movement had learned to be wary of direct engagement with the state. Critically for Reddy, this led to consolidating the “economic weapon” conception of striking that placed it in opposition to politics rather than one wielded within political relationships, as some of the movement’s nineteenth century forebears might have framed it.
Reddy traces the “economic weapon” conception as it weaves through a variety of technically distinct doctrinal areas. These include illegal strikes that the state may suppress, unprotected strikes for which the law permits an employer to fire or otherwise sanction workers, and the ambivalent legal status of public sector unions as exemplified by the difficulty of maintaining the political/economic distinction with regard to strikes.
A crucial insight running throughout the article is the incompleteness of any analysis cabined by the doctrine. Reddy notes, for instance, how in the post-war golden years, employers declined to maximally deploy against strikes their own legally authorized “economic weapons,” such as permanent replacement. They held back in keeping with the broader “moral economy” in which they operated. Vice versa, the neoliberal turn of the 1970s, later consolidated by Ronald Reagan’s decision to crush the federal air traffic controllers’ strike, changed the political economic context in which the “economic weapons” framework operated. In other words, that framework relied upon particular political underpinnings for it to work passably well for labor. By obscuring this, the economic/political distinction ultimately weakened labor’s ability to contest broader shifts in the “institutional practices and cultural commitments” (P. 444) that shape legal doctrine’s meaning in practice.
For the same reason, however, Reddy insists that the bounds of legality produced by the economic/political distinction should not be fetishized by analysts and strategists of labor. This point harks back to the illegal but successful strike action of the pre-New Deal era. That hopeful possibility can be amplified by eroding the divide between the labor movement and social movements—a divide the economic/political distinction itself encourages—and by articulating the illegal strike as civil disobedience. Here, Reddy draws fruitfully from some of the prominent, successful recent labor unrest, often of questionable legality precisely because it strays from the “economic weapons” model—the Fight for $15, the “red state” teacher strikes, and BLM solidarity strikes.
A signal strength of Reddy’s essay is that it operates on both sides of the economic/political divide. Strikes, including through their material effects, do more than act on politics, narrowly construed as a sphere of government policy and action, including the laws that structure work. Instead, the workplace and the streets are themselves sites of politics reducible neither to a state audience or actor nor to exclusively “economic” relationships. This point resonates both with the language of workplace democracy and with Reddy’s earlier point about permanent replacement. It also suggests a fruitful way for analysis of strikes to incorporate broad publics via consumption (or boycotts) in addition to “public opinion” oriented toward voting. In this fashion, Reddy calls for “destabilizing jurisprudential line drawing between the economic and the political in the first place.” (P. 450.) Doing so bears not only on how work is governed, but also on where to look for the democratization of economic life.
In Male Same-Sex “Horseplay”: The Epicenter of Sexual Harassment?, Professor Kimberly D. Bailey explores the depth and limits of one of the carveouts given sanction from sexual harassment liability by the Supreme Court in its 1998 decision, Oncale v. Sundowner Offshore Services: male horseplay. In Oncale, the Supreme Court acknowledged that same-sex sexual harassment is actionable under Title VII, but also stated that horseplay among male employees was not sexual harassment. Using a “masculinities-modified” lens, Professor Bailey delves into the notion that even gender-conforming men have gendered relationships and interpersonal interactions in order to properly classify a lot of what has been presently dismissed as “horseplay” as sex discrimination in the workplace.
Masculinities theory approaches structural and other sex discrimination against women by focusing on men: how they are socialized, and how they perform masculinity. Using this lens, Professor Bailey elaborates upon the often-levied critique that Oncale would, as she put it, “reinforce the sexual desire paradigm.” (P. 95.) Bailey explains that horseplay is often “masculinity competition that leads to harassment among gender-conforming men.” Therefore, she concludes that gender-conforming men are deprived of a good deal of legal protection to which they should be entitled under Title VII, advocating for the abolition of the male-horseplay carveout in order to eradicate sexual harassment more broadly in the workplace. (P. 95.)
One of the many aspects of this article that scholars will “like lots” is how it provides an exposition of, and then builds upon, past scholarly critiques of Oncale. This, in and of itself is valuable, and the article reads like a treatise on how Oncale centers desire-based harassment through its analysis and carveouts. To the extent that Professor Bailey elaborates on scholarly views on the impact of Oncale and its progeny on the regulation of discrimination against the LBGTQ community, this post-Bostock analysis is most thought-provoking and useful.
Possibly the piece’s most valuable contribution is its laser focus on the interpersonal workplace dynamics between gender-conforming men. As Professor Bailey recites, the “gendered hierarchy” created when men perform masculinity to show one another and women that they are more masculine than other men, renders sexual harassment “not just a product of men’s relationships with women, it is also a product of their gendered relationships with one another.” (P. 99.) With this nuanced understanding, Professor Bailey demonstrates how much of what courts relegate to the realm of horseplay is actually the harassment of men, absent desire.
This piece will also be of interest to those who teach Employment Discrimination. I plan to discuss Bailey’s insights regarding Title VII’s true purpose and function in my Employment Discrimination classes. This piece also beautifully summarizes some of the foundational scholarship that established bedrock principles related to sexual harassment, including that sexual harassment is discrimination because of sex, as well as critiques of centering sexual desire when identifying sexual harassment.
When I teach my Employment Discrimination class, I encourage students to contrast lenses through which to view and regulate harassment. Is sexual harassment fundamentally about sexual exploitation and subordination, power and sabotage, or gender regulation and punishment? Just how much room is there in a discrimination-free workplace for sexual expression or conduct? Thanks to Professor Bailey, my students and I not only have a primer to guide us through these and other important discussions, we have a new topic for discussion: What is “horseplay,” actually? Why was it protected? Did this carveout age well? And are same-sex male horseplay and what drives it at the heart of all that Title VII should be seeking to regulate?
Cite as: Kerri Lynn Stone, No More Haven For Horseplay?
(August 17, 2021) (reviewing Kimberly D. Bailey, Male Same-Sex "Horseplay": The Epicenter of Sexual Harassment?
, 73 Fla. L. Rev.
95 (2021)), https://worklaw.jotwell.com/__trashed/
There are plenty of legal rules that were originally born from faulty reasoning and that somehow ended up becoming firmly entrenched despite their flaws. One hopes that among the many changes it has brought, COVID-19 will cause courts and other legal authorities to revisit well-established legal rules, the shortcomings of which have been exposed during the pandemic. Professor Michelle Travis discusses one of these areas in her forthcoming article A Post-Pandemic Antidiscrimination Approach to Workplace Flexibility.
Travis takes aim at what she calls the “full-time face-time norm,” a term she coined fifteen years ago. The phrase describes “the judicial presumption that work is defined by long hours, rigid schedules, and uninterrupted, in-person performance at a centralized workspace.” (P. 203.) This presumption appears repeatedly in reasonable accommodation cases under the Americans with Disabilities Act (ADA). Courts often use some variation of the phrase “attendance is an essential function” almost as boilerplate when explaining why a plaintiff is not entitled to a reasonable accommodation such as telecommuting or a flexible work schedule. One also sees this “full-time face-time norm” appear in Title VII disparate impact cases involving female employees who also have primary caregiving responsibilities. In these cases, courts often treat an employer’s practice of requiring full-time face-time attendance as a basic component of a job, rather than the type of “particular employment practice” that is subject to challenge as part of a disparate impact claim.
As Travis discusses, this approach is flawed from a purely legal perspective. For example, the fact that courts treat regular in-person attendance as an “essential function” of a job is significant because employers are not required to accommodate an employee with a disability by eliminating an essential function. But as ADA regulations make clear, an “essential function” is a fundamental “task or “duty,” like emptying the trash, making deliveries, or counseling a client. Requiring an employee to be in the office from 9 to 5 every day is an employment practice or requirement, not a “task,” “duty,” or “function.” The effect of the misinterpretation is to shield employers from the ADA’s reasonable accommodation requirement, which might otherwise require an employer to allow for telecommuting or flexible work schedules.
This has been the approach courts have taken almost since the ADA became effective in 1992. The fact that Congress did not revisit the issue when it amended the statute in 2008 suggested that, sadly, the “full-time face-time norm” would remain the norm. Likewise, the assumption that “full-time face-time” is a basic component of employment has become embedded in Title VII caselaw.
And then came the pandemic. Travis reviews how COVID-19 forced employers to jettison old workplace practices in order to adjust to a world in which regular full-time face-time work was (at least temporarily) potentially dangerous. She observes that “[t]he successful shift of millions of employees into remote and flexible work arrangements due to COVID-19 has rendered indefensible the judicial treatment of full-time face-time requirements as ‘essential job functions’ under the ADA.” (P. 218.) She cites statistics capturing not just the number of employees who have worked from home during the pandemic, but statistics that seem to rebut some of the most common arguments against permitting telecommuting, flexible work schedules, and similar working arrangements.
For example, one of the most common objections to telecommuting is that it will result in a lack of productivity. Yet, Travis describes one study, among many, in which “two-thirds of managers reported that employees increase their productivity when working from home, and eighty-six percent of employees reported being most productive when working alone.” (P. 219.) Indeed, one of the more interesting aspects of the article is the extent to which the data that Travis relates involving the workplace in the COVID-19 world undercuts the traditional arguments against treating telecommuting and similar arrangements as reasonable accommodations.
Travis reports that “employees are filing more claims against employers alleging failure to accommodate their disabilities than any other COVID-related claim.” (P. 225.) As these claims make their way through the courts, judges will have an opportunity to revisit the full-time face-time norm. While there are certainly jobs for which traditional full-time face-time attendance is necessary, the pandemic has demonstrated to millions of employers and employees alike that rigid adherence to past practices and policies is not necessarily essential to a productive workforce. Title VII’s disparate impact theory and the ADA’s reasonable accommodation requirement are designed, in part, to force employers to re-evaluate whether past practices and policies are truly essential. Travis’ article provides the sort of data-informed legal and policy arguments that one would hope would cause courts to consider their own past approaches when it comes to the full-time face-time norm.
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Yvette Butler, Aligned: Sex Workers’ Lessons for the Gig Economy
, 26 Mich. J. Race & L.
__ (forthcoming, 2021), available at SSRN
Yvette Butler’s forthcoming article, Aligned: Sex Workers’ Lessons for the Gig Economy, is one of those pieces that sticks with you, that pops back into your head multiple times as you go about your day after reading it. This is because it is so packed full of framework-shifting insights about gig work, sex work, racial justice, gender justice, employment law, labor law, and worker solidarity, to name just a few of the topics it covers.
To paraphrase Professor Butler’s central insight, different types of work have different and complicated relationships with legal protections and with stigma. Sex workers have a long history of negotiating both legal status issues and stigma, and have much to offer gig workers in the way of strategy and solidarity lessons.
As Professor Butler observes, some work is performed primarily by employees, and those workers consequently benefit from the variety of protections offered within the “fortress of employment,” as Cynthia Estlund has labeled employee status. Other work is performed by less-protected independent contractors; still other labor is criminalized, leaving those workers entirely unprotected, and vulnerable to arrest and prosecution. Beyond legal protection, another axis for analysis is stigma: some types of work, regardless of legal status, are heavily stigmatized. Because of this stigma, these jobs have historically been occupied by women and workers of color, or perhaps the jobs have become stigmatized because of the race and gender of their occupants.
In Professor Butler’s telling, gig work—cleaning houses on demand, running errands, driving people around, delivering food—is “merely a formalization and de-stigmatization of labor” that is currently and was historically performed primarily by women and workers of color. Though the stigma around gig work may have lessened, particularly as that work has become associated with apps and tech platforms, most gig workers still work outside of employee status, and some struggle with “inconsistent jobs, non-negotiable pay, and no benefits.”
Professor Butler defines sex workers as “individuals who engage in commercial sexual exchange (in any number of ways), regardless of whether they do so because of choice, circumstance, or coercion.” She points out that many sex workers, too, work outside employee status, and even risk criminal prosecution, while performing work that is heavily stigmatized. Yet even in this shadow economy, sex workers have won some battles for legal protection and progress toward de-stigmatization. Some exotic dancers have sued club management, successfully claiming that they are employees who are entitled to wage and hour protections. In Washington state, exotic dancers lobbied successfully for legislation to improve their safety and working conditions in clubs.
Sex workers have also demonstrated the necessity of centering the voices and insights of workers themselves in efforts to legislate change. Drawing from the disability rights movement, and in particular its slogan, “Nothing about us without us,” Professor Butler notes that twin federal laws designed to protect sex workers online (FOSTA-SESTA) in fact deprive workers from access to online forums in which they can “find and negotiate their own work,” thereby limiting “their independence—a key factor in worker power.” Professor Butler cautions that current efforts to increase legal protections for gig workers may be similarly flawed, leaving out the voices of gig workers themselves, who are the authorities on the realities of gig work and have the best eye for unintended consequences. She urges solidarity between sex workers and other types of gig workers, so that sex workers can benefit from gig workers’ relatively greater privilege, and gig workers can benefit from sex workers’ decades of struggle for more rights and less stigma.
In sum, this article sets out an incredibly interesting outline for a rich future research agenda, while also providing some useful, hard-won insights for gig worker advocates today. By situating sex work alongside other types of work, and identifying its commonalities with contemporary gig labor, Professor Butler allows sex workers to teach us about how gig work might be improved. At the same time, she tells a compelling story about sex workers’ own self-advocacy, and their fight for legal status and against stigma. Finally, she connects all of these narratives to the struggle for racial and gender justice, as workers of all types struggle “to work free from exploitation” and hustle not only to survive but also to thrive.
Cite as: Charlotte S. Alexander, Learning from Sex Workers: Lessons in Advocacy, Stigma, and Struggle
(June 11, 2021) (reviewing Yvette Butler, Aligned: Sex Workers’ Lessons for the Gig Economy
, 26 Mich. J. Race & L.
__ (forthcoming, 2021), available at SSRN), https://worklaw.jotwell.com/learning-from-sex-workers-lessons-in-advocacy-stigma-and-struggle/
Professors Grossman and Thomas have written a wonderful article that describes how courts have applied Young v. United Parcel Service, 575 U.S. 206 (2015), in which the Court considered whether pregnant employees are entitled to workplace accommodations that they need because of pregnancy. The Court’s decision did not resolve the issue; it merely provided trial and appellate courts a structure for thinking about the issue. Consequently, courts have used the Young decision in various, inconsistent ways.
Reading this article, Making Sure Pregnancy Works: Accommodation Claims After Young v. United Parcel Service, Inc., was fun because it is smart, straightforward scholarship that discusses a live controversy that lingers because the Supreme Court did not resolve the issue when it had the opportunity to do so. It reminds us that the Supreme Court often addresses only the case directly before it, leaving trial and appellate courts to consider broader issues in later cases. That is worth remembering in this era in which the Supreme Court’s job is thought by some to include fully resolving important legal issues for good.
The article describes the issue that triggered Young—discrimination in the accommodation of pregnant employees. The Pregnancy Discrimination Act (PDA) deems pregnancy discrimination unlawful sex discrimination under Title VII of the Civil Rights Act of 1964 and requires pregnant employees be treated “the same for all employment-related purposes . . . as other persons not so affected but similar in their ability or inability to work.” Prior to Young, many employers had policies that granted or denied accommodations based on how a worker became injured or why the worker needed to be accommodated, with no specific provision for pregnancy-based accommodation. Under such policies, pregnancy was essentially grouped with the reasons that did not trigger accommodation rather than with the reasons that did trigger accommodation. Consequently, the Court needed to decide whether the PDA requires pregnant employees be accommodated to the same degree, e.g., given light duty assignments, as other workers who were accommodated for non-pregnancy reasons.
Rather than decide whether the PDA requires accommodation, the Young Court created a structure for trial and appellate courts to use to decide whether an employer discriminated against pregnant employees. The Court modified the three-part McDonnell Douglas test, which has been used for decades in employment discrimination cases to uncover intentional discrimination, to apply in this situation. The modified test helps a factfinder decide whether an employer who declines to accommodate a pregnant worker has done so for discriminatory reasons or nondiscriminatory reasons. The inquiry focuses on the employer’s justification for denying a pregnant worker an accommodation that other workers have been granted.
The article briefly discusses the approaches courts have taken in applying Young. Some courts—consistent with Young’s thrust—have aimed primarily at the employer’s justification for the refusal to accommodate. Other courts have focused less on the employer’s reasoning and more broadly on whether the employer discriminated against the pregnant employee. Some have required the pregnant plaintiff identify a similarly situated non-pregnant employee who was accommodated to support a possible inference of discrimination and escape summary judgment. Those approaches can lead to different outcomes in different circuits, yet all arguably stem from the Court’s decision. This is the result of the Court’s decision to elide Young’s key question.
The article reminds us that a Supreme Court decision does not always resolve an issue. A decision may move the legal dispute from one gray area to different but equally gray area. The Young decision provided trial and appellate courts latitude to decide whether employers discriminated when refusing to accommodate pregnant employees. Unsurprisingly, those courts have utilized multiple approaches to resolve the issue.
Ideally, the law should be clearer after the Supreme Court issues an opinion. As this article makes plain, that does not invariably happen. Employment law practitioners, students, and academics should read this article not to revel in the Supreme Court’s failure to clarify the law, but to consider what the law is and to think about how a responsible attorney should counsel clients regarding an employer’s obligation to accommodate and an employee’s right to accommodation when the law remains uncertain. In addition, the authors invite readers to consider the steps that should be taken to clarify the law on accommodating pregnant workers. The Supreme Court may need to revisit and clarify its decision or legislation may be necessary to resolve the issue.
There is much more law and policy embedded in this clear and enjoyable article. Readers will find out just how much more when they peruse the article.
Increasingly sophisticated data analytics paired with machine learning is changing the world, and workplace applications are already a thriving industry. Over the last five years or so, legal scholars have increasingly explored the legal implications of these new technologies. Most of that work has focused on concerns related to privacy or discrimination, and quite a bit focuses on use of this technology in hiring. This focus only reaches part of the “people analytics” industry–it leaves out the application of predictive analytics to first analyze and then shape worker behavior and the working environment.
In Preventing #MeToo: Artificial Intelligence, the Law and Prophylactics, James P. de Haan tackles this kind of application of AI in the workplace by looking at how predictive analytics could be used to prevent harassment. It’s a great time to be thinking of this potential application for at least three reasons. The effects of the #MeToo movement have caused employers to pay more attention to preventing harassment, the technology appears to be soon in reach, and thinking about this application might help us think carefully about other ways AI might be used to shape worker behavior and the working environment.
Reviewing this article for the Journal of Things We Like Lots posed a challenge because I do not like the kind of surveillance and AI-driven, behavior-prediction program described in this article. What I do like is that, knowing this is coming, de Haan has identified the outlines of how such a program would work, explained the appeal as a tool to prevent harm, and set up several preliminary concerns we should have, highlighting some challenges we need to continue to think through.
As de Haan notes, sexual harassment (as well as harassment on the basis of other identity characteristics) remains widespread, despite the #MeToo movement. Part of the reason harassment remains so widespread is that it is grossly underreported, and part of the reason it is unreported is a fear of retaliation. That fear is well founded. According to the EEOC, about 75% of employees who speak out about harassment report that they experienced some form of retaliation for doing so.
As de Haan further describes, employers have responded to their legal obligations by nearly universally adopting harassment policies and training. While the existence of policies and training may provide a defense to a harassment claim, in some instances, as the EEOC has noted, there is no evidence that they are effective at preventing harassment. de Haan chalks this up to human involvement, noting that “sexual harassment policies . . . are only as good as the managers who implement them and are responsible for making sure there is broad compliance.” Because the legal standard for determining when a working environment has become objectively hostile is ill defined, people are notoriously bad at recognizing it.
From that central observation, de Haan explores what it might mean to remove the human evaluator by employing AI. After summarizing sexual harassment law and the obligations imposed on employers to prevent or remedy it, de Haan summarizes the critiques that the law fails the harassed. The bulk of the article examines how AI might be trained to recognize sexual harassment and identifies a number of legal implications of such a system, namely expanding employer duties to monitor and prevent harassment, and the implications of that monitoring for privacy, reputation, and workplace comradery.
One of de Haan’s central premises is that harassment harms both employees and employers. Thus, when it comes to prevention of harassment, the interests of the employer and employee are not diametrically opposed. For this reason, de Haan notes, creating a cooperative system that recognizes the joint interests of the harassed employee and the employer would more likely correctly pinpoint the workplace problem as the harasser, rather than incorrectly labelling the harassed employee as the workplace problem. In this way, such a cooperative system could promote reporting.
AI is that kind of system. Generally, one of the key uses of AI is to extract patterns and then “map out extant and predicted relationships based on these patterns.” In de Haan’s view, this is exactly the kind of thing that is needed to prevent harassment. Such a program could recognize when interactions between employees might risk creating a hostile environment—and could be more accurate than a person at identifying it early, given the difficulty in defining when an environment becomes hostile.
And as he describes, socio-cultural studies show that harassment is predictable when social situations, personalities, and context clues are analyzed. In fact, businesses are already using software to identify and prevent harassing conduct in email communications. The existing programs, though, are essentially not sensitive enough. They require actionable harassment to occur or almost occur before they alert human resources. To really prevent harm, de Haan argues that the prediction and warning must come earlier in the process—before an actionable harassment claim arises.
de Haan next explains how the AI would be trained to gather the data that would allow such a prediction. He suggests that new hires might play a game that could “allow the program to assign a ‘sensitivity profile’ for each employee.” Based on the research he identifies, that game should also test for a person’s problem-solving skills, propensity for confrontation, and notions of justice. But this is only part of the data that would be needed. The program would also have to learn what conduct is likely to be perceived as harassment. For this, de Haan suggests that
Permitting the program to review internal HR files and complaints would help it understand what actually leads to low-level complaints. . . .Taking this a step further, the program could even reach out of network to comb the internet for all publicly available information about a company’s employees. It can use an employee’s photo to identify social networks and map out relationships with co-workers based on extant connections, photos, conversations, tags, and content interaction.
And this is where the potential gets particularly scary. The program de Haan describes
ranks people based on subjectivity to sexual harassment; categorizes them as potential victims and harassers; consolidates mounds of highly sensitive, private information into one central location; and, perhaps most worryingly, potentially punishes people for acts never committed.
To be effective, an AI harassment prevention program has to have an early warning system to prevent harm even before an official report is made and an accurate “map” of the organization’s employees (including their personalities, work functions, and power relative to each other). In order to achieve this, the program will have to consume “massive amounts of data.”
After painting this picture, de Haan warns of four main legal implications. The ability of an employer to monitor employees this way may create a duty to monitor them if in fact that monitoring is effective at preventing harassment. And the possibility of a system that creates red flags may also create a duty on employers to warn employees who might be targets of harassment. Additionally, the expanded capability and warnings will likely trigger a duty to investigate more employee conduct. And lastly, the collection of so much data—particularly data outside of the workplace—and its use to potentially label an employee a harasser, raises significant privacy and autonomy concerns.
In the end, de Haan notes that nothing he has explained solves the problem of what an employer should do with the information that a particular situation risks creating a hostile environment at some point in the future, although he raises the specter of what might happen and how employees at risk of harassment might react upon finding out if nothing is done in the face of that kind of warning. Notably, he does not do much to address the converse of these concerns—how to prevent protection of at-risk employees from resulting in limits to their work opportunities. As he briefly notes, one response to the #MeToo movement has been that men in positions of power have stopped mentoring women subordinates or engaging in social interactions with them. And because this program would assess all employees, we might worry that a rational employer would segregate those employees assessed “highly” or “over-sensitive” to harassment in career-limiting ways, or maybe not hire them in the first place.
As I said at the beginning, reviewing this article for the Journal of Things We Like Lots posed a challenge because I do not like the kind of program described in this article. But de Haan has provided an important first look at how this kind of program would work, explained the appeal as a tool to prevent harm, and set up an early warning of some concerns and challenges. It is a good step that highlights how many new challenges we need to continue to think through.