James Grimmelmann & Daniel Westreich, Incomprehensible Discrimination
, 7 Calif. L. Rev. Online
164 (2017), available at SSRN
I’m a fan of off-beat approaches to legal scholarship, having attempted a couple of efforts myself. And I try to keep up with developments in the real world that threaten to impact our discipline, like the concern about “Big Data” that has begun to appear in the law journals. So it’s no surprise that I was very taken by a particularly creative piece by Professors James Grimmelmann and Daniel Westreich, which combines an amusing conceit with dead-on analysis of an emerging and important question.
Incomprehensible Discrimination explores one aspect of a much longer article that appeared recently in the California Law Review by Solon Barocas and Andrew Selbst on data-driven algorithmic methods of making employment decisions. The aspect Grimmelmann & Westreich explore is the ability of such analyses to find correlations between, say, job performance and any of a variety of data points with no apparent causal connection to better performance. Barocas and Selbst conclude that traditional disparate impact analysis is not likely to invalidate these kind of selection process. Given sufficient data and robust tests of significance, it’s hard to conclude that reliance on such factors is irrational, even in the absence of any articulable explanation for what one has to do with the other. For Grimmelmann and Westreich, that’s exactly the problem.
For example, it is at least conceivable that better job performance can be predicted from characteristics such as the applicant’s favorite kind of music, whether she owns a car, or her zip code. But what confidence can we have in the resulting explanation?
Grimmelmann & Westreich’s method of exploring this question is a “(fictional) opinion of the (fictional) Zootopia Supreme Court of the (fictional) State of Zootopia,” which is designed to explore the disparate impact implications of this use of Big Data. They posit a hiring process that could easily result in racial (or, in the world of Zootopia, species) distinctions without any intent to discriminate. Thus, the Zootopia Police Department
uses a mathematical model to predict which applicants will be successful police officers. Four facts about this model are undisputed. First, its scores are significantly correlated with a reasonable measure of job performance. Second, the model does not explicitly consider applicants’ species. Third, it nonetheless systematically favors carnivorous applicants over herbivores. Fourth, no one has explained how and why the model works at predicting job performance or how and why it disadvantages herbivores.
The second undisputed fact is designed to rule out intentional discrimination. (Although it remains possible for a facially neutral model to be adopted for discriminatory purposes, that is very difficult to prove.) And, while the third raises a prima facie case of disparate impact, the first would seem to necessarily mean that the practice satisfied the business necessity/job relation standard under traditional analysis.
As for the fourth, that consideration does not currently have a place at the table under either disparate treatment or disparate impact analysis and, to be frank, wasn’t especially relevant before Big Data raised exactly that question. But it is this possibility that Grimmelmann & Westreich argue should be determinative in any court challenge to such a practice. According to them, such algorithmic analysis may “both predict job performance and discriminate against herbivores” without anyone being able to provide a causal explanation for the result. (P. 170.) The Zootopia Supreme Court elaborates:
The [plaintiff] League is correct that the factors that the model identified correlate with species, and the [employer] is correct that these factors also correlate with job performance. The problem is that there is no explanation in the record as to which of these two correlations, if either, is causal. It may be that the factors directly measure applicant characteristics that determine success in the challenging and dangerous field of police work, and that those characteristics happen to be unequally distributed in our diverse society. It may also be that these factors are instead measuring applicants’ species and that they measure likely job performance only because they are identifying species in an applicant pool where the relevant characteristics are unequally distributed. (P. 170.)
To deal with this risk, the authors argue that the defendant’s business necessity burden “requires it to show not just that its model’s scores are not just correlated with job performance but explain it.” (P. 170.) They suggest the necessity for “an explanation in terms of the chains of causation by which one state of affairs leads to another,” and elaborate that a good explanation “is one that identifies the hidden and nondiscriminatory variables connecting the observed factors with the predicted target variable.”
The reason, of course, is that, even a model that is scrubbed of any explicit race factors will still yield racially-slanted results if the factors actually used are correlated with race. Nor is this so strange. Although the authors don’t mention it, the Supreme Court has repeatedly had to deal with the question of whether legislative redistricting decisions are race-motivated (unconstitutional absent a compelling state interest) or politically motivated (constitutional) given that African Americans vote very heavily Democratic so there is a very strong correlation between the two.
According to the authors, that kind of inquiry is necessitated whenever impenetrable algorithms yield disparate results for protected classes. They end with a cri de coeur:
Our holding today is simple. Incomprehensible discrimination will not stand. Applicants who are judged and found wanting deserve a better explanation than, “The computer said so.” Sometimes computers say so for the wrong reasons–and it is employers’ duty to ensure that they do not. (P. 177.)
As is often the case, this Jot can’t do justice to the Grimmelmann & Westreich piece, which is well worth a read, as is the Barocas & Selbst article to which it responds.
Nearly sixty percent of American workers are paid on an hourly basis. Despite this reality, wage and hour law typically generates little attention in academic literature. While there has been considerable discussion about “the gig economy” and independent contractors, the nuts and bolts concerning how most Americans get paid goes largely unaddressed in legal scholarship. For this reason alone, a new article by Elizabeth Tippett (Oregon), Charlotte S. Alexander (Georgia State), and Zev J. Eigen (Littler Mendelson) represents a welcome addition to the literature.
The article focuses on workplace timekeeping software and the ways in which employers can use such software to commit wage theft. The authors review the functionality of thirteen different timekeeping software programs and explore how such software can be used by supervisors to effectively cheat employees out of wages for hours worked. Without going into great detail here, these programs vary considerably in their structure. Several of the programs allow – and in some cases, tacitly encourage – supervisors to review an employee’s submissions and then edit those submissions without providing any sort of notification to employees. The authors postulate that these types of programs pose the greatest risk of wage theft. Programs that afford supervisors less discretion present less risk.
Although the authors do not make any sort of empirical claims as to how common employer wage theft is, they do apply behavioral ethics theory to this situation to suggest, at least, that it would be unsurprising if supervisors engaged in unlawful edits to employees’ time and attendance data. For example, the authors discuss how behavioral ethics suggests that people are more likely to cheat when they can distance themselves from the dishonest transaction (such as where a supervisor can adjust an employee’s overtime hours online rather than directly ordering the employee to work off the clock). The authors speculate that, in light of all of this, employers might be underestimating the litigation risks associated with certain timekeeping systems.
These are all interesting observations, but part of what makes them noteworthy is the fact that this type of analysis is so uncommon in legal scholarship involving the law of the workplace. Questions about hours worked and overtime pay are of central importance to most employees. Yet, legal academics rarely discuss the nitty-gritty of how these things are measured in the workplace and how timekeeping systems might be abused.
The other feature of the article that makes it especially noteworthy is the fact that it serves as a reminder of an obvious, yet valuable, point. The Fair Labor Standards Act (FLSA), the primary federal wage and hour law, is an old statute. Like really old. And its main provisions have largely remained the same over time. Thus, as the authors note, it’s important to reflect on the fact that “the main law regulating work hours and pay for most employees in the United States has remained unchanged since before the Second World War.” (P. 9.) Even though the Department of Labor recently updated regulations regarding the overtime exemptions, the associated recordkeeping regulations have not been updated since 1987 and somewhat comically still contain references to “microfilm.” (P. 46.)
The authors ultimately offer a sensible update to the regulations in this area based on Department of Defense contractor guidelines. These guidelines, among other things, impose greater limitations on the ability of employers to modify timesheets without the knowledge of employees. But as part of their attempt to address the specific concerns associated with the regulation of timekeeping software, the authors make an important point regarding the need for workplace regulations to stay current with technological changes. As employers increasingly turn to technological advances to monitor their employees, the Department of Labor also needs to adjust. Nowhere does that fact seem more important than in the wage and hour context.
Perhaps the greatest success story for unions and workers over the last five years is the wave of state and local ordinances that have raised minimum wages, guaranteed sick and safe time, and improved corporate scheduling practices, among other worker-friendly innovations. At the same time, though, union density has remained flat, as unions’ successes in campaigns for better working conditions have not translated into large numbers of successful union elections. Moreover, with the election of Donald Trump, further erosion of union density is likely: unions will face a hostile NLRB possibly compounded by federal labor law reform in the form of a national “right to work” law or evisceration of collective bargaining rights for federal employees. In other words, unions’ campaigns to improve working conditions have been wildly successful so far – they just haven’t led to more enterprise-based bargaining, as contemplated by the Wagner model of labor law.
Where does this leave unions? The pessimistic story is that private employers – aided by an anticipated spate of favorable NLRB decisions – will continue to rebuff union drives, Republicans will continue to weaken public sector unions in states they control and in the federal government, and the Supreme Court will eliminate mandatory dues or fees in public sector unions nationwide. And it goes nearly without saying that prospects for creating conditions in which unions could thrive – for example, by passing legislation to facilitate sectoral-level bargaining – went from “very unlikely” to “completely DOA” with the 2016 election. But Kate Andrias develops a more optimistic story in her pathbreaking article, The New Labor Law. She focuses with precision on exactly how unions have managed to achieve their recent successes, revealing that, in a sense, sectoral and regional bargaining are actually already here, and they can be nurtured and propelled at the state level.
How could a new model of union representation arrive without anyone noticing? The answer seems to lie in our tendency to place labor law and employment law in separate silos. Consider the process by which New York State raised wages for fast food workers or Seattle raised its minimum wage. In the New York example, public protests underwritten by the Service Employees International Union led Governor Andrew Cuomo to convene a wage board, comprised of representatives of management, labor, and the public. The wage board then heard testimony, weighed the evidence, and announced a decision phasing in a fifteen-dollar minimum wage. Similarly, the process by which Seattle raised its minimum wage entailed creating a task force on which both labor and business were represented. The task force hammered out a compromise proposal, which was ultimately enacted by the City Council. In both instances (and many others, which Andrias documents), union representatives literally bargained with management representatives over conditions for large numbers of workers – though the final result then had to be ratified by government. Andrias calls this tripartite process “social bargaining,” and she argues that it could be replicated: “Under the emerging model, employment law is no longer just a collection of individual rights to be bestowed by the state. Instead, it is a collective project to be jointly determined and enforced by workers, in conjunction with employers and the public.” (P. 68.)
In addition to identifying the practice of social bargaining in the United States, Andrias argues that it could lead to two results: first, improving union prospects for traditional collective bargaining for working conditions above the minimum guaranteed by law, and second, creating new forms of labor organizations and funding mechanisms. The most concrete manifestation of the first can be seen in minimum employment standards that contain a carve-out for unionized employers – as Andrias notes, a practice that can generate controversy. But beyond that, Andrias argues that growing political support for better pay and benefits can soften employer resistance to offering higher wages at the bargaining table. As to union funding mechanisms, Andrias’s possibilities are less concrete, but they include possible fee-for-service models (which the NLRB could facilitate), as well as government funding of union programs that benefit non-union workers.
As Andrias acknowledges, finding a way for unions to pay for social bargaining is perhaps the greatest challenge to the model’s success. Unions’ loss of density and political power have gone hand-in-hand – they are a vicious cycle. Movements like Fight for $15 have shown that labor can still deliver the goods for low-wage workers, but they are expensive, and dues-paying members may not be willing to fund them indefinitely. Whether labor can solve the funding problem while fighting off new threats from the federal government will likely be the single largest determinant of whether social bargaining proliferates. At the same time, the lack of a long-term funding mechanism is not the only challenge to social bargaining – Andrias also points to legal threats, including federal or state preemption of local laws.
Over the course of the next four years, we are likely to see manifested two diametrically opposed visions for improving the lives of low-wage workers – a deregulatory one in red states and cities, and a social-bargaining-based one in their blue counterparts. Andrias’s article offers scholars and other commentators a framework for thinking about the latter, and in doing so, performs a great service.
This article, by Professor Wendy N. Hess, picks up on an important issue, largely ignored in the legal literature until now: so-called “slut-shaming” in the workplace. “Slut-shaming” involves denigrating a person – most often a woman – on the basis of her actual or perceived sexual activity. It reportedly takes place quite a bit in the workplace, and usually with deleterious effects on victims’ reputations, work product, and career trajectories. This article thus picks up on a salient issue in the contemporary American workplace and provides an excellent exposition of a split among courts that reveals the unwillingness of some judges to acknowledge the empirical truth that men who are perceived as promiscuous are often seen as “studs,” while women so perceived are seen as “sluts,” and subsequently downgraded in the esteem of co-workers and employers. Once so thoroughly presented, this collision between this double standard and the antidiscrimination mandate of Title VII crystallizes and cannot be ignored.
The article critiques the ways in which courts have dealt with hostile work environment sexual harassment claims stemming from rumors and/or attacks premised on the plaintiff’s perceived sexual promiscuity. The article expertly lays out courts’ historic confusion as to when alleged harassment has occurred “because of” the victim’s sex, as required by Title VII, and makes the compelling point that “Courts have often failed to recognize the gendered aspect of sexual rumors about women.” It boils down to the fact that, as Professor Hess contends, in many situations, due to the so-called “double bind” or “double standard,” seemingly similarly situated men and women could not, in reality, be any more differently situated. And when it comes to “slut-shaming,” Professor Hess could not have found more fertile ground upon which to make her point. She thus exhorts courts to identify the double standard that makes rumors about a female employee’s sexual promiscuity “uniquely insulting to women.”
One major contribution of the article is its substantiation with social science research of a matter that seems intuitively true: rumors of promiscuity undermine a woman’s professional, social, and intellectual credibility in a way that they do not undermine men’s. Particularly interesting is Professor Hess’s extrapolation of the phenomenon of “slut-shaming” in adolescents to adults in the workplace, and her citation to sources for her contention that “Sexually permissive women are judged more negatively than sexually permissive men, not just on the basis of sexual morality, but also on a variety of competency measures relevant to a person’s success in the workplace.” Of use to Title VII litigators, she amply articulates a basis upon which courts could find that despite the dissemination of rumors about men and women, women are uniquely harmed because of their sex.
The phenomenon that Professor Hess describes is similar to family responsibility discrimination (“FRD”), a legal doctrine that protects from workplace discrimination a woman who experiences prejudice based upon her status as the mother of small children. Courts recognized FRD because women are more likely than men to be judged negatively for their caretaking roles, even though either a man or a woman could in theory be discriminated against because of their family responsibilities. Professor Hess describes slut-shaming in much the same way. While both men and women are susceptible to attacks, speculation, and gossip about their sexual activities and feelings, women are made to suffer from these things in a uniquely harmful way. Given Professor Hess’s analysis, the potential doctrinal parallels are clear.
Particularly standout features of this article include Professor Hess’s exposition of the confusion over Title VII’s “because of” requirement and the various evidentiary routes that plaintiffs can use to move a court to the conclusion that their injury stems from discrimination or harassment “because of” their sex. Also of particular interest is Professor Hess’s nuanced critique of the misguided view that “because of” be construed to require that the harasser consciously desire to harass his victim because of her sex. As she incisively notes, this premise “incorrectly assumes that most harassers are self-aware enough to articulate a conscious motive,” and she reminds the reader that “it is conceivable that a harasser can [act]…without awareness that [he]…was motivated by hostility to a woman in the workplace.” Her characterization of rumors about promiscuity in the case of female plaintiffs as “gender-based insults” is astute, and it serves to guide the reader through her discussion of courts’ split over whether such rumors are inflicted because of sex and land them at her conclusion that “Women who are made the subject of sexual rumors in the workplace should be able to seek redress under Title VII because the harassing conduct meets the…requirement that it be ‘because of’ sex.”
Finally, Professor Hess’s discussion of the putative “equal opportunity harasser,” whom many courts would say could not be seen to have acted “because of sex,” is very important. Her characterization of this reasoning as an invidious stumbling block to sound analysis is excellent. Scholars have long decried the “equal opportunity harasser” and the perverse effect of his additional harassment of men as a form of insulation from liability arising from, or perceived mitigation of, the harm inflicted by his harassment of women. This article’s examination of “slut-shaming” through the lens of the equal opportunity harasser problem brings the issue into sharper focus and ultimately lends tremendous credence to her argument about the split she is addressing and her suggestion as to how it should be resolved. All in all, this is an important article about a largely ignored issue and doctrinal split, and it makes for an enlightening and enjoyable read.
Cite as: Kerri Lynn Stone, (Un)Equal Opportunity Shaming
(May 15, 2017) (reviewing Wendy N. Hess, Slut-Shaming in the Workplace: Sexual Rumors & Hostile Environment Claims
, 40 N.Y.U. Rev. L. & Soc. Change
581 (2016)), https://worklaw.jotwell.com/unequal-opportunity-shaming/
Emily A. Spieler, Whistleblowers and Safety at Work: An Analysis of Section 11(c) of the Occupational Safety and Health Act
, ABA J. on Lab. & Emp. L.
(forthcoming 2017), available at SSRN
At the heart of Emily Spieler’s incisive critique of the whistleblower protections of the Occupational Safety and Health Act (OSH Act) is a basic design question: How might a society enforce workplace safety mandates? On one hand, a top-down government inspectorate might proactively investigate occupational hazards and punish violating employers. On the other, workers who are ill or injured, or who have knowledge of safety risks, might take bottom-up enforcement action through a private lawsuit or other direct action. Or there might be combinations of the two: workers might feed complaints and tips to government, while retaining (or not) some right to take action on their own. In all cases, workers play a central role: as tipsters, complainants, witnesses, litigants. Here is where law and policy makers face a second set of design choices. Given workers’ key role in enforcement, how might they be incentivized to take action, and protected against the downside risks of doing so?
Spieler’s subject, Section 11(c) of the OSH Act, seeks to protect workers who make safety complaints or otherwise participate in investigatory and enforcement proceedings under the Act. Though the OSH Act contains no private right of action – placing it closer to the top-down end of the enforcement spectrum – worker complaints and worker-provided information are nevertheless central to the agency’s investigation and enforcement activities. And as Spieler’s careful analysis reveals, Section 11(c) falls far short of incentivizing or protecting those workers. However, Spieler offers a way forward at the state level, and so her article simultaneously identifies a suite of problems and offers at least a partial fix.
Drawing on data on the processing and outcomes of 11(c) claims, Spieler identifies four major design flaws. First, workers who claim retaliation for activity protected by the OSH Act must proceed through an opaque, often dead-end administrative exhaustion process, and have no private right of action. Workers must first file a complaint with the relevant regional OSHA office. If the regional investigator finds merit and cannot facilitate settlement, the complaint is referred to the regional office of the Solicitor of Labor (SOL), which decides whether to litigate the claim in federal district court. As Spieler observes, SOL decisions are “entirely non-reviewable,” and unlike the Equal Employment Opportunity Commission’s litigation decisions about employment discrimination charges, workers have no right to proceed to court on their own after an SOL decision. Spieler’s data reveal that about two-thirds of 11(c) complaints were screened out by regional OSHA investigators in FY 2011-2015, and the SOL declined to pursue almost sixty percent of the referrals that it received in the period from 1996-2008.
Second, workers must initiate an 11(c) claim within an extremely short, thirty-day statute of limitations period. As Spieler observes, federal antidiscrimination and wage and hour statutes allow much longer time periods, and “every whistleblower law passed after 2000 allows at least 180 days for filing with the appropriate administrative agency.” Given that OSH Act whistleblowers may themselves be recovering from occupational illness or injury, the thirty-day complaint period almost certainly suppresses claims.
Third, 11(c) does not provide for preliminary reinstatement for terminated workers upon a determination that their retaliation claims are non-frivolous – an option offered by other recent whistleblower statutes and the Mine Safety and Health Act of 1977. Thus, even workers with meritorious claims can be left jobless during the pendency of a retaliation investigation.
Fourth, workers must satisfy a high standard of proof, establishing that retaliation was a “but for” cause (though not necessarily the sole cause) of the adverse action they experienced. Like the statute of limitations, this standard departs from other whistleblower laws, which require proof only that retaliation was a “contributing factor” in the employer’s decision. And like the other flaws that Spieler identifies, this high standard of proof makes 11(c) claimants’ uphill climb even steeper.
Spieler’s data reveal a final problem with the design of the 11(c) scheme: of the claims settled at the initial OSHA investigation phase between 2009 and 2015, the average worker recovery was only $7300. Though we do not know from Spieler’s data the value of these workers’ original claims, or their possible recovery via litigation, it seems clear, in Spieler’s words, that these amounts are “unlikely to reflect the full value of lost wages” or to be “large enough to discourage employers from unlawful retaliation.” Taken together, Spieler’s analysis shows how these shortcomings leave terminated workers with little incentive to go to OSHA to enforce their rights against retaliation; bad-actor employers have little incentive to refrain from retaliation.
Against this bleak backdrop, Spieler does note several bright spots in 11(c) claims processing and enforcement. During the Obama Administration, the SOL began taking action on substantially more 11(c) referrals, and OSHA has implemented various training and policy improvements around retaliation issues. Whether any of these reforms survive in a Trump Administration Department of Labor is anyone’s guess. However, Spieler notes one additional area of promise that may be somewhat insulated from federal executive branch politics. Under the OSH Act, states may design and implement their own occupational safety and health plans that equal or exceed the protections offered by federal law. Twenty-one states have done so. These states are therefore free to change the structure of their OSH whistleblower protections. In doing so, they can draw from the menu of design choices in place in other areas of whistleblower and employment law, even beyond those that Spieler identifies: a private right of action for retaliation claims after administrative exhaustion, double or treble damages, attorneys’ fees, class and collective action mechanisms, extended statutes of limitation, and preliminary reinstatement. Further, as Spieler points out, even states without OSHA state plans might recognize a state-law cause of action for wrongful termination to protect whistleblowers who are fired after raising safety concerns. Given perpetual federal inertia, and what is likely to be outright hostility to workplace regulation in a Trump Administration, states should take Spieler’s critique to heart and design a better system for incentivizing and protecting OSH whistleblowers.
Cite as: Charlotte S. Alexander, Incentivizing and Protecting OSH Whistleblowers
(April 14, 2017) (reviewing Emily A. Spieler, Whistleblowers and Safety at Work: An Analysis of Section 11(c) of the Occupational Safety and Health Act
, ABA J. on Lab. & Emp. L.
(forthcoming 2017), available at SSRN), https://worklaw.jotwell.com/incentivizing-and-protecting-osh-whistleblowers/
In Confusion on the Court, Professor Michael Harper discusses how in two recent cases the United States Supreme Court appeared to confuse two critically important concepts in employment discrimination law: disparate treatment (intentional discrimination) and disparate impact (unintentional discrimination). Professor Harper’s essay is worth a Jotwell jot because it rigorously analyzes a core doctrinal issue in employment discrimination law while subtly reminding readers how issue framing can drive doctrinal analysis. I am partial to Professor Harper’s approach because it is useful to four groups: judges shaping the employment discrimination field, legal scholars thinking about the field, legal practitioners working in the field, and law students just learning about the field.
The essay considers the Court’s different approaches to seemingly similar factual situations. In Young v. UPS, 135 S. Ct. 1338 (2015), the Court viewed UPS’s application of its disability policy to refuse to accommodate a worker’s pregnancy as a disparate impact issue; whereas in EEOC v. Abercrombie & Fitch, 135 S. Ct. 2028 (2015), it viewed Abercrombie & Fitch’s application of its headwear policy to decline to hire a Muslim applicant who wore a headscarf as a disparate treatment issue. As Professor Harper notes: “The Court seemed to give contradictory answers to an important, unresolved conceptual definitional question: Does disparate treatment include assigning members of a protected group, based on their protected status, to a larger disfavored group that is defined by neutral principles and that includes others who are not members of the protected group? Or, in the alternative, does such an assignment have only a disparate impact on the protected group?” (P. 545.) Professor Harper describes how the Court analyzed the cases, explains how he thinks the Court misanalyzed the cases, and suggests future course corrections.
In discussing the cases in depth, Professor Harper explains why the Court treated the cases differently. In Young, UPS applied its light-duty accommodation policy to a pregnant employee and declined to accommodate her. It treated the employee as a part of the larger group of people who had disabilities that did not need to be accommodated under the policy. The Court suggested that the employer’s placement of the plaintiff in the broader class of people who did not need to be accommodated was not motivated by her pregnancy. Consequently, the case was treated as a disparate impact case involving the application of a rule that might lead to unintentional discrimination against pregnant women. Conversely, in Abercrombie & Fitch, the employer declined to hire a Muslim woman applicant who wore a headscarf. Abercrombie & Fitch functionally treated her as part of the larger group of people who would violate the company’s “Look Policy” by wearing caps, whether those caps were worn for religious reasons or other reasons. However, the employer contemplated (without knowing) whether the applicant wore the headscarf for religious reasons before applying the rule and before denying her employment. Consequently, the Court treated the case as a disparate treatment matter involving intentional discrimination.
Professor Harper argues that both cases should be treated as disparate treatment cases. He explains that in both cases, the employer’s policy treats a protected group as part of a larger group that is disadvantaged under the relevant policy. Applying the policy to the larger group constitutes disparate treatment of the protected group. To him, the cases appear indistinguishable, and should be analyzed the same. The essay’s careful critique of the Court’s approaches to the two cases is worth the read, even if the reader is not as critical of the Court as Professor Harper is.
Ultimately, the essay requires the reader to consider how crucial framing is to doctrinal analysis. Professor Harper frames the issues in both cases as being the same. If the Court framed the issues as Professor Harper does, it would treat the cases in the same way; it does not. Professor Harper focuses on how the employers’ policies applied to and affected protected groups. The rules treated protected groups differently than some non-protected groups, so the protected groups were disparately treated. Conversely, the Court focused on the employers’ narrow motivation in the two cases. In Abercrombie & Fitch, the employer considered the applicant’s protected status before applying the policy. That consideration triggered the disparate treatment (intentional discrimination) framework. In Young, the employer applied its policy, arguably without explicit consideration of the employee’s pregnancy. Without such contemplation, the policy’s application triggers merely the disparate impact (unintentional discrimination) framework. Whoever is correct, the essay forces us to think harder about why Professor Harper and the Court frame the issues differently and reach different conclusions regarding how to analyze Young.
The essay is good for employment discrimination judges, scholars, practitioners, and students to read because it raises doctrinal issues that courts need to decide. The doctrinal test for finding an employer liable for disparate treatment discrimination is different than the test for finding an employer liable for disparate impact discrimination. In addition, the defenses to disparate treatment are much narrower than the defenses to disparate impact. So whether a case implicates disparate impact rather than disparate treatment, or vice-versa, is important. This is especially true in pregnancy and religious discrimination cases, because employment discrimination law suggests that pregnant employees and religious employees ought to be accommodated when possible so that they may continue to work. Treating a pregnant or religious employee’s case as a disparate impact matter rather than a disparate treatment matter may make a refusal to accommodate the employee easier. Thus, determining when a situation involves disparate impact rather than disparate treatment is critical. Professor Harper and the Supreme Court take different approaches to when the application of a policy should be analyzed as a disparate treatment matter. The reader can determine who is more convincing. Nonetheless, the discussion is illuminating. That makes this essay worth a serious read.
The nature of workplace protests was highlighted this past year by the actions of San Francisco 49ers National Football League quarterback Colin Kaepernick. Kaepernick sparked a national controversy by his actions, in deciding to first sit and then kneel peacefully, during the playing of the national anthem at the start of his games as a mechanism of protest against treatment of black men by the police. Kaepernick’s method of peaceful protest was attacked viciously by members of the public as being unpatriotic and even by a Supreme Court Justice who asserted that Kaepernick’s actions were disrespectful and dumb. Despite claims from his general manager that Kaepernick’s actions justified him not being the quarterback of the team, a position of leadership, and that he had created unrest and unnecessary divisions within the team, Kaepernick’s protests did not end up subjecting him to disciplinary actions. His co-workers even voted to give him an award for courage, which rebutted any suggestion that his actions had divided his teammates.
Even in the workplace environment where most individuals know each other or have some knowledge about the other person involved in a dispute, that familiarity does not increase the opportunity for happy results as a response to an employee’s protest, whether made peacefully or angrily. A 2013 Gallup worldwide study of worker feelings indicated that “work is more often a source of frustration than one of fulfillment for nearly 90% of the world’s workers.” As a result, Professor Susan Carle’s recent article, Angry Employees: Revisiting Insubordination in Title VII Cases, offers an important perspective regarding the sources of worker unhappiness and how the law can protect employees when employers overreact to angry employee outbursts.
Specifically, Professor Carle criticizes a host of cases involving unsuccessful claims under Title VII where employees have engaged in angry responses to discriminatory treatment. An interesting aspect of Professor Carle’s analysis involves her references to cases where supervisors have uttered racist statements or pursued acts of sexual harassment with impunity. Despite the employer’s discriminatory behavior being the source of the angry response, employees lost these cases because the courts considered their angry responses as insubordination warranting disciplinary action. Professor Carle’s thesis, relying on cases decided by the National Labor Relations Board (NLRB), asserts that angry employee outbursts, when not involving violence or actual threats of violence, should not result in loss of protection under Title VII as insubordination. Instead, Professor Carle suggests that these forms of angry employee behavior, or what she refers to as mild or moderate insubordination, should not automatically preclude an employee’s Title VII claim based on workplace discrimination.
In the article, Professor Carle shines an important light on how the law of Title VII fails to protect employees who reasonably respond in an unhappy and angry manner to discriminatory behavior by supervisors because courts find their actions involved insubordination. Further, by arguing that Title VII analysis should adopt the approach employed by the NLRB, she interestingly carves out a specific area of law where employees could reasonably respond angrily to their supervisors and still bring a valid claim of employment discrimination. Professor Carle even argues that her purported change to Title VII jurisprudence may encourage important prophylactic measures because “when employers know that courts will look beneath their reasons for firing employees for insubordination to search for provocation arising from employees’ reasonable perceptions of discriminatory conduct, employers will have greater incentives to look out for and eliminate such scenarios.” (P. 197.)
The article enlists the NLRB’s Atlantic Steel doctrine to assess the inappropriateness of an employee’s angry outburst by first analyzing four factors before deciding the employee’s actions warrant discipline: “(1) the place of the discussion; (2) the subject matter of the discussion; (3) the nature of the employee’s outburst; and (4) whether the outburst was, in any way, provoked by the employer’s unfair labor practice.” (Pp. 218-19.) Professor Carle also takes great care to point out that the Atlantic Steel doctrine does have limits, as employees who engage in threatening behavior or take acts that exceed what a reasonable employer should tolerate can lose their protections. Accordingly, Professor Carle recognizes that employees may not assert absolute protection from employer discipline when their acts represent insubordination.
Professor Carle does not limit her suggested changes to applying NLRB law. She also asserts that when insubordination is raised, Title VII law should shift the burden of persuasion to the employer to prove that it would have taken the adverse employment action against the employee even if he or she had not complained of discrimination. According to Carle, by placing the burden of persuasion on the employer, it “would help deter the continued existence of the discriminatory environments reflected in the facts of many cases despite plaintiffs’ inability to win their claims of underlying discrimination.” (P. 213.)
Professor Carle’s article raises important questions for all of us to consider about the current application of Title VII law. In these cases where an employee’s reason for an angry response started as a reaction to an employer’s discriminatory behavior, either the judiciary has decided to refuse blatantly to acknowledge any valid argument that a claim of insubordination can be pretext, or plaintiffs have been woefully inadequate in persuading courts that purported insubordination can be challenged at least beyond summary judgment by creating a genuine issue of fact regarding pretext. While the analysis generated by Professor Carle does help us understand an unusual phenomenon where employees being subjected to racist statements and sexual harassment may still lose their cases by responding in an insubordinate manner to that discriminatory behavior, I do question why the courts would likely change their analysis to incorporate NLRB doctrine or shift the burden of persuasion to employers to address this problem.
With changes expected in the make-up of the Supreme Court and in the focus of federal government agencies under the President Trump administration, it will be an uphill fight to get the courts, agencies, or even Congress to pursue the analytical changes Professor Carle suggests. All of those entities will not likely be seeking an opportunity to expand upon rights and analysis for employee claims under Title VII or shifting the burden to employers in assessing claims. Also, any NLRB doctrines that Professor Carle has relied upon may be subject to reversal as Republican NLRB members, who have objected to the doctrines Professor Carle cites, will be in the majority. However, her analysis does give plaintiffs and their attorneys a framework to start building a strong foundation under existing law to make key pretextual arguments as a response to an employer’s purported justification for its actions as being a response to insubordination. Professor Carle’s analysis and reference to the underlying principles supporting her argument for analytical changes gives those plaintiffs a roadmap to explain how insubordination claims have been wrongly and pretextually asserted against employees who angrily responded to discriminatory treatment by their employers.
With the increasing spotlight on viable methods of employee protest to discrimination being highlighted by the Kaepernick situation, employers have been warned that they should be more thoughtful about how they respond. As a result, employers should make sure the workplace is not permeated with discriminatory actions that could lead already unhappy employees into angry outbursts that may be incorrectly deemed insubordination. With the increasing dissatisfaction of employees with their work environments and the heightened desire to protest those working conditions, Professor Carle has achieved an important result by raising awareness regarding discriminatory acts by employers as a possible source of angry outbursts that should be better addressed under Title VII jurisprudence. As employers continue to seek methods to create happier work environments resulting in more productive workers, Professor Carle’s article suggests a very important incentive for employers to also make sure they do not rush to judgment in assessing an angry employee outburst as insubordination when it could have resulted as a byproduct of discriminatory actions by supervisors.
In her article, A Positive Right to Free Labor, Professor Zietlow recounts the history of the working person’s claim to free labor. Zietlow traces that history from its roots – in the antislavery and labor movements of nineteenth-century antebellum America – right through to the post-Title-VII era of today, showing us that there is much more work to be done.
Professor Zietlow begins by defining a positive right to free labor as including “the right to work for a living wage free of undue coercion and free from discrimination based on immutable characteristics. Not merely the negative guarantee against the state’s infringement on individual equality and liberty, a positive right to free labor is immediately enforceable against state and private parties.” (P. 861.) From there, she states her thesis – a positive right to free labor cannot be found in the Fourteenth Amendment but is found in the Thirteenth Amendment, which is unique among constitutional provisions insofar as it applies to non-state actors and obliges the state to take positive action to ensure workers’ rights. In Zietlow’s view, by picking up this strand of positive rights that have been lost to history, the potential for progressive regulation of private employers’ duties to employees is great.
Zietlow beautifully summarizes the history. In antebellum America, labor and antislavery activists worked in concert, albeit often separately, to “formulate the ideological basis for the positive right to free labor”:
Northern labor activists voiced their opposition to “wage slavery”: work under conditions and wages so unfavorable that it was tantamount to slavery. Free Soil, Free Labor activists insisted that slavery should be abolished because it was an oppressive system of labor that harmed all workers by depressing wages and conditions of labor. Other antislavery activists opposed the race discrimination that was also central to the institution of slavery.
(Pp. 861-62, emphasis added.)
Wage depression and increasingly poor working conditions were common ground for black chattel slaves, on the one hand, and white indentured servants and wage slaves, on the other. This common ground allows for comparison. Indentured servants (who were all immigrants) were bound to their employer for a period of several years; even white artisans were often bound by contract to work for a specific employer for a period.
Zietlow reminds us that during the nineteenth century, the nature of work changed from largely “agricultural and artisanal,” in which white American men were mostly “self-employed” and “enjoyed considerable autonomy in their working lives,” to largely industrial, in which white American men largely worked in urban factories. (P. 863.) At the same time that the North became increasingly urban and industrial, Southern slavery, which had been waning, began to pick up with the invention of the cotton gin.
Zietlow adds that, by mid-century, indentured servitude was outlawed and replaced with the idea that one’s labor was a commodity to be bought and sold. The paradigm was shifting from status (slavery, servitude) to free labor, a shift that was accelerated by the Civil War and Reconstruction. But as all labor scholars know, this shift was an illusion: “[S]ervants were no longer legally bound to their masters through indentures, but employers, not workers, still controlled the workplace. Longing for autonomy and control over their lives, many U.S. workers turned to the nascent labor movement.” (P. 865.)
The discussion of the alliance between the labor and antislavery movements comprises one of the most interesting parts of the article. We labor scholars have all heard of organized labor’s racist and sexist practices toward nonwhites and women during this time and well into the twentieth century. Zietlow recounts a subtler story, one in which many early-nineteenth-century labor activists were drawn to the antislavery movement: “Some labor activists saw slavery as part of the continuum of exploitative labor practices and viewed the abolition of slavery as an essential step to improve the conditions of workers throughout the country. They argued that the institution of slavery hurt all workers, including white workers, North and South.” (P. 872.) Zietlow further explains that the “alliance between labor and antislavery activists led to the first major breakthrough in the success of the political antislavery movement, the Free Soil Party,” which emphasized “the link between slavery and the exploitation of northern workers.” (P. 873.) As Free Soiler Thaddeus Stevens explained, “laws which oppress the black man and deprive him of all safeguards of liberty, will eventually enslave the white man.” (P. 874.) These attitudes ultimately influenced the newly minted Republican Party.
A positive right to free labor is the product of efforts to ratify the Thirteenth Amendment’s ban on slavery and involuntary servitude, and its resultant legislation. Zietlow’s discussion of the 1866 Civil Rights Act, whereby Congress sought to abolish race discrimination in economic transactions, is particularly interesting for once again drawing the link between that legislation and free labor:
The 1866 Civil Rights Act enforces all three prongs of the positive right to free labor. First, it empowered black workers to escape the unduly coercive conditions of labor to which they were subjected even after the end of slavery. Second, it enabled black workers to bargain for better wages and conditions of work. Without Black Codes and vagrancy laws, blacks could use the “labor shortage” to their economic advantage, and consequently, wages rose for southern blacks from 1867-1873, the period in which Reconstruction was enforced in the South. Finally, the 1866 Civil Rights Act outlawed race discrimination in contracts, including employment contracts, and guaranteed equality of the law to all people regardless of race. Thus, the 1866 Civil Rights Act, the very first Act of Congress using its Thirteenth Amendment enforcement power, established a positive right to free labor for freed slaves and all other workers in the United States.
The article’s next few sections, which discuss the connection between labor and the progressive legislation associated with both the New Deal (1933–1937) and the Civil Rights movement (1954–1968), once again trace labor’s contribution to achieving racial equality and justice. But as Zietlow points out, New Deal legislation often exempted agricultural workers and domestic servants – those whose work mostly closely resembled the work of former slaves. And thus, by the time of the Civil Rights Movement, “the positive right to free labor was removed from the canon of civil rights law, replaced by cases and statutes protecting social equality without economic rights.” (P. 892.) As important as the Civil Rights Act of 1964 was, that statute sacrificed the black worker’s economic security and well-being for a less ambitious goal – the negative right of equal employment opportunity – albeit extended to the private employer.
Along these lines, Zietlow characterizes the Civil Rights era – our second Reconstruction – as the historical period during which the positive right to free labor succumbed to this more social and less economic view of equality. It is this historical happenstance that, Zietlow argues, has resulted in decreasing union density by allowing the right-to-work ideology to weaken the labor movement. With this, Zietlow calls upon us to “revitalize the positive right to free labor.” (P. 898.)
As this article shows, the Thirteenth Amendment and the positive right to free labor have been ignored in recent years, much to the labor movement’s detriment. This article does a wonderful job of helping those of us committed to a more egalitarian and just society to imagine such a world.
In Accommodating Pregnancy, Professor Bradley Areheart takes on the ambitious project of evaluating the current law of pregnancy discrimination in the workplace. Professor Areheart reviews the existing proposals to “accommodate” pregnancy under workplace laws, disagreeing with any characterization of pregnancy as a disability. The article suggests alternative ways of providing these same types of accommodations while avoiding the “disability” label. It is also one of the first published works to examine the Supreme Court’s recent decision in Young v. UPS – a case alleging pregnancy discrimination in the workplace that has generated substantial discussion and debate among legal scholars.
Courts and litigants have struggled for decades with how to formulate the rights of pregnant employees in the workplace. Professor Areheart begins by examining the various protections afforded by the Americans with Disabilities Act (ADA) and the Pregnancy Discrimination Act (PDA). In place of treating pregnant workers as disabled or advancing pregnancy-specific accommodation rights, Professor Areheart suggests a different model. Under this new approach, he identifies alternatives that would not present the same risks he identifies for disabled workers yet would still provide important accommodations to pregnant employees. The approach considers accommodation law from a more “gender-symmetrical” point of view.
Professor Areheart acknowledges the need to make accommodations for pregnancy, but notes the danger to women of identifying pregnancy as a disability. Such a characterization could “revitalize exclusionary and paternalistic attitudes toward pregnant employees.” Professor Areheart does an excellent job of reviewing the relevant scholarship in this area, and of arguing that the mischaracterization of pregnancy carries substantial risks for female workers. Quite simply, labeling pregnancy as a “disability” may provide certain legal protections for women, but it also carries with it many potential risks and drawbacks in the context of our current social structure.
Accommodating Pregnancy advances a new approach to an important and timely topic. The article is rich in detail and provides substantial information for both scholars and historians of gender issues. The unique approach identified by this work will further spark a critical dialogue needed in this area. Pregnancy and family-related issues continue to be an area of workplace law requiring much more in-depth analysis and exploration. And, these issues continue to dominate the political and legal landscapes, receiving widespread publicity across the county. Many of the laws protecting employees in the workplace were adopted at a time when family-related issues were not given as much weight, and when the workforce was more male-dominated. Given the sensitivity and political nature of these issues, as well as the changing times, then, a careful review of the topic is imperative.
Professor Areheart’s impressive article will greatly advance the national conversation about this controversial and high-profile topic. In all, the paper’s substantial examination of existing accommodation proposals, review of the current case law on pregnancy, and proposal for a new approach to accommodating pregnancy in the workplace make this piece a substantial and important contribution to the academic literature.
Massive nationwide mobilization of low-wage workers and their advocates (mainly since 2012, though preceded by the nationwide “Day Without an Immigrant” one-day strikes in 2006 and 2007) has spurred recent changes in state and local labor standards: increases in the minimum wage to fifteen dollars an hour, paid sick leave, and measures to address wage theft, abusive scheduling practices, and misclassification of employees as independent contractors. As Michael Oswalt explains in Improvisational Unionism, the fast food, Fight for 15, and Walmart strikes did not produce bargaining leverage, but instead something possibly more difficult to conjure: public awareness and a sense among workers that something could be and should be done.
The article explains how these one-day strikes were different from many of the labor strikes since the Depression. Some were initiated by a single employee who was angry at poor working conditions and lack of respect, some were inspired by news and social media coverage of protests elsewhere, and some were the result of organizing by community groups; unions only later began to lend support. Workers acted collectively and with the support of unions, yet the workers and the unions both knew that the unions hadn’t a prayer of representing them for purposes of collective bargaining. It is unclear whether this activism – what Oswalt, with his penchant for catchy phrases, calls organizing by unions, but not union organizing – will result in any lasting change beyond the state and local minimum wage increases. But what is clear is that labor unrest is once again a part of the contemporary debate even as its form and goals have altered quite significantly since the strikes of the post-WWII period through the death of the strike in the early 1990s.
Improvisational Unionism is, in my judgment, the single best description of and theorization about the nature, goals, and innovative aspects of this aspect of contemporary low-wage worker mobilization. In Oswalt’s account, the distinctive feature of the mobilization is its improvisational quality; no one knows what the outcome of a strike or other protest might be, which certainly seems an apt account of the nature of the worker protest and its possible future.
Oswalt’s crucial analytic insight is that this “collective action for the sake of collective action” (as he puts it) should be understood and theorized as a form of improvisation. As Oswalt explains, improvisation has been adopted by organizational behavior theorists to promote strategic team-based innovation by training members of a group to say “yes” rather than “no” to another’s idea and then to enhance it in some way. (This “yes-anding,” Oswalt says, is the distinctive feature of improv.) Improvisation helps people to break free of constraints and to join others in taking control of a situation, and the article describes how activists embraced yes-anding as a way to empower workers to stand up for their rights. His account changed the way I think about worker mobilization now, as well as worker action in the 1930s, when the major sectors of the American workforce unionized.
Turning to the law, Oswalt argues that the fast food and Walmart strikes and picketing are protected by the right to strike guaranteed in sections 7 and 13 of the National Labor Relations Act. The National Labor Relations Board and the courts have imposed many limits on the right to strike, including by declaring slowdowns and intermittent strikes to be unprotected by the NLRA. Oswalt builds on Craig Becker’s “Better Than a Strike”: Protecting New Forms of Collective Work Stoppages Under the National Labor Relations Act, 61 U. Chi. L. Rev. 351 (1994), to show how these short-term strikes that are so much a part of improvisational unionism are protected notwithstanding the intermittent strike doctrine.
Although the right to strike is a core protection of the NLRA, the courts have held that employers have the right to permanently replace striking workers, and to close or to relocate operations in response to labor unrest. Long strikes are at best highly risky, and sometimes even suicidal. Short strikes reduce the risk to workers by depriving the employer of the time to recruit replacement workers. And for low-wage workers who cannot afford to lose even a week’s pay, a one-day strike sends a message and causes the employer hassle without the employee suffering a debilitating financial loss. The problem is that the Supreme Court in UAW v. Wisconsin Employment Relations Board (Briggs & Stratton), 336 U.S. 245 (1949), branded as “indefensible” (and, therefore, unprotected) a union’s attempt to exert bargaining leverage by calling twenty-six surprise “special meetings” during working hours in one four-month period.
Oswalt deftly argues alternatively that the contemporary one-day strikes are protected under current law because they lack the coordinated plan in support of a unified goal that the Board and courts found objectionable in Briggs & Stratton and later cases, and, moreover, that changes in the nature of work and unions since the 1970s have undermined any plausible defense of the intermittent strike doctrine. The article speaks quite plainly both to lawyers seeking legal strategies and to scholars, and it does a nice job explaining the intricacies of labor law to the non-specialist. In substance and in style, Oswalt speaks to a broad and diverse readership.
Improvisational Unionism is a major contribution to the labor law literature for its rich description of contemporary worker mobilization, its trenchant analysis of what is distinctively new, its melding of organizational theory with legal analysis, and its inspiring vision and passionate legal defense of worker activism and mobilization. Oswalt’s zippy and crisp prose is refreshing. He candidly acknowledges the limitations of improvisation as a theory and practice for rebuilding a mass movement of workers, but his fresh voice and new ideas stand as good a chance as any to inspire and energize a new generation of lawyers, activists, and scholars. Because change to labor law will come about only from worker activism that forces the Board and the courts to rethink old rules, this work is important for its reimagining of the nature of collective action and making the case for changing doctrine to reflect the new reality.