Yearly Archives: 2011

New Governance, Decentring & Unionization as the Default Option

Jul 28, 2011 Michael J. Zimmer

There is a cadre of terrific Canadian labor and employment scholars, many of whom have received insufficient recognition in the U.S. As a group, these scholars bring interesting and sharp insights into the general problems of employment law not only in Canada but also around the world. They are much better versed in U.S. law than we generally are about Canadian law. Their insights are particularly useful for us since Canada and the U.S. share the basic “Wagner” model of union-management law. Among a long list of Canadian scholars, I want to focus on David Doorey, Professor of Labour and Employment Law, York University. His current piece on decentring workplace law is clever, bold, and interesting. He synthesizes a considerable range of theory, from the U.S. and elsewhere, to support a very provocative proposal.

The background for his article is the continuing decline of union membership which, with only a couple of exceptions–the Scandinavian countries and, curiously, China–is a worldwide phenomenon. With economic globalization reducing the significance of separate national economies and the laws of nation-states tied to the regulation of those economies, the decline should be no surprise because unionism and labor law are paradigmatically national. Other factors, especially the ideological rejection of unionization by management, also play an important role in the decline. There is, of course, a tremendous amount of interesting and valuable scholarship addressing the situation and frequently calling for reforms aimed at reversing that trend. The now failed Employee Free Choice Act (“EFCA”) was considered to be justified on the basis that it would help shift the momentum away from decline. The EFCA has been the subject of considerable scholarship, much of it aimed at evaluating its potential for turning momentum towards greater union density. (For what it is worth, my view is that EFCA would make only a marginal difference because, the decline in unionism being worldwide, it has to be based on much more than the weaknesses of the NLRA to protect the right of workers to organize.)

David Doorey takes a very different tack. His piece is provocative because he takes as given the decline of unionism and the lack of political will to do anything to directly counter that decline. Instead, he focuses on the role unionism would be able to play in an employment system that is generally non-union and where compliance with labor standards is low. He starts by discussing what we call “new governance” theory and what he calls “decentring” or “legal pluralism” theory. The starting point for decentring is that traditional, top-down, control-and-command legal regulation has failed to be efficacious. Decentring theory looks instead to how those subject to regulation operate and how legal regulations can be framed to create incentives for the regulatees to voluntarily comply. In other words, regulations should, to the extent possible, align the interest of the state in having its employment law implemented with other incentives to the firm. He rejects the critique that the new governance or decentring theories are a pollyannaish call for purely voluntary compliance that simply turn “hard” into “soft” law which equates to no enforcement. For Doorey, decentring theory focuses on constructing regulations that do lead to private actors conforming their conduct to the goals of the law but doing so by figuring ways in which the regulations can be structured to enhance voluntary compliance.

Looking at the role unionization can play in a world of much reduced union density, Doorey devises a regulatory scheme that has unionism operate as a default position available to workers unhappy with their treatment by their employers. What differs from the present system in the U.S. is that Doorey’s proposal would create a dual regulatory system. One track would be for “good” employers and would remain unchanged from the present law. The change would occur in the second track for employers found to be “bad,” based on their failure to comply with a defined set of employment standards–“targeted employment laws.” His proposal for the new track applicable to bad employers essentially channels the Employee Fair Choice Act–card check recognition and first contract interest arbitration–but adds more elements, including requiring employers to provide more information to unions, mandating unions access to workers at the workplace, and assigning a labor official to each organizing campaign by a union at one of these bad employers. Since he acknowledges the fierce resistance management has toward unionization, he utilizes the risk of unionization as the primary incentive for employers to comply with these targeted employment laws. Management’s antiunionism is the driving force pushing the employer to comply with the law to avoid being categorized as a bad employer that faces an increased risk of unionization. In other words, his proposal relies on “risk as labour law.” Management’s risk analysis should lead them to increase compliance with labor standards, despite the burdens of compliance because of their desire to avoid an increased risk of unionization. Incorporated into that risk analysis would be the fact that workers generally favor unionization or at least some sort of independent representation vis-à-vis their employers. What I like so much about this article is that it is a concrete application of decentring theory. It avoids the rather abstract scholarship that has been all too common among its theorists.

Doorey’s intriguing proposal raises several questions. First, would such a dual regulatory system have any greater chance of enactment than the Employee Free Choice Act has had?  Employers would still prefer managerial slack, but perhaps it would be harder for them to mount opposition because the question of unionization or not would depend on their compliance with the law. Raising the risk of unionization for lawbreakers but not law abiders is quite a different situation from increasing the general risk of unionization by, for example, adopting card check recognition that gives employers the argument that workers should hear the employer’s side before deciding whether or not to support a union. In other words, Doorey’s proposal would undercut the high road argument that card check recognition interferes with employee free choice. Second, if adopted, Doorey’s system would essentially turn the right to organize into an instrumental rather than a basic right. While increasing the chance of employees of bad employers to get union representation, it would consign the workers of good employers to the diminished chance to exercise their rights that the present woefully inadequate laws provide. Third, traditional enforcement techniques would seem to be required to establish which employers were bad and which are good. While it might be possible to rely on data about employer compliance to establish which ones were bad, employers would presumably fight long and hard to avoid being characterized as bad employers and so the system might be hard to get into operation.

In sum, David Doorey is inventive and knowledgeable in his scholarship. His approach in his decentring article should stimulate new and interesting avenues for scholarly and political debate and development. His proposal essentially bridges the gap between new governance theorists and more traditional labor law scholars. He is just one example of the Canadian labor law scholars who can enrich our own, all too often, parochial vision of labor and employment law.

Context Matters in Systemic Disparate Treatment Theory

Jun 27, 2011 Marcia L. McCormick

On June 20, 2011, the Supreme Court issued a decision in what has been billed as the largest employment discrimination case in U.S. history: Wal-Mart v. Dukes. The case was a class action against Wal-Mart, the country’s largest private employer, for pay and promotion decisions that discriminated on the basis of sex, and the class consists of every woman who currently works for the company or who formerly did, going back to 1998. Estimates of the number of class members range from about 500,000 to 1.6 million. The numbers are what tended to make headlines, were to some extent the focus of Wal-Mart’s defense, and played a large role in the Court’s decision. But those numbers were driven in large part by the sheer size of the company. Some have suggested that Wal-Mart is arguing that it is “too big to sue,” the newest variation of “too big to fail.” To the extent that Wal-Mart’s size contributed to the Court’s conclusion that the causes of any injuries were too complex for those allegedly injured to constitute a class, the Court agreed.

What was at stake in the case was more than just the interests of the women or the interests of Wal-Mart. At stake was the future of class actions to redress harm from mass injuries and the future of systemic discrimination cases. That is why Tristin Green’s article, The Future of Systemic Disparate Treatment Law, 32 Berkeley Journal of Employment & Labor Law __ (forthcoming 2011), currently available on SSRN, is such a welcome addition to the discussion of the theory of systemic discrimination. Tristin, Noah Zatz, Richard Ford, Melissa Hart, and Michael Selmi will all contribute articles to a symposium issue on the subject, but Tristin’s was the first article to be made publicly available.

Tristin’s article focuses on the fundamental underpinnings of individual disparate treatment theory and the unintended consequences of importation of that theory into systemic cases. She describes quite perceptively how focusing on individual decisionmakers distorts analysis of entity liability for discrimination. And it was this trap that the majority fell into.

Tristin begins her analysis of systemic disparate treatment with a discussion of the Supreme Court cases that fleshed out the theory, and the view of systemic disparate treatment liability proposed by one of the dissenters to the Ninth Circuit’s en banc decision to affirm the class certification. Judge Ikuta would have held that in order to demonstrate a systemic disparate treatment claim, plaintiffs would have to show a company-wide policy of discrimination, in other words, that the managers at the top imposed their policy with the intent that the policy injure women. The Supreme Court essentially agreed that plaintiffs needed to show a company-wide policy of discrimination for this class to be certified.

It is this view of entity liability as fundamentally vicarious that poses the greatest threat to systemic disparate treatment theory. If the policy view of entity liability is required for systemic disparate treatment, then systemic disparate treatment will, in operation, be limited to express official policies, regardless of how widespread the disparities are or how strong the correlation between protected status and injury.  This view of entity liability also focuses too much attention on individual decisionmakers, ignoring the role of the systems in place in causing or perpetuating disparities of treatment for members of a protected class.

Tristin proposes using a context model of organizational wrongdoing as the theoretical underpinning for systemic disparate treatment. In her words,

A context model of organizational wrongdoing helps make clear why entity liability for systemic disparate treatment is direct rather than vicarious. The employer is being held responsible for something that it has done. The employer‘s responsibility under this model turns not on identification of a single instance or even multiple instances of disparate treatment; rather, its responsibility turns on its own role in producing disparate treatment.

Changing the focus this way holds entities responsible when disparate treatment is the regular practice within the organization. When disparate treatment is the regular practice, it is unlikely that the disparities are being caused by a few “rogue” individuals acting on biases uninfluenced by the norms of the organization. It is the entity itself that is exercising disparate treatment, and it is not only vicariously liable. When disparate treatment exists, but is unusual rather than regular, individual disparate treatment is the appropriate approach, and the employer may be vicariously liable for the acts of its agents. Tristin goes further to operationalize the way that this theoretical underpinning would play out in a systemic disparate treatment case.

The analysis is thorough and the arguments provocative. Certainly, those who view liability of entities as principle-agent problems will resist the notion that entities can ever be responsible other than vicariously except in limited circumstances. The view that an organization is in anyway independent of the people who run it, that it can act without the fully self-aware, conscious volition of actors, that protected status rather than individual motive can cause discrimination, is not something that large groups of lawyers, judges, or legal scholars wholeheartedly accept. And that was clearly the view of the majority in Wal-Mart. Despite that limitation, Tristin’s contribution illuminates much about the principles that underlie systemic disparate treatment and the challenges to full implementation of Title VII that remain.

Rethinking the Giant Mess that is Employment Discrimination Law

May 27, 2011 Alex B. Long

Employment discrimination law is a big, confusing mess.  That probably doesn’t come as a shock to most readers of this site.  The discrimination literature is filled with attempts to vilify, clarify, or unify the existing law in this area.  In her forthcoming article, Rethinking Employment Discrimination Law, Professor Sandra F. Sperino displays little interest in doing either of the latter.  But she’s also clearly interested in doing more than just vilifying the existing state of affairs.

Sperino begins by noting the development of the familiar frameworks or rubrics that courts use to evaluate discrimination claims.  Of course, we are talking about McDonnell Douglas, Griggs, et al.  She argues that “discrimination analysis has been reduced to a rote sorting process,” with the result being that “the key question in modern discrimination cases is often whether the plaintiff can cram his or her facts into a recognized structure and not whether the facts establish discrimination.”  (P. 2.) This approach raises at least two problems.  First, it results in a huge expenditure of (arguably wasted) time and effort on the part of judges, lawyers, and litigants. Second – and the problem Sperino primarily focuses on – is that the approach results in courts failing to recognize or even consider new theories of discrimination.  In other words, by focusing so heavily on the frameworks themselves, courts have lost sight of what discrimination law is supposed to be about and what the frameworks were theoretically designed to accomplish.

Sperino provides a few examples of this approach, including the unwillingness to even consider the possibility of recognizing a claim of negligent discrimination.  The courts’ unrelenting focus on fitting a claim within existing frameworks, Sperino argues, has blinded courts to the possibility that discrimination occurs in a variety of ways.

Similar problems exist with respect to workplace retaliation law.  There, courts spend too much time trying to define a plaintiff’s conduct by reference to the statutory terms used to define protected conduct (opposing unlawful conduct, participating in a proceeding, filing a complaint, etc.) rather than looking to the underlying concerns that led to the prohibitions on employer retaliation in the first place.  All too often, the results are the unnecessary expenditure of effort on the part of all parties involved and the dismissal of claims involving employer conduct that should clearly be prohibited.  But at least in the retaliation context, the courts’ tendencies are driven by the need not to stray too far from the statutory text.  In the discrimination context, however, the fault lies primarily with the courts, which are responsible for having devised the existing frameworks to begin with.  Congress certainly bears its share of the blame for its failure to unify the law in the field.  But the frameworks were initially developed by the courts, and it is the courts’ rote application of these frameworks that is Sperino’s primary concern.

There is already a wealth of scholarship devoted to exploring how McDonnell Douglas can be reconciled with Price Waterhouse and Desert Palace and Gross and Griggs and, oh yeah, where do the ADEA and ADA fit in to all of this?  Some of it is quite good.  But I increasingly find myself caring less about employment discrimination law primarily because the area increasingly seems to be less about employment discrimination.  Instead, it seems to be more about what Sperino calls “litigating by frameworks.”  (P. 27.) Sperino’s article represents a much-needed call to return to first principles.  Instead of trying to make sense of the jumble of law that we call employment discrimination law, Sperino suggests a simpler approach that would refocus courts on what should be the fundamental question in every case:  whether an employee suffered an adverse employment action because of a protected trait.

New Governance of the Transnational Variety: Can Transnational Domestic Labor Regulation Harness the Power of Private Legal Regulation?

Apr 25, 2011 Paul M. Secunda

In his new paper, In Defense of Transnational Domestic Labor Regulation, Professor David Doorey has written a meticulously footnoted and researched article on an important issue that is increasingly facing modern democratic economies: to what extent should such countries seek to use their influence to improve labor practices in economically-developing countries?  As Doorey explains, the answer is not as simple as merely deciding you want a labor side agreement to the latest free trade agreement.  No, in addition to more formal legislative enactments, Doorey thoroughly explains the developing trend of using techniques which exist outside of formal state action, but nevertheless serve to influence and regulate working conditions and employer-employee relationships in third-world countries.  Examples of this “de-centered legal orientation” range from nongovernmental organizations (NGOs) monitoring and investigating multi-national corporations (MNCs), industry-led initiatives seeking to eliminate sweatshops, and consumer boycotts of MNCs that employ abusive labor practices.  Doorey explains that these types of non-state activities are here to stay and the central issue is whether these informal practices can be put to good use to advance progressive labor policies in third-world countries.

The topic is complex and Doorey should be congratulated for bringing his impressive transnational labor law knowledge to bear on this area of law.  It is certainly a must-read paper for anyone who is seriously engaged with workplace issues in the global economy.  For instance, Doorey exhaustively reviews the literature in favor of, and against, using legislation that harnesses the power of these more informal practices to push foreign third-world countries to develop more worker-friendly labor policy in their countries.  Nevertheless, one is left with at least two compelling questions after reading this thoughtful paper:  (1) Will the more informal, new governance-influenced practices which Doorey seeks to harness really lead to the necessary workplace changes that workers’ rights advocates seek in developing countries?; and (2) Given the troubling labor situation in “developed” countries, should such countries not focus more on their own shortcomings when it comes to workers’ rights in order to gain more credibility with nations around the world?

As to the first question, it interesting that Doorey decided to title his paper: In Defense of Transnational Domestic Labor Regulation.  Transnational domestic labor regulation (TDLR), as described by Doorey, is “unilateral” regulation introduced by a government to influence labor practices in foreign jurisdictions.  He certainly does discuss TDLR in much detail, but the more interesting and provocative part of the paper, I believe, involves his discussion of how TDLR can harness the power of private labor regulation (PLR), with the aim of improving foreign labor practices.  As Professor Kevin Kolben has aptly explained: “[PLR] in the context of transnational labor encompasses a broad range of practices, generally outside of the strict purview of the State, that serve to regulate working conditions and the employer-employee relationship.”

In short, PLR represents a cluster of de-centered and reflexive legal approaches consistent with the new governance school of workplace governance. Professor Cynthia Estlund has described new governance theory in her recent and equally provocative book, Regoverning the Workplace (Yale Univ. Press 2010):

[New Governance theory has] two interlocking themes: the idea of “decentering the state” and elevating the regulatory role of other nongovernmental actors, including regulated entities themselves; and the idea of “reflexivity” in law—of replacing direct regulatory commands with efforts to shape self-regulation and self-governance within organizations. (Regoverning the Workplace at 136).

As I wrote in review of Regoverning the Workplace, Estlund’s embrace of “regulated self-regulation” or “co-regulation” in the workplace may inevitably lead to further employer domination of the workplace. This is because United States history is replete with examples that limitless employer power, constrained only by market forces and reputational costs, leads to the worst forms of employer opportunistic behaviors and employee abuses.  So, my fear is that just like de-centered or new governance schemes are unlikely to have their intended effect in the labor context in the United States, PLR-centered strategies in foreign countries will also lead to problematic outcomes.

I am highly skeptical that PLR initiatives and campaigns will be able to effectively focus “on empowering workers at the factory level and building a climate in which the governments of host states and factory owners are prepared to recognize labor rights.” (P. 1006.) Instead, such an approach is more likely to “to perpetuate a dysfunctional model of labor governance in which disproportionate power rests in the hands of corporations and employers who are unmotivated to effect any real, sustainable change that empowers workers.” (P. 976.) Consequently, I tend to side with those who believe that, “an effective industrial relations system ultimately requires a strong local government prepared to bolster and control worker power through protective labor legislation that facilitates independent union representation and other labor standards.” (P. 976.)

This all leads me to my second point: who are we, the developed countries of the world, to think we know what’s best for these other countries? First, as Doorey himself points out, these third-world countries have their own complex cultural, political, and economic systems and we might do more harm than good through TDLR employing PLR strategies (think unions in China). But additionally, shouldn’t we first focus on our own shortcomings in the labor area before preaching to others? I mean just consider labor and employment law in the United States and the question of whether those laws do nearly enough to protect the interests and rights of the average worker.

Traditional labor law is failing workers in the United States in providing adequate voice in the workplace through union representation (private sector union density is now down to 6.9%).  Its de facto replacement, “employment law,” is a multi-headed hydra made up of a confusing array of minimum labor standards and workplace rights where many times employees choose to accept employer abuses rather than to negotiate the legal landscape.  Moreover, the ability of private litigation in the labor and employment area to secure rights for United States workers has been substantially diminished by a United States Supreme Court seemingly set on an anti-litigation agenda in the civil rights context.  Now, I am in no way suggesting that we should ignore the worst types of worker exploitation in the world like oppressive child labor and sweat shops, but wouldn’t developed countries have more credibility internationally on the labor relations front if they did not treat their own workers so abysmally?

Doorey’s comprehensive TDLR discussion provides important food for thought in how to use current trends in the global workplace for the benefit of workers throughout the world.  And to that extent, we certainly agree that workers’ rights continue to be a human and civil rights issue that requires substantial attention from governments around the world. Yet, we split company over the utility of new governance methods in assuring pro-employee outcomes in foreign jurisdictions. I believe Doorey is simply overly optimistic with regard to PLR’s utility in developing labor rights in third-world countries.  We also part ways perhaps on where labor reform energies should be directed (and I do believe that developments in one of these areas necessarily diminish the possibility of development in the other).  In short, I worry that focusing prematurely on labor rights in foreign jurisdictions gives the false impression to our own citizens that our own “labor house” is in order.

Surveying the Damage

Mar 17, 2011 Kerri Lynn Stone

In Consider the Source: When the Harasser is the Boss, Professor Susan Grover and Kimberley Piro raise a crucial point that should inform the always-evolving jurisprudence of sexual harassment. They argue that the identity of a sexual harasser as a supervisor or a coworker should be, but is currently not, a central consideration in the determination of whether actionable sexual harassment occurred. The article recounts the Supreme Court’s requirement that actionable harassment needs to be, among other things, “sufficiently severe or pervasive ‘to alter the conditions of [the victim’s] employment and create an abusive working environment.’” Despite this requirement, the article observes, most sexual harassment jurisprudence fails to factor in the distinction between supervisory and other types of harassment, like coworker harassment, when ascertaining whether a victim’s abuse is grave enough to warrant being deemed actionable harassment.

Courts adjudicating sexual harassment cases are required to factor in the totality of the circumstances surrounding the interactions at issue, focusing on the “frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee’s work performance.”  Lower courts nationwide, however, have repeatedly refused to find actionable harassment where the abuse was quite severe or quite pervasive. The article notes insightfully that “[t]he crucial question of the harasser’s supervisory status has been one casualty of the courts’ disinclination to apply a true totality of the circumstances test.” (P. 507.)

To be sure, the delineation between supervisors as harassers and coworkers as harassers is clear and marked in the context of agency liability determinations. Supervisory harassment engenders automatic employer liability, absent the availability or applicability of an affirmative defense, whereas coworker harassment only does so where there is employer negligence in identifying and correcting the problem. However, the article incisively points out, the initial determination that the complained-of abuse qualifies as actionable harassment should take its source into account, but fails to. Most useful is a survey the authors provide of cases in which supervisory harassment that should, by all accounts, be deemed severe or pervasive, is not. While the facts in these cases are most egregious, the result of their being deemed nonmeritorious is apparently commonplace. Moreover, the courts’ indifference to the identity of the perpetrator of the harassment is evident as they do things like relying upon precedent that deals with coworker harassment cases when adjudicating the issue of severity or pervasiveness in supervisory harassment cases.

The point raised here is powerful and wholly logical—and yet it has been overlooked by judges over time and across jurisdictions. The same taunting and abuse that may fall short of demonstrably and sufficiently altering a plaintiff’s terms and conditions of employment almost invariably intones an additional message of threatening hostility when it comes from a supervisor. Even more compelling, but overlooked by courts, is the critical difference in severity between being physically assaulted by a coworker and being physically attacked by a supervisor.

Structuring their argument around what they term the three primary sources of exacerbation of supervisory, as opposed to coworker harassment – power differential, authority/fiduciary factors, and locus in the hierarchy – Grover and Piro submit that ultimately, the ability of a supervisor to assess, evaluate, reward, and discipline a subordinate invariably tinges any abuse that he inflicts with a level of perniciousness not found in coworker abuse. Considering a supervisor’s unique and demonstrated ability to have an impact upon both a subordinate’s reputation and professional self image, coupled with the subordinate’s need to have regular and positive contact with his or her supervisor, conspire to further render a harasser’s identity crucial in discerning the severity and the pervasiveness of abuse. The authors further posit that because a supervisor sets the tone in a given workplace, abuse at his hands will likely be emulated by others and viewed as ratification of others’ mistreatment of his target. Again, the ubiquity of one’s supervisor renders his abuse more pernicious than it would otherwise be. As an assumed fiduciary and role model in the workplace, each of the supervisor’s words and actions is imbued with magnified significance and power.

Moreover, both research data and common sense bolster the assertion that victims experience harassment at the hands of a supervisor differently than they experience it at the hands of a coworker, with most supervisory harassment victims left feeling more debilitated and more reluctant to confront the perpetrator and protest the treatment. The authors conclude that charged with evaluating the totality of the circumstances in ascertaining the presence of actionable harassment, the only way truly to assess a victim’s total experience is to factor in the “special power that supervisors possess to harm subordinates.” (P. 513.) In terms of pervasiveness, a supervisor’s influence and control over the physical workplace and over an employee’s terms and conditions of employment render his abuse nothing short of pervasive to his employee target, who cannot escape or ignore the reach of his words and actions, in both a literal and a figurative sense.

Thus, the article submits, harasser identification should be given a central role, if not primacy, in both the analysis as to whether actionable harassment occurred and that as to whether liability may be properly imputed to the defendant employer. It is scholarship like this article that makes the sharp and nuanced points needed to refine and advance jurisprudence in the always-evolving area of employment discrimination jurisprudence. All too often, poor results are reached in cases because blanket assumptions about the content of relevant frameworks or analyses rest unchallenged or unexamined. Provocative exhortations like those contained in this article are needed to impel judges to be more thoughtful and to come to more just determinations.