Yearly Archives: 2016
Dec 1, 2016 Joseph Seiner
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.
Nov 1, 2016 Catherine Fisk
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.
Oct 4, 2016 Matt Bodie
How should we apply constitutional protections to public employees? The state action doctrine exempts private employers from constitutional scrutiny. However, public employers are bound to abide by the Constitution in their exercise of power. Governments must protect the free speech and privacy rights of not only ordinary citizens but their own employees as well. The difficulties in matching up these rights with the employment relationship have long bedeviled courts. If a worker’s speech in the workplace had the same protections as a citizen’s in the square, or an office had the same protections against searches as a home, governments’ workforce management could quite easily break down. As a result, courts have increasingly turned to private sector norms to guide their application of these rights in the public sector.
In her article Market Norms and Constitutional Values in the Government Workplace, Pauline Kim critically evaluates this trend toward the “privatization” of constitutional norms. Kim argues that the Constitution is designed to provide important protections to governmental employees—protections that are justified by the differences between private and public employers. Focusing on First and Fourth Amendment protections, the article explains why speech and privacy rights are particularly important to public employees. Although Kim does not reach hard and fast doctrinal solutions, she does provide specific theoretical contributions to the literature for courts and academics to use in developing a deeper approach.
Kim first sets the scene by describing the academic and judicial forces that are bringing the regulation of public and private workplaces together. On one side, supporters of privacy and autonomy rights for private sector employees attempt to elide the differences so as to give private workers more protections. On the other side, critics of public sector employment rights seek to bring more market discipline to government agencies by importing private sector rules. Both sides have pushed the notion that public sector and private sector employment regulation should not be so different after all. Courts have turned to this approach themselves in order to deal with tricky issues of employee speech rights and privacy expectations. Recent Supreme Court decisions have held that if a particular employer action would have been reasonable in the private sector, it should be considered reasonable in the public sector, too—even in the face of constitutional protections.
The article turns to theory to show why this shouldn’t be the case. Kim leans on notions from law and economics in arguing that private sector employers are different than their public sector counterparts in critical respects. She notes that private employers have property rights in their business, and that capitalism provides a significant degree of economic liberty. Although these rights and liberties are justifiably limited, governmental employers have no such claim to private rights. The First Amendment, according to the general consensus, provides no speech rights to governments themselves. And while governments have interests in managing their workplaces and controlling their message, these interests do not have the same constitutional import as those of either public employees or private employers. In addition, government employers have a level of power and control that private employers do not have. While both public and private employers may compete against each other in subsets of the labor market, private companies must compete for customers and capital in a way that government agencies do not. If a private employer is too draconian in its speech or privacy policies, various markets can punish this employer and drive it out of business. Not so for government agencies. Elected officials can step in to correct bad practices, but improved speech and privacy protections for public workers make such corrections more likely by opening the channels of communication to these officials and the electorate that empowers them. Illustrating this principle, the article’s opening anecdote explains how FDA scientists were punished by their managers for publicizing allegations of misconduct and corruption at the agency. In retaliation, these employees were secretly surveilled and monitored to such a degree that sensitive family and health information was surreptitiously collected. Employee whistleblowing ultimately facilitated public oversight of the agency, but only after the employees suffered reputational attacks and serious invasions of their personal privacy.
It is this last point that Kim could, in fact, expand upon in making her case that the government is different as an employer. Although companies like Amazon and Facebook have tremendous resources and can wield significant power, they do not have the legal authority that government possesses. Leslie Knope may seem like a less intimidating employer than Jeffrey Bezos, but Jeffrey Bezos can’t have you arrested. Kim plays down the ultimate power of the government by focusing simply on the public employer’s power over employment. But as her initial example shows, it is the government’s power to go beyond the employment relationship, and into our personal lives and personal liberty, that seems most frightening. Constitutional restraints are appropriate for government because of government’s power. And although the average citizen stands in a different place than a government employee, both are ultimately vulnerable to state action and state power.
The article also raised another question for me that Kim did not directly address: should public employees be treated differently than private ones as to their collective bargaining rights? Right-to-work proponents have long argued that mandatory agency fees violate the First Amendment rights of dissenting employees. Proponents of public sector unions have argued for exclusive representation and fair-share fees by analogizing to the private sector model. Is this analogy also inappropriate? Should public employees have greater rights not only against their employer, but their union as well? Given the First Amendment ramifications, it would be interesting to explore the rights of employees in this context as well.
Pauline Kim’s dissection of speech and privacy rights for public employees shows that there are important reasons for protecting these employees with a strong constitutional framework. Her article makes a compelling case for reconsidering the trend towards fuzzing the line between public and private workers. Public employees are different. The Constitution protects individual citizens against the depredations of unconstrained government power. Because public employees can bear the brunt of the exercise of such power, they need the Constitution on their side.
Aug 16, 2016 Charles A. Sullivan
Joni Hersch & Jennifer Bennett Shinall,
Something to Talk About: Information Exchange Under Employment Law, 165
U. Pa. L. Rev. (forthcoming 2017), available at
SSRN.
Being finicky by nature, I sometimes take issue with those who claim that certain questions in the interview process are illegal. While that’s true for questions about disability under the ADA and genetic information under GINA, I’ve long resisted the conventional wisdom that asking a female applicant about her marital status or her plans for having children is illegal. I agree that, even putting aside all sorts of other reasons why raising such personal topics may not be a good idea, there are legal risks in such inquiries. But at most it would be illegal to ask only women the questions, and even that is incorrect. A violation of Title VII requires an adverse employment action, and such questions by themselves don’t count.
At this point I can hear a chorus of voices objecting that, while that’s technically true, such questions hand a rejected applicant a case on a silver platter: they indicate that the employer thinks gender is relevant to the hiring decision, and the failure to hire is the adverse employment action. Plus, given Title VII’s motivating factor liability, an employer might find itself in violation of the law even if it would have made the same decision in any event. So it’s risky to start down this road from a legal perspective and, given societal norms, it seems a bad idea from any number of other perspectives – although there are those who see such questions as valuable for employers in a variety of ways, such as signaling family-friendliness or allowing the employer to tout the advantages of its environment, such as good schools.
All of which is why Joni Hersch and Jennifer Bennett Shinall’s recent posting on SSRN, forthcoming in the University of Pennsylvania Law Review, is so interesting. Something to Talk About: Information Exchange Under Employment Law explores the phenomenon of “little or no information about family status being provided in pre-employment interviews,” reaching the counterintuitive conclusion that the result is reduced opportunities for women.
Now, I’m not so sure this problem is solvable. As the authors document, putting such topics off-limits is deeply woven into our culture, whether or not the impetus arose from legal sources such as EEOC guidance. And, absent the creation of some kind of privilege, management attorneys are never going to advise clients to raise such issues. Maybe more to the point, interviewers will be discouraged from discussing these questions even if the applicant is the one to raise them, which is one suggestion the authors make. Thus, while the pedant in me applauds the demonstration that these kinds of questions are not per se illegal, even when asked only of women, where we go with that observation is another issue.
Nevertheless, Hersch and Shinall’s piece provides a great read along two axes. The first is its empirical demonstration that “information exchange” is a good thing even on sensitive topics, and the second is its intriguing hypothesis of why that might be.
As to the former, the empirical piece is aimed at one aspect of the phenomenon the authors address, how to deal with career “pauses” or “breaks” due to child rearing. With 3000 subjects participating in a vignette study, the authors found that “otherwise identical applicants with a substantial gap in their work history who do not explain the personal family circumstances for their job search are far less likely to be hired than those who do.” This finding, assuming its accuracy, doesn’t reach the broader situations that I raised at the outset – discussions about marriage and family plans for those first entering the workforce – but their theoretical explanation suggests application to that setting also.
As to that theory, Hersch and Shinall argue that their findings are consistent with “the behavioral economics theory of ambiguity aversion (or the Ellsberg Paradox), which finds that individuals prefer known risks over unknown risks.” I’d be tempted to call it “the devil you know” phenomenon, but, by whatever name, it seems well established.
The piece, then, is somewhat in the vein of another counterintuitive article finding that employers who conduct criminal background checks are more likely to hire black applicants than employers that do not. In that research, the potential adverse consequence of such checks in terms of the likelihood of hiring African Americans are more than offset by the positive effect of eliminating “statistical discrimination.”
Although the theoretical explanations for the counterintuitive findings in both studies are framed somewhat differently, they are not inconsistent, and both suggest that more information will yield fairer results in terms of race or gender in hiring. Both are grounded in the notion that, absent fuller information, humans are likely to act in ways that will be disadvantageous to minorities and women. That means that both raise real questions about the unintended consequences of attempting to limit information flow in labor markets. If Hersch and Shinall are correct, a number of proposals – such as restricting employer use of credit information or limiting employer internet searches about applicants – might be counterproductive.
Given that this is Jotwell, it’s inappropriate to stir in too much criticism with praise for something I like a lot, but I’m not so sure about everything in the article: for example, the broad statement that the “dominant theoretical explanation for inferior labor market treatment of historically disadvantaged workers is statistical discrimination,” although maybe that’s because we have a somewhat different view of what “statistical discrimination” means.
Perhaps more seriously, I wonder about the consistency of one of the study’s findings with its prescriptions. The vignette study showed that those who provide some explanation for their “break” do better than those who don’t, but it also showed that those who provide a “financial” reason for their return to the labor market (divorce) do far better than those who say that they have been raising children. That would suggest that the “open and honest” conversations that the authors would encourage at the interview stage are not the optimal solution to the plight of women who are seeking reentry after pausing to raise children.
None of which should undercut the important contribution of the article in calling attention to psychological processes that can undercut even the best-intentioned of reforms. It truly is a careful and thought-provoking piece, which is all one can ask of scholarship.
Finally, I should also thank Steve Willborn, with whom I have been discussing the information question, on and off, for years, and who kindly offered some thoughts on this post.
Jul 21, 2016 Marcia L. McCormick
Recent Supreme Court decisions that embrace corporate personhood in rights-bearing contexts have caused broad public debates. Non-lawyers have long accepted the view that a corporation is a legal entity separate from its owners and managers and that this entity should be treated by the law like a person sometimes, like for tax purposes, liability for injuries, and property ownership, for example. The idea that corporations might have some “rights” linked to those situations, like those that attend to property ownership, is also fairly well accepted. Despite that widespread acceptance, many balked when the Supreme Court held that corporations had additional rights that we tend to consider limited to humans, like the right to engage in political speech and practice religion. Complicating the debate, the Court provided little guidance on why corporations are like people in these situations, and why they might not always be in future cases.
Although the high-profile cases are not centrally about employment, they have serious worklaw overtones. If corporations have exactly the same speech rights as individuals, are they free to silence employees, like public employers often may? Do corporations have a substantive due process right not to pay minimum wages or privacy rights that could limit OSHA inspections or protect against disclosure of EEO or safety data to federal regulators? If corporations have religious beliefs and practices, can they insulate employment decisions from limits imposed by civil rights laws? Can they avoid paying minimum wages by designating some or all employees ministers? If corporations have a racial identity, does that affect their ability to engage in different kinds of affirmative action? These normative questions about the rights and responsibilities corporations have to their employees and, because of the way we use work to distribute social goods, to society, are central to the work of most worklaw scholars. Yet the ordinary tools of legal doctrine have not provided answers.
In Culture in Corporate Law, Gwendolyn Gordon explains how cultural anthropology provides the tools for keeping corporate law connected to social reality that worklaw scholars focus on. By using the concept of culture as an analytical tool, anthropologists can “analyze complexities of human communal behavior otherwise hidden from view” through the empirical method of ethnographic analysis, a long-term, in-depth qualitative study of group dynamics. Using these tools, the law can do a better job of laying out the rights and duties of corporations in our society.
The article compares how the concept of culture is used in legal scholarship and anthropology. As in many other areas, the legal concept of corporate culture as a static, single thing, is out of date. As a result, courts fail to take into account the relational aspects of the forces that make up the corporation in setting policies about corporations’ effects on human lives.
The article then uses the anthropological idea of culture to analyze changes to the jurisprudence of corporations based on the courts’ theories of the nature and dynamics of social groups in three cases: Citizens United; Carnell Construction Corp. v. Danville Redevelopment and Housing Authority, a recent Fourth Circuit case deciding that corporations could claim racial identities; and Hobby Lobby. These cases view corporations as deriving socially oriented characteristics from their associated individuals but remaining separate entities capable of singular “actions.” Corporations in Citizens United are individual speakers. In Hobby Lobby, they have beliefs, a concept usually limited to ensouled individuals. Gordon traces this view of the corporation-as-entity with the characteristics, social ties, civic commitments, and internal lives of the aggregated humans involved with it to earlier concepts of the socially entangled corporatist bureaucracies of Émile Durkheim and Adolf Berle. Gordon uses this prior work to show how the concept of the corporation “lends itself both to a salutary elasticity and toward particular conceptions of its place in society” (P. 358).
The article goes on to address the normative implications and theoretical challenges of using the lens of culture to examine corporate law and practice. Using an example from Gordon’s long-term fieldwork with a New Zealand corporation owned by Māori people, the article shows how the organic, internal relationships and dialogue among directors, managers, employees, shareholders, and other stakeholders combined with the external forces exerted on the corporation by the law combine to create a culturally Māori corporation rather than a corporation simply owned by Māori people. Using this work as an example, the article demonstrates how the courts’ thinner view of corporate personhood (as mostly conflated with the personal attributes of a small group of owners) lacks the attentiveness to social consequences that is vital in cultural analysis. Without that attentiveness, the doctrine is likely to cause the kinds of problems some worry about: for example, all of the freedom to act with none of the responsibility for the consequences of those actions.
In the conclusion, Gordon exhorts courts to engage in deeper analysis in cases involving corporations that claim personal rights. Although that deeper analysis is messy and ill-suited to creating broad rules of general applicability, Gordon argues that it is necessary. As she puts it,
The stakes here are high. Cultural theory does not merely allow us to describe more accurately the life and the law of corporations; it also contains normative implications. The Supreme Court’s simplified conceptualization of corporations supports doctrine that hurts important human interests, obscuring or enervating what should be rich conversations about heterogeneity, responsibility, and the admixture of business and social values. Serious attention to cultural analysis within corporate law will help us to identify better legal rules and build better institutions.
(P. 396.)
The conclusion could easily have been written by just about any worklaw scholar critical of the current legal approach to employment law. Gordon’s article suggests that we ought to engage more with the literature on cultural anthropology, and provides an accessible way in.
Cite as: Marcia L. McCormick,
Culture as Keystone, JOTWELL
(July 21, 2016) (reviewing Gwendolyn Gordon,
Culture in Corporate Law or: A Black Corporation, a Christian Corporation, and a Māori Corporation Walk into a Bar ... , 39
Seattle U. L. Rev. 353 (2016)),
https://worklaw.jotwell.com/culture-as-keystone/.
