Yearly Archives: 2019

What’s Good for the Goose is Good for the Gander, Or Is It? The Pitfalls of Using The Court’s Neoliberal Construction of the First Amendment To Protect Secondary Picketing

Dec 13, 2019 Anne Marie LofasoAdd a Comment

In his article, Labor Picketing, The Right To Protest, and the Neoliberal First Amendment, Professor Blum argues that labor picketing, which has received diminished protection when viewed from the statutory lens of Section 8(b)(4) of the National Labor Relations Act, would receive greater protection if viewed primarily through a constitutional lens. Blum upfront acknowledges that many scholars—notably Cynthia Estlund, Catherine Fisk, Charlotte Garden, Michael Harper, James Gray Pope, and Mark Schneider—as well as several practitioners have made similar arguments. (P. 600, n. 14.) However, he brings a fresh approach to this important legal agenda by framing the problem not only as a legal challenge but also from the union lawyers’ perspective, which he obtained through surveys and interviews. (Pp. 611–16.)

As a legal matter, Blum correctly notes that the halcyon days of labor picketing protection passed nearly eighty years ago when the Supreme Court, in Thornhill v. Alabama, held that the state’s power to regulate labor picketing was limited by the First Amendment’s free speech clause. But what the Justices giveth, the Justices may taketh away. Thus, labor picketing could lose its constitutional protection: (1) if accompanied by violence, Milk Wagon Drivers Union of Chicago, Local 753 v. Meadowmoor Dairies, Inc.; (2) if the speech targeted a neutral party, Carpenters and Joiners Union of Am., Local No. 213 v. Ritter’s Cafe; or (3) if the picketing had unlawful objectives, Giboney v. Empire Storage & Ice Co. During this time, the Court also began to view labor picketing as inherently involving conduct as well as speech, and therefore subject to greater state regulation for that reason too.¹ Indeed, by the time the Supreme Court penned Int’l Bhd of Teamsters, Local 695 v. Vogt, the transformation of labor picketing to activity benefitting from less than full constitutional protection was nearly complete.

As the surveyed union attorneys see it, the problem is multifaceted although it generally boils down to the fact that the rules governing secondary activity are incoherent. This makes it difficult and time consuming to train union members on the dos and don’ts of labor picketing. The abstruseness also undermines the ability of rank-and-file employees to act concertedly. Indeed, Board investigators, among the most knowledgeable labor experts, themselves often misunderstand the law and often presume that secondary picketing is unlawful even when it is not. These factors, together with an outmoded and incorrect belief that all labor picketing is coercive, chills and limits secondary activity. (Pp. 613–14.)

Blum next summarizes how legal prohibitions on secondary activity butt up against the First Amendment:

[N]ormally, as long as a group’s self-expression, including picketing, does not coerce the people they confront through violence . . ., the First Amendment protects that expression. There is no basis for treating secondary labor picketing, a form of union self-expression, any differently from any other kind of picketing, whether the target is primary, secondary, or both . . . . Like other forms of picketing, labor picketing is not inherently coercive of its audience, and any coercion by picketers should, under the First Amendment, be addressed through narrowly tailored restrictions. (Pp. 616–17.)

From here, Blum turns to recent developments in First Amendment jurisprudence, agreeing with scholars that decisions like Citizens United v. FEC and Sorrell v. IMS Health, Inc. facilitate the analysis that the NLRA’s ban on secondary picketing is unconstitutional. (P. 631.) Nevertheless, Blum warns unions against buying into this Court’s neoliberal construction of the First Amendment:

It is fair enough to say that what is good for the goose, in this case, corporate and/or commercial speech, is good for the gander, i.e., labor speech. However, it would be a strategic error for labor to rely on these decisions in seeking to strike that ban under the First Amendment. Although the distinction between political and economic speech cannot be sustained, the First Amendment distinction between social movement, including labor, speech on the one hand and profit-motivated speech on the other can and should be sustained and breaking down that distinction has undesirable consequences for the labor movement and its constituents. (Pp. 638–39.)

Here, Blum offers three reasons unions should resist the temptation of relying on commercial or corporate speech decisions to extend greater protections to secondary boycott activity. First, the distinction between labor and commercial speech is “valid” because “[t]here is an essential difference between speech that proposes a commercial transaction in the marketplace and speech that defies market logic by insisting that human labor not be treated simply as a commodity.” (P. 639.) Second, the Court has never characterized labor speech as commercial speech and has, indeed, treated the two categories of speech very differently. (P. 642.) The distinguishing features of these two categories of speech “demonstrate why there are compelling societal interests, rooted in knowledge and power differentials, in regulating commercial and corporate speech that do not apply to other kinds of speech.” (P. 639.)  In Blum’s view, “[u]nions should advance those compelling interests and defend the state’s regulatory authority, both to protect the state’s ability to regulate labor relations and to defend regulatory systems that protect unions’ members and broader constituencies.” Id. Third, labor does not need to rely on these decisions because other avenues of First Amendment protection are available. Id.

This article continues the important debate on how the law should treat worker self-expression. Labor advocates for more than a century have advocated for treating workers as humans who possess dignity rather than as factors of production. The law’s dignification of workers was short-lived and coincided with New Deal legislation.  With the rise of the neoliberal paradigm of the late twentieth century and its law-and-economics judicial framework, the law returned to a labor-as-commodity lens. Accordingly, it is tempting to engage in a can’t-beat-them-join-them strategy as commercial and corporate speech has gained increasingly robust constitutional protection.  However, as Blum points out, that strategy is inauthentic and sells out the worker qua human. Buying into this paradigm is dangerous because it transgresses every human rights value for which labor advocates have fought in exchange for a possible short-term gain.  Blum’s vision allows for transformational change, rejecting the incremental breadcrumbs that Citizens United and Sorrell offer. Once those crumbs are accepted, labor is cabined. Workers, as humans who possess human rights deserve more than crumbs. Blum reminds us that our duty, as labor advocates, is to transform that neoliberal paradigm to one that treats workers with the human dignity that justly deserve.

Ghosts in the Shell

Nov 25, 2019 Matt BodieAdd a Comment

Our understanding of work and workers is significantly enriched by immersive accounts of particular occupations and the people in them. Books like Studs Terkel’s Working, Barbara Ehrenreich’s Nickel and Dimed, and John Bowe’s Nobodies offer powerful narratives of day-to-day hopes, struggles, and indignities of workers in particular industries and milieu. The rhythms of the gig economy are unfamiliar to those in more traditional workplaces, and we are fortunate to have insightful new perspectives on these jobs: Alex Rosenblat on ride-sharing drivers; Karen Levy on truck drivers with electronic logging devices; and Casey Newton on social media content moderators. Add to this list perhaps the most mysterious, hidden form of new labor in our wired economy: the piecemeal “microwork” that facilitates online algorithmic processing.

In Ghost Work, anthropologist Mary Gray and computational social scientist Siddharth Suri—both researchers at Microsoft—have accomplished a deep dive into the world of these online crowdworkers. Although Gray and Suri at times include all sorts of platform workers within their definition, the true heart of the term “ghost work” applies to unseen AI support staffers who provide vital components of human judgment within an overall computational algorithm. As Ghost Work makes clear, key leaps in artificial intelligence capability have been possible only with an army of facilitators who make decisions such as what a camelback couch looks like, whether a face matches an ID picture, or how a slang term is used. Unlike the popular conception of indomitable machines churning through data unaided, most machine learning systems still incorporate significant human decision-making for the “last mile” of AI functionality. These are the people who make those decisions.

Gray and Suri masterfully present these workers, their jobs, the reasons they do them, and their workplace struggles. Drawing from a five-year study with over 200 interviews and tens of thousands of survey responses, the book illuminates the lives of these workers who huddle in front of their screens fielding on-demand requests. The work is performed through application programming interfaces (APIs) that present an onslaught of opportunities, each paying small fees for a completed task. The research team focused on workers at four different machine-learning platforms: Amazon’s Mechanical Turk, Microsoft’s internal Universal Human Relevance System, sales facilitator LeadGenius, and translation site Amara. We meet workers on these platforms, living in the United States and India, who participate with varying degrees of commitment and success in these platforms’ daily churn.

According to Gray and Suri’s research, these on-demand platform workers do not follow a uniform pattern of engagement. Rather, they break down into three categories: new and experimental workers, who are just trying the site and may never return; consistent workers, who regularly participate on the platform for at least some period of time; and the high-performers who work full-time or more and are responsible for most of the work that actually gets done. (P. 103.) And through individualized vignettes, we learn about these workers’ approach to “ghost” work: Zaffar, a young Muslim man in Hyderabad who can deftly ferret out promising opportunities for LeadGenius; Kumuda, a Hindu mother who has become the highest earner in her Indian town through Mechanical Turk; and Joan, who judges whether pictures match their textual description while caring for her ailing mother in Houston.

Ghost Work highlights the advantages of these jobs: flexibility to work at home and on an irregular schedule; the ability to experiment with different types of tasks and skills; and the hidden nature of one’s sex, race, nationality, or disability, so as to avoid discrimination. At the same time, however, the authors demonstrate the precarity of this work, and the potential for the infliction of “algorithmic cruelty.” Ghost workers spend much of their time searching for tasks and vetting the providers without compensation; they train themselves and manage their reputations while hoping not to violate the providers’ unwritten norms and rules; and they may be fired or fail to receive payment through automated decisions that cannot be appealed. Paired with the dehumanization of these isolated and fragmented tasks, the proliferation of ghost work ultimately seems overwhelming and demoralizing.

In the book’s conclusion, Gray and Suri offer a series of reforms designed to render ghost work sustainable. These include: facilitating collaboration and communication among platform workers; allowing workers to take their reputation and experience data to other platforms and positions; providing for a “good work code” across platforms and users; and installing a safety net either through publicly-provided benefits or a universal basic income. Two proposed fixes are of special interest to labor and employment law academics: changing the definition of employment, and using unions or quasi-unions to match workers with jobs and to resolve grievances, especially regarding pay. The authors are vague about the new employment classification, other than specifying it should not focus on full-time work. This superficiality is frustrating. And the book’s history of contingent work has some puzzling assertions: for example, it implies that NLRB v. Hearst Publications and the Taft-Hartley Act related to the definition of employment under the Fair Labor Standards Act. (Pp. 49-50.)  This muddle is a shame; the FLSA’s use of “suffer or permit to work” would have provided a nice starting point for a more robust discussion of the legal definition(s) of employment.

Despite Ghost Work’s in-depth descriptions of the travails of this contingent and neglected workforce, Gray and Suri leave room for hope as well. They do not think that AI will engulf human labor; instead, people will always be necessary to produce appropriate and meaningful results. And even within their atomized employment, ghost workers have still found the opportunity to talk with each other about their jobs, collaborate on tasks, and help new workers find their way. The problems of ghost work are neither intractable nor inevitable. By educating us on this largely hidden labor pool, Gray and Suri have opened up a conversation about how best to structure these jobs, and how to promote human flourishing for everyone on these platforms.

Crowdsourcing Plain Meaning

Nov 4, 2019 Marcia L. McCormickAdd a Comment

Employment discrimination doctrine is a mess, and one of the messiest parts concerns causation. Problems with causation have been the focal point of many articles in recent years, often in response to the “tortification” of employment discrimination law. You might think that there is nothing more to say, and that we’re just stuck with the mess. But James Macleod’s article, Ordinary Causation: A Study in Experimental Statutory Interpretation has persuaded me that neither is true.

In this article, Professor Macleod breathes fresh life into interpretation of Title VII by using the  tools of experimental philosophy to explore the meaning of “because of” and other statutory causal language. What better way to determine the ordinary public meaning of a phrase, particularly a phrase in context, than to survey a representative sample of the population, ask whether a particular result was because of the reason described in the statute, and then share that information publicly? Professor Macleod did just that, and his article makes a case for this approach and then reports on his results.

The paper’s first two sections summarize familiar ground. Part I analyzes recent case law on statutory causation, and Part II summarizes why courts are properly concerned about ordinary meaning in legal interpretation. Recent years have seen significant decisions interpreting causal language in statutes. Two of these cases are employment discrimination cases: Gross v. FBL Financial Services, under the Age Discrimination in Employment Act, and University of Texas Southwestern Medical Center v. Nassar, under Title VII’s retaliation provision. In both cases, the Court held that the plain meaning of “because of” required plaintiffs to prove that an improper motive was a but-for cause of the adverse employment actions they suffered.

The Court’s own view is that that its job is to find the plain meaning of the statutory language. Professor Macleod agrees, arguing that this search for plain meaning is particularly appropriate for concepts like causation, which are core common law concepts and embody a sense of moral wrong. But Parts III and IV, which form the core of the paper, draw out the weaknesses of judges’ methodology for finding plain meaning, as well as explaining the benefits of the survey experiment method.

In Part III, Professor Macleod makes a persuasive case for the weakness of judges’ current methodology. Judges generally rely on introspection, hypothetical test situations (called intuition pumps), and dictionaries. Introspection is a poor tool because judges, like any of us, are subject to cognitive biases like motivated reasoning and confirmation bias. Because different hypotheticals, or intuition pumps, can point to different conclusions, judges may discount those that don’t match their initial intuition. This is simply another way that motivated reasoning and confirmation bias limit the power of individual reasoning. And dictionaries, though external, cannot use terms in context, which is often indispensable for understanding how language actually operates. Moreover, dictionaries often provide so many alternative meanings that a judge must pick from among them, often in ways that confirm initial intuitions. Confounding the operation of these biases, Professor Macleod notes, individuals are overconfident in their intuitions. We tend to think that we are representative of the population at large, even when we are wrong about what most people would think.

Part IV then explains the survey experiment method of finding plain meaning in context, which is already being used in litigation. Professor Macleod makes the case for why it is an improvement over other methods and reports the results of his own survey experiment: that courts have often reached the wrong outcomes about causation.

The key intuition underlying this approach is so straightforward, it almost seems too easy: “to find public meaning, ask the public.” But framing an experiment to discern that meaning is no easy task. Professor Macleod conducted a nationally representative survey of nearly 1500 jury-eligible lay people. Participants were randomly assigned to read a short vignette modeled on one of the cases the Court had adopted a but-for approach in. They were then asked about the cause of the result. In one vignette modeled on Gross, for example, participants were asked whether the protagonist terminated the employee “because of” the employee’s age in a situation where age and one other reason could have caused the outcome. Each vignette had four variations (participants were randomly assigned to which option they answered), in which the improper reason was necessary and sufficient, necessary but insufficient, unnecessary but sufficient, or unnecessary and insufficient. In this way, Professor Macleod was able to discern the public’s understanding of when someone is fired “because of” an improper reason.

The study found, essentially, six things. First, a sizeable majority of respondents found causation present in situations where but-for cause was absent–in fact even where independent sufficiency was also absent. Second, sufficiency’s presence or absence played a much larger role in responses than the presence or absence of but-for causation. Third, the substantial factor test seemed to be what a large majority of participants interpreted the statutory language to require. Fourth, the moral preferences of participants followed sufficiency rather than but-for causation. Fifth, participants in the minority were just as confident that their interpretation was the only right one as were participants in the majority. And Sixth, the results were responsive to small differences in changes of causal language even in highly blameworthy contexts, showing that language mattered. As a result of these findings, Professor Macleod concluded that courts have incorrectly interpreted the plain mean of “because of” as requiring but-for causation. Instead, “because of” pretty plainly means “substantial factor” to the overwhelming majority of people.

Professor Macleod acknowledges the limitations to this approach to statutory interpretation in some contexts. For example, survey experiments can test current usage and concepts, but not historical ones. So where the meaning of terms has changed significantly over time, say, for example, what sex or race are, this approach to discerning meaning may be less appealing to courts.

Professor Macleod has written an engaging article with far-reaching implications. In fact, I am already trying to think of ways to use his approach to better teach my courses. I look forward to more work by Professor Macleod in this area.

Dissolving Bonds

Oct 2, 2019 Charles A. SullivanAdd a Comment

Professor Lobel begins by analyzing the various mechanisms by which employers diminish their workers’ options—and thus limit worker bargaining power for better compensation and benefits—by circumscribing their post-employment freedom of action. Of course, formal noncompetes are old news (even as a number of jurisdictions are taking steps to rein them in), and the use of horizontal wage-fixing and no-poaching agreements has gotten the renewed attention of the antitrust folk. But Lobel reminds us that employers can be incredibly creative in attempting to limit the mobility of their workers. Thus, she identifies restraints in the franchise setting and among sports and other associations. For example, class actions are pending against a range of fast food franchises whose agreements bar one franchisee from hiring another’s employees. She also stresses that customer nonsolicitation clauses can often be as effective as formal noncompetes since it may well be impossible to compete in a given geographic area without soliciting your former employer’s customers. Similarly, nondisclosure agreements are often drafted to protect far more information than trade secret law would reach, and “holdover” clauses— giving an employer the right to a former employee’s inventions made after the employment has terminated—reduce the value of creative workers to prospective new employers.

The effect of these and other “mobility penalties” is to decrease employee options, which not only restrains workers from taking higher paid jobs with competitors but thereby also reduces their bargaining power with their current employer. Needless to say, reducing competition among employers tends to depress compensation. On a macro level, Professor Lobel argues that these kinds of competition-dampening mechanisms may be partly to blame for the failure of wages to keep up with improving economic conditions and thus contribute to growing income inequality. Even more interestingly, she explores the effects of such employer tactics to lower wages on certain groups, most saliently the perpetuation of the gender gap in compensation. For a variety of reasons (“the need to coordinate dual careers, family geographic ties, and job market re-entry after family leave” (P. 18)),women are less mobile than men. That means that artificial restraints are likely to have disproportionately adverse effects on them since an already limited range of choices is further narrowed, perhaps to zero. Similar points can be made about older workers and minorities. While wages tend to be depressed for all workers by agreements that limit their ability to vote with their feet, some groups are more likely than others to suffer worse consequences.

The last part of Lobel’s article surveys possible solutions. Most of the current reform efforts rely on declaring certain varieties of restraints to be against public policy, but Gentlemen Prefer Bonds argues that such “defensive voidance” is inadequate. One more proactive approach would require employers to give “advance notice” that a job offer will entail a restrictive covenant. This is Jotwell, so I’ll agree that this would be helpful in some subset of cases, but I am unconvinced that it would change the landscape substantially. True, any given employee, having left her prior position, wouldn’t be faced with the Hobson’s choice of signing or quitting. But such a requirement would result in substantially fewer mobility restrictions only if employers generally began to compete on this aspect of employment, and all the reasons that led us to where we are suggest reason for pessimism on this point.

Professor Lobel also urges a requirement that employers inform workers of their right to mobility. Where there is such a right (California, mostly, but, for at least some classes of workers, other states also), such a requirement would tend to overcome the in terrorem effect of clauses that, if litigated, would be held unenforceable. But any such rule would, in turn, have to entail meaningful sanctions since employers who currently ignore the law in requiring workers to sign unenforceable agreements are not likely to comply with a notice requirement without substantial motivations sanctions. The MOVE bill she cites, which is currently before Congress (and bars noncompetes for “lower-wage workers” and requires advance notice for such agreements for other employees), provides for $5000 fines for each employee, which should get employer attention should it or similar measures be passed at the state level.

Lobel also urges the use of class actions to challenge sweeping restraints, but that is a tactic that will prevail only for those workers whose employers have not required mandatory individual arbitration.

The most theoretically promising but perhaps the least likely solution at least in the short run is more robust regulatory action such as a proposed FTC rule (Professor Lobel was involved in a pending petition) to ban noncompetes as “unfair methods of competition” under section 5 of the Federal Trade Commission Act. Such a dramatic proposal at least has the benefit of shifting the discussion from individual unfairness or overreaching (bad as that can sometimes be) to the broader economic effects of the constellation of practices she identifies.

Even more so than usual, a “jot” such as this can only scratch the surface of the piece it is reviewing and Lobel’s article is required reading for those concerned about competition in the labor markets and the concomitant effects on economic welfare of workers.

Competing Interests and Best Practices in the Wake of #Metoo

Sep 6, 2019 Kerri Lynn StoneAdd a Comment

One of my favorite pieces published in labor and employment law this year is Rachel Arnow-Richman’s Of Power and Process: Handling Harassers in an At-Will World, which is a not-to-be-missed call for an overhaul of the contracting practices deployed by employers, one designed to shift the calculus that employers use to police sexual harassers of various corporate ranks. This piece examines a rarely thought-about angle of the #Metoo movement and the changes that it has precipitated and is yet to still effect. Professor Arnow-Richman, a scholar in employment law and in contract law, exposes this angle thoughtfully and sets forth a laudable proposal.

Professor Arnow-Richman’s starting point is, appropriately, as she puts it, the “extreme power imbalance in the workplace” that engenders “a world in which high-level decision-makers wield unrestricted control over employees,” while the entity can turn a blind eye to the way in which this unfettered discretion may be abused. (P. 90.) Lower-level employees are not accorded such latitude, and they are typically expeditiously disciplined or otherwise dealt with in the face of their inappropriate behavior. The #MeToo Movement, Professor Arnow-Richman correctly points out, was the force that kicked up a lot of the dust that enabled us to see just how uneven this landscape has been. Specifically, she argues that as society begins to grapple with balancing aggressive policing of workplace harassment with ensuring that accused harassers are accorded fair treatment (rather than summary and automatic dismissal), it needs to address inequities among workers at different ranks in the workplace. Moreover, she notes, misconceived corporate responses have companies punishing sexualized actions, rather than policing sex-based harassment that is not sexual in nature. Having astutely pointed out that “employers are inclined to tolerate sexual harassment and other misconduct by top-level employees but aggressively police ‘inappropriate’ behavior by the rank-and-file” (P. 85), Professor Arnow-Richman then sets out to address this problem.

This piece is both important and timely. After decades upon decades of sexual harassment, abuse, and assault being covered up and shrouded in silence, the #Metoo movement is finally starting to bring light to these events—and real consequences to their perpetrators. However, with these actions has come an accompanying backlash, as accused men bemoan what they perceive as knee-jerk justice and a lack of process in their swift ousters. Celebrating the unearthing and remedying of abuse that has been kept underground for so long, while simultaneously navigating the legal landscape as complicated by the backlash is a contemporary issue of great proportion.

Recently, much attention has been paid by scholars and other legal observers to the disparity between the way in which high and low-level accusers are treated by their employers and by the law. The acknowledgment that high level and highly-valued accusers operate with a certain amount of privilege, whereas low-level employee accusers are more vulnerable to being disbelieved or retaliated against is not surprising. However, Professor Arnow-Richman examines the status of the accused with an eye toward their vulnerabilities, rather than just toward whatever privilege they enjoy. Professor Arnow-Richman astutely notes that low-level employees alleged to be sexual harassers or abusers, “share with their accusers a vulnerability to indiscriminate adverse action by those above them in the workplace hierarchy.” She posits that “[t]he very dynamics that make workers susceptible to sexual harassment in the first place put them at risk of excessive disciplinary action in the face of sexual harassment allegations,” and cautions that “in the #MeToo-inspired race to root out inappropriate sexualized behavior, workers with less power, engaged in less pernicious behavior, are likely to be swept up in the rush to judgment.” (Pp. 91-92.)

By getting into the details of the multitude of contractual benefits and protections enjoyed by these “top-level’ employees, professor Arnow-Richman is able to examine precisely how and by how much they fare better than lower-level employees when they are accused of sexual harassment. Job security and for-cause provisions are true game-changers, since employers do not want to incur liability as they respond to allegations of harassment or abuse. Lower-level employees, on the other hand, generally lack written contracts at all and can be summarily discharged at will. As Professor Arnow-Richman puts it, “In other words, if employers wish to cleanly remove high-level employees based on sexual harassment, they better be right about what happened.” (P. 93.)

The piece’s illustrative examples are rich and informative. It discusses, for example, the fact that Harvey Weinstein’s contract was crafted not merely to require that he be convicted of a crime or fraud in order for the “cause” standard to be met, but the fact that his prospective wrongdoings were explicitly contemplated by his contract’s language, which “not only created a safe harbor for Weinstein’s sexual misconduct, it anticipated and condoned an ongoing pattern of misbehavior, as long as Weinstein was willing to pay for the privilege.” (P. 95.) Given these extraordinary contractual protections, the reader gets a really clear idea of just what employers and accusers are up against in the face of alleged abuse by him and others like him at the highest levels of employment.

In stark contrast, the piece notes, the so-called “powerless harasser” affords his employer “every incentive to hedge against the risk of sexual harassment liability,” by getting rid of him, and this engenders gross disparities in the way in which these individuals are treated versus their higher-level counterparts. (Pp. 95-96.) This is true whether or not the allegation is ultimately proven to be true, because “[t]erminating an accused harasser is a surefire way of satisfying this element of the defense [to sexual harassment under Title VII],”and “[i]n cases of uncertainty, as when the employer is unable to verify whether harassing conduct occurred, it is safer for employers to err on the side of punishing the accused.” (P. 96.)

Of particular value in this piece is Professor Arnow-Richman’s informing her analysis and observations with her own experience reviewing labor arbitration awards. In her view, a legal backdrop against which employees at private workplaces have no actual Due Process rights and are owed nothing beyond what a contract might say encourages the enforcement of a “broad, antisexual norm against vulnerable workers” by employers. (P. 97.) Her analysis of labor awards bolsters her contention that employers are prone to “engage in overzealous disciplinary action in response to behavior that relates to or invokes sex or sexuality.” (p. 98.) So what is the law to do with the disparity in discipline and consequences that inures to the benefit of the top-level worker over the rank-and-file worker?

The piece concludes that increased job security and a greater ability to influence workplace terms and conditions would help redress this disparity. It calls for consideration of how this might be accomplished short of an overhaul of at-will employment, noting that “[t]he time is ripe for proposals.” (P. 100.) Professor Arnow-Richman answers her call with some thoughtful and provocative proposals of her own, all of which are worthy of consideration. Among them are employers: 1) continuing to create accountability for harassers at all levels of employment; 2) developing counter incentives to sexual harassment; 3) evaluating “wrongdoing with an informed understanding of what sexual harassment is and why it is harmful;” and 4) deliberately refraining from dealing with offensive statements in the same manner in which they deal with physical behavior that is repetitive or unwelcome.

Professor Arnow-Richman’s expertise in the fields of contracts, labor law, and employment discrimination well situate her to think through the problems created by the #Metoo movement and its subsequent backlash. This piece is thought-provoking, well-illustrated, and something that I found to be an excellent read this year.