Yearly Archives: 2020

Workplace Law, Social Neuroscience, and the Right to be Different

Jul 21, 2020 Joseph Seiner1 comment

Perhaps one of the biggest drawbacks in the current legal academic literature is its disconnect with the scientific community. Social science and scientific research have so much to offer the legal academy, but too often this wealth of valuable information goes overlooked and unnoticed. This information can be particularly instructive to workplace law, as scholars continue to explore the driving forces behind discriminatory bias, employer motivations and other related issues.

In her fascinating piece, Acting Differently: How Science on the Social Brain Can Inform Antidiscrimination Law, Professor Susan Carle (American University) helps bridge this gap between the legal workplace literature and the academic sciences. The article is the last in a wonderful trilogy Professor Carle has written on discrimination and human behavior. I highly recommend the other two articles as well, which are available here and here.

This final piece in the trilogy is particularly valuable in its deep exploration of the existing scientific research, and its potential impact on workplace doctrine.  In this paper, Professor Carle examines the experimental sciences, looking specifically at the inter-disciplinary field of social neuroscience. Much has been written over the years on the topic of unconscious bias, as we have generally seen less overt acts of discrimination in the workplace over the years since the enactment of Title VII in 1964. As a society, we are now much more aware of the illegalities of discrimination than we were decades ago, and employers have enacted policies, training, and other tools to help prevent such unlawful conduct. The research examined by Professor Carle looks specifically at unconscious bias— and how we may unknowingly treat others who express behavioral differences.

In this paper, Professor Carle takes on the issue of implicit bias by mining the rich social neuroscience research on the topic. This research goes beyond the often more superficial conclusion that unlawful bias unconsciously occurs in the workplace and examines more precisely how implicit discrimination occurs in the brain, and why it takes place. This research explores how we “automatically and non-volitionally process cues” with respect to behavioral differences between groups. (P. 662.) Professor Carle finds that what typically “matters to the brain is not status or identity per se, but what the brain perceives about how a person’s behavior reflects identity.” (P. 662.)

Most impressively, Professor Carle takes the next important step in connecting these findings to anti-discrimination law doctrine. She reasons that the findings in the social neuroscience research suggest that workplace law must look more closely to the connection that exists between how the behavior of an employee is perceived and the effectuation of a discriminatory employment decision. Put more simply, discrimination law should more fully examine the link between an employer’s perception of worker conduct and discrimination. As Professor Carle explains, the real question in many discrimination cases is whether the negative treatment of individuals is the result of their “acting differently.” (P. 706.)

By exploring the existing neuroscience research in supporting these conclusions, Professor Carle discusses the scientific research which shows empirically how we react to those that act differently from ourselves. She also raises specific proposals on workplace law reform that go along with her findings, perhaps modestly referring to them as “immediate pragmatic tweaks” to existing doctrine. (P. 717.) While this discussion itself is illuminating, Professor Carle’s more groundbreaking proposal is what she characterizes as the “recognition of a general human right to act differently,” as long as those actions do not interfere with the rights of others. (P. 717.) Professor Carle discusses in great detail this novel approach and explains exactly how the establishment of such a right could be effectuated under existing frameworks. As she concludes, “[i]t thus has become increasingly imperative that antidiscrimination advocates, using evidence-based research, promote appreciation for individuals’ “acting differently” (within the bounds of others’ rights) as a foundational value in anti-discrimination law.” (P. 730.) Professor Carle does a superb job of balancing her proposals against any potential objections and takes a well-rounded approach in the paper. Given the novel nature of what she suggests here, this type of cautious approach is particularly well warranted.

The descriptive value of Professor Carle’s analysis of social neuroscience research in this paper alone is invaluable. From her work, I learned a tremendous amount about the nature of implicit bias and how the brain works in making seemingly unconscious decisions.  But this paper is so much more, as it uses this existing research to identify a new right for workers to act differently (within certain bounds). The research she discusses, and the new right she identifies, caused me to take a step back and reflect upon my own analysis and research of workplace law and anti-discrimination doctrine.

Simply put, this paper is a must read for anyone exploring implicit bias, or anyone studying the broader connection between scientific research and workplace law. I anticipate (and hope) that Professor Carle’s work here will encourage a deeper dive by others into the connection between the social sciences and other areas of employment law. And, I look forward to the robust debate which is sure to follow over the appropriateness and parameters of the new right— the right to act differently— that she sets forth in this work.

Post-Sexist?

Jun 17, 2020 Kerri Lynn StoneAdd a Comment

In Beyond the Bad Apple-Transforming the American Workplace for Women After #metoo, Professor Claudia Flores takes on the timeworn cliché of the proverbial “bad apple” who acts aberrantly and out of cultural context in the workplace, as well as a host of other over- and under-simplifications of elusive, pervasive workplace issues that result in the imprudent adjudication of disputes.

She begins from a very simple premise: while sex discrimination and harassment may be rife in the American workplace, there are too many structural and other impediments for any kind of meaningful, large scale individual ability to vindicate one’s rights completely under Title VII. She writes: “Complaint-based employer policies, contractually-mandated arbitration agreements, time-limited administrative exhaustion requirements, and narrow judicial interpretations of actionable conduct have created a myriad of barriers to workers seeking enforcement. For women (and some men) targeted by harassing behavior it has often been too costly–financially, professionally, and personally–to navigate a system that depends almost exclusively on individual complainants to prompt social reform.” (P. 85.) This is all too true. I often posit to my own students that society depends upon the “ripple effects” of Title VII.  The statute’s sheer existence and awareness of it as it has pervaded the news and popular culture—recall the 1980’s, during which many situation comedies had “a very special episode,” in which a character encountered sexual harassment.  Title VII’s ripples operate to chill offensive behavior in the workplace in a way in which individuals’ access to the courts to vindicate their rights simply does not.

Building on this premise, Professor Flores gets to what is one of the best things about this piece: its frank articulation of what it is about sexual harassment law and courts’ interpretation of it that frustrates but eludes people. Right out of the gate, Professor Flores explains the near-ineffable eloquently: “U.S. law has largely relied on the ‘bad apple’ theory of harassment. The harasser is a wayward employee and the employer an innocent third party to interpersonal relations and relation(ships) that have gone awry.” (P. 85.) Viewed through this lens by those charged with interpreting and navigating this law, Professor Flores explains, courts promulgate flawed frameworks within which to adjudicate sexual harassment cases. These tests, which “rely on prevailing opinions of gendered interactions,” belie what research has taught us about the true typical nature of sexual harassment: that it is inextricably linked to behavioral workplace patterns and culture. (P. 85.)

With this in mind, Professor Flores calls for a reconceptualization of sexual harassment that centers “less on sex and more on harassment and less on liability and more on prevention.” (P. 86.) Indeed, her vision of a more robust enforcement system is then born of a thorough review and assessment of not only the United States’ suboptimal (in her view) system, but also of other countries’ and international standards and approaches. The vision she ultimately posits, both “grounded in the dual concepts of human dignity and equality,” and situating sexual harassment, “as one form of workplace abuse, among others,” indeed does sound like one that will better effectuate Title VII’s objectives and better realize its promise. (P. 86.)

Professor Flores’s journey toward this vision is both engaging and informative. The background and exposition of the law is clear and complete. The ensuing critique of what she terms the United States’ “complaint-dependent, liability-focused process, saddled with under-resourced administrative hurdles and courts that have narrowed the statute’s potential,” is thorough and thoughtful. (P. 94.) Specifically, she issues an entreaty for acknowledgment that sexual harassment is engendered by a more systemic sexism and by misogyny, and it should not be conceptualized as disembodied interpersonal incidents. Once this occurs, she argues, the law can stop focusing solely on certain paradigmatic incidents, while ignoring or eschewing more nuanced, subtle interactions that feed the same beast. By issuing a cry for sexual harassment to be viewed as a tactic, deployed for gain in some environments, rather than a singular event, this piece adds to the rich literature on the topic of adopting a more holistic in American sexual harassment jurisprudence.

Particularly of interest is this piece’s tour through international and comparative approaches to combating sexual harassment in the workplace. By emphasizing the ideological underpinnings of the regulation and the lens through which the harassment is seen in various contexts, this part of the piece is able to shed light on differences among enforcement structures and mechanisms.  So, for example, it makes sense that the international human rights legal system conceptualizes sexual harassment as a form of abuse or violence, and thus situates its regulation within workplace rights and standard violations. Whereas in some places, sexual harassment is conceptualized as a “health and safety problem,” and its regulation is linked to workplace health and safety maintenance,  in others, the problem is inextricably linked to bullying, and harassment is addressed through a lens and within a vehicle that fits into that particular context. It is useful for the reader to understand how the goals and conceptualizations of each legal regime shapes each’s regulations, legal frameworks, and enforcement mechanisms. Interestingly, in the United States, the regulation of sexual harassment under Title VII is divorced from the regulation of workplace health and safety issues, which is accomplished through the vehicle of other statutes, and workplace bullying is not unlawful.

What follows is a thoughtful analysis of “Dignity and Equality in the American Context” that explores the question of whether and how a dignity-centered approach to regulation might work in a society that eschews viewing workplace regulation as a “civility code,” and prefers to focus on protected class status. (Pp. 105-09.) While the viability of a dignity-based approach has often been dismissed by scholars in the United States, the piece argues, such an approach might just “provide us with a positive vision of the workplace, which we currently lack.” Moreover, Professor Flores points out that conceptualizing sexual harassment as an issue of workplace wellbeing, as well as workplace equality, has the potential to impel employer accountability and proactiveness when it comes to workplace maintenance.

I started this piece admittedly predisposed to favor a dignity-centered model of regulation, and I finished it better informed about the way in which sexual harassment is viewed and addressed in numerous other contexts, and convinced, more than ever, that Professor Flores has the right idea. Sexual harassment law, as it is, is clunky and porous. The regulation of sexual harassment probably does belong more in the same conversation as issues such as wage inequality, workplace health and safety, unemployment insurance, the minimum wage, that devalue and debilitate the American worker. As Professor Flores puts it, “sexual harassment is likely to thrive in environments where workers are not valued, where women workers are particularly undervalued, and where employers have not provided a functional environment that discourages exploitation of existing societal status-based hierarchies and inequalities.” (Pp. 115-16.) And she has the evidence: “#MeToo reports circulated in the media this year were filled with examples of workplaces with no regulation, little worker value, and the absence of working systems of accountability.” (P. 116.) At the end of the day, the piece’s reframings, holistic approach, and suggestions are worthy of consideration. Its critiques of the current approach in this country are valid. It’s a worthwhile read; you will like it lots.

Socialization at Work and #MeToo Backlash

Apr 28, 2020 Charlotte S. AlexanderAdd a Comment

As the #MeToo movement has matured, researchers have begun to observe a second-order effect of the mass public calling-out of sexual abuse, harassment, and misconduct: the use of “defensive” tactics by male workers and managers to reduce contact with women at and outside of work, meant to avoid potential #MeToo claims. Such tactics might take the form of a “Mike Pence rule,” referencing the U.S. Vice President’s refusal to dine with a woman alone or attend an event with alcohol outside the presence of his wife, or a manager’s decision to pull back from a mentoring relationship with a junior female colleague.

Indeed, in a survey of 152 men and 303 women across industries, organizational psychologist Leanne E. Atwater and her co-authors found that one-third of male respondents reported reluctance to have a private meeting with a woman, post-#MeToo.¹ Likewise, twenty-two percent of men and forty-four percent of women predicted that women would be excluded from work-related social interactions like gatherings for drinks after work.² Another survey administered by LeanIn.org found that sixty percent of male managers reported discomfort working alone with, mentoring, or socializing with women colleagues, an almost one-third jump from the prior year.

Recent work by economists Zoë Cullen and Ricardo Perez-Truglia suggests how harmful this professional and social exclusion may be for women workers. In a clever new study, Cullen and Perez-Truglia tracked the promotion patterns of male and female employees who were assigned to teams with male or female managers at a large, multinational commercial bank. Exploiting employees’ switches between male-led and female-led teams, the researchers found a substantial male-to-male advantage that was both statistically and economically significant: “male managers (relative to female managers) improve[d] the career progression of male employees (relative to female employees).” (P. 5.) After controlling for productivity and turnover, Cullen and Perez-Truglia estimate that this male-male advantage accounted for almost forty percent of the gender gap in pay. (P. 3.)

Interestingly for #MeToo, this finding held only when male workers and managers worked in close physical proximity. In addition, the more breaks a male worker took alongside a male manager, the greater the male-male advantage. Moreover, male workers who smoked, and who switched onto teams with male managers who also smoked (thereby presumably spending substantial break time together), saw the greatest bump in their promotion prospects. Finally, the male-male advantage emerged slowly, benefiting men’s promotion chances only after a year on male-male teams. Cullen and Perez-Truglia thus point to socialization – a slow, gradual process by which male managers come to know and advocate for their male subordinates – rather than rank misogyny, as the mechanism by which the male-male benefit was conferred.

Though Cullen and Perez-Truglia do not connect their research explicitly to #MeToo and its unintended consequences, their study complements the survey results summarized above by underlining the key role that socialization can play in advancement at work. If, as their research suggests, male workers benefit disproportionately from socialization opportunities with male managers, then the increased female exclusion and isolation that result from the Mike Pence rule and its variants will only cement the male-male advantage further in place. In addition, separate and apart from #MeToo, research like Cullen’s and Perez-Truglia’s provides a valuable empirical basis for arguments about the potentially discriminatory effect of subjective screening and evaluation processes at work.

What, then, to do? Cullen and Perez-Truglia suggest involving multiple managers in promotion decisions, using more objective measures of performance in evaluating employees, and sponsoring gender-neutral social activities. Other possibilities include “nudges” built into screening and evaluation systems to prompt managers to identify their biases and deliberately think beyond them. However, as Cullen and Perez-Truglia note, more research is necessary to determine these strategies’ effectiveness. This type of empirical work is particularly important post-#MeToo, to push back against the exclusion and isolation of women workers, and to prevent male-male advantage from becoming even further embedded in the structure and organization of work.

Failing to Protect Democracy by Failing to Protect Government Employee Whistleblower Speech

Apr 1, 2020 Henry L. Chambers, Jr.Add a Comment

In Professor Ronald J. Krotoszynski, Jr.’s article, Whistleblowing Speech and the First Amendment, he considers how the First Amendment fails to protect the whistleblower speech of government employees and argues the insufficient protection may weaken our democracy. He claims the Supreme Court’s inadequate protection of government employee speech discourages the disclosure of important information that could help voters hold government and its officials accountable. The paucity of speech protection leads to a lack of information which leaves the public underinformed and unable to make intelligent electoral decisions about matters of public importance.

The article is worth the read for its analysis of First Amendment doctrine regarding the speech of government employees, but its focus on the harm to our democracy that flows from that doctrine makes the article particularly fresh and vital. Prof. Krotoszynski’s insights are doubly important in the wake of the whistleblowing allegations that have fueled Congress’ impeachment inquiry regarding President Trump. For all of those reasons, Prof. Krotoszynski’s article is a Thing I Like Lots.

Prof. Krotoszynski’s analysis centers on the Supreme Court’s Pickering/Connick line of cases and how poorly they protect government employee whistleblower speech. The cases afford First Amendment protection for speech related to matters of public concern, but not to speech related to matters of private concern. That narrows First Amendment protection significantly because the Court excludes “internal workplace management disputes” from matters of public concern. (P. 280.) Even attempts “to call attention to misconduct or inefficiency in government operations” may not be protected from firing if such speech causes workplace disruption. (P. 286.)

That can place the fate of a whistleblowing worker in the hands of disgruntled coworkers because “coworkers who behave badly in the wake of whistleblowing activity provide the government employer with a constitutionally acceptable predicate for firing the worker who called problems within the government agency to the attention of the body politic.” (P. 292.) That in turn significantly narrows the constitutional protection for important speech, making it less likely to be disclosed. The narrow protection is ironic given that government employees tend to be citizens who arguably have a civic duty to speak out about government mismanagement. As Prof. Krotoszynski notes, “[G]overnment employees should not be required to relinquish their right to speak more generally as citizens regarding matters of public concern as a consequence of working for a government employer.” (P. 275.)

Prof. Krotoszynski suggests the Court’s doctrine misses the point of protecting government whistleblower speech by focusing on the employee’s speech rights rather than on the value of the speech to the community. Whistleblower speech should be protected from retaliation because it “is not merely a private good, but also constitutes a public good, and First Amendment doctrine should reflect this fact.” (P. 298.) If the Court focused on the value of government employee whistleblower speech to the people, it likely would protect that speech more fulsomely.

To be clear, government employee whistleblower speech is not always unprotected, but those protections can be relatively weak. However, the uncertainty of the protection is problematic. The scope of whistleblower protection is unclear. Consequently, a whistleblower may not be able to discern whether her conduct is protected. As important, an employee who does not follow internal reporting processes and procedures when complaining will often be fired. (P. 298-99). Lastly, even if the conduct is protected, the whistleblower may not be fully protected from workplace retaliation. Unfortunately, the protection for whistleblower speech is insufficiently robust to encourage its full disclosure in every situation in which disclosure would be valuable.

Prof. Krotoszynski suggests that recognizing how public employee speech, the public’s need for information, and democratic accountability intersect is key. He argues the Court should recognize “an important First Amendment value in the context of government employee speech: the clear relationship of government employee speech to holding government accountable through the democratic process.” (P. 302.) If elections are to guarantee that proper officials are elected, voters must know how officials are performing in office. The most salient information about those issues may come from current government employees who have accurate information regarding “the areas in which the government’s efforts are falling short of the relevant mark.” (P. 300.) Those employees may also have information regarding which government officials are responsible for those shortcomings.  Insufficient protection for the dissemination of that information will inhibit its disclosure. That will lessen the opportunity for elections to ensure government functions properly.

Prof. Krotoszynski’s article makes the fairly simple, but powerful, point that the lack of First Amendment protection for important information about how government works will lead to less of that information being released to the public and to a less informed electorate. That point triggers another issue that is unexplored in the article. The type of information about government officials and the workings of government that the electorate needs to have to make good electoral decisions may also be known to non-governmental entities, such as government contractors, that work with government officials. Indeed, Prof. Krotoszynski notes that Edward Snowden’s disclosure of information was quite important to the public discourse about governmental actions. Nonetheless, for various reasons, Snowden has not been treated as or protected like a whistleblower.

The disclosure of some  information similar to what Snowden disclosed may be protected by whistleblower laws or general employment laws that limit terminations against public policy, but the information’s disclosure may often not be protected by the First Amendment or against retaliation.  When its disclosure is unprotected, information is not likely to be disclosed. That raises the same issues that the lack of disclosure by government employees raises. That may not strictly be a First Amendment issue, but it is nearly as troublesome as the issues this article raises.

Given the issues this article raises directly and those at which it merely hints, this article is a Thing I Like Lots.

Avoidance Creep

Jan 31, 2020 Joseph SlaterAdd a Comment

Professor Charlotte Garden already has a well-earned reputation as a leading scholar on the intersection of labor law and the First Amendment. This reputation will only be enhanced by her outstanding new article, Avoidance Creep. The article addresses a problem in labor law, and potentially other areas, involving the doctrine of “constitutional avoidance.” This doctrine provides that if one plausible reading of a statute would make its application violate the Constitution, but another plausible reading of the statute would not be unconstitutional if applied in that context, a court should, instead of ruling the statute unconstitutional, interpret the statute such that it does not violate the Constitution.

On its face, doctrine seems sensible. But Garden shows that it has been used to twist statutory language beyond its plain meaning and the intent of its drafters. Further, “avoidance creep” means that later courts amplify and magnify the original problems such that the interpretations are unmoored not only from statutory meaning and purpose but also from proper Constitutional analysis and from the defensible justifications for Constitutional avoidance. In her words, “avoidance decisions have tended to creep beyond their stated boundaries, as decision-makers either treat them as if they were constitutional precedent, or extend them into new statutory contexts while disregarding key aspects of their original reasoning.”

Garden’s examples of this phenomenon come from Supreme Court labor law cases people in the field know well: the recent Janus case barring agency fee agreements in the public sector is an endpoint. But en route, the article analyzes private-sector agency fee cases such as Hanson, Street, and Beck. The article also discusses DeBartolo Corp. and related cases involving union secondary activities and free speech rights. In these areas, she argues that avoidance creep has led to questionable constitutional interpretations (e.g., the idea that agency fee clauses implicate the First Amendment); causes courts to assume the basic constitutionality of what is actually highly problematic statutory language (e.g., bars on secondary activity); and shackles the NLRB’s ability to interpret key statutory terms (e.g., “coerced” in NLRA §8(b)(4)).

The article first discusses the Constitutional avoidance doctrine, its justifications, and criticisms of it. This section alone will likely be informative to work law scholars. Garden then shows how the doctrine was used in the foundational labor law cases noted above and uses her “avoidance creep” framework to show how later cases became increasingly removed from statutory text, coherent constitutional analysis, and the basic purpose of constitutional avoidance. She argues that constitutional avoidance has created two problems. First, after the original case, later courts wrongly assume a statutory provision would have been held unconstitutional had it been interpreted in a broader fashion. Second, future courts faced with a similar statutory provision assume their case should come out the same way as the original case that used constitutional avoidance, even if the later case actually presents no constitutional problem.

For example, Hanson, a private-sector RLA case, suggested (without holding) that some private-sector union practices might violate the First Amendment (e.g., disqualification from union membership (and therefore from employment) of workers who held certain political beliefs or associations), but Hanson did not suggest that what unions do with dues money they receive implicated First Amendment rights. Yet, five years later, Street, ostensibly following Hanson, implied that what unions did with dues created a real Constitutional issue. To avoid this alleged Constitutional issue – which again Hanson did not raise – Street held that had Congress wished to authorize union security clauses requiring full dues (a union shop), it would have had to say so absolutely explicitly. In short, avoidance creep prevented Street from using the normal tools of statutory interpretation. This, in turn, later led to a similar result in Beck for the NLRA, despite statutory language that (as the Beck dissent pointed out) clearly authorizes a union shop. It also led to both the Abood and Janus courts to assume – arguably wrongly and definitely without careful analysis –that what unions do with dues income implicates the First Amendment. Thus, Constitutional avoidance distorted both statutory interpretations in private-sector cases and Constitutional analysis in public-sector cases.

Avoidance creep created a separate problem in the area of secondary activities. In these cases, the Supreme Court has refused to strike down §8(b)(4) on First Amendment grounds. Instead, through Constitutional avoidance, the Court has placed limits on the reach of this section’s prohibitions. For example, DeBartolo distinguished between illegal secondary picketing and (apparently Constitutionally protected) legal secondary handbilling. The Court explained that handbilling is not “coercive” as the NLRA §8(b)(4) requires. Also, Tree Fruits’ held that “product picketing” (picketing a store that sells a product, where the picketing identifies the product and not the store as the object of the picketing) did not violate §8(b)(4), clearly due to constitutional concerns. Then came avoidance creep, as later courts got the holding of earlier decisions wrong. For example, Safeco wrongly asserted that Tree Fruits had actually upheld the Constitutionality of §8(b)(4), which it did not. Further, in this context, Garden argues that avoidance creep has robbed the NLRB of significant power to interpret terms such as “coerces,” since that is now a matter of Constitutional law. Most broadly, these decisions have wrongly insulated 8(b)(4) from a more complete Constitutional challenge.

A summary of this article could not do justice to the nuanced and thorough treatment Garden gives to cases and ideas. Throughout, her arguments shed revealing new light on important areas of labor law, Constitutional law, and Constitutional theory. Other articles and scholars have argued that the cases she discusses are inconsistent with First Amendment law in other areas. But this article is the first to attribute at least some of the major problems with these cases to recurring use of Constitutional avoidance, and the first to identify and describe the problem of avoidance creep. It is a remarkable achievement that this article says something about these cases that is both new and convincing. I liked it a lot.

Editor’s Note: Reviewers choose what to review without input from Section Editors. Worklaw Section Editor Charlotte Garden had no part in the editing of this article