Encouraging Courts to Think Practically About Workplace Harassment

Feb 24, 2011 Henry L. Chambers, Jr.

Henry L. Chambers, Jr.

In their excellent essay, Susan Grover and Kimberley Piro propose that courts explicitly consider whether a harasser is the target’s co-worker or the target’s supervisor in deciding whether harassment is sufficiently severe or pervasive to constitute actionable harassment under Title VII.  Grover and Piro argue that the same harassment will have a different effect on a reasonable employee – a core part of determining if the harassment is severe or pervasive – depending on whether the harasser is the target’s co-worker or the target’s supervisor.  The key point – that a supervisor’s direct power over an employee makes criticism or harassment from a supervisor much more harmful to the target’s employment than the same behavior by a co-worker – is virtually unassailable.

The essay identifies an important doctrinal issue.  However, its power is it that it raises a practical issue relevant to many workplace harassment disputes and considers how courts ought to address the practical issue through existing doctrine.  Rather than create an exotic problem and suggest that courts alter doctrine to address it, the essay makes a very precise point and offers a real prescription for addressing the point.   The prescription can be incorporated very easily by courts into their analyses of current harassment cases because it does not require the extension, alteration or reinterpretation of Supreme Court doctrine.  The authors implicitly suggest that courts should already be taking the status of the harasser into account when evaluating the severity or pervasiveness of the subject harassment because doing so is already consistent with the Supreme Court’s Title VII doctrine.  That may not be the flashiest legal scholarship, but it is very important and worthy of note as a TILL (Thing I Like Lots).

As Grover and Piro explain, courts must address two questions in harassment cases.  The first focuses on whether actionable harassment exists.  The second focuses on whether the employer should be liable for the harassment.  The Supreme Court has indicated how the second question is affected by whether the harasser is a co-worker or a supervisor, both in discussing the distinction between quid pro quo and hostile work environment harassment and in creating the Faragher/Ellerth affirmative defense that may be available when a supervisor triggers a hostile work environment.  However, the Court has been far less specific regarding how the first question is affected by the harasser’s status.

The Court limits actionable hostile work environment harassment to severe or pervasive harassment.  Severe or pervasive harassment is harassment that alters the conditions of the employee’s employment.  However, in defining what harassment will be actionable, the Court has tended to focus on how abusive the subject harassment was.  Doctrine suggests that courts consider the totality of the circumstances when determining if the harassment is sufficiently abusive to be deemed actionable.

The authors note that whether a harasser is an employee’s supervisor or merely a co-worker ought to matter in determining whether the subject harassment is abusive enough to alter the conditions of the employee’s employment.  One premise of the argument is that co-worker harassment can be handled in ways that supervisor harassment cannot.  For example, a target can usually ignore a co-worker’s abuse without direct reprisal.  However, a supervisor’s harassment cannot be so easily ignored.  An employee must listen to one’s supervisor if only to take instruction regarding legitimate aspects of one’s job duties.  Indeed, as the authors note, refusing to listen to one’s supervisor may lead to legitimate discipline.  In addition, the workplace conditions for an employee may be affected indirectly depending on the identity of the harasser.  When the harasser is a supervisor, other workers may feel freer to harass the target than if the harasser were merely another co-worker.

However, according to the authors, most courts appear to look only at the content of the harassment the target endures rather than the identity of the harasser.  The totality-of-the-circumstances test focuses on the abuse the target suffers and whether that abuse alters the conditions of employment.  If, as the authors suggest, a reasonable employee feels more abused if harassed by the employee’s supervisor than if harassed by the employee’s co-worker, the identity of the harasser is important.  Indeed, the identity of the harasser would matter precisely because the harasser’s identity may significantly increase the level of abuse suffered and determine whether the conditions of employment have been altered.  Consequently, courts should specifically consider the identity of the harasser when determining if actionable harassment has occurred.

The essay provides a good and tight argument.  It does not provide an exhaustive treatment of the issue and need not have done so.  Certainly, the essay could have been longer and could have explored whether the harasser must be the target’s supervisor or merely need be someone higher in the workplace hierarchy than the employee, such as a supervisor in a different division, with the power or influence to make the victim’s employment more difficult than a regular co-worker could.  However, such extended treatment was not necessary.

The essay took an issue of practical concern to those harassed in the workplace and explored both how courts have approached the issue and how current doctrine allows courts to approach the issue more properly.  More essays of this type should be welcome both inside and outside of the academy.  To the extent that law ought to be understandable by the public and should sensibly resolve real issues facing by those in situations regulated by the law, focusing on practical issues and making the doctrine sensibly consistent with the real world is plenty enough reason to write an essay and plenty enough reason to suggest that others read such an essay.

When Employee = Employer

Feb 10, 2011 Charles A. Sullivan

Charles A. Sullivan

I admit to being old-fashioned enough to like well-done doctrinal articles. Especially ones that upset conventional wisdom – the courts, the agencies, and the law reviews – by suggesting that, not to put too fine a point on it, everybody’s wrong. Doctrinally. Such is Frank Menetrez’s piece Employee Status and the Concept of Control in Federal Employment Discrimination Law, 63 SMU L. Rev. 137 (2010). Frank doesn’t appear to be in the academy at the moment, but we could use more scholars like him.

Admittedly, I came to the piece with pretty low expectations – agency, control, what new could be said?  It turns out, plenty. Frank’s target is the notion that someone can’t be an employer and an employee at the same time, which explains why cases like Clackamas Gastroenterology Associates, P.C. v. Wells turn on whether the doctor-owners were “really” owners (in which case they were employers and, for the Court, couldn’t also be employees).

Rather than approach the question from a policy perspective (are these the kind of people the employment discrimination laws were designed to protect?) or a formal one (is the entity the employer, thus rendering the owners employees insofar as they work for the entity?), Menetrez takes the Court at its word (in both Clackamas and its predecessor Darden) that Congress intended the concept of “employee” to turn on common law principles of agency. Under that approach, he argues, owners can be employees. It pretty much turns on whether the entity controls them in aspects of their work (even if, in other ways, they control the entity).

Among the ironies that this argument uncovers is that a “purposive” approach to the statute (usually thought to be expansive of its protections) is actually restrictive and a plain meaning approach (employee = controlled agent) is expansive. As was an issue in Clackamas itself, finding a person not to be an employee because she’s an owner most often means that other workers are not covered by the statute since the entity then has too few employees to be a statutory “employer.” Another irony is that the elusive search for the essence of “partner” (is an individual a partner in name only or “really” a partner) turns out to be unnecessary – “under the common law of agency, a bona fide partner can be, and often is, an employee regardless of the amount of managerial power the partner possesses. . . .”

I suspect the reader of this is as skeptical as I was when I picked up Employee Status, so maybe a brief excerpt will make it clearer than I could in the limited space that Jotwell allows. Menetrez views the case law, leading up to and including Clackamas as dependent on three arguments:

(1) An individual who owns and manages a business is an employer; (2) an individual cannot be both an employer and an employee; and (3) an individual cannot be both a partner and an employee. This Article argues that, evaluated under familiar common law agency principles, the defense arguments are unsound at every step.

First, an individual can own and manage a business without being the employer of the business’s workers. Every corporate officer knows that, and every corporate defense counsel knows it too. If a corporation’s chief executive officer is also both the chair of the corporation’s board of directors and a major shareholder, that person does not thereby become the employer of the corporation’s employees. . . .

Second, if it were true that an individual who owns and manages a business thereby becomes an employer, then it would follow that an individual can be both an employer and an employee at the same time. Again, the reasons are uncontroversial. A factory worker who buys shares of his corporate employer’s stock does not thereby cease to be an employee of the corporation. Rather, the worker is both an owner and an employee. . . .

Third, no less an authority than the Restatement (Second) of Agency states that, under certain easily satisfied conditions, partners can be employees of their own partnership. At common law, an employee is an agent whose principal has the right to control the agent’s physical conduct. Partners are agents of their partnership, and there is no reason why the partnership cannot have an express or implied right to control the partners’ physical conduct in the performance of their work for the partnership. Indeed, it would be surprising if a law firm, for example, did not have an express or implied right to prohibit its partners from physically assaulting the firm’s clients. (P. 138, 139.)

According to Menetrez, the analysis of all of these questions is simple, and mandated by the common law agency principles. Thus, the first question is whether there is an agency relationship and, if so, who is the agent and who is the principal. Once we know that, the next question is whether the agent is an employee, which turns on the degree of control of the agent by the principal.

For Menetrez, Clackamas is profoundly wrong because it “positively endorsed” the ideas that being an owner and manager makes the individual an employer and that employers cannot be employees–while at the same time purporting to apply common law agency principles. He is persuasive that both cannot be true, and he views the common law referent as the more basic principle.

No matter how much I like a piece, I can always find something to carp about. One quibble is his failure to give more attention to Hishon v. King & Spaulding, which seemed to have created the false dichotomy between employers and employees by assuming that a bona fide partner could not also be an employee. A second quibble has to do with the notion of “control.” At least to me, it seems that some courts view “control” as the central test, with, say, the 12 factors the Supreme Court endorsed in Community for Creative Non-Violence v. Reid as ways of determining control, while other courts view the question as looking to such factors to determine in a kind of free standing way whether someone is an employee. For example, Lerohl v. Friends of Minnesota Sinfonia, 322 F.3d 486 (8th Cir. 2003), looking at these factors, found an orchestra not to be an employer of its members – although it would be hard to find more exacting control in any setting! But, of course, Menetrez’s topic wasn’t exploring whether “control” is really the watchword – it was revealing that the Court isn’t consistent in its own use of doctrine.

I went to law school about the time that Agency & Partnership was being phased out as a separate course. Theoretically, it was merged into Business Associations, but all the BA teachers I ever met rushed past those issues so they could get to fun stuff like the business judgment rule and 10b-5. It may be that this shift in legal education is responsible for the failure Menetrez identifies in faithfully applying common law agency principles to the situation he discusses, and maybe a lot of other “employee” questions too.

Hoisted by their own Petard: Struve Applies Pretext Analysis to the Court, Finds Justices’ Motives Questionable

Jan 21, 2011 Martin J. Katz

Martin J. Katz

Things we like (lots): Irony.

In 1973, the Supreme Court gave us McDonnell Douglas, the ubiquitous framework for proving discrimination under disparate treatment statutes such as Title VII.  McDonnell Douglas has been widely criticized – often for good reason.  McDonnell Douglas places the full burden of proving discriminatory causation on the party least equipped to prove it: the plaintiff.  Additionally, most courts have read McDonnell Douglas as requiring but-for causation for liability, which provides an unjustified windfall to defendants in many cases where multiple motives are at play.  Yet, despite these flaws, McDonnell Douglas does one thing well:  It allows us to ascribe unsavory, and possibly discriminatory, motives to defendants who dissemble – those who provide non-credible reasons for their actions.

There are alternatives to McDonnell Douglas, including the Court’s 1989 Price Waterhouse framework.  Price Waterhouse, too, was vulnerable to criticism.  But at least that case permitted burden-shifting on the issue of causation.  Yet, in Gross, the Court repudiated Price Waterhouse – at least in ADEA cases.  In such cases, the Court held, plaintiffs bear the full burden of proving but-for causation.

In her new article, Catherine Struve questions the Court’s motives in Gross.  And she does so using a pretext analysis that is deliciously reminiscent of a McDonnell Douglas pretext analysis.

Like the skilled employment lawyer she is, Professor Struve divides and conquers each of the arguments advanced by the Court for its action.  First, she considers the Court’s argument that the Civil Rights Act of 1991 does not apply to ADEA claims.  While she concedes that this argument might be correct, she also notes that it is irrelevant. Then, she considers the Court’s textual argument: that there is no reference to burden-shifting in the ADEA.  But she points out that the Price Waterhouse Court, reading virtually identical language in Title VII, found that burden-shifting was appropriate.  Thus, Professor Struve concludes:  The lynchpin of the Court’s reasoning in Gross was its repudiation of Price Waterhouse.

Professor Struve next attacks the Court’s reasoning for repudiating Price Waterhouse.  Perhaps surprisingly, the only reason offered by the Court for this repudiation was that Price Waterhouse had proven “difficult to apply” – or, as Professor Struve puts it, “confusing.”  She argues, persuasively, that this is simply not true:  There is nothing inherently confusing about Price Waterhouse burden-shifting.  Her Exhibit A is two jury instructions, one using a Price Waterhouse burden-shifting instruction, and the other a simple determinative factor/but-for instruction.  The conclusion:  Any reasonable reader (at least, any reasonable reader with a JD – and likely those with much less education) would see that the Price Waterhouse instruction is only slightly more complicated than the determinative factor instruction, and hardly confusing.  And, as Professor Struve’s adept analysis shows, the authorities cited by the Court for its “difficult to apply” argument do not help the Court demonstrate “confusion.”

Finally, Professor Struve looks at other types of “confusion” that might arise from Price Waterhouse (e.g., when to apply Price Waterhouse under the ridiculously confusing “direct evidence” test).  She argues, persuasively, that none of these other forms of “confusion” would justify repudiating Price Waterhouse – and some might in fact counsel in favor of retaining it.

So, we have a classic case of pretext.  The Court says that it acted to avoid confusion.  But Professor Struve shows that there is no real confusion.  Based on this fact, she argues, we can infer that not only that the Court did not act for the stated reason (to avoid confusion); we can infer that the Court was disingenuous – that it was hiding some less savory motive.  Perhaps, Professor Struve argues, the Court acted based on policy considerations.  Specifically, she argues, the Gross majority may have based its holding on concerns about employment discrimination litigation generally, and age discrimination litigation specifically.

While we could debate under Reeves whether pretext alone is sufficient for liability, Professor Struve does not argue for imposing liability upon the Court for its apparent dissembling.  Instead, she hopes that Congress will accept the “invitation” that the Court seems to have provided for engaging in a policy debate about burden-shifting in antidiscrimination law.  And in case Congress is inclined to accept this invitation, she provides an excellent guide to the policy questions involved in this debate.

I hope that Professor Struve is right; that the Court will see the Court’s apparent dissembling in Gross as an invitation to revise and unify its employment discrimination laws.  But whatever Congress does, it was great fun to see Professor Struve apply McDonnell Douglas style pretext analysis to the Court’s opinion in Gross, which went out of its way to entrench the more problematic aspects McDonnell Douglas.  Turnabout, after all, is fair play.

Does the NBA’s Dress Code Violate Title VII?

Jan 5, 2011 Joseph Slater

Joseph Slater

Over 20 years ago, Detroit Piston Dennis Rodman ignited a firestorm of controversy by saying that if Larry Bird were white he would be considered “just another player.”  Pistons star Isiah Thomas was dragooned into explaining this remark during a broadcast of an NBA Finals game. While acknowledging that Bird was a superstar, Thomas made the broader point that race mattered in perceptions of NBA players.  White players were labeled “smart and hardworking,” black players were “naturally talented.”  Later in that same Finals series I heard a broadcaster describe a Lakers lineup (of all black players) as “thoroughbreds.”

Race has long been significant in sports, today perhaps nowhere as much as in the NBA.  Yet discrimination scholars have largely overlooked this fertile field.  Stepping into the breach, D. Aaron Lacy has written a provocative and worthwhile piece on a modern symptom of racial anxiety in NBA employment: the NBA dress code.

Lacy stresses that “hip hop culture” is central to NBA marketing and corporate tie-ins (e.g., dancers and music during games, and an NBA-licensed video game emphasizing hip hop culture).  Dress has been part of that, from “Air Jordan” sneakers, to baggy shorts, to “bling.”  Yet since 2005, the NBA has imposed a dress code on its players that generally requires “business casual” clothes even when off-duty, and specifically bars various indicia of hip hop culture.  The racial overtones in both marketing “hip hop” in some contexts and being wary of players seeming to be too involved with it are obvious.

Lacy ties this to the broader issue of employer policies on appearance and conduct outside the workplace, arguing that such rules can violate Title VII’s disparate impact doctrine.  Employers have legitimate interests:  highly controversial acts may reflect on the employer’s reputation or perceived position on a topic.  But such policies can also interfere with cultural expression in private life, including cultural expressions closely tied to race.  Lacy critiques cases that reject Title VII challenges to appearance policies (on clothes, grooming, etc.), and he proposes a new Title VII analysis for such employer policies that govern off-duty conduct.

Under Lacy’s proposed test, the employee must first show that the policy affects his private life and affects it because of (in this case) his race.  The burden would then shift to the employer to prove it adopted the rule for a rational, job-related purpose, and that the rule was reasonably necessary to accomplish a legitimate business purpose.  The employer would have to show it was impossible to otherwise accommodate the employee without an undue hardship on the business.  The burdens of production and persuasion would then shift to the employee to show a disparate impact on his protected group and that an alternative practice exists that would serve the employer’s purpose without the discriminatory effect.

Lacy applies his proposed test to the NBA policy and finds a strong case for a violation, at least to the extent that the policy regulates players when they are not doing the business of the league (e.g., when they are attending games on their own time).  The employer might argue that NBA players are so famous that their conduct would always be associated with the NBA or team. But this proves too much: can the NBA bar players from taking positions on any arguably controversial topic?  Also, famous players may be associated with their teams when they appear in uniform and/or in advertisements, but not in all facets of the player’s private life.  Perhaps most revealingly, why does the dress policy not regulate coaches and owners, who are often quite visibly associated with the team?  Lacy gives the excellent example of Dallas Mavericks owner Mark Cuban:  well known, flamboyant, and often in the stands at games in clothing that would not satisfy the dress code.

Lacy also discusses alternative theories: the wrongful discharge tort, and state statutes giving some protection for off-duty conduct.  While these theories are relevant and worth noting, I found the Title VII part to be the most intriguing.  I would have liked to see Lacy discuss in more detail what he feels the specific legal consequences should be of the NBA’s hypocrisy (enforcing the dress code while simultaneously exploiting hip hop culture).  But overall, this is a very interesting and thought-provoking piece, which I liked a lot.

Really Sticky Default Rules

Dec 13, 2010 Michael Fischl

Michael Fischl

In the law of work, the hierarchy of legal authority – constitutions trump statutes trump common law – is frequently subverted by a common law that doesn’t seem to know its place.

Early efforts to supplant common law with statutory regulation frequently foundered when common law rules morphed into constitutional principles and forced contrary legislation to give way – most famously, when the right to fire “at will” achieved constitutional stature in the service of striking down state laws prohibiting the yellow-dog contract.  And the constitutionalized common law continues to this day to shape the regulation of work, most recently when the “at-will” rule reared its head to vanquish “class of one” equal protection claims for public employees.

But in the post-New Deal era, the common law has often been able to “jump the queue” on its own, thwarting statutory reform without any need for an assist from the Constitution.  As Jim Atleson argued in his 1983 classic Values and Assumptions in American Labor Law, what judges treat as just plain “common sense” about the rights and duties of parties within an employment relationship bears an uncanny resemblance to the rules of 19^th Century master-servant law.  This tenacious grip on the way judges think about labor issues goes a long way to account for the myriad settings in which common law principles outwit, outplay, and outlast the explicit provisions of labor legislation – e.g., when the duty of loyalty (nowhere mentioned in the NLRA) is read to trump the express statutory right to strike or when property rights (again without mention in the statute) are invoked to curtail the likewise explicit right to organize.

In Toward Third-Party Liability for Wage Theft, Brishen Rogers takes Atleson’s insight a step further by tracing the influence of common law thinking not on the rules of governance within the employment relationship but instead on the judicial understanding of what constitutes “employment” itself – no small thing, since the statutory protection available to workers depends in virtually every instance on their status as “employees” under the statute in question.  Yet in a world of work marked by the dismantling of internal labor markets in favor of outsourcing – where tasks previously undertaken in-house are increasingly assigned to labor contractors (think  custodial work) and supply chains (think production work) – efforts to enforce workplace rights may falter when the outsourcer isn’t viewed as a statutory “employer” despite the fact that it remains the principal beneficiary of all that contracted-out labor (think the university with clean classrooms and offices, or the publisher selling books printed offsite).

Rogers explores the consequences of this discontinuity between law and worklife under the Fair Labor Standards Act (FLSA), the New Deal statute that prohibits child labor and establishes the right to a minimum wage. Rogers focuses in particular on the problem of enforcing the latter, a notoriously difficult task given the prevalence of thinly capitalized labor contractors in low-wage industries (e.g., agriculture, hospitality, garment work, janitorial and landscaping services, etc.), for many of whom declaring bankruptcy or merely turning out the lights in the face of threatened legal action is just another cost of doing business.  In the meantime, the outsourcing firms are seemingly beyond the law’s reach, despite the fact that their contracting and purchasing practices are largely responsible for the downward pressure on wages in the first place.  It’s no wonder, then, that the many studies Rogers canvasses reveal an appallingly high incidence of what a recent GAO report on FLSA enforcement aptly describes as “wage theft.”

Yet outsourcing wasn’t born yesterday.  Drawing on Marc Linder’s work, Rogers notes that the New Deal Congress was plenty familiar with the use of “judgment-proof middle men” in the garment and other industries to avoid workplace regulations, prompting it to adopt a capacious definition of covered “employees” by declaring that “‘[e]mploy’ includes to suffer or permit to work.”  This language was broad enough, as authoritatively construed in a famous pre-FLSA child labor case by then-Chief Judge Cardozo, to reach firms outsourcing work to contractors who violate the law when the outsourcers might through “reasonable diligence” have discovered the unlawful practices and made reasonable efforts to curtail them – broad enough, in other words, to reach a firm “shocked, shocked” to learn of minimum wage violations by its contractors even as it banks the booty from low-cost outsourcing.

What eventually followed, though, is the drearily familiar narrative of  American courts taking their cues not from the FLSA but instead from – you guessed it – the common law, defining “employee” via various versions of the “control” test used for determining employer tort liability in the late 19^th Century.  Rogers provides a powerful critique of this development (none dare call it deradicalization) and offers a series of possible fixes, the most promising among them the approach embraced by Cardozo and presumably available to contemporary courts willing to take the “suffer or permit to work” language and its provenance and purposes seriously.

In the process, Rogers displays a sure grasp of the debates surrounding third-party liability in other areas of the law, an impressive facility with economic analysis, and a seasoned lawyer’s eye for the challenges of implementation and proof.  But the principal reason I like the article (lots) – and, full disclosure here, I’ve been a fan since I read it in draft a year ago – is the value it adds to Atleson’s insight about the common law’s resistance to statutory incursion.  Building on Noah Zatz’s wonderful work on prison labor, Rogers astutely critiques the relentless judicial quest for a transcendent meaning of “employment” that exists outside of and prior to law, despite the fact that the understandings that invariably emerge are very much a product of the law of an earlier era – the “con,” perhaps, in the all too frequently forgotten constitutive role of law in American work.

The Diversity of Public Sector Labor Law Regimes

Nov 29, 2010 Martin H. Malin1 comment

Martin H. Malin

The importance of the public sector in traditional labor law and collective bargaining increases every year.  Whereas union density is down to about 7.5% in the private sector, it continues to hover close to 40% in the public sector.  A majority of union members now work for units of government.  The most heavily unionized sectors of the economy are education, police, and fire protection.  Yet, most traditional labor law scholarship continues to focus on the private sector generally and the National Labor Relations Act (NLRA) in particular.  Scholars’ obsession with the NLRA continues even though the legal regimes governing public sector labor relations are highly diverse and therefore provide considerable fruit for scholarly analysis.

Ann Hodges’ article is refreshing and important and goes a long way to filling the vacuum in labor law scholarship.  Hodges compares Illinois, whose legal regime she characterizes as one of the most union-friendly, with Virginia whose regime is one of the most union-hostile.  She catalogues the reasons behind those characterizations, showing the numerous ways in which Illinois law is more favorable to unions than the NLRA and than most other states’ public sector labor laws, and relating how Virginia, which has never had a public sector collective bargaining statute, went from allowing public sector collective bargaining at the employer’s option, to prohibiting it by Virginia Supreme Court decision, to codifying the prohibition in state statute.  She further relates how Illinois law in general is more worker-protective, whereas Virginia law and policy are focused on maintaining a favorable business climate.

Hodges demonstrates the dramatic impact of the legal regime on union strength.  She observes that prior to enacting its public sector collective bargaining statutes in 1983, Illinois had extensive public sector unionization, a factor that she believes contributed to the statutes’ enactment.  However, enactment of the statutes substantially increased union density in the Illinois public sector, particularly outside urban areas.  Today, union density in the Illinois public sector exceeds 50%.  In contrast, union density in the Virginia public sector stood at 38.5% in 1972 but just six years later, one year after the Virginia Supreme Court decision outlawing collective bargaining, it had dropped to 19.5% and today is around 10%.  Union strength in the Virginia public sector tends to be concentrated in urban areas and among teachers and firefighters.  Moreover, Hodges points out, union strength or weakness and the legal climate reinforce each other.  Strong unions are able to push for an even more favorable legal regime while weak unions are not.

Hodges goes further and shows how the legal regime affects how unions organize and represent their members.  She characterizes the dominant approach to organizing and representation among Illinois public sector unions as contract-based.  Unions gain exclusive bargaining representative status and negotiate contracts with grievance and arbitration procedures, union security provisions and dues or agency fee check-offs, provisions that tend to institutionalize the union in the particular workplace.  In contrast, Virginia public sector unions have no enforceable contracts to rely on to solidify their existence.  They must constantly organize, persuading employees to join, renew their memberships, and pay dues.  Furthermore, they “must also work continually to sustain relationships with employers and legislative bodies that control the terms and conditions of employment.”  (P. 752.)  Hodges shows how Virginia public sector unions have succeeded in obtaining memoranda of agreement with employers which, although not legally binding, are generally followed.  But, she laments, these positive labor relationships resulting from creative methods of worker representation are present only for a small segment of the Virginia public sector workforce and are notably absent in state government and outside urban areas.

Hodges suggests another positive effect of the Virginia labor relations regime that has evolved in response to a hostile legal climate.  She finds that the Virginia legal regime may lead to cooperative relationships where employers are willing to work with unions representing their employees.  She observes that there is anecdotal evidence that employers are more willing to work out agreements with unions where the agreements are not legally binding, even though the agreements are followed.  She observes that in this climate, “[a]greements can be quietly negotiated and compliance may proceed under the radar of public scrutiny, unlike the situation where negotiations are public and contracts require legislative approval.”  (P. 772.)  Furthermore, she suggests that freed from the constraints of traditional labor law doctrine, parties may find it easier to address issues of mutual concern that jurisdictions with traditional collective bargaining laws would hold to not be mandatorily negotiable.  This may lead to greater labor-management cooperation.  Hodges cites as an example, the cooperative efforts of the Norfolk Federation of Teachers and Norfolk School System that won the Broad Prize for being the top urban school system in 2005.

Hodges does not ignore the private sector.  Rather, she suggests that private sector unions and worker advocates, who currently operate in a legal environment that is not union-friendly but is not as hostile as the legal climate in Virginia’s public sector, can learn from the Virginia public sector experience.  While she recognizes significant differences between public and private employment, she draws analogies to the tactics used by Virginia public sector unions and those used by private sector worker centers to successfully organize and represent workers in spite of the law.  She notes that although Virginia public sector unions operate in a more hostile legal environment than private sector unions generally, the union density rate in the Virginia public sector exceeds that of the private sector.

Hodges has presented many thought-provoking insights into the relationship between the law and the reality of how likely it is that employees will have collective representation, the forms that such representation will take, how the representative will go about doing its job, and the nature of the relationship between the collective representative and the employer.  Just as importantly, she has demonstrated why labor law scholars should expand their horizons beyond the private sector and the NLRA.

The Motion to Dismiss for Workplace Plaintiffs after Iqbal and Twombly

Nov 15, 2010 Joseph Seiner2 comments

Joseph Seiner

In Bell Atlantic v. Twombly, 550 U.S. 544 (2007), the Supreme Court adopted a plausibility test for pleading federal claims, replacing the more liberal standard from Conley v. Gibson, 355 U.S. 41 (1957), which had permitted a case to proceed “unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.”  Id. at 45-46.  While Twombly was an antitrust case, the Supreme Court made clear in Ashcroft v. Iqbal, 129 S. Ct. 1937 (2009), that the newly announced plausibility standard would apply to all civil cases.  In her recent article, The New Summary Judgment Motion: The Motion to Dismiss Under Iqbal and Twombly, Professor Suja A. Thomas demonstrates how these recent Supreme Court decisions have transformed the motion to dismiss into the motion for summary judgment.  This piece builds off of the strong foundation Professor Thomas has already established in this area, including her articles Why the Motion to Dismiss is Now Unconstitutional, 92 Minn. L. Rev. 1851 (2008), and Why Summary Judgment is Unconstitutional, 93 Va. L. Rev. 139 (2007).  The piece highlights the difficulties employment discrimination plaintiffs may now face when opposing a motion to dismiss.

In this article, Professor Thomas examines how, after Twombly and Iqbal, the standards for the motion to dismiss and the motion for summary judgment are now nearly identical.  In particular, both standards require a court to look to whether a claim is plausible.   After Iqbal, the plausibility test now clearly applies to motions to dismiss, and Professor Thomas demonstrates how the plausibility standard has similarly been applied in the summary judgment context.  In addition, for both the motion to dismiss and the motion for summary judgment, “courts assess both the inferences favoring the moving party and the inferences favoring the nonmoving party.”  (P. 30.)  Finally, according to Professor Thomas, when considering either type of motion, the courts are actively using their own opinions and views of the evidence to decide whether a particular claim should proceed.

As the two motions are “converging,” (P. 31), Professor Thomas points to some of the similar effects of this result.  She believes that the judiciary will now play a greater role in resolving disputes, likely resulting in a higher number of dismissals.   Professor Thomas views employment discrimination cases as one area where plaintiffs may be particularly vulnerable in this regard.  Pointing to several studies which have already been performed on the impact of the plausibility standard, she argues that “given the similarity of the motion to dismiss standard to the summary judgment standard and the propensity of judges to dismiss employment discrimination cases under summary judgment, it seems likely that the [trend to dismiss these cases] will continue.”  (P. 33.)

Perhaps more controversially, Professor Thomas persuasively argues in her paper that the Supreme Court’s decision in Swierkiewicz v. Sorema N.A., 534 U.S. 506 (2002), is no longer good law.  Swierkiewicz had held that an employment discrimination plaintiff need not “plead facts establishing a prima facie case.” Id. at 511-12.  Rather, a plaintiff need only comply with Federal Rule of Civil Procedure 8(a)(2), which requires that the plaintiff set forth “a short and plain statement of the claim showing that the pleader is entitled to relief.”  Id.  Professor Thomas identifies an emerging divergence of views in the federal appellate courts – as well as the academic scholarship – over the extent to which the Swierkiewicz decision survives after Iqbal and Twombly.  She maintains that Swierkiewicz is now problematic in that it “appeared to permit conclusory pleading,” (P. 35), which was specifically rejected by the recent Supreme Court decisions.  Similarly, the more relaxed pleading standard found in Swierkiewicz “does not comport,” (P. 36), with the seemingly heightened plausibility pleading standard, which the Court has now established.  And, Twombly rejected the Conley “no set of facts” standard upon which Swierkiewicz at least partially relies.  In light of these concerns, “Swierkiewicz effectively is dead,” (P. 18), and “employment discrimination plaintiffs will effectively need to plead a prima facie case and possibly more to survive a motion to dismiss.”  (P. 35.)

Professor Thomas concludes the article by arguing that the plausibility standard established in Iqbal and Twombly is inappropriate.  Indeed, she finds the change in standards – and the resulting similarity between the motion to dismiss and the motion for summary judgment – to be “inconsistent with the intentions of the rule-makers.”  (P. 38.)  Professor Thomas examines the cost differential between the two motions, and further notes the lower cost of litigating a typical employment dispute when compared to the higher cost of litigation found in a complex antitrust case such as Twombly.  And, she explains that the role of the courts in deciding a motion for summary judgment and a motion to dismiss are decidedly different.  In conclusion, the similarity which the Court has now created between the two motions “call[s] into question whether Iqbal and Twombly were decided properly.”  (P. 41.)

In sum, this article does a superb job of demonstrating how, after Iqbal and Twombly, the motion to dismiss and the motion for summary judgment are now quite similar.  And, this paper explains how this result may prove particularly problematic for employment discrimination plaintiffs – a result which Professor Thomas finds troubling.  As a final note, this article was part of a symposium issue in the Lewis & Clark Law Review on Iqbal and Twombly, and other papers on the topic can be found here.

Judicial Amendments Treating Citizen and Immigrant Workers Equally . . . Badly: Labor Rights Without Effective Remedies

Nov 1, 2010 Anne Marie Lofaso

Anne Marie Lofaso

In Marbury v. Madison, the Supreme Court early on affirmed as “indisputable” the rule “that where there is a legal right, there is also a legal remedy” and “that every right, when withheld, must have a remedy, and every injury its proper redress.” Marbury v. Madison, 5 U.S. (1 Cranch) 137, 163 (1803) (quoting 3 William Blackstone, Commentaries *23, *109).

But while black letter law so instructs, employee status under the National Labor Relations Act does not always guarantee backpay to victims of unfair labor practices—or so explains Ellen Dannin in her well-documented review of the by now infamous labor-immigration case, Hoffman Plastics Compounds, Inc. v. N.LR.B., 535 U.S. 137 (2002).  Her article, which was part of the University of San Francisco’s symposium issue—The Evolving Definition of the Immigrant Worker: The Intersection Between Employment, Labor, and Human Rights Law—meticulously dissects the language of the Supreme Court’s opinion and the oral argument to show that Hoffman Plastics’ holding—that employers are not liable in backpay for violating the labor law rights of undocumented workers—is not an anomaly. Instead, it fits neatly into an historical trend of judicial amendments to the NLRA.

Dannin’s bottom line is that judicial hostility towards unions and labor law manifested itself in early decisions, such as N.L.R.B. v. Fansteel Metallurgical Corp., 306 U.S. 240 (1939) and Southern Steamship Co. v. N.L.R.B., 316 U.S. 31 (1942), where the Court eliminated backpay remedies for workers who had the audacity to exercise their fundamental labor rights in a manner that violated some other law.  When the seamen in Southern Steamship participated in a one-day peaceful sit-in strike aboard a ship in response to serious employer violations of their rights, the Court characterized that conduct as a “mutiny” in violation of federal law.  And when the workers in Fansteel protested their employer’s unlawful refusal to recognize their union by engaging in a sit-in strike, the Court had no difficulty eliminating their backpay remedy—and remedies for all workers found guilty of conduct unlawful under other laws and for which they had been punished—even though Fansteel itself was willing to rehire those workers, so long as they renounced their labor rights under the NLRA.

Dannin shows that those decisions, which left serious labor violations unremedied, coupled with the Supreme Court’s bald declaration in Consolidated Edison Co. v. N.L.R.B., 305 U.S. 197 (1938), that the NLRA does not authorize punitive remedies, predictably leads to the result in Hoffman Plastics.  The one area in which undocumented workers are treated equally with other workers is in having the statutory right to organize under the NLRA while having no right to an effective remedy when their employer unlawfully terminates them for exercising that right.

Dannin criticizes those aspects of the Court’s judicial amendment process resulting in the Court’s evisceration of the NLRA’s remedies as part of its deradicalization (to borrow Professor Karl Klare’s lingo) of the NLRA.  Dannin’s critical analysis is powerful.  Its persuasive force comes from the evidence presented of the Court’s progressive overstepping of the boundaries established as part of the separation of powers—that the Court judicially amended the NLRA in ways that Congress had either refused to do or had already undone by legislative enactment.  To support that argument, Dannin points to rejected congressional proposals that the Court reinserted into labor law by way of Fansteel, Southern Steamship, and later on Hoffman Plastics.  And so, these early cases reinserted congressionally rejected common law concepts.  These early cases also reconceived the NLRA as a general law to right all wrongs—a framework rejected by Members of Congress, who thought that the Norris-LaGuardia Act and state and local laws were sufficient to remedy such acts of misconduct; the Fansteel Court’s insistence on withholding the backpay remedy from workers who engaged in such misconduct negates that congressional intent.  Moreover, these early cases also ignored the plain language of NLRA Section 10(c) to displace the focus of the appropriate inquiry (What is a proper remedy in light of the NLRA’s purposes?) to an inappropriate inquiry, which focuses on the worthiness of the workers themselves.  And finally, these cases have recast NLRA rights and purposes as individual rather than communal rights—“a change,” Dannin observes, “that fundamentally affects the NLRA’s purposes and policies.”  (P. 413.)

This analysis leads Dannin to the article’s most intriguing inquiry:  “What is difficult to understand is why there was sufficient support to enact a series of pro-labor laws, including the NLRA, yet, at the same time, a judiciary that felt free to impose its own views on the law.”  (P. 419.)  Once again, Dannin’s analysis is peppered with historical data to support her theory that the “[c]ountervailing forces that weakened the NLRA and NLRB included opposition to unions and collective bargaining encouraged by economically powerful groups in support of ultra-conservative programs and a divided union movement.”  (P. 420.)  Dannin pauses to note that “similar forces and climates exist today.”  (P. 420.)

Dannin ends on a pragmatic and cautionary warning to those of us who care about preserving and enforcing rights gained through legislation:  Judges, who are empowered to interpret labor laws, tend to hold views antithetical to the NLRA’s values and purposes.  We ignore those viewpoints at our peril.  Instead, we must understand those countervailing forces and combat them with proven strategies, such as those employed by the NAACP Legal Defense Fund during the Civil Rights Movement and the National Right to Work Legal Defense Fund today.  In Dannin’s view, a well-planned legal strategy could result in a labor law enforced as written—to encourage the practice and procedure of collective bargaining.

Conceptualizing Comparative Labour Law

Oct 18, 2010 Michael J. Zimmer

Michael J. Zimmer

Back in the day, comparative law as taught in most U.S. law schools meant a comparison at quite the abstract level of the civil law and common law systems. While still interesting and valuable, that rather limited approach has been bolstered by approaches that look to specific areas of law within those two more general legal systems. Within the current thrust of comparative scholarship, there are two schools. One is to start with an area or subject of law and then find and compare the laws of the different countries on that particular subject. The second approach is to start with a country and then find the particular subject of interest so that it can be better understood within the specific context of that country.

A problem with the first approach is that it is formalist. Looking at the laws so abstractly leaves them decontextualized. The “law in action” in any particular country may be surprisingly different from what the words suggest or what those words mean in action in different jurisdictions. The second approach emphasizes the significance of context: the culture, politics and economy of the countries examined. With that base, then a specific law or area of the law can be much more completely understood. An example will show the difference between the two approaches. Utilizing the first approach in trying to learn about the Mexican Constitution, you would read it and, based on the language, would predict that the governmental structure in Mexico is much like that in the U.S. because the Mexican Constitution was modeled on our Constitution. Both are organized horizontally at the national level with a separation of powers structure and vertically with a federal system. The second approach would look at the Mexican Constitution in action and conclude that the governmental structures of the two countries have been quite different, notwithstanding the similarity in the structure supposedly established in the two constitutions. At least until the turn into the 21^st Century, governmental power in Mexico was essentially concentrated in the hands of one person, the President, who was in effect a term limited absolute monarch.

The second approach is not without problems of its own since it sometimes leaves one with the feeling that you don’t know anything until you know everything about a country and its laws. Some think it is impossible for an outsider to truly understand the context necessary to really understand the “law in action” in any particular country.

Enter Roger Blanpain. Now a professor emeritus at the Catholic University of Leuven, Belgium, and a professor at the University of Tilburg, the Netherlands, he has dedicated his life to the development of international and comparative law generally and of international and comparative labour law in particular.  He is the founder and general editor of the International Encyclopaedia of Laws. The organization of this mammoth treatise was designed to bridge the gap between the two schools of comparative law analysis. Relying on local experts from across the globe, the Encylopaedia covers 25 different subject matter areas. Rather than simply presenting the particular legal provisions of the different countries, each of the covered countries has a separate chapter that begins with the relevant context specific to that country and then how the subject matter law works within that context.

As editor, Roger designed the International Encyclopaedia of Labour Law and Industrial Relations using the same model. Because of his special dedication to labour law, Roger is the best known international and comparative employment law academic. He virtually invented the field as we know it today.

Born in 1932, Roger thought it was now time to write his memoirs. He traces the arc that took him from his birth in a small town in Flemish and Catholic Belgium to become the principal architect of a global perspective on labor and employment law. He had the vision to foresee the growing economic globalization following the recovery from World War II and to help prepare for the inevitable impact it would have on the workplace law of the nations of this world. From an early age, Roger took every opportunity to expand his horizons by travel, curiosity and study. He has always been, and continues to be, ready to bring new people into the fold to help develop labor and employment law. Roger has mentored generations of labor law scholars from all over the world. Nothing less would work to help bridge the gap between theory and the reality of the labour laws that are supposed to structure employment and to protect workers.

The real Roger comes through in his memoirs:  an interesting character, he is curious about everything, gregarious, smart, energetic, opinionated but ready to listen and always to laugh, even as he works hard to advance the right of workers, especially those most need of protection, all the while recognizing the appropriate role of employers. He shows how he was able to use his ironic sense of humor as an organizing tactic so people everywhere find it hard to resist his charm. Even when facing daunting challenges, Roger’s optimism never falters. He has also been courageous in leading the attack on injustices as he finds them and whoever causes them, even at cost to himself.

He honors those who have contributed to efforts to reform labor law. His stalwart support of the work of the Professor Marco Biagi, who was assassinated by the Red Guard for proposing to reform Italian employment law, has helped build a deep and broad program at Modena to educate the future global leaders of labor law.

As a pathbreaker, Roger Blanpain has brought tremendous richness to the study of comparative law. He has helped enrich the lives of comparative scholars worldwide.

In the few words of this review, I have found it hard to do justice to Roger and to his memoirs. His essence is best captured in his summing up, looking to the future:

To remain competitive, we have to stand on the tip of our toes, which means being creative, multilingual, technically competent. In a free world we are open to others. Not only foreign investors, but also other cultures. More cultures are an enrichment and not a challenge. You cannot have a fine bouquet without many colours. But first you need to learn to display flowers.

We must, more than ever, remain ourselves and stand up for ourselves and our ideals. But not without listening, being tolerant and accepting others as they are. Maybe we should all of us ask each other, more than ever, the question: “What can I do for you?”

Saying his memoirs are “not a last will and testament,” but claiming he is too old for a new beginning, Roger is confident that others – it will take many – will carry on.

Note: Roger Blanpain and I have been collaborators since 2004 and co-authored the first edition of “The Global Workplace: International and Comparative Employment Law – Cases and Materials”. We are now working with our co-authors on the second edition.

The Road to Virtual Equality?

Oct 4, 2010 Angela Onwuachi-Willig2 comments

Angela Onwuachi-Willig

What if there was no “place” in the “law of the workplace?”  In her article A Taxonomy of Virtual Work, forthcoming in the Georgia Law Review, Professor Miriam Cherry asks this provocative question, considering the ways in which the law might change to keep pace with the changing realities of work, including virtual realities.  In so doing, Cherry writes an important, cutting-edge piece that helps to ignite a much needed conversation on how law may not only keep up with changing forms of discrimination but also the changing worlds in which discrimination may occur.

The increasing prevalence of what Cherry terms “virtual work” has profound implications for labor and employment law.  As Cherry describes, millions of people worldwide supplement their incomes, entertain themselves, or do both simultaneously by meeting with fellow employees in virtual worlds such as Second Life, solving complicated problems on websites like Innocentive, or casually “clicking” to make money for simple tasks on Amazon.com’s Mechanical Turk.  Cherry argues that these activities are far more than “games” or “pastimes,” and that these “virtual jobs” allow many to work in cyberspace to pay their rent in reality.  Because she is seeking to classify all of the ways that technology influences worklaw, Cherry discusses whistleblowing, harassment, and disability law.  In more depth, she also treats the issues of minimum wage protections, virtual unionization, and employment discrimination in cyberspace.

For instance, Cherry asks whether the Fair Labor Standards Act should apply to workers like those who “click” to do small tasks for pennies on Amazon.com’s Mechanical Turk website.  This question is more difficult than it appears, given that many of the latest web 2.0 technologies involve “fun” activities that straddle the line between work and leisure.  Ultimately, Cherry resolves the question by suggesting that more information should be disclosed to workers about volunteer or employee status, and that those who are working for pay should receive minimum wage.  To discuss the role of unions and traditional labor groups, she discusses the group of Italian IBM workers who in 2007 organized an avatar strike in Second Life and won wage concessions.  Finally, Cherry notes that virtual worlds may provide a rare opportunity for testing the amount of unconscious bias that exists in hiring.  Because one person can switch the look of his or her avatar – in effect, choosing his or her own identity at will – it will be possible to determine whether various identity characteristics translate into more or less job opportunities.

As described in the article, virtual work may have great promise.  It could increase efficiency by reducing the time and expense involved in gathering workers who live great distances apart.  It also could allow for more efficient use of worker skills.  At the same time, as Cherry argues, virtual work may present its own unique series of challenges for the regulation of the employment relationship.  As virtual work encourages transnational collaborations, traditional state-based employment regulation seems quaint, and labor standards in general could become increasingly easy to evade.  While still nascent, all of the legal issues discussed in this article are of concern to employees and employers alike.  In light of that fact, it is appropriate to begin formulating well-thought out approaches to address these issues.  Cherry has skillfully and cogently started a dialogue about virtual work with this article, and the conversation about these cyber-work issues should and will continue long into the future.  Cherry’s work is certain to be and, in fact, should be a foundational piece in these discussions.