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The Unexpected Virtue of Congressional Ignorance

Bradley A. Areheart & Jessica L. Roberts, GINA, Big Data, and the Future of Employee Privacy, 128 Yale L. J. 710 (2019).

When enacted in 2008 at the end of the Bush Administration, the Genetic Information Nondiscrimination Act (GINA) seemed like it had come from the future. Although the hard-won result of over a decade of advocacy by Rep. Louise Slaughter of New York, GINA addressed a problem that seemed more hypothetical than real. Genetic testing had been around for a while, introduced to the public in part through the O.J. Simpson trial. It seemed unlikely, though, that employers or insurers would not only secure DNA testing but then use it to discriminate on the basis of genetic difference. Yes, it made sense as a plot for a science-fiction movie like Gattaca, but not as a depiction of current reality.

This assessment is largely borne out in the empirical results in GINA, Big Data, and the Future of Employment Privacy by Bradley Areheart and Jessica Roberts. Examining GINA cases from federal courts during the statute’s first decade of existence, Areheart and Roberts found a mere 48 unique GINA cases, only 26 of which involved terminations. Moreover, most plaintiffs failed to find relief, often losing because of fundamental flaws: they had voluntarily disclosed their genetic information; they could not prove the employer possessed the genetic information; or their information was not considered “genetic.” In fact, the authors “uncovered no cases alleging discrimination based on genetic-test results.” (P. 744.) The article makes a plausible case that GINA has been a failure—or, perhaps more charitably, addressed a nonexistent problem.

Most law review articles would stop there, having provided a solid sense of the litigation picture for a relatively new statute. But Areheart and Roberts flip the script by illuminating a completely alternative justification: namely, GINA as information privacy regulation. Rather than simply a nonentity as an antidiscrimination statute, GINA is instead a powerful deterrent against employer snooping into an employee’s genetic background. Areheart and Roberts persuasively argue that the absence of GINA litigation is in fact evidence of GINA’s success in staking out genetic information as a no-fly zone, and that the Act can be a model for other employee privacy protections. A statutory phoenix rises from the ashes!

It wasn’t intended this way. Areheart and Roberts chronicle the history of the Act, one that was rooted in the ability of health insurers to identify and fence out riskier patients. When insurers were able to hike rates or deny coverage because of pre-existing conditions, exploring one’s own genetics became a financially hazardous endeavor. People were passing up the opportunity to find out genetic predispositions to certain conditions and illnesses to avoid being labeled as a poor risk. And since employers were the source of health insurance coverage for a vast swath of Americans, they too might decide to terminate an employee or pass on hiring someone due to genetic danger signs. Congress stepped in to prevent this type of discrimination, even though the feared phenomenon had not really manifested itself in significant numbers.

Two years after the passage of GINA, the Affordable Care Act prohibited consideration of pre-existing conditions as part of health insurance coverage and rate-setting decisions. So one of GINA’s big rationales was no longer in play. Predictably, the courts have not seen much in the way of GINA-related litigation based on employment discrimination. However, Areheart and Roberts have unearthed a hidden set of imperatives that GINA has placed on employers. The Act prohibits employers from seeking, obtaining, or possessing their employees’ genetic information. That narrow but complete prohibition has carved out genetic information from the panoply of data that employers are otherwise free to collect. As Areheart and Roberts report, the few GINA cases that have been litigated “show that employers are seeking information about their employees, and employees are pushing back.” (P. 734.)

GINA’s “unexpected second life as a privacy statute” (P. 755) is especially important in the employment context. The current state of privacy law has left workers largely exposed. Many assume that the Health Insurance Portability and Accountability Act (HIPAA) protects all health information, but the statute is much narrower in focus. It only applies to health care providers, health care clearinghouses, and health plans, and specifically exempts information within employee personnel files. The Americans with Disabilities Act (ADA) places restrictions on required medical examinations but has a number of exceptions. Although GINA’s scope is also narrow, it is comprehensive in its protection of this information. Moreover, the definition of “genetic information” goes beyond the paradigmatic DNA test to include family medical history. This routine part of employee health fitness forms is now protected by GINA.

Beyond the ramifications for employee genetic privacy, Areheart and Roberts pull out larger implications from GINA’s unexpected impact. They note that GINA’s privacy provisions have a two-pronged effect: they protect the information itself and also prevent the employer from discriminating based on that information. In contrast, the Pregnancy Discrimination Act (PDA) does not prohibit employers from asking about an employee’s pregnancy status—which leaves pregnant workers more vulnerable to discrimination. (P. 770.) The article acknowledges that there may be benefits from the sharing of genetic data between worker and firm that GINA forecloses. (Pp. 773-76.) But this loss may be the necessary expense to preserve the confidentiality of employees’ genetic makeup in such an effective manner.

GINA’s future remains to be written; Areheart and Roberts’ empirical investigation shows only a small number of current cases, whatever the underlying theory. But their article tells an important story of how the original Congressional plan went awry—and nevertheless led to a surprising and potentially influential new way of protecting employee information. Given the dizzying accumulation of innovative and disturbing encroachments—from RFID chips to round-the-clock health and location monitoring—protecting workers from ever-mounting surveillance and dissection has become an imperative. Areheart and Roberts have staked a claim for GINA as a model for how employee privacy might be protected in other areas of their lives. Their article is a terrific contribution to our understanding of the future of employment.

Cite as: Matt Bodie, The Unexpected Virtue of Congressional Ignorance, JOTWELL (December 7, 2020) (reviewing Bradley A. Areheart & Jessica L. Roberts, GINA, Big Data, and the Future of Employee Privacy, 128 Yale L. J. 710 (2019)),

Focusing on an Often-Neglected Player in the Mandatory Arbitration Game

David Horton, The Arbitration Rules: Procedural Rulemaking by Arbitration Providers, 105 Minn. L. Rev. __ (forthcoming), available at SSRN.

In the ongoing discussion over so-called mandatory arbitration “agreements” imposed on consumers and employees, many have focused on questions of fairness and justice, on the potential of such privatization of adjudication to stifle development of the law, on whether mandatory arbitration amounts to suppression of low-dollar-value claims, and on whether arbitrators are overtly or implicitly biased in favor of businesses and employers who as repeat players are the sources for future work for the arbitrators. Largely missing from the discussion are the arbitration services organizations, such as the American Arbitration Association and JAMS. In The Arbitration Rules: Procedural Rulemaking by Arbitration Providers, David Horton goes a long way to filling that void.

Horton begins with a useful report on the history and evolution of arbitration services organization rules. The heart of the article is his analysis of the rules on three grounds, based on a comparison of the arbitration rules to the Federal Rules of Civil Procedure.

First, he observes, that the Federal Rules involve drafting and review by two committees with opportunity for public testimony and written comments before the ultimate product is approved by the Supreme Court. Even then, Congress may veto the rules within seven months of their approval by the Court. In contrast, arbitration services organizations enact their rules by fiat without much, if any, transparency. He notes the major exception of the adoption of the due process protocols for employment and consumer arbitration which were developed by broad committees of industry and consumer and employee representatives as well as representatives of the neutral adjudicator communities. However, he discounts this as a one-time occurrence.

Horton finds that the key regulator of arbitration services organization rules is the market, and cautions that the market makers are the businesses that impose the rules on their employees and customers. He concludes that the evidence of whether the market is an effective regulator is mixed. He points to the notorious National Arbitration Forum, which was forced to cease doing consumer arbitration because its processes were so biased against consumers, and to JAMS’s withdrawal of its policy opposing class action waivers as caving in to the market. On the other hand, he acknowledges that AAA is the dominant player and calls its rules “plaintiff-friendly.” He attributes this to AAA’s marketing its product as having a high degree of likelihood to withstand court challenge and concludes that the market could protect consumers and employees if it values the probability that awards will be upheld.

Second, Horton contrasts the Federal Rules which are generic and apply to all types of cases with arbitration service organizations that have discreet rules for different kinds of cases, such as employment, consumer, construction, insurance and so on. He recognizes advantages in avoiding the one size fits all approach of the Federal Rules but cautions that the approach of the Federal Rules acts as a brake against tilting the rules toward one side or another. What might favor defendants in one type of case might favor plaintiffs in another. In contrast, Horton urges, the proliferation of many different sets of rules favors repeat players who have greater familiarity with the differences among rules. It also leads to businesses choosing the rules that favor them the most, such as by classifying workers as independent contractors rather than employees and placing them under AAA’s Commercial Rules instead of its more claimant-protective Employment Rules.

Third, Horton observes that the Federal Rules strike a balance between accuracy in adjudication and efficiency, whereas the arbitration service organizations prioritize efficiency. He finds fault with two features of many providers’ rules that prioritize efficiency. One is a strict waiver doctrine, with the rules providing that a party who fails to state an objection to a violation of the rules and proceeds with the arbitration has waived the violation. He maintains that this has led to judicial confirmation of flawed awards, including cases where the arbitrator engaged in private conversations with one party. The second is the tendency among provider rules to clothe the arbitrator with authority to rule on questions of arbitrability, questions that would otherwise fall to a court. Horton correctly points out that this approach conflicts with a basic principle of due process, that an adjudicator may not have a personal financial stake in the case. An arbitrator has a personal financial stake in finding a matter arbitrable because that will result in more work and more revenue for the arbitrator.

Finally, Horton turns to doctrinal issues raised by his analysis. He critiques courts that have implied from the adoption of a particular arbitration service organization’s rules which empower the arbitrator to rule on questions of arbitrability an intent by the parties to delegate to the arbitrator exclusive authority to rule on such matters. He urges that rules empowering arbitrators to rule on their jurisdiction do not mandate that they do so and leave open the option of a judicial ruling. Moreover, he maintains, these rules are designed to save time and money when a matter already is in arbitration and, therefore, should not be read to reflect an intent to cut out judicial resolution of arbitrability disputes that arise at the outset of a case. The problem of the arbitrator’s financial interest in finding the matter arbitrable is exacerbated where the arbitration agreement is adhesive and the product of large disparities in bargaining power. He urges courts to reject this approach.

Horton turns next to what he calls weaponizing rules. He observes that businesses have classified workers as independent contractors and specified that commercial rather than employment rules will apply or have recognized workers as employees but nevertheless adopted the commercial rules. Horton highlights two major differences between AAA’s commercial and employment rules. Under the commercial rules, parties are equally responsible for the forum costs, including the arbitrator’s fee, whereas under the employment rules, the employer is responsible for all forum costs and arbitrator fees except for a $300 filing fee paid by the claimant (an amount less than the filing fee in federal district court). The AAA employment rules empower the arbitrator to award any remedy that a court could award, whereas the commercial rules limit the arbitrator’s remedial authority to what is within the scope of the parties’ agreement. Horton calls to task courts for not policing such abuse at all, or for responding to it merely by severing the offending provision and directing arbitration anyway. He properly calls for courts to strike the entire arbitration agreement in such cases of over-reaching.

Horton lastly turns to the recent tactic of plaintiff employment lawyers of filing mass claims, sometimes thousands of identical individual claims and demanding arbitration of each of them. He observes that at one level the tactic amounts to a shakedown of the business respondent but at another level it is simply following the very rules that that respondent imposed on its employees. He also observes that when the respondents have refused to pay the millions of dollars in arbitration fees, the arbitration service providers consider it a material breach and cancel the arbitrations. He observes that what happens next is unclear; do the claimants then have to refile their claims in court? Unfortunately, Horton does not offer any prescriptions for dealing with these situations. In my view the answer is clear. A court should order specific performance of the agreement to arbitrate and require the employer to pay the millions of dollars in filing fees. Any other approach undermines the ability of the market to police against employers’ abusive uses of arbitration mandates.

In the 1990s, when the Supreme Court first endorsed employment arbitration mandates imposed by employers, it reasoned that the employee was not waiving substantive rights but only agreeing to resolve them in an arbitral forum as long as the forum allowed the employee to effectively vindicate those statutory rights. But in more recent cases such as Concepcion, Italian Colors Restaurant, and Epic Systems, the Court has labeled the effective vindication requirement dicta and instead focused on a supposed federal policy of enforcing arbitration agreements in accordance with their terms. I would have liked to have seen Horton engage with this evolving Court approach to arbitration mandates and its implications for the doctrinal solutions he has advocated. Despite these nits that I have picked, I applaud Horton for focusing attention on the role of arbitration service organizations, a neglected piece of the puzzle of arbitration mandates. I hope his article leads to further discussion of service organizations’ roles in the continuing dialogue about mandatory arbitration.

Cite as: Martin H. Malin, Focusing on an Often-Neglected Player in the Mandatory Arbitration Game, JOTWELL (November 5, 2020) (reviewing David Horton, The Arbitration Rules: Procedural Rulemaking by Arbitration Providers, 105 Minn. L. Rev. __ (forthcoming), available at SSRN),

What to Do About Well-Grounded Fears?

Blair Druhan Bullock, Uncovering Harassment Retaliation, __ Ala. L. Rev. __ (forthcoming, 2020), available at SSRN.

Articles sometimes do an important service by exposing what seems obvious, but only in retrospect. Blair Druhan Bullock’s Uncovering Harassment Retaliation, forthcoming in the Alabama Law Review, does a great job of surfacing an issue that had previously received little attention in the law journals.

It’s not news that women have been, at least before #MeToo and probably still, reluctant to report harassment. Neither is it news that one reason is their fears of retaliation for invoking the employer remedial processes that have been put in place in the wake of the Faragher/Ellerth structure for employer liability. And it will come as no surprise  that the courts have been remarkably unreceptive to claims of victims of sex harassment that delaying a report until the situation became unbearable was reasonable because of fears of retaliation. What is needed, and what Professor Bullock provides in Uncovering Harassment Retaliation, is an empirical basis for believing such fears are well grounded and not (as one might think from reading court opinions) paranoiac.

Although it is challenging to get more than anecdotal data on an issue as complicated as the extent of retaliation against those who report harassment, the author offers two main bases for concluding that such retaliation is common, especially when the alleged harasser is a supervisor (although it seems likely that respondents to a survey that she analyzes were using a more common-sense definition of “supervisor” than the Supreme Court’s stringent definition). The article notes the Catch-22 created by the intersection of the requirement of § 704(a) (a reasonable belief in the illegality of the conduct reported) and the requirement of early reporting of harassment (perhaps before it is sufficiently severe or pervasive to be reasonably viewed as illegal), but it has bigger empirical fish to fry.

Looking to a dataset the author created of 1990-2013 filings with the EEOC obtained by an FOIA request, the article reports that “[U]pwards of 70% of harassment claims filed with the EEOC include a retaliation charge, and . . . harassment charges are more than 90% more likely to include a retaliation charge than any other type of discrimination claim.” (P. 1.) The latter finding is striking. While a skeptic might dismiss any employee charges as self-serving evidence of the reality they supposedly reflect, it’s hard to see any reason harassment should manifest more false positives than other charges of discrimination.

While recognizing that liability standards in theory should discourage retaliation against reporting victims, the article then analyzes a 2016 Merit Systems Protection Board harassment survey of federal employees to conclude that such deterrence too often fails. While this Jot is not the place to summarize all of Professor Bullock’s findings, she makes a persuasive case that reporting harassment by supervisors “greatly increases the likelihood that a victim experiences an adverse employment action as a result of the harassment.” (P. 1.) She writes, for example, that “female sexual harassment victims who reported the harassment were 11.4 percentage points more likely to experience an adverse employment action compared to those that did not report the harassment,” (P. 33)  and those “who are harassed by their supervisor are 22.7 percentage points more likely to experience an adverse action.” (P. 34.)

The takeaways from these and similar findings are twofold. First, “courts must move away from treating the failure to report as an end all be all to the Faragher/Ellerth affirmative defense or even to negligence liability for coworker harassment—especially under the current regime where not all victims who report are protected under retaliation law.” (P. 39.) Rather, she urges courts to “consider the reasonability of failing to report.” (P. 39.) There are, in fact, a handful of cases taking this something like this approach, and Professor Bullock’s article offers a strong basis for more to follow.

Second, and more sweepingly, the author questions the current incentive structure for employer response to harassment. She argues that separating a supervisor harasser from the victim is typically the optimal solution for the employer facing a complaint, and the one transferred is too often the victim. The article has a nuanced assessment of the cross-cutting operational, legal, reputational, and cost incentives involved in such decisions, but Professor Bullock’s empirical work suggests that all too often the employer calculus nets out by moving the victim. The thumb on the scale in such cases is the operational efficiencies of keeping a supervisor in place.

There is much to chew on here, and both the empirical work and the author’s theoretical explanations leave room for debate. But there is no doubt that Professor Bullock has raised an important reality that needs careful consideration in a #MeToo world. Uncovering Harassment Retaliation suggests modifications that could rejigger the incentives created by Title VII’s current liability structure, but, recognizing the difficulty of achieving meaningful change in this arena, it urges state legislatures to address the issue. There is already significant legislative reform dealing with sexual harassment in that arena, particularly with respect to nondisclosure agreements, but Professor Bullock urges legislation that would “remove the reporting requirement for supervisor harassment, broadly define supervisor, codify a mixed-motive standard for retaliation, or expand retaliation protections to cover all forms of opposition” (Pp. 43-44), noting some limited successes to date. More are needed.

Cite as: Charles A. Sullivan, What to Do About Well-Grounded Fears?, JOTWELL (October 5, 2020) (reviewing Blair Druhan Bullock, Uncovering Harassment Retaliation, __ Ala. L. Rev. __ (forthcoming, 2020), available at SSRN),

Taking Business Law Back from the Economists: Building Worker Power Through Antitrust Reform

  • Hiba Hafiz, Labor’s Antitrust Paradox, 87 U. Chi. L. Rev. 381 (2019).
  • Sanjukta Paul, Antitrust as Allocator of Coordination Rights, 67 UCLA L. Rev. ___ (forthcoming 2020), available at SSRN.

The political economy of work in the United States is on the skids. In April 2020, unemployment skyrocketed,reaching a level not seen since the worst days of the Depression in the 1930s. Many who are still going to work — so-called “essential workers” — are in low-wage jobs without basic legal protections (think of independent contractor delivery and truck drivers, home care workers), as a matter of policy choice, not as a matter of some irresistible law of economics . Many farmworkers and other food sector workers are undocumented – meaning that government deems their work both essential and illegal. People of color and immigrants are hardest hit by coronavirus deaths and unemployment.

Now is the time to rethink how antitrust weakens collective action by workers while allowing massive concentration and enhancing the power of capital. Hiba Hafiz and Sanjukta Paul are doing exactly that. Both Hafiz and Paul challenge the dominance of a particular school of economic thought in antitrust analysis. They reflect an exciting push back against what Sandeep Vaheesan has called the economism of antitrust law. Their work helps scholars of labor and judges to discuss when, whether, or why collective action by labor is legal rather than an anti-competitive restraint on trade, and to understand why law has failed to curb the economic concentration that has suppressed wages.

The public is getting a crash course in what low wage workers have known for years – the law isn’t protecting workers. Huge companies have the ability to flout the law simply because they are huge. In California, app-based delivery and ride companies announced their refusal to comply with the California Supreme Court’s Dynamex decision and AB-5, a state statute requiring them to classify their workers as employees. Finally, California’s attorney general and a group of city attorneys filed suit to force Uber and Lyft to comply with the law. In May, Tesla announced it was re-opening its factory in defiance of a public health order, threatened to fire any worker who obeyed the public health order and failed to return to work, and the public health officials ultimately backed down and allowed the company to re-open even while the shelter-in-place order continued. App-based workers like Instacart shoppers have struck to protest the lack of safety protections and their low-wages. An Amazon warehouse worker got fired for protesting a lack of safety protections, and worker advocates filed a lawsuit over whether time spent handwashing would be held against workers at the same warehouse. But still the problems continue.

Workers need, and lack, the power to negotiate effectively for protections. Concentration of business has caused wage stagnation and has made it harder for workers to wrest wage increases and improved working conditions from business. The power of concentrated capital as compared to the power of workers demands action. Yet efforts of states to enable collective negotiation to balance the power of concentrated capital with a collective voice of workers have been stymied by antitrust litigation. As Hiba Hafiz explains the state of antitrust law today, “workers seeking to use antitrust law to challenge employer buyer power in the new era of labor antitrust will face difficulties. At the same time, they will expose themselves to potential antitrust liability if they seek to coordinate to counter that power.” (Pp. 402-03.)

In some ways, we are back to where the country was between 1929 and 1931 – massive unemployment, unprecedented economic inequality, and yet many workers are unable to unionize because of the threat of antitrust litigation. As Lenin said in criticizing economists for condemning unionization and worker political agitation, what is to be done?

Paul argues that business, aided by a particular school of economic thought, deployed antitrust law to attack disfavored forms of economic coordination, including collective action by workers both through labor unions and through other forms. “Meanwhile,” Paul says, “a very specific exception to the competitive order has been written into the law for one type of coordination, and one type only: that embodied by the traditionally organized, top-down business firm.” (P. 42.) The result is that collective action by for-hire car drivers has been attacked as an antitrust violation even as Uber’s own price-fixing survives challenge. Paul goes to the source of the problem and challenges the regnant regime of economic analysis and the notion that intra-firm arrangements (what Paul calls coordination) are immune from scrutiny.

Hafiz explains and critiques the antitrust law relevant to labor, showing why it fails to protect workers from the monopsony and collusive power of employers while preventing workers collective action as countervailing power. She proposes “regulatory sharing” as a way that antitrust enforcement and labor rights enforcement can protect consumers and workers, rather than seeing worker protection necessarily coming at the expense of consumer welfare.

Together, Hafiz and Paul help us go back to first principles in antitrust and labor to think about how to reconcile robust worker protection with robust protection for consumers.

Being neither a scholar of antitrust nor an economist myself, I want to suggest why it benefits scholars of labor and employment to consider their work. Chief among them is the growth of organizing among workers who do not presently enjoy the status of employee under the National Labor Relations Act and, therefore, the labor exemption from antitrust liability for collective action. Lawyers have faced antitrust enforcement for going on strike to protest the abysmally low rates paid to handle criminal defense of indigent people. Even playwrights face antitrust litigation when they try to improve labor standards by acting collectively. As more and more companies have realized they can lower labor costs and increase share price by classifying their workforce as independent contractors, the scope of the labor exemption to antitrust shrinks. The relevance of antitrust to labor grows correspondingly.

Hafiz and, especially, Paul (in this and other works) shed light on the intellectual history of the particular form of economic analysis that came to dominate antitrust theories. Looking back at the history of antitrust’s evolution, particularly in its engagement with labor, illuminates the significance of rethinking antitrust now. Use of antitrust to formulate labor policy rarely turned out well for either antitrust law and policy or labor. This is a familiar story in the period between 1890 and 1932, when – as Herbert Hovenkamp notes – the majority of antitrust actions were filed against unions rather than against business combinations. Herbert Hovenkamp, Principles of Antitrust, Chapter 16.b.3 (West 2017).

But even at the height of the New Deal, and even with the progressive Thurman Arnold in charge, antitrust proved to be a threat to worker collective action. In 1937 – the very year the Supreme Court upheld the constitutionality of the National Labor Relations Act and it seemed that worker collective action would finally, for the first time in American history, be safe from criminal and civil litigation aimed at suppressing it — Thurman Arnold’s division of the Department of Justice filed half a dozen enforcement actions against labor unions nationwide, including unions in the construction trades, the American Federation of Musicians, and others. Targeted by either DOJ or companies in those years were activities that some considered illegitimate, such as sit-down strikes, secondary boycotts and jurisdictional strikes, picketing for recognition, or collective action by independent contractor fishermen and drivers.

As Harvard labor law professor (and later Attorney General) Archibald Cox tartly observed of this campaign, although Arnold “gave assurance that there would be no interference with legitimate organizational techniques or collective bargaining,” the Antitrust Division was quite vague about “how it proposed to distinguish the legitimate from the restrictive,” and the antitrust lawyers’ own “views on labor policy were highly influential.” (P. 261.)

Cox rightly spotted the hazards of Arnold’s campaign against unions. Opening the door to lawyers in the Antitrust Division, and federal judges, to decide which expressions of worker solidarity were desirable would revive the very problems that the National Labor Relations Act and the Norris-LaGuardia Act had been enacted to eliminate. Although the Antitrust Division lost its suits, and the Supreme Court ruled that antitrust would have no role to play in regulating union activity, some of the conduct that the Antitrust Division branded as illegitimate – notably, picketing for recognition, secondary activity, and jurisdictional strikes — were later banned by the Taft-Hartley Act and thus brought back into federal courts’ purview. And the sit-down strike tactic that was targeted in Apex was declared unprotected by federal law and prohibited by state criminal law. Federal judges and federal juries still grant injunctions and damages judgments, sometimes crushing ones, against expressions of worker activism that they deem illegitimate. Some secondary activity is speech protected by the First Amendment under NAACP v. Claiborne Hardware Co. But some – like the lawyers’ protest about the low rates paid for indigent criminal defense — might not be.

Hafiz and Paul explain the dominance of a certain kind economic analysis in antitrust law, and show how it has been used to reduce worker power while allowing massive economic concentration and inequalities of wealth. It is also worth noting the historical controversy over which styles of economics have been considered acceptable in analyzing labor collective action. As Hafiz explains in other work, in 1940 and 1947, Congress amended the NLRA to specifically prohibit the NLRB from hiring “individuals for the purpose of conciliation or mediation, or for economic analysis.” Congress’ target – the Division of Economic Research – was thought (wrongly, as it happens) to be a hotbed of communism. The economists at the NLRB in those days were, in Congress’ view, the wrong kind of economists — the kind who used the empirical and mathematical skills of the discipline to document, understand, and combat labor exploitation.

If a new political economy of labor is to emerge from the present crisis, it will be important to avoid repeating the mistakes of the mid-twentieth century, when the upsurge of labor organizing failed to produce a durable legal regime to protect workers against the power of capital. As we think about that, reading Hiba Hafiz and Sanjukta Paul’s work (along with that of many other progressive antitrust scholars) will help those thinking about a new start for labor.

Cite as: Catherine Fisk, Taking Business Law Back from the Economists: Building Worker Power Through Antitrust Reform, JOTWELL (August 26, 2020) (reviewing Hiba Hafiz, Labor’s Antitrust Paradox, 87 U. Chi. L. Rev. 381 (2019) and Sanjukta Paul, Antitrust as Allocator of Coordination Rights, 67 UCLA L. Rev. ___ (forthcoming 2020), available at SSRN,

The Impact of Ban-the-Box Measures

Dallan Flake, Do Ban-the-Box-Laws Really Work?, 104 Iowa L. Rev. 1079 (2019).

I haven’t taught the basic Employment Law survey course in a few years, so I was updating my class notes relating to the kinds of pre-employment screening measures that many employers use. The casebook had a note about so-called ban-the-box measures—state laws that require employers to remove questions about criminal histories from a job application. I decided to do a little research into the subject when – lo and behold – I stumbled across one of those articles that helps an instructor add some value to the class while simultaneously making a practical contribution to the scholarship in the field.

Do Ban-the-Box-Laws Really Work? by Dallen Flake takes a look at the practical effect of ban-the-box laws. The article begins with an overview of the rise in these types of measures in recent years and the different approaches that the measures take. The ban-the-box laws reflect a recognition of the difficulties that those with arrest and conviction records often face in seeking to find employment. Much like the Americans with Disabilities Act’s prohibition on disability-related inquiries at the pre-offer stage, ban-the-box measures delay the ability of employers to inquire about an applicant’s criminal history. As Flake explains, “The hope is that an employer will be more likely to hire an ex-offender if it evaluates a candidate’s qualifications for the position before discovering the applicant’s criminal record.” (P. 1084.)

But as more states (now up to approximately 33) have adopted these types of measures, there have remained questions as to how effective they actually are in practice. Others have raised concerns that the measures may actually adversely impact minority applicants by prompting employers to eliminate these candidates from consideration on the assumption that all minority applicants have a criminal record in light of their higher arrest and incarceration rates. While there have been other studies of ban-the-box measures by economists, Flake’s is (I believe) the first empirical study of the issue from the perspective of legal academic. The article is also one of the first to conduct an experiment, rather than relying on employment data, to measure the effectiveness of ban-the-box measures.

Without giving too much of the game away, in an effort to test some of the competing arguments concerning these measures, Flake submitted fictitious job applications in a ban-the-box locality (Chicago) and a non-ban-the-box locality (Dallas) and then compared callback rates between the two groups. The fictitious Chicago candidates had a 27% higher callback rate than the Dallas candidates. Moreover, the callback rates were higher regardless of the perceived race of the fictious applicant, thus undercutting the argument that ban-the-box measures might adversely minority applicants. Indeed, the fictitious black applicants had the highest increase in callbacks. However, “the black applicants had much lower callback rates than the white and Latino applicants in both Chicago and Dallas, indicating race remains a formidable barrier to employment, regardless of whether an employer is aware of a candidate’s criminal record.” (P. 1080.)

All of the usual disclaimers that go along with empirical studies apply here – the sample size was relatively small (2,006 applications in two cities), the study only measures callbacks, not whether an applicant received a job, etc. But like any good empirical work, the article gives the reader plenty to chew on and dissect. Beyond that, the article adds an important piece to part of a renewed discussion of employer screening practices. In the 1980s and 90s, there was considerable concern about employers’ use of polygraph testing, personality testing, and similar measures during the hiring process. At the same time, there was the concern on the back end of the hiring process that an employer who failed to adequately screen its employees might hire inefficient workers or face liability in the form of negligent hiring or retention lawsuits. While the concerns on the back end largely remain the same in 2020, technology has changed so dramatically in the ensuing years that there are new concerns about the front end. These include fears about employers’ use of face-scanning algorithms, data mining, and similar screening devices during the hiring process, particularly their impact on individual privacy and potential for discriminatory outcomes. Flake’s article focuses on a decidedly low-tech screening method – questions about criminal history – but one that fits within the broader ongoing discussion. For anyone interested in these types of issues, Do Ban-the-Box-Laws Really Work? is a thought-provoking contribution to the scholarship in the area.

Cite as: Alex B. Long, The Impact of Ban-the-Box Measures, JOTWELL (August 5, 2020) (reviewing Dallan Flake, Do Ban-the-Box-Laws Really Work?, 104 Iowa L. Rev. 1079 (2019)),

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

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.

Cite as: Joseph Seiner, Workplace Law, Social Neuroscience, and the Right to be Different, JOTWELL (July 21, 2020) (reviewing Susan D. Carle, Acting Differently: How Science on the Social Brain Can Inform Antidiscrimination Law, 73 U. Miami L. Rev. 655 (2019)),


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.

Cite as: Kerri Lynn Stone, Post-Sexist?, JOTWELL (June 17, 2020) (reviewing Claudia Flores, Beyond the Bad Apple-Transforming the American Workplace for Women After #metoo, 2019 U. Chi. Legal F. 85 (2019)),

Socialization at Work and #MeToo Backlash

Zoe Cullen and Ricardo Perez-Truglia, The Old Boys’ Club: Schmoozing and the Gender Gap, NBER Working Paper No. 26950 (Mar. 2020).

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 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.

  1. Leanne E. Atwater, Allison M. Tringale, Rachel E. Sturm, Scott N. Taylor and Phillip W. Braddy, Looking Ahead: How What We Know About Sexual Harassment Now Informs Us of the Future (2019).
  2. Id.
Cite as: Charlotte S. Alexander, Socialization at Work and #MeToo Backlash, JOTWELL (April 28, 2020) (reviewing Zoe Cullen and Ricardo Perez-Truglia, The Old Boys’ Club: Schmoozing and the Gender Gap, NBER Working Paper No. 26950 (Mar. 2020)),

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

Ronald J. Krotoszynski, Jr., Whistleblowing Speech and the First Amendment, 93 Ind. L.J. 267 (2018).

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.

Cite as: Henry L. Chambers, Jr., Failing to Protect Democracy by Failing to Protect Government Employee Whistleblower Speech, JOTWELL (April 1, 2020) (reviewing Ronald J. Krotoszynski, Jr., Whistleblowing Speech and the First Amendment, 93 Ind. L.J. 267 (2018)),

Avoidance Creep

Charlotte Garden, Avoidance Creep, __ U. Pa. L. Rev. __ (forthcoming 2020), available at SSRN

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

Cite as: Joseph Slater, Avoidance Creep, JOTWELL (January 31, 2020) (reviewing Charlotte Garden, Avoidance Creep, __ U. Pa. L. Rev. __ (forthcoming 2020), available at SSRN.  ),