Feb 25, 2025 Henry L. Chambers, Jr.
Dave Hall and Brad Areheart have written an article that anyone who cares about employment discrimination and workplace bias should read. In it, they propose to amend Title VII to provide that “when a worker makes a prima facie showing that she is a member of a protected class and has experienced a bad outcome at work, that showing should trigger a rebuttable presumption that the defendant-employer unlawfully discriminated against the worker.” To rebut that presumption, the defendant-employer would have to show “by clear and convincing evidence that the adverse outcome was solely job related for the position in question.” (P. 777-78.) Even if Congress is unlikely to amend Title VII, the authors’ proposal should start a serious discussion about whether and how to address an article of faith, that the courts’ current interpretation of Title VII does not hold liable as many employers for employment discrimination as it should.
At just under 40 pages, the article is an easy read. It provides a good outline of the problem it proposes to solve. Many employers escape Title VII liability for instances of workplace discrimination because of Title VII’s narrow focus on intentional discrimination, a proof structure that tends to search for specific animus-based instances of discrimination. In addition, federal judges tend to see less discrimination than jurors. The authors note that even though much less overt animus exists in society and in the workplace than in the past, substantial employment discrimination manifests through lingering animus, apathy, implicit bias, and structural bias that may be unrecognized.
That, according to the authors, prompts the need for the bias presumption. In so arguing, they discuss prior suggested revisions to Title VII as inadequate by comparison. For example, the authors discuss the benefits and shortcomings of Title VII reform offered by Professor Sandra Sperino and Professor Mark Brodin. The authors argue that those prior proposals would either leave bias-detection to judges who cannot fully identify bias or would not apply to enough cases to matter.
In contrast to the proposals they critique, the authors suggest their proposal would have four principal effects: allow plaintiffs to survive summary judgment, hold employers accountable for explicit and implicit biases they could not use to support a negative job action, force employers “to consider employment polices and actions in the broader context of structural biases,” and drive courts “to consider employment actions in the boarder context of structural biases.” (P. 779.) In addition, they reply to some possible objections: their proposal will cause a flood at the courthouse; it functionally requires just cause; it ends at-will employment, and it will trigger a de facto quota system.
There are concerns and quibbles that even supporters of the general approach may have with the proposal. Indeed, opponents of their proposal would likely have many objections that the authors do not address. For example, the amount of bias that their proposal would reduce or redress is unclear, and the authors do not propose a way to measure it. The authors also do not explain why their proposal imposes a clear and convincing standard of proof on the employer rather than a preponderance of the evidence standard, but they suggest the clear-and-convincing standard is easy to meet by employers who have clear, unbiased reasons for their job actions.
The article provides a specific solution to a specific problem albeit in the context of a larger issue. What role should Title VII or its proof structure play in encouraging a bias-free workplace? The answer may be contested. Some may argue Title VII merely seeks a workplace free of animus-based discrimination without regard to whether free-flowing bias (implicit or otherwise) exists in the workplace. For those people, the bias presumption may appear unnecessary or improper, with the presumption being a liability bludgeon that may provide liability for non-discriminatory behavior and force employers to overcorrect in a manner Title VII does not require. Conversely, the authors appear to suggest the bias presumption merely addresses discrimination that is not being identified under current doctrine, with that–not unfair liability–encouraging employers to address bias before it triggers discrimination. An employer’s desire to avoid liability based on discrimination may lead to a less biased workplace regardless of whether Title VII requires it. The debate the article may foster is critical to have.
This article requires a reader to think on multiple levels. It encourages readers to ponder the bigger issues surrounding how Title VII should apply to the workplace and whether it should be used to attack the somewhat intractable issue of bias, as well as the narrower issue of whether a bias presumption is the right solution. Based on that alone, the article is undoubtedly worth a read.
Jan 28, 2025 Anne Marie Lofaso
Industrial democracy, the foundational metaphor invoked to support the National Labor Relations Act, is a helpful analogy for understanding why workers should have workplace representation to bargain collectively over wages, hours and other terms and conditions of employment by placing workers’ voice within the sphere of a national ideal—democratic governance.
But any analogy can be stretched to its breaking point. In The Labor Gerrymander, Joel Heller argues that, although the democracy analogy in broad strokes is instructive in the labor context, the specific concept of political gerrymandering is ill-suited to explain bargaining unit determinations under labor law.
Heller divides the article into four parts. Parts I and II set up the article’s core argument that labor gerrymandering is not a suitable metaphor. In Part I, Heller develops the “historical evolution” of the industrial-democracy metaphor. He highlights the democratic benefits of unionization. In particular, unionized workforces reinforce political democracies by serving as a microcosmic forum that allows workers to practice democracy. In contrast, nonunion workforces undermine political democracies by modeling authoritarian forms of governance.
Heller then shows how the labor democracy model works in practice. Workers typically vote in government-regulated elections to choose representatives who negotiate over employment-related subjects. Labor representatives, just like political representatives, can serve at different levels of government. Shop stewards represent labor bargaining units, and groups of bargaining units are represented by union officers such as presidents. There is even a form of union federalism whereby union officials serve in local or international unions.
In Part II, he describes how gerrymandering functions in the political context and the harms it inflicts on political democracies. Political gerrymandering is, of course, the act of redrawing districts to advantage the incumbent in future elections. Gerrymanders harm democracies by diluting the votes of minorities who are “prevented from full participation in the political process” and entrenching extant political power. Gerrymanders also disregard the democratic principles for creating political subdivisions by “break[ing] up existing communities, such as neighborhoods, cities, or counties, that share social or economic interests.” (Pp. 434–35.)
Part II then shows how the gerrymandering metaphor is invoked to criticize unions. Employers have used it to “challenge petitioned-for bargaining units as inappropriate” as early as 1939. (P. 437.) To this day, employers argue that the petitioned-for units are gerrymanders that remove those employees who do not support the union. In response, unions have sometimes co-opted the metaphor to say that employers’ expanded units are designed to dilute the voice of union workers. The Board and the courts have also applied similar analogies in this context.
In Parts III and IV, Heller’s argument unfolds. In Part III, Heller shows how three harms inflicted by gerrymandering in the political context do not work the same way in the labor context. First, while the problematic nature of political gerrymandering flows from the parties’ self-interest, this is not problematic in the labor context. He writes:
Unlike legislative districts, bargaining units are drawn for a particular purpose—to be appropriate for collective bargaining. And labor law affirmatively promotes that result. Accordingly, when unions propose bargaining units consisting of employees who are likely to vote in favor of collective bargaining, this is not really a “gerrymander” at all because that concept refers to line drawing based on improper criteria. (P. 444.)
Second, distinctions between the workplace and a polity signify that petitioned-for bargaining units do not risk harm to the democratic process like gerrymandered districts do. Heller asserts: “Unlike redistricting union-representation elections are not part of a broader political whole. The workplace is not a polity; there is no broader governmental body apart from the bargaining unit. Elections are simply a more targeted exercise in the labor context than in the political context.” (P. 448.) Significantly, Heller adds that, unlike a gerrymandered political district, “there is no ‘political process as a whole’ that a purportedly gerrymandered unit could harm.” (P. 448.)
Third, Heller explains why other gerrymandering harms are unlikely to occur in the bargaining unit context. For example, there is no risk of power entrenchment because unions are not incumbents seeking to protect their hold on power. While political gerrymanders often make the party primary the determinative election in political races, 95 % of union elections present a single union candidate rather than dueling unions vying for power. Moreover, the union’s duty of fair representation cuts against the possibility that a well-established union will no longer represent its constituents’ interests. (Pp. 450–52.)
Finally, in Part IV, Heller analyzes the harms inflicted by failing to recognize that “not all norms and concepts from the political arena translate into the labor-law sphere.” (P. 453.) It is the policy of the United States to “encourage[e] the practice and procedure of collective bargaining.” Invoking the gerrymandering metaphor to enlarge bargaining units risks discouraging collective bargaining in direct contradiction to national labor policy. Additionally, “the law’s treatment of employers as candidates in representation elections has weakened employees’ right to representation by increasing employers’ ability to interfere with it.” (P. 453.) Likewise, the ability of employers to actively discourage unionization during a union campaign harms employees’ free choice of representation.
Heller’s observations remind us of the insights from nineteenth-century labor theorists such as Sydney and Beatrice Webb. From the beginning, workers organized into unions for mutual aid grounded in internal democratic governing structures. However, they also differ from political democracies, where all polity members vote for representatives. In contrast, workers of the same employer or even within the same industry or trade organize into particular unions that, by definition, have a community of interest.
Unionization, as a concept, evolved to exclude those whose interests are too far afield. In other words, unions work precisely because workers are sufficiently alike to make common cause. For these reasons, the gerrymandering analogy is a false analogy.
In short, although industrial democracy is the foundational ground upon which modern labor law was erected, the norms and concepts that apply to the political realm do not always apply to the work realm. Heller persuasively shows why certain aspects of this imperfect analogy are faulty and how employers misuse some political norms to undermine the goals of a national labor law grounded in democratic principles.
Heller’s article is relevant today because employers are hitting hard against increasingly successful organizing drives to suppress employee free choice in the workplace. Cloaked in pro-democracy language, the employer’s argument (i.e., gerrymanders are bad for political democracies, union petitioned-for bargaining units are gerrymandered, therefore small petitioned-for bargaining units are wrong for industrial democracies) is, in reality, exceedingly anti-democratic. Expressly stating the logical fallacy in the employer’s argument clarifies the dangers to employee free choice inherent in these tactics.
Dec 10, 2024 Joseph Slater
Desirée LeClercq,
Labor Strife And Peace, __
U.C. Irvine L. Rev. __ (forthcoming), available at
SSRN (Jan. 12, 2024).
The first third of my Labor Law class, like most others, emphasizes the important rights of employees under section 7 of the National Labor Relations Act (NLRA). First, Section 7 is crucial in the union organizing process. Second, its protections generally apply not only to employees who are unionized or seeking to unionize, but to all employees the NLRA covers, even if they are not in or do not currently want a union. Third, Section 7’s language protecting “other concerted activities for mutual aid or protection,” is broad and vague. That means it is often unclear how section 7 applies to particular employee actions or employer rules. This, combined with the increasingly politicized National Labor Relations Board (NLRB) – the agency that interprets the NLRA – has caused wide oscillation in legal rules, especially in the 21st century. For many areas involving claims of section 7 rights, the Board dominated by President G.W. Bush’s appointees adopted a much more employer-friendly legal rule; the Obama Board then reversed that rule to make it more union-friendly; the Trump Board reinstated the Bush Board rule; and then the Biden Board returned to the Obama Board rule. While annoying and often hard to keep up with, practitioners and scholars know this pattern well.
Desirée LeClercq’s article demonstrates impressive familiarity with all the shifts in Section 7 law, but she goes beyond common complaints about this pattern by examining it in light of the purposes of the NLRA as a whole, and adding a theoretical framework based on insights from social movements. At the same time, the piece is focused on real-world union organizing and workplace conflicts that may or may not develop into organizing. She also usefully corrects those who think that the Obama/Biden Board rules on section 7 are the best the Board can do to further the purpose of the NLRA.
Her theoretical framework centers on a tension between two core purposes of the NLRA: protecting “strife” (conflict) initiated by workers over workplace issues, while also promoting “labor peace.” One of the article’s key insights is that the NLRA’s drafters in 1935 “considered workplace protest as necessary to engender workplace peace.” LeClercq mostly focuses on conflict in non-unionized workplaces, and how modern Section 7 rules inhibit the type of strife that can lead to organizing and, ultimately, to true labor peace. Drawing on social movement theory, she argues that individual “disruptive” action can ‘break the bonds of authority that keep people quiescent.” But many protests about workplace issues do not immediately inspire collective activity. Employer responses and employee fears inhibit such activity. But when employee protests have legal protection, collective activity is more likely. That makes unionization more likely, which can lead to contracts and relationships more likely to provide real workplace peace in the long term.
The article takes on the most important of the “shifting labor law” rules involving Section 7, “civility” rules; when employee outbursts lose NLRA protection; and Weingarten rights for the unorganized. LeClercq relates each of these doctrines to practical considerations of organizing and strife in non-unionized workplaces, focusing on how rules affect employers as well as employees. In some areas, the Biden NLRB did not go all the way back to Obama Board or pre-G.W. Bush Board rules. As to civility policies, the Biden Board’s Stericycle offers more protection than the Trump Board rule but is more restrictive than the Lutheran Heritage approach that preceded that rule. Also, neither the Biden Board nor the Obama Board reinstated the Clinton Board rule that Weingarten rules apply to non-unionized workers.
But in one of her biggest contributions, LeClercq goes back even further in time to “phase one” NLRB cases (from the 1940s to 1970) in many of these areas. She argues that early Board rules better facilitate the goals of the NLRA than even the most pro-union Biden and Obama Board decisions. For example, the old rule defining “concerted activity” did not generally require more than one employee to be involved (current doctrine mostly does, with only a few exceptions). Older doctrine presumed that a worker, acting alone and protesting a working condition in a non-union workplace, spoke for the group and thus engaged in concerted action. Such a doctrine today would extend section 7 protection to a significantly larger number of employee protests. LeClercq makes similar arguments for rules on employee outbursts and civility policies. She also relates them to modern workplace struggles, including by baristas at Starbucks and the 100+ strikes in the summer of 2023.
LeClercq does not shy away from hard cases. What about employees, engaged in workplace “strife” over wages, hours, or working conditions, who use racist or sexist language in so doing? DeClercq proposes a rule under which employers bear the burden of proving that the means of worker protest lose Section 7 protection when, for example, disciplined workers scream racist or sexist insults at the workplace. Nor does she ignore broader obstacles, such as the difficulty of amending the NLRA and court hostility to new Board law.
This article, comprehensive as it is, will likely leave readers wanting to learn even more from LeClercq. For example, given the relatively weak remedies under the NLRA, how much effect would any change in the substantive Section 7 rules have? I also wonder what we can learn in the areas the article coves from the public sector. There, union organizing has been much more successful in recent several decades than in the private sector, despite rules typically similar or identical to the Section 7 rules she discusses. Finally, do the Taft-Hartley amendments in 1947 change any part of the analysis regarding the fundamental purposes of the NLRA? But I stress that this article is impressive, thorough, original, and convincing as it stands. It is a significant contribution, and I liked it a lot.
Cite as: Joseph Slater,
Strife, Labor Peace, and Returning NLRA Section 7 Law to its Original Purpose, JOTWELL
(December 10, 2024) (reviewing Desirée LeClercq,
Labor Strife And Peace, __
U.C. Irvine L. Rev. __ (forthcoming), available at SSRN (Jan. 12, 2024)),
https://worklaw.jotwell.com/strife-labor-peace-and-returning-nlra-section-7-law-to-its-original-purpose/.
Nov 14, 2024 Deepa Das Acevedo
Yiran Zhang,
Home as Non-Workplace, __
B.U. L. Rev. __ (forthcoming), available at
SSRN (Mar. 11, 2024).
Everyone reading this jot likely has a story about how the home/office divide collapsed for them in 2020. (I have several.) But even among work law scholars, there aren’t too many of us who do more than periodically gripe about the divide’s demise. (I don’t.)
To be sure, we all understand that domestic labor is undervalued, underpaid, and insufficiently protected. But what about domestic space? Specifically, what about domestic space that is no longer, or no longer only, domestic? Yiran Zhang’s forthcoming article, Home as Non-Workplace, gives us a timely and comprehensive way to think about the home/office divide and what it does, could, and should mean for work regulation.
Zhang’s article does three things that I particularly enjoy.
First, it effortlessly weaves between statutory minutiae (FLSA § 206(f)(2)(A), anyone?) and sky-view analyses of the what-do-we-value variety. As someone who almost exclusively teaches statute-heavy classes—and who has for years flirted with the idea of teaching an FLSA-survey course but always loses courage when it comes time to fill out teaching requests—I admire this.
In the paragraph I’m referencing, Zhang opens with a discussion of the coalition of “Black domestic workers and liberal professional female domestic employers” that eventually won that 1974 amendment to the FLSA. Just a few paragraphs earlier, she’s talking about how “the material transformation of work” transformed life for both lower- and middle-class workers.
It’s a difficult balance to neither shy away from statutory minutiae nor forget to contextualize and humanize those alpha-numeric strings—but it’s an important balance to strike. Statutory minutiae are how we attempt to distill and manifest sky-view valuations. The more legal scholars successfully demonstrate this through their writing, as Zhang does, the more we can demystify statutory law and perhaps get non-lawyers to care about it.
Second, Zhang consistently acknowledges the very real differences in how 2020 affected workers without minimizing the harms experienced by any group of workers. For instance, in Part III(B), she discusses the assumption that, roughly speaking, “if you’re home, you’re not working.” Zhang discusses this “time politics” that is really also a spatial politics en route to detailing the many (creative, borderline dystopian) anti-fraud measures it’s inspired in employers, consumers, and government actors.
For example home healthcare workers are tracked through Electronic Visit Verification systems that track GPS locations, require activity logs, and collect photos, while white-collar workers face keyboard loggers, interval photography, and mouse-tracking. Likewise, in Part IV(B), Zhang discusses how the home-as-workplace isolates workers to a degree that is emotionally, socially, and legally risky. Drawing on Lechmere Inc. v. NLRB, Zhang argues that care-workers who live an employer’s home or even a non-employer-client’s home are often functionally as “beyond reach” as workers employed by ski resorts or logging camps.
She notes that remote white-collar workers, on the other hand, lose contact with colleagues more than with the outside world, and with legally protected communication spaces (R.I.P., Purple Communications). In neither case does Zhang suggest there is parity between the harms suffered by workers who work at home—their own or someone else’s—but she also does not dismiss the experiences of white-collar workers either in tone or by paying reduced attention to them. Again, it’s a hard balance to strike, but she strikes it well.
Zhang concludes by separating the questions of what should be and what can be. “The potential enforcement challenges,” she writes, “do not erase the concerns about workplace harm.” When you’re dealing with a concept as resistant to analytical scrutiny as “the home,” this is a critical first step because the meaningfulness of any proposed change is inversely correlated to how much it coheres with prevailing attitudes.
But even if Zhang insists on starting from scratch in one respect, she insists on incorporating lessons learned in another—and, given the nature of the task at hand, this is a crucial second contribution. She writes, almost reassuringly, that “[a] lot of traditional enforcement tools can apply to home workplaces, with or without modification.” Reaching back into the article for some of the very same technologies that scared us on first read, Zhang persuasively argues that they are no more intrinsically scary than the demise of the home/office divide itself.
Yes, work patterns and work technologies change—and so too must work regulation. But, says Zhang, work patterns and work technologies change—and so too can work regulation.
Oct 11, 2024 Charles A. Sullivan
Good “outside the box” scholarship, even if not fully persuasive, can provide useful insights for those of us still stuck inside our boxes. And that’s a good description of Ryan H. Nelson’s An Employment Discrimination Class Action By Any Other Name. It offers a creative and engaging solution to the problem of mandatory, pre-employment arbitration agreements, even if I would not wager much that judges would approve it.
Any Other Name begins well inside the box with a dead-on, refreshingly-candid look at how the Supreme Court caused the decline of the employment discrimination class action. Although he names other culprits (including that Court’s pleading and class action decisions), Ryan mostly blames how the Supreme Court has read the Federal Arbitration Act (FAA) to eradicate class relief in any forum by validating express waivers of the right to proceed collectively either in court or before an arbitrator. He also traces the failure of direct doctrinal attacks on the FAA’s applicability to employment or the validity of particular arbitration agreements. In contrast, “relatively successful strategies” included public enforcement and qui tam actions. These approaches “accepted the validity and ubiquity of individual arbitration agreements but nevertheless found a way around them by litigating through nonworker real parties in interest” that never executed an agreement to arbitrate. (P. 1427.) That struck me as an important insight—not obvious but sensible once Ryan pointed it out!
As for possible solutions, these are limited to only two given current caselaw: “representative private enforcement actions,” such as California’s Private Attorney General Act (PAGA), and public enforcement actions. The latter he largely discounts since that route requires more in the way of new enforcement resources than the political process is likely to provide.
The real value of Any Other Name, as its title hints, is its way around the FAA’s barrier to Title VII class actions. Like an army bypassing well-fortified positions to land on undefended beaches, Ryan suggests that current FAA jurisprudence can continue to deprive individual employees of the right to sue collectively on their own behalf while still vindicating at least some of the goals of the antidiscrimination project. To do this, he would recognize the right of certain public interest organizations to sue in their own names as real parties in interest harmed by discrimination against actual employees. While such organizations could sue only for equitable remedies, this mechanism would otherwise “approximate” a class action while leaving untouched arbitration agreements executed by the actual employees themselves. (P. 1445.)
Bold ideas often lack the details necessary for actual implementation. Not so Any Other Name, which thoroughly argues how lawyers can use Title VII’s text and structure to justify a shift away from the employee as the only real party in interest to certain kinds of advocacy organizations. I leave explication of this to the article itself but note the textual analysis begins by stressing that, while section 703(a) of Title VII bar employers from discriminating against any “individual,” such as employees and job applicants, section 706(f)(1) of Title VII authorizes a civil action by any “person claiming to be aggrieved . . . by the alleged unlawful employment practice.” Congress defined the term “person” in section 701(a) to include not only individuals but also entities like associations, corporations, and unincorporated organizations. Accordingly, even if such an entity “do[es] not purport to represent employees or job applicants,” it can still bring a civil action as a “person. (P. 1454.)
It could do so, however, only when the entity’s aims map onto Title VII and thus the entity is claiming to be “aggrieved” by some unlawful employment practice against employees or job applicants. In turn, the term “aggrieved” in Title VII’s section 706(f)(1) incorporates a zone-of-interests test that enables suit by “any plaintiff with an interest arguably sought to be protected by the statutes.” (Pp. 1464-65.) Thus, only certain organizations might bring such Title VII actions because Supreme Court standing doctrine requires an organization to satisfy a “zone of interests” test. Organizations, say, whose goals include giving voice to women who suffer discrimination or lobbying to prevent future discrimination could arguably further one of the interests that Title VII sought to protect: By facilitating women sharing their experiences with discrimination, such an organization may reduce discrimination against them. Similarly, an organization that lobbies to prevent discrimination also arguably may sue as an aggrieved person. In contrast, an entity that seeks to provide direct mentorship services to women may have an economic interest in less sex discrimination by employers but not arguably an interest that Congress wanted Title VII to protect.
In so arguing, Any Other Name also grapples with contrary arguments based on text, structure, legislative history, congressional inaction, and court opinions. Still, there’s not much doubt where Ryan believes the debate should come out despite the absence of robust precedents so holding.
Ryan is forthright in recognizing his proposal’s limits. First, it requires advocacy organizations whose purposes align with the commands of Title VII. And to counter the Supreme Court’s latest decision allowing the FAA to trump judicial enforcement, that requires state legislation allowing the prosecution of representative claims in court even while individual claims must be submitted to arbitration. Second, since such organizations could obtain only injunctive relief, even the optimal result is inferior to the class action device were it readily available. Third, “because this strategy sits nonworkers in the driver’s seat, it may secure a remedy that workers disfavor or even dislike, which undercuts its potential efficacy as a tool for closing the justice gap for workers.” (P. 1476.)
Despite these limits, Ryan has put forward a constructive suggestion to partially repair the damage wrought by the FAA decisions, and it will be interesting to see who tries to put his ideas into practice, and how well they succeed. Maybe a (small) wager after all.
Sep 16, 2024 Matt Bodie
James D. Nelson,
Disestablishment at Work, 134
Yale L.J. __ (forthcoming, 2025), available at
SSRN (May 13, 2024).
Title VII’s legislative framework includes a prohibition against discrimination based on religion as well as race, sex, color, and national origin. Distinctively amongst these categories, however, religion is defined to include “all aspects of religious observance and practice, as well as belief, unless an employer demonstrates that [it] is unable to reasonably accommodate to an employee’s or prospective employee’s religious observance or practice without undue hardship on the conduct of the employer’s business.” 42 U.S.C. § 2000e(j). In Trans World Airlines v. Hardison, 432 U.S. 63 (1977), the Supreme Court seemed to set a low bar for Title VII’s accommodation mandate, defining an undue burden as anything more than “de minimis” costs. Compared to the colloquial understanding of the term, Hardison’s feeble definition seemed discordant with the textual meaning of “undue burden.” Indeed, it was not surprising when the Supreme Court unanimously rejected the de minimis approach in Groff v. DeJoy, 600 U.S. 447 (2023), redefining undue burden to mean the imposition of “substantial increased costs.”
There is more going on here than might appear at a glance, however. As James Nelson insightfully describes in Disestablishment at Work, the Supreme Court’s original “de minimis” standard endeavored to balance the principles of free exercise of religion(s) with the fear that too heavy a hand would infringe upon Establishment Clause principles. Now that Groff has upended the old equilibrium, courts must recalibrate to protect the interests of both the religious practitioner and their coworkers. Disestablishment at Work thoughtfully looks to the original compromise and its enforcement over the years to develop a set of deeper principles to guide the new framework.
Professor Nelson’s approach has something of a common law flavor to it, combing through dozens of past cases to discern underlying precepts. As he explains in an early footnote, Nelson uses “an interpretative methodology, seeking to put existing doctrine in its best light” (citing to Ronald Dworkin and Nelson Tebbe). (P. 6 n.24.) He seeks to recover and sustain the long-standing efforts to avoid religious establishment that the new definition of “undue burden” could rupture.
The article unearths the three principles intended to defend against overweening religious interests: non-disparagement, reciprocity, and proportionality. Nelson illustrates each principle through case references, demonstrating how courts safeguarded workers against religious establishment while considering accommodation interests.
Non-disparagement applies to employees’ efforts to proselytize amongst their co-workers; courts do not view hateful or demeaning messages to be protected through accommodation. Reciprocity asks that the employee seeking the accommodation be willing to compromise or pick up an alternative share of the burden, rather than pushing the costs on the accommodation solely onto others. And proportionality measures the magnitude of the burden to be imposed against the distribution of those costs and the importance of the religious observance. These three principles rebut the claim that co-worker concerns about fairness in the context of accommodations are just griping or even bias or prejudice against religion; instead, there can be legitimate concerns about the imposition of a certain religion on the workplace.
Disestablishment at Work is focused on the nuts and bolts of workplace interactions, both in the past and the future. The article provides vivid examples of the types of co-worker concerns that judges have protected in the past, such as avoiding harassment over LGBTQ+ identities, managing other employee Sabbath obligations against the general desire not to work weekends, and balancing religious instructions about dress with safety precautions for all.
Nelson also looks forward to how courts will address accommodation claims that “sound in the culture wars,” such as vaccine exemptions, permission to misgender coworkers, and conflicts with corporate diversity policies and training. (P. 6.) Nelson deftly uses the three principles to raise concerns about these types of accommodations: as to vaccination, reciprocity and proportionality; as to misgendering, non-disparagement and proportionality; and as to diversity efforts, all three principles. This review provides a foundation for courts reviewing these claims and trying to assess how the new undue burden test would apply.
One potential critique of Nelson’s interpretive approach, which he addresses in the article (Pp. 50-52), is that his wellspring of past precedent used the “de minimis” standard that the Groff Court has rejected as insufficient. Since these decisions all potentially underestimated the importance of accommodating the religious practice in question, why would their analyses help us moving forward?
Nelson points out that the de minimis standard was substantially heftier than its terminology would suggest, as seems plain from the cases themselves. Arguably Groff simply recognized a judicial trend towards something more than the bare minimum. But Disestablishment at Work also represents a reminder and a clarion call for the place of disestablishment principles within free exercise protections and accommodations. Recent Supreme Court jurisprudence has tended to diminish the former and overemphasize the latter—an imbalance that Nelson seeks to identify and correct.
Recognizing the costs of establishment are critical in assessing the impact of accommodations on coworkers. The Groff majority and concurrence have a bit of a back-and-forth on the issues of collateral workplace effects. The majority acknowledged that “an accommodation’s effect on co-workers may have ramifications for the conduct of the employer’s business,” but also warned that “a hardship that is attributable to employee animosity to a particular religion, to religion in general, or to the very notion of accommodating religious practice cannot be considered ‘undue.’” Groff, 600 U.S. at 472.
Justice Sotomayor’s concurrence specifically pointed out that “if there is an undue hardship on ‘the conduct of the employer’s business,’ 42 U.S.C. § 2000e(j), then such hardship is sufficient, even if it consists of hardship on employees.” Raising up one religion, or religious sentiments more generally, because of Title VII’s accommodation command risks providing undue state support for religious practice. The three principles of non-disparagement, reciprocity, and proportionality will aid courts in striking the proper equilibrium.
Read one way, the Groff decision is simply a recognition of a more substantively justifiable approach to religious accommodation—an approach that was already in evidence in lower court opinions. Read another way, the shift in standards will lead the way to a marked acceleration in workplace accommodations, pushing the costs of religious observance onto the shoulders of co-workers. The individual interpretations of Groff by myriad workers, practitioners, and courts will determine the meaning of this opinion going forward. James Nelson’s work is designed to aid in this important endeavor. I strongly recommend Disestablishment at Work as a guide to courts, litigants, and human resources departments on the need to balance great protection for religious employees against the need to avoid a new era of religious establishment.
Aug 6, 2024 Elizabeth C. Tippett
In her new book, Racial Emotion at Work, Tristin Green discusses the social science regarding our emotions about race and racism and what it implies about our interactions at work. (P. 28.) This research goes beyond the more familiar research on implicit bias, cognitive biases, and automatic associations.
Green examines, for example, the anxiety white people face in interracial interactions (P. 43), and how they avoid such interactions. (P. 45.) She also examines research suggesting that Black men and women are more likely to view adverse reactions through a racial lens but are reluctant to share those experiences with others. (Pp. 38-39, 112-15.)
In so doing, Green criticizes the cultural tendency to prioritize the racial emotions of white people—in particular, the fear of being called “racist”—over the lived experience of Black men and women who experience adverse treatment. To illustrate, she turns to Title VII jurisprudence: for example, in a case where the plaintiff called a supervisor “racist in front of subordinate staff,” the court took that as enough for a legitimate non-discriminatory basis for discipline. (P. 82.)
All this is a far more fraught vision of the workplace than say, Cynthia Estlund’s Working Together (2003), which stresses the workplace as a rare forum for diverse groups to build bridges across difference. The racial emotions Green explores are, for the most part, ambivalent or negative.
However, Green argues that if courts—and employers—would at least recognize racial emotions as a part of a broader system of subordination, they would reach better outcomes. She explains: “If we understand discrimination as at least partly a problem of human interaction in the present and if, as research suggests, improving those relations will reduce discrimination and advance equality, then this is one key place to hone our thinking.” (P. 29.)
Racial Emotion does a nice job of translating social science research into the employment law context, much as Green’s prior work did for implicit bias research (e.g. Green 2003). More than 20 years ago, Green and other legal scholars, especially Linda Hamilton Krieger (e.g., Krieger 1995), made the case that courts should be more attuned to more subtle forms of discrimination driven by implicit bias. Lawyers eagerly adopted the theory and had considerable success until the US Supreme Court made it all but impossible to obtain class certification for Title VII claims relying on implicit bias (Wal-Mart Stores, Inc. v. Dukes, 2011).
Green’s decision to move away from implicit bias research in this book may signal a growing ambivalence with the results produced by the prior approach. Indeed, in a 2016 book, Discrimination Laundering, Green argued that employers have misused implicit bias research to distance themselves from discriminatory practices and system. (P. 76.) There, she also hinted that the cultural diffusion of implicit bias research bred collective complacency. If we are all a little bit biased, then perhaps no one is to blame. (P. 33-34.)
Complacency, at least, seems like an emotion that can be overcome, and arguably was dislodged by the Black Lives Matter movement in 2020. Contending with the more flammable racial emotions described in Green’s newest book is a more difficult challenge.
But, Green argues, it is a challenge that we must face: “We have a long history in this country of prioritizing white harmony and conflict over structural racial change. Understanding the role of racial emotion in our relations, and specifically our institutions’ approach to racial emotions, opens opportunity for structural change rather than closing it down. Remaining in silence must be the worse alternative.” (P. 149.)
Jul 5, 2024 Michael C. Duff
In Adding Insult To Injury: How Kansas’s $155,000 Cap On Permanent Total Disability Benefits Sets Up Injured Kansas Workers For A Lifetime of Hardship, author Gabrielle Stein effectively explodes the fiction that a workers’ compensation “grand bargain” continues to exist in Kansas. Workers injured in the workplace in the United States because of the conduct of their employers—whether negligent or innocent—are limited to state-based statutory benefit recoveries in lieu of tort damages.
The exchange of benefits for damages is often imagined to be a grand bargain in which workers give up full legal damages in exchange for extremely limited statutory workers’ compensation benefits consisting of indemnity wage benefits and payment for medical expenses. This insulates employers from tort liability and is supposed to also inure to the benefit of employees, whose tort claims might be difficult to establish and might otherwise be subject to an “unholy trinity” of affirmative negligence defenses abrogating a negligence claim: contributory negligence, assumption of the risk, and the fellow-servant rule.
Of course, the unholy trinity would be ineffective to bar negligence claims under current law in all but four American states—which have since the mid-twentieth century moved on from “absolute” defenses to a comparative negligence system—so the conceptual underpinnings of workers’ compensation have been seriously undermined (if not rendered irrational). But Ms. Stein additionally shows that any pretense that the workers’ compensation bargain is at least adequate is silly in Kansas given an indemnity cap of $155,000 for a permanent total disability claim.
Imagine a young worker rendered permanently totally disabled at age eighteen. One need not be unusually proficient in math to realize that $155,000 for fifty years of lost work is a very bad bargain—one which any knowing worker would find unacceptable. The situation is especially repugnant when an obviously negligent employer is practically exonerated for its conduct under such a scheme. In most states, a permanently totally disabled worker is entitled to full workers’ compensation benefits for the rest of her working-age life The permanently disabled young worker in the hypothetical at the beginning of this paragraph would be entitled to indemnity benefits equivalent to roughly the state average weekly wage until age sixty-seven. The startling discrepancy is especially repugnant when an obviously negligent employer is practically exonerated for its conduct under such a scheme. The risk of a race to the bottom is real.
Ms. Stein provides real-world examples of how Kansas workers would be economically destroyed under such a system. She then explains in plain language the concept of a “cost shift.” (Pp. 405-10.) As I similarly and routinely explain in my torts and workers’ compensation classes, someone will pay for the cost of injury. If the injuring industry does not pay the cost, it will be shifted either to the injured worker and her family, or to taxpayers supporting the social security system. In other words, someone is going to pay, and the policy choice of who will pay is often concealed.
The author also shares some rather startling facts about the exceptional profitability of the workers’ compensation insurance industry. (Pp. 410-13.) The article is worth reading for that reason alone. According to the author, “[o]n a national level, National Council for Compensation Insurance (‘NCCI’) insurers raked in an underwriting profit of 14.6 percent in 2019. This percentage means these insurance companies used 85.4 percent of the premiums collected through workers’ compensation insurance policies to pay out claims and incurred expenses and then got to pocket the rest. This is the second-highest underwriting profit for NCCI insurance companies since the 1930s.”
The key point is that “[e]mployers’ workers’ compensation insurers are accumulating high underwriting gains largely because the number of claims being paid out by insurers have dramatically dropped. The dramatic drop is likely due to legislative and regulatory ‘reforms’ that have reduced or, in some cases, denied the compensability of workers’ compensation claims.” (P. 412.)
Ultimately, the article is about legislative supremacy. (P. 414.) May a legislature whittle workers’ compensation down to this extent, effectively exploding both workers’ compensation and tort in one fell swoop? In many states, the answer is “no,” because the state’s constitution limits the extent to which historic rights may be compromised. Kansas—and apparently four other states—renders its state legislature as supreme as old King George in this regard.
The central claim of the article is that the Kansas legislature should intervene on fairness grounds to correct the evisceration of worker injury rights. Yet, because it was the legislature that created the problem in the first place, an additional virtue of the article is that it provokes the reader to realize that a fairness-based legislative solution has not been effective (which for me has prompted more exploration of federal constitutional theories for rectification).
It would be a mistake, however, to assume that workers’ compensation was once “ok” but has been eroded since its golden age by a series of relatively recent predations. The original Kansas workers’ compensation act was hardly friendly to workers. In fact, it was horrible. For a permanently totally disabled worker it provided 50% of the injured worker’s preinjury average weekly wage as an indemnity benefit, compared to two-thirds provided under most modern statutes. Kansas also provided a mere fifty days of medical benefits, compared to the 100% employer-paid medical benefit for the duration of the injury that is provided for in all but a handful of states in present times. (Ch. 218, March 1911.)
All of this austerity existed in the historical era predating social security or the welfare state. The story of workers’ compensation from the perspective of injured workers is: it started out badly (but was better than nothing); it was improved through the 1940s and 1950s, and then went into a period of decline that was so severe it prompted a National Commission on Workmen’s Compensation in the early 1970s. It got a bit better in the late 1970s as the threat of federalization of the system was seriously contemplated; and then again (perhaps predictably) it went into decline.
The waves track thinning union density in the United States almost perfectly—Kansas has only been surfing those waves. But Ms. Stein ably reminds us how easy it is for workers’ compensation—the oldest body of employment law in the United States—to hit rock bottom unless the erosion is resisted.
Jun 11, 2024 Cesar Rosado Marzán
“Do me a favor, just get your union guys, your leaders to endorse me. And I’ll take care of the rest … your current negotiations don’t mean as much as you think.” Donald Trump speaking to striking autoworkers in Michigan.
Today’s U.S. labor law scholarship typically asserts a broken or dead discipline. With a mere 6% of private sector workers in unions or covered by collective bargaining agreements, labor law appears irrelevant to most workers. Scholars thus try to come up with ideas to rebuild labor law through novel interpretations of statutory texts or through statutory reform, such as the Employee Free Choice Act and the Pro Act. While attempts to breathe new life to U.S. labor law via legal reform is important, sometimes it makes sense to reflect on how labor law as a political project came to being, how it lost its luster, and how to rebuild it. Democracy at Work: Contract, Status and Post-Industrial Justice, by Ruth Dukes and Wolfgang Streeck, a law professor and a sociologist, respectively, draws on this this tradition anchored in political economy and the social sciences.
Labor Law as Part of a Political Project
According to the authors, labor law was an essential part of a 20th century project aiming to build an entirely new political economy (P. 6). They highlight the work of American socio-legal scholar, Phillippe Selznick and German legal scholar, Hugo Sinzheimer, to explain how labor law played a key role in reconstructing institutions to sustain a bigger project for “industrial democracy.”
Selznick, writing in 1969, favored labor unions because they could moderate inequality and cement common values. For Selznick, firms were thirsty to move out from systems based on arbitrary power toward “legality” (P. 25). While firms did not necessarily want labor unions, a certain consensus emerged: labor unions could help develop that legality (P. 26). Selznick thus conceptualized firms as a polity, where union workers, backed by labor law, could prevail as rights-bearing citizens with a voice (P. 26).
Sinzheimer wrote decades earlier than Selznick, in pre-Nazi Germany. He was associated with the brain trust of the Weimar Republic (1918-33). Like Selznick, he argued that labor unions could serve useful roles in regulating the economy. A democratic government needed to help create unions via a “constitution” (P. 36): “a set of legal rights and procedural rules intended to facilitate the involvement of labor as a collective actor….” (P. 36). Labor law was one piece of that constitution (Pp. 36-37).
Read together, Selznick and Sinzheimer contribute to an idea of industrial democracy.
Contract and Status
One of the main functions of industrial democracy was to give workers a new status, that of industrial citizens, be it at the firm and/or government level. That new status replaced earlier ones afforded by tradition or custom: “father, wife, master, servant.” (P. 6). By status, Dukes and Streeck refer to rights and obligations that accrue to parties by reason of their membership in a socially or legally defined group (P. 6). The alternative to status is contract, or voluntary agreements where parties set up terms for themselves (P. 6).
Reformists accepted the status/contract dichotomy and argued that labor law could liberate workers from traditional status roles, and give them the capacity to contract meaningfully, as workers, no longer tethered to ascribed roles from the past (P. 8).
In the 1970s, however, capitalism entered a state of crisis that led many industry leaders to rethink, among other things, the idea of industrial democracy and its statuses (protected forms of labor), which generated certain rigidities for competitive firms (P. 57). The answer was a different iteration of contract linked to private property rather than to public law, or government regulation (Pp. 60-61).
Occupational Communities
Despite the return of various forms of subordination via contract anchored in private property, Dukes and Streeck point to so-called “occupational communities”, or group of workers who perceive themselves as working in a similar line of work, who develop a collective identity, and share some values, norms, and expectations for work and life (P. 111).
Employers might opportunistically tap into the values of occupational communities’ to further exploit workers (P. 117). For example, Linda Burnham and Nik Theodore have shown that domestic workers might overwork themselves because they feel deeply bound, professionally and morally, to a client. But occupational communities can also mobilize those same aspirations to seek collective solutions to overwork, demand better conditions, pay, or training to improve their work (Pp. 112-113). Dukes and Streeck thus envision emancipatory possibilities through occupational communities.
What Democracy at Work Means for the U.S. Today
There is lots to learn from this book. But here I want to point at its lessons in light of populism, such as Donald Trump’s.
The demise of industrial democracy might have brought a new era for contract and markets. In recent years, however, contract and markets have also lost significant luster with the public. As the epitaph above shows, in an institutional context weakened by neoliberals, it is easy for populists such as Donald Trump to tell working people who have experienced deteriorating economic conditions to eschew economic elites, markets, and to give up on their own collective efforts.
Populist politicians take on the mantle of “Great Leader” asserting they will take care of workers’ problems through their direct relationship with “the people,” promoting a social contract devoid of mediating institutions. But, as we learn from Dukes and Streeck, status will fill the gaps of whatever social bargain the people conclude with populist leaders, especially in the absence of mediating institutions.
A mass of workers without institutions will find themselves subordinated to that Great Leader – he is the leader after all – and the institutions that the Great Leader creates, public or private. The loss of unions and industrial democracy should thus be understood not only as a win for neoliberalism, but also for today’s populists, autocrats, and authoritarians.
Dukes and Streeck make it clear that they harbor no illusions of what it will take to rebuild industrial democracy – “institutional reconstruction on a major scale and over an extended period of time, not just of work regimes but also of capitalism as a socio-economic order” (P. 2).
If they are right, the task is enormous, but there is hope. After all, the occupational community of U.S. union workers refused to relinquish their agency to the Great Leader, supported the United Auto Workers union, and won a historic strike last year. A political project to expand that occupational community seems to be the task at hand. Law needs to be part of that political project. It should lift workers to a higher status, represent their values and aspirations, and reconstitute institutions to heal our beleaguered democracy.
May 9, 2024 Kerri Lynn Stone
I have always been intrigued by the adjudication of workplace retaliation claims by U.S. courts. The act of retaliation itself, and the myriad ways that it is accomplished, is interesting because it can be subtle, “served cold” (delayed), or barely perceptible. With that in mind, I recommend to you Daiquiri J. Steele’s Rationing Retaliation Claims. In this piece, Professor Steele thoughtfully takes on the issue of the U.S. Supreme Court’s “fear of opening the floodgates” of litigation when it comes to retaliation claims in the employment context. Professor Steele concludes that this fear is “overstated and misplaced,” a conclusion that I think is correct, and is also thoughtfully reached and well researched. This makes her piece a great contribution to the current discourse on this most important topic.
Professor Steele argues persuasively that rather than sounding the alarm when it comes to the uptick in retaliation claims filed by employees, we should be paying heed to them, as they are a sign of intra-organizational conflict. Significantly, Professor Steele notes, these claims are properly surging, because, as her research documents, the practice of retaliation is surging. Moreover, according to Professor Steele, “considerations of judicial economy are particularly misplaced in workplace retaliation cases,” because it is precisely the anti-retaliation statutory mechanisms and provisions that give civil rights statutes any teeth, so to speak, and enable plaintiffs to even think about coming forward to vindicate their rights without being intimidated.
As Professor Steele plainly puts it, “[a]ttempting to limit judicial caseloads through restrictive interpretations of anti-retaliation laws eviscerates private enforcement, producing under-enforcement of these core civil rights protections.” She argues that, whereas the Supreme Court has been moving toward increasingly restrictive reads on statutory protection from retaliation, the path forward lies in legislative reform.
Specifically, Professor Steele posits that it is now incumbent upon Congress to create a mandate for courts to employ a broad interpretation of every workplace anti-retaliation statutory provision. By adopting such a rule of construction, Professor Steele argues, Congress would “strengthen critical civil rights safeguards for employees by restoring the optimal and essential function of retaliation provisions.” This bold proposal is couched in a thoughtful analysis of congressional intent, legislative history, and policy objectives surrounding workplace regulation.
Moreover, as Professor Steele reminds her reader, the fear of retaliation inherent in trying to vindicate employee rights, unchecked, can keep people from utilizing the law to engender equality and fairness when it comes to areas such as “discriminatory hiring, firing, and promotion decisions; harassment; pay inequity; wage theft; occupational safety and health hazards; and family and medical leave encroachments.”
What I really “like lots” about this piece is the way that it squares off against the perennial argument given for opposing the broad construction of all portions of workplace statutes—including their antiretaliation provisions. This arguments is that broad interpretations usher more people in under the protective umbrellas of the statutes and loosen/open the proverbial “floodgates of litigation,” and that restrictive interpretations are needed to stave off this result. In the first place, it is wonderful that the piece laments and documents the repetition of floodgate concerns by courts as the proliferation of their use to substantiate overly-restrictive statutory interpretation.
I also really liked the way Professor Steele used facts to contradict the unfounded fears and assertions of those with “floodgates” fears. For example, she maintains that “there is a difference between keeping the floodgates from opening and closing them,” but notes that while “The Nassar Court [which adopted a but-for causation standard for Title VII retaliation clams] seemed to suggest that a change in the Title VII retaliation causation standard would do both,” the hard, cold “data shows that it has done neither,” and cites to data put out by the EEOC.
The other thing that I really “like lots” about Professor Steele’s scholarly voice in this piece is the frankness and freshness of her observations and contentions. At the end of the day, she says, irrespective of the threat of “floodgates” bursting open if courts utilize broader interpretations, the fact remains that “changing substantive law to decrease workload is itself dysfunctional.” This piece is rife with such sharp, fresh observations, and this, combined with the care that Professor Steele took in tracing back the history and impact of the so-called “floodgates” argument, makes for a most valuable contribution to the literature.
Ultimately, Professor Steele makes a most persuasive argument that, as she puts it, “Floodgates arguments are incongruent with anti-retaliation laws.” Her discussion of the incentives and deterrents inherent in the construction of antiretaliation provisions is excellent, as is her analysis of current caselaw, like the Nassar case, to which a whole section is devoted. Her engagement with courts’ floodgate concerns is as thorough as it is thoughtful. Specifically, her discussion of judicial inconsistencies when it comes to these concerns and her incorporation of social science into that discussion makes this piece more than just the exposition of a proposal worthy of thought, but a rounded-out discussion that supports and methodically leads the reader towards her proposal.
Professor Steele makes the excellent point that her proposal is not completely unprecedented, and her discussion of both RICO and the Americans with Disabilities Act in that vein is smart and persuasive. By the time the reader gets to the piece’s call for Congress to draft a statute that mandates the broad interpretations of anti-retaliation provisions, the foundation with respect to the need for it has been excellently laid. The idea itself is truly food for thought. I intend to run it by my students; it is an excellent springboard for the discussion of the efficacy of workplace legislation.
