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.
Apr 9, 2024 Michael Z. Green
In his recent essay, Professor David Yamada (Suffolk) provides an enlightening introduction to the law of workplace safety with respect to the Occupational Safety and Health Act of 1970 (OSH Act) and its enforcement by the Occupational Safety and Health Administration (OSHA). Because the limits of the OSH Act and OSHA’s role in workplace safety became highlighted to all essential workers in American society during the recent COVID-19 pandemic, the importance of continuing to explore better safety protections for employees remains a pressing public concern. Yamada’s essay covers the important role that the OSH Act and OSHA play in workplace safety in a succinct manner while he also points to failures to provide more remedies for workers’ mental health after being subjected to toxic workplaces, and particularly due to workplace bullying, as a fallout from COVID.
Yamada’s stated goal is “to contribute to a needed conversation about policy options for extending the regulatory reach of the OSH Act to cover severe psychological harms at work and to anticipate expanded enforcement responsibilities for OSHA and its realm.” (P. 395.) Unfortunately, very few workplace law professors analyze the OSH Act or OSHA in their scholarly endeavors. Before now, Jotwell’s Worklaw Section has covered only one publication addressing an OSH Act or OSHA issue: back in 2017. This lack of scholarly attention to OSHA is surprising in light of the agency’s existence for more than fifty years and its key presence as exemplified when a national pandemic arose in 2020 affecting the health and safety of so many workers.
Yamada starts by offering an interesting introduction to workplace safety law and the origins of the OSH Act and OSHA. (Pp. 395-97.) The OSH Act’s general duty clause requires that employers must provide a safe workplace free from recognized hazards that may lead to physical harm. (Pp. 397-99.) Yamada also notes that the OSH Act and OSHA have been subjected to “consistent criticisms from both the political left and the right” as unions want stricter enforcement and employers want lesser restrictions. (Pp. 398-99.) This clear and concise discussion of the origins of OSHA and the OSH Act and how they operate in practice offers a valuable resource to all workplace law scholars whether new to the field or long-time discussants.
Yamada starts his analysis by reviewing the Surgeon General’s October 2022 report establishing a framework for “Workplace Mental Health & Well Being” that “recognizes the unique and challenging workplace circumstances generated by the COVID pandemic” while also “listing survey data suggesting mental health impacts … [created by] the COVID pandemic.” (P. 393 and n.3.) Although that report lists “bias, discrimination, emotional hostility, bullying and harassment” as sources of psychological harm from COVID, Yamada recognizes that workplace safety law does not clearly regulate the psychological harms caused by workplace bullying. Yamada discusses his own herculean efforts to have Congress and the states pass specific laws that prohibit workplace bullying and acknowledges those efforts have not led to any real success. (Pp. 404-05.)
As a result, Yamada proposes two changes to allow the OSH Act and OSHA to address this problem of bullying and other psychological harms to workers as a safety concern that became highlighted as an impact from COVID. First, Yamada asserts that the OSHA general duty clause can be interpreted more broadly to cover workplace bullying as a hazard that causes serious harm to workers even though the language only refers to “physical harm.” He equates this extension to the general duty clause by relying on OSHA’s prior extension of the general duty clause to cover workplace violence. Second, Yamada argues that the OSH Act can be amended by adding language in the general duty clause to include “psychological harm” to the obligation of providing a workplace free of any recognized hazard that is likely to cause physical harm to an employee. Yamada notes that OSHA will have to develop guidance on how to distinguish everyday occupational stressors from serious psychological harms occurring in the workplace.
Yamada ends his argument in support of extending psychological harm to the OSH Act and OSHA by looking at international standards. According to Yamada, “international standards leave the United States distinctly behind the curve in adopting legal responses to severe psychological harms at work.” (P.409.)
Yamada accepts that for his proposed changes in policy to occur, OSHA would have to invest a tremendous about of time and resources in training and funding to help educate inspectors and other constituents in understanding the dynamics of how workplace bullying leads to psychological harm for workers. He notes that such an undertaking by OSHA, an underfunded and understaffed agency, is unlikely to occur. Yamada also recognizes that Congress may not likely address these concerns any time soon and OSHA does not have the current structure to tackle new challenges without congressional support. Nevertheless, Yamada is committed to fostering some ongoing level of discourse on this workplace safety concern.
Although Yamada’s essay makes convincing arguments for reforms to the OSH Act and OSHA based upon psychological harms to workers, especially with respect to bullying, those changes admittedly will not likely occur in the present or even the immediate future. Nevertheless, Yamada’s thoughtful explanations and observations about the OSH Act and OSHA in practice and what those safety protections could offer to workers in the future is an essay that I like a lot.
Mar 13, 2024 Henry L. Chambers, Jr.
In Limitation of the “Four-Fifths Rule” and Statistical Parity Tests for Measuring Fairness, authors Manish Raghavan & Pauline T. Kim critique the use of the four-fifths test and other statistical parity tests (SPTs) in employment decision making. The article discusses how SPTs have been used historically to identify adverse impact as part of a disparate impact discrimination inquiry and how SPTs are being used now, and how that may obscure algorithmic discrimination.
The article is intriguing because it discusses where we have been, where we are, and where we may be going regarding the use of SPTs and algorithmic discrimination. That is especially important because the use of algorithms in employment decision making is likely here to stay. Algorithms can be used to screen job applicants for later evaluation or to rank job applicants for sequential hiring or for other purposes. Concerns regarding the possibility of discrimination through algorithmic use are common. Indeed, various jurisdictions, including New York City, require audits of employment selection algorithms before they are used.
The article provides a good primer on the law regarding SPTs and a discussion of their historical use. The article explains the employment law issues, such as the difference between a finding adverse impact and a finding of disparate impact clearly. It also discusses the problems and possible benefits of using SPTs retrospectively and prospectively, providing a balanced and nuanced approach to using tools that have been used bluntly in the employment context.
As they discuss the uses and misuses of SPTs, the authors suggest how SPTs can be used more judiciously in assessing whether an employment rule has triggered an adverse impact with respect to a known applicant pool. In addition, they propose measures to be used in combination with SPTs to help designers craft algorithms that are fair and nondiscriminatory, rather than algorithms designed in part merely to avoid a finding of adverse impact and possible discrimination claims. The authors’ suggestions regarding the prospective use of algorithms are especially important, as the use of algorithms by employers is unlikely to diminish.
The article is rich with wonderful insights. Three key points stand out.
First, the four-fifths test, the simplest of the SPTs and initial focus of the article, has been used as a rule of thumb to help identify possibly discriminatory rules, but it is not very good at the task. Any employment rule may disqualify a higher percentage of some groups of applicants than other groups of applicants. The core issue is how much adverse impact is sufficient to trigger the need to examine whether the rule might cause an unlawful disparate impact.
The four-fifths test is violated, for example, when the use of a rule yields a selection rate of one racial group is less than 4/5ths of the selection ratio of another racial group. Federal agencies have historically treated the violation of the rule as evidence that an employment rule has had an adverse impact on the under-selected group based on race. That typically triggers further evaluation of whether the rule caused a disparate impact on the group that might violate an employment discrimination statute.
However, the authors note the four-fifths rules is an unsophisticated statistical tool that is both overinclusive and underinclusive in detecting discriminatory conduct. Nonetheless, when used carefully, the rule and other more sophisticated SPTs, can help identify when an employment rule should be scrutinized for possible bias.
Second, the recognition of algorithmic discrimination has led algorithm designers to use the four-fifths test prospectively to attempt to avoid a finding of adverse impact and, they surmise, discrimination. That approach has a number of problems. As noted, the four-fifths test is not an accurate test of adverse impact or discrimination.
In addition, any prospective use of SPTs has a “data-dependence problem” because no data set that is defined prospectively to test the employment rule will necessarily match a subsequent applicant pool. More troubling, concentrating on the results of the prospective use of an SPT can trigger a focus on adverse impact rather than validity, i.e., the algorithm’s ability to identify the strongest set of applicants.
When designers focus insufficiently on an algorithm’s validity, the resulting algorithm may be discriminatory – though it does not violate the four-fifths test – but also may not help the employer make better employment decisions. That is a lose-lose situation.
Third, SPTs and other measures can be used to audit algorithms to lessen discrimination and encourage the accuracy or validity of the underlying algorithm. Though the authors provide recommendations that can help make algorithms better, they caution that even their interventions will not guarantee algorithms will not discriminate.
Anyone who is interested in employment law should read this article. The breadth of coverage makes the article a good read for those who think about employment law and those who practice or seek to practice employment law. It also may be helpful to employers and non-lawyers who care about employee selection processes. For those reasons, it is a Thing I Love Lots.
Feb 13, 2024 Joseph Seiner
In The Causation Canon, Professor Sandra Sperino performs a superb analysis of the Supreme Court’s evolving analysis of causation standards. The piece carefully synthesizes the decisions in this area, identifying a new canon of statutory interpretation now used by the Court – coined by Professor Sperino as the “Causation Canon.”
The law with respect to causation has always been muddled. In the field of employment discrimination law and worklaw more generally, causation has persistently presented a tremendous burden to claimants in the field. While establishing causation in other areas of the law may often be much more straightforward, showing discriminatory employer intent can present a Herculean task. There are a variety of reasons for the difficulty, including that so much of the critical information in such cases often resides with the employer and can be notoriously difficult to uncover. Personnel files, worker emails, and other critical evidence may not be readily accessible to a worker who has been recently fired, or may be accessed only at substantial cost during discovery. Yet the law requires that causation be established to recover in most workplace cases, particularly with respect to disparate treatment employment discrimination claims.
Professor Sperino’s groundbreaking paper identifies the new way that the Supreme Court has approached statutory interpretation with respect to issues involving causal determinations. As she identifies the Court’s new doctrine, which has evolved over the past decade, “[w]hen a statute uses any language that might relate to factual cause, the Court will assume that Congress meant to require the plaintiff to establish ‘but-for’ cause.” (P.704.) Professor Sperino traces the doctrine back to 2013. Prior to this time, she notes that the Court looked at each statute individually in determining how to interpret factual cause in each matter. Over the past decade, however, the Court has looked at causation differently, assuming that the but-for requirement exists universally across statutes.
Professor Sperino discusses the questionable way the Supreme Court has justified this new canon. Indeed, the Court purports to rely on ancient common law to support its interpretation and application of causal standards when interpreting statutes. Professor Sperino expertly highlights through the examination of numerous cases how such a standard did not previously exist. In particular, she closely explores the Price Waterhouse v. Hopkins and Gross v. FBL Financial Services cases (which both arose in the employment law context) to demonstrate that this doctrine is a new phenomenon. Professor Sperino then turns to Court cases issued in the last decade, most notably the Nassar, Burrage, and Comcast decisions, to highlight the development of the Court’s so-called “Causation Canon.”
The implications for employment discrimination plaintiffs are immediate, given the noted difficulty with establishing causation. Generally, the canon identified by Professor Sperino means that it will typically be even more difficult for victims of discrimination to overcome this hurdle. Of course, Professor Sperino‘s theory means much more than this, and is not limited exclusively to employment matters. Indeed, the Court’s new doctrine, as identified by Professor Sperino, would extend to all federal statutes. Nonetheless, causation is typically the critical determination in most employment discrimination cases. The McDonnell Douglas test, which Professor Sperino has examined extensively in her prior research (see, e.g., McDonnell Douglas: The Most Important Case in Employment Discrimination Law, (Bloomberg)), is still an evidentiary standard of causation with which the courts struggle and offer differing opinions even half a century after the case was first announced.
The genius of this work is the masterful way in which Professor Sperino synthesizes the shortcomings of the Supreme Court’s analysis. Given her extensive expertise in this area, Professor Sperino is uniquely situated to demonstrate how the Court’s announced underpinnings for its standard — more specifically ancient common law – is at odds with the new canon that it purports to develop. As she correctly notes, the “causation canon creates a stand-alone factual standard. In contrast, the common law uses a bundled approach” where in some circumstances it was recognized that “this standard does not work well.” (P. 705.) In those situations, prior to 2013, the law would “adapt[] by changing the subject of the standard, or the party required to prove it.” Id. After the creation of this canon, however, the Court “has made a powerful substantive choice” by favoring the stand-alone approach, and has “magnified this choice by imposing it as the default for factual cause in all federal statutes.” Id.
The identification of the causation canon alone will prove extraordinarily helpful to those researching in this area, and in analyzing any causation questions which are likely to find their way to the courts. Perhaps more importantly, however, the Supreme Court should own the new theory that is has silently developed and not be permitted to quietly rely upon an unsubstantiated examination of past precedent. The causation standard has already created difficulty for plaintiffs in the workplace context. Now, through a clearer understanding of this canon, as identified and detailed by Professor Sperino so well, plaintiffs will have more clarity when litigating in this area. In this way, the paper is far more than theoretical, and provides a valuable and practical resource for employment law advocates.
At the end of the day, The Causation Canon, which is extensively well-researched and wonderfully written, will serve as the new statement of statutory construction issues related to causation. Unfortunately, the Court’s new approach likely creates an even greater hurdle for workplace plaintiffs, who already faced numerous procedural challenges even prior to this new doctrine. As Professor Sperino correctly observes, “[t]he causation canon is still in its infancy . . . it is worth considering whether the Court should abandon it.” (P. 744.)
