In the movie 1776, Benjamin Franklin infamously remarks to John Dickinson, “Revolutions…come into this world like bastard children—half improvised and half compromised.” The compromise, of course, was slavery. The rest of the dialogue and its context, which explains the improvisation, is often omitted in discussion of this scene. Recall that Franklin asks John Hancock to poll the Pennsylvania delegation on the question of independence. Franklin votes yea; Dickinson, nay. This is how the decision of American independence lands squarely on the shoulders of Judge James Wilson, who ultimately votes yea. As Dickinson incredulously and rhetorically posits, “And is that how new nations are formed? By a nonentity seeking to preserve the anonymity he so richly deserves?”
If we compare the founding of our nation with the foundational federal labor law statutes of the twentieth century, which statute—the Wagner Act or the Taft-Hartley Act—is the labor law compromise? Most American labor scholars would probably say Taft-Hartley. After all, the Wagner Act, as Professor Karl Klare has correctly observed, “was perhaps the most radical piece of legislation ever enacted by the United States Congress.” Moreover, it is Taft-Hartley that, among other things, narrowed the definition of employee by eliminating the National Labor Relations Act’s (NLRA’s) protection of supervisors and independent contractors and diluted the union’s legal economic weapons by eliminating the secondary boycott. But the late Austro-British labor scholar, Otto Kahn-Freund, would argue that the Wagner Act was in fact a compromise by the American labor movement. As Kahn-Freund allegedly explained, “What the law giveth, the law can taketh away.” And taketh away it did—not merely via congressional amendments but via Supreme Court judgments and ultimately by the Board itself.
In his article, The Right to Improvise in Low-Wage Work, Professor Michael Oswalt supplies the latest example of a labor law scholar offering insight on how to strengthen labor rights. By focusing on the improvisational portion of the social revolution equation, he brilliantly likens the Fight-for-Fifteen and other recent social justice movements to improvisation in jazz music. He understands that talking amongst workers—comparing injustices—is necessary to harness the power of concerted activity.
This characterization allows Professor Oswalt to see three manifestations of talking amongst workers. First, he sees the legal right to talk and engage in spontaneous concerted action, a legal right that is generally protected (unless waived) under the NLRA qua Washington Aluminum. Second, he sees the normative right to combat injustice with spontaneous activity coordinated through talking—a right that Oswalt views as desirable and justifiable. Third, he gleans “in-the-moment resistance” as an essential aspect of Section 7 of the NLRA but points out that the law may not do a good job of “preserv[ing] access to in-the-moment resistance by safeguarding improvisation’s prerequisite: relationships of trust.” Oswalt thinks that the law falls short in this regard because the “key doctrine,” the employees’ Section 7 rights via Republican Aviation, in conjunction with the key limitation “working time is for work,” are antiquated.
It is worth a moment to pause here to place Oswalt’s characterization in historical context. The NLRA has stood for decades as a well-intentioned compromise whittled away by all three branches of government to a shell of its former glory. Labor law scholars have asked in vain, how do we fix this? Kahn-Freund understood the answer. Social justice must be taken; it is never fully or freely given by governments. The law serves only to ossify the privileges of the privileged, justifying rules and the need to narrow those rules to accommodate the interests of the ruling class. For the disempowered, extra-legal solutions are needed. That’s the improvise, which members of the working class themselves must supply. Inequality is the fuel necessary to wake that sleeping giant.
Oswalt spends much of his article showing how labor reformers can fortify Section 7 simply by jazzing up concerted activity. Oswalt relies on “yes-anding”—accepting what comes (yes) then “enthusiastically build[ing] on it” (and)—for workplace reform, just as jazz musicians build upon each other’s melodies while they jam. Oswalt explains his proposal as follows:
I am proposing a right, grounded in section 7, for at least two employees to spontaneously stop working for a reasonable period and leave the active floor together, probably for no more than four or five minutes. Though there would not be a hard cap on the number of breaks that could be taken during a shift, to be protected the cumulative impact on production would need to be “modest,” meaning something like perceptible but not substantial.
Professor Oswalt predicts that these improv sessions or microbreaks will build trust among co-workers, trust being a necessary foundation for successful concerted activity. The article thus appropriately analogizes workers “hanging out” at the workplace to “trusting” and “yes-anding” and characterizes such moments as the oxygen needed for worker improvisation, the spark that ignites social change.
Of course, this is true. Concerted activity is a form of expressive conduct and typically comes in the form of a grievance that when aimed at the government, would notably be protected by the First Amendment. There is no revolution—political, economic, social, or otherwise—without speech. Oswalt thus contributes to our field by highlighting the importance of these moments and clarifying that it is these moments that create the most imaginative need for successful concerted activity.
Professor Oswalt does not, however, go far enough. As Oswalt concedes, talking is already protected by the Act. But Oswalt seeks further to entrench this protection by interpreting the NLRA to protect microbreaks and, more importantly, formalizing that interpretation. That move, in turn, will predictably ossify and stifle improvisation by opening the door to Board oversight of such activity that is currently left to free market forces. This is the lesson of the Act’s deradicalization, eighty years in the making.
To be fair, Oswalt understands this point, as he spends pages recognizing that the Board and reviewing courts have to, and are apt to continue to whittle away at the scope of protected activity. His solution—microbreaks for engaging in talk and spontaneous activity—doesn’t seem to fix the problem. Indeed, the cases he cites in support of this proposition are currently on the Trump Board’s chopping block, ready to further extinguish the fires of concerted activity.
For workers’ rights to flourish, workers must be sufficiently oppressed, sufficiently bold, and sufficiently bonded to one another to understand their condition; understand that they are not alone and have the willingness to fight—perhaps because they have so little to lose. This is where workers stand today. Witness the wave of teachers’ strikes across the country. In this context, I say, forget about the Board. The Fight-for-Fifteen and other similar movements are successful precisely because they are organically generated, grass-roots grown from legitimate grievances about social injustice and inequality. For improvisation to truly transform workers lives, workers must acknowledge that they’ve already compromised enough.
While it is always fun to comb my files of recent scholarship to find things that I “like lots,” it was particularly delightful to come upon What is Sexual Harassment? An Empirical Study of Perceptions of Ordinary People and Judges by Jill D. Weinberg and Laura Beth Nielson. For one thing, it’s all in the title. If the #metoo movement and public discourse surrounding sexual abuse and harassment in and outside of the workplace have indicated anything, it has been that the future of the way that the law and society will handle sexual harassment and abuse lies in how it is perceived, both by ordinary people and by judges. The ways in which laws are written, interpreted, and applied, as well as how mechanisms outside of the legal system will work to combat this problem, will be entirely dependent on how the problem is perceived. Moreover, there is no better way to explore this problem than with an empirical study that can substantiate the observations made and the conclusions reached.
This study was propelled, as its authors recite, “by a series of empirical and normative questions,” like, for example, whether the judiciary and regular people perceive sexual harassment the same way; and whether one’s experiences and background dictate one’s detection of sexual harassment, among others. The study brings us to a better and more refined understanding of the factors that predicate where people locate for themselves the line between lawful and unlawful workplace behavior. The resulting article reports on the results of the survey-based study that aims to coordinate one’s attitudes and perceptions with one’s identity as well as professional and social situations. The article provides more than the results of the study, though. It walks its reader through a literature review on the subject of how people come to discern unlawful sexual harassment, as delineated distinctly from behavior within the parameters of the law. It also lays out, in a fair amount of detail, the research methodology employed by the researchers, as well as the results of the study and their implications. Finally, the authors explore the possibility of broadening the concept and definition of sexual harassment legally, in light of the way in which it seems to be construed and discerned by most people.
I particularly appreciated the authors’ inclusion of a plethora of slants or perspectives into deriving or explaining sexual harassment as a phenomenon. Structural power, formalized policies and procedures, and inter-sex dynamics are explored as causes and predictors of the phenomenon. I also found valuable the positing of various hypotheses as to whether and when factors like one’s personal background and/or identity characteristics impact how people conceptualize social situations like harassment. Ultimately, the authors hypothesized that “an individual’s background will shape how they respond to questions about the presence or absence of sexual harassment.” According to their forecast, “white women and people of color—individuals who are traditionally the most [a]ffected by workplace discrimination and harassment—will identify the workplace vignettes as harassment, whereas white men will not.”
At the end of the day, the study appeared to find, among other things, that lay people or “ordinary” people seem to define sexual harassment more broadly than do judges. It was interesting to see what the numbers revealed, in that the reasoned hypotheses of the researchers did not always find themselves supported by the data. The researchers reported that among their “interesting findings,” was the conclusion that “judges are less likely to classify the very same scenarios as sexual harassment than ordinary people. While this was not a formal hypothesis, these results make sense; judges are trained legal professionals who know the essential elements and the required evidence to prove these claims. However, we did not anticipate to see a nearly 20% difference between ordinary people and judges.” Interestingly, the data seemed to bolster the researchers’ hypothesis that “gender hierarchy influences both populations,” showing that “[b]oth ordinary people and judges deferred to a sociocultural model of sexual harassment where harassment constitutes the male perpetrator and female victim.
The researchers concluded, among other things, that there are three “definitional approaches” to sexual harassment: 1) the legal approach (making use of statutory language and precedent); 2) the social scientific perspective (employing a broader definition and possibly variables that are “extra-legal”); and 3) the so-called “lived experience” or “empathetic” approach (informed by an individual’s background). They also found that one’s personal background actually “had minimal impact on the determination of sexual harassment,” though women from the ordinary people sample were more likely to view the scenarios as harassment than were men. Interestingly, the researchers found “no relationship between a judge’s identity and the determination of sexual harassment.”
Overall, the exposition of the research methodology and results was fascinating. In an area in which scholars often characterize, describe, and ascribe what they believe to be the attitudes, perceptions, and approaches of both society and the judiciary when it comes to discrimination and harassment cases, and scenarios without actual data to substantiate the claims, it is downright exciting to see empirical explorations and a scientific approach recounted in a law review article. The infusion of science and data collection into this field is always welcome and valued, and the chosen topic of these researchers—the factors that inform and predict the discernment of sexual harassment by lay people and judges—could not possibly be any more relevant and salient to the national discourse on the regulation of the workplace. More legal scholarship should avail itself of available empirical data, and more legal scholars should take an interest in the type of research that these researchers have done.
Cynthia Estlund, What Should We Do After Work? Automation and Employment Law
, NYU School of Law, Public Law Research Paper No. 17-28, NYU Law and Economics Research Paper No. 17-26 (Jan. 5, 2018), available at SSRN
Reams of law review pages have been written about the effects of technological change on employment law. The typical narrative tends to portray technology as a disruptor, changing the structure of work and challenging the assumptions on which our employment law regime is built. Scheduling software, for instance, enables employers to assign workers for last-minute shifts and send them home during slow periods, creating a form of wage and hour instability that was never contemplated by wage and hour law. App-based companies build their entire business models around workers they classify as independent contractors, and yet retain some measure of labor control, putting pressure on the legal definition of “employee.”
Cynthia Estlund’s timely new working paper offers a different description of technology’s relationship to the law that both challenges and complements the narrative above. Her particular focus is automation, or the takeover of previously human-performed tasks by technology both “hard” (robots) and “soft” (algorithms). Estlund portrays automation as related to the larger trend that David Weil has labeled “fissuring,” or employers’ “flight from direct employment.” Employers might choose to hire workers through layers of subcontractors, they might convert employees to independent contractors, they might hire foreign workers in other countries, and they might replace human workers entirely with automated or machine-provided labor. In the public imagination, as Estlund points out, the shorthand for these trends might be “Uber,” “China,” and “robots.” Each of these moves reduces the number of directly employed workers, and, concomitantly, reduces employers’ legal and regulatory obligations. Instead of focusing on the effect of these moves on employment law, however, Estlund conceives of employment law, at least in part, as their cause.
In Estlund’s telling, employment law imposes costs on employers – what she labels a “legal tax on employment.” Antidiscrimination mandates tie employers’ hands in selecting their workforce; overtime requirements increase the wage bill; employment litigation sucks up large portions of employers’ budgets. Employers, therefore, will do almost anything “to avoid the costs and risks of employing human beings.” As direct employment becomes more costly, employers seek out avoidance strategies, and automation and fissuring result. The pressures of the global capital markets for ever-higher profits also incentivize avoidance, as does technology itself. (Here, technology acts both as a driver of fissuring and as an enabler of automation: communications technology enables the offshoring of labor, for example, just as automation technology replaces human workers.)
As Estlund cautions, then, some worker-friendly proposals advanced in the face of automation and fissuring that would strengthen and extend employment law’s reach may actually have a perverse effect: increasing the legal tax on employment, and therefore also increasing employers’ incentives to automate, to offshore, and to move to a more contingent and contracted workforce. In her words, “[T]his sensible response to fissuring not only fails to meet the looming though uncertain challenge of automation-based job loss; it tends to further tilt firms’ calculus away from human labor and toward machines.”
Estlund offers solutions by performing a careful inventory of the costs that employment law – writ large – requires employers to bear. She then advocates reallocating employer mandates that are not directly related to guaranteeing decent work. So, a basic minimum wage, occupational health and safety protections, and antidiscrimination obligations should remain, as they are directly related to the quality and conditions of work. However, employer-provided health insurance, and its attendant costs, should end, as should employer-funded paid family and medical leave (where it exists), as these are essentially “politically expedient off-budget ways to fund social entitlements that bear no necessary relation to employment or to work.”
To be clear, Estlund does not argue that people should lose health insurance coverage or paid leave. The opposite is true: she proposes that these benefits should extend to more people outside the traditional employment relationship, and their costs should be funded via the tax system or another non-employment mechanism. Estlund also considers ideas such as increasing the reach and impact of the Earned Income Tax Credit, and implementing various forms of a universal basic income. In sum, she envisions replacing some employer mandates with a more robust and wide-reaching social safety net, which will perform two simultaneous, salutary functions: 1) reducing the costs of direct employment, thereby also reducing employers’ incentives to automate and fissure, and 2) protecting the workers who are harmed as a result of the fissuring and automation that does occur, in the form of job loss or job degradation.
Estlund closes by acknowledging probable objections to her approach, including the ideas that employers deserve to bear the cost of some societal guarantees, that her proposals are unlikely to succeed politically, that the current state of “churn” in the labor market will ultimately produce more and better jobs, and that her proposals will do no more than tinker with employers’ incentives at the margins, without slowing the inevitable march toward automation. In the face of these critiques, she acknowledges that none of us knows with certainty how fast automation and other forms of fissuring might take over jobs or pieces of jobs as we know them. However, she makes a compelling case for taking seriously the push toward ever more precarious and automated forms of labor, and for undertaking a clear-eyed assessment of the role of employer costs – and employment law – in driving that trend. And she admirably offers practical solutions, as a way “to start somewhere, even in a context of uncertainty and intense debate” over the future of work, and the future of employment law in a world increasingly dominated by Uber, China, and robots.
Cite as: Charlotte S. Alexander, Uber, China, and Robots
(May 14, 2018) (reviewing Cynthia Estlund, What Should We Do After Work? Automation and Employment Law
, NYU School of Law, Public Law Research Paper No. 17-28, NYU Law and Economics Research Paper No. 17-26 (Jan. 5, 2018), available at SSRN), https://worklaw.jotwell.com/uber-china-and-robots/
In Beyond “Best Practices”: Employment-Discrimination Law in the Neoliberal Era, Professor Deborah Dinner explores how neoliberalism of the late twentieth century has influenced Title VII’s interpretation and destroyed Title VII’s ability to transform the American workplace into one where employees are properly treated, fairly valued, and fully compensated. She suggests that neoliberalism’s focus on a minimal role for state intervention and on the individual worker as a completely realized market actor capable of protecting her interests through negotiation with an employer is problematic. It has led to an interpretation of Title VII that functionally expands employer prerogatives regarding terms of employment, limits employee power, and legitimates the economic inequality and class subordination that Title VII should attempt to eliminate. Consequently, even “best practices” that fully enforce Title VII “are insufficient to realize a labor market responsive to the needs of low-income workers for adequate wages, safe work conditions, and work hours and schedules that allow for fulfilling family and civic lives.”
The article is a Thing I Like Lots because it takes two seemingly unrelated topics – Title VII and neoliberalism – and explores how they are connected. Dinner notes neoliberalism is not a tight theory, but a general outlook that focuses on a free-market ideal that favors deregulation and individual autonomy. Accordingly, the article situates employment discrimination law inside of our American culture, recognizing that a law or its interpretation does not exist separate from the society in which it operates. Simply, Title VII – the statute considered most likely to bring substantive and procedural equality to the workplace – can be blunted by interpretations provided by courts and commentators operating in a neoliberal society. The article notes the roads not taken and laments the unmet possibilities of employment discrimination law. That is worthwhile to consider even for a reader who may tend to focus on employment discrimination doctrine rather than theory.
Among the article’s most interesting points is its argument that Title VII can no longer remedy class-based subordination in the workplace given how it has been interpreted. In Dinner’s telling, Title VII’s narrow effect stems from the rise of neoliberal thought in the United States, which has created a cramped focus on anti-stereotyping and workplace efficiency. That ideology, Dinner notes, “transform[s] citizens from democratic subjects and actors into individual wealth maximizers.” That leads neoliberal institutions to ignore the broader community-based goal of moving toward a fair and equitable workplace for all and to embrace the smaller individual-based goal of less granular discrimination against and between employees. The result is an employment discrimination regime that tolerates systemic inequality and economic inequality while championing individual freedom.
Dinner suggests that if the path that labor feminists had trod and attempted to continue to walk had not been choked off by neoliberalism, Title VII could have been interpreted to eliminate class subordination in the workplace, which would have led to a structural change that guaranteed substantive equality for women and less-advantaged workers. However, neoliberalism killed that approach and left Title VII focused largely on anti-essentialist stereotyping, leaving individuals free to fight for equality inside of a fundamentally unequal employment structure.
Though the thrust of the article – that neoliberalism choked off Title VII’s promise – is undoubtedly correct, it raises what might be considered a chicken-and-egg problem. Title VII arguably was a neoliberal law when passed or, at least, was passed with neoliberal impulses. It may be exactly the type of legislation a democratic, neoliberal society in the midst of the civil rights movement would produce. Title VII’s explicit focus on anti-discrimination rather than on anti-subordination may reflect the assumption that anyone can flourish based on merit if he is unburdened by discrimination on the basis of immutable or largely fixed characteristics. Whether that vision of the world comports with reality is beside the point if the 1960s America that passed Title VII believed in it.
Still, Title VII could have been interpreted to support anti-subordination, even if it may not have been intended to be a vehicle for that purpose. Fundamentally altering the workplace is a sensible goal, but may be more easily accomplished through legislation that – unlike Title VII – is not aimed so specifically at the treatment of individuals in the workplace. Passing substantive laws that require an explicit remaking of the workplace, e.g. the Family and Medical Leave Act or parental leave laws, may be more obviously aimed at anti-subordination than a statute that explicitly focuses on anti-discrimination. However, this is more a quibble than a criticism — a neoliberal interpretation of Title VII limits its effect.
No matter my quibbles with the article, I like it because it is a thoughtful consideration of the current limitations of employment discrimination law and their causes that also forces readers to think about the possibilities of employment discrimination law. The article should be read by anyone who is casually interested in employment discrimination or fully engaged in studying employment discrimination law.
In a recent Boston College Law Review article, Employer Liability for Non-Employee Discrimination, Professor Dallan Flake (Ohio Northern) addresses a subject that has generally perplexed me as well as many employees and employers—how courts can develop a cohesive framework under Title VII to address employer liability for employment discrimination actions due to the behavior of company outsiders. In particular, I have always wondered about the usual trope that customer preference cannot be a defense in discrimination claims while recognizing that there is nothing more important to employers than the preferences of their customers. This article catalogues a host of very interesting cases describing the acts of customers and other non-employee harassers or their biased preferences that raised liability concerns for employers in discrimination claims brought by their employees. Flake’s thought-provoking discussion of these cases offers a noteworthy guide for employers developing policies with respect to discriminatory influences from outsiders.
The article argues that increasing employer involvement in the service industry has led to a number of integrated business models, including outsourcing, that pose new legal challenges when considering non-employee actions. To a large extent, the article illustrates initially how the workplace has evolved from a binary employer-employee relationship by triangulating into an employer-employee-customer relationship. As a result, employees are more likely to interact with non-employee customers or clients, vendors, suppliers, temporary employees, and independent contractors all potentially located at the same worksite. Although the analysis discussed could apply to any of these influential non-employee relationships arising within many of the newer business structures, most of the article emphasizes the challenging dynamics posed by discriminatory actions of customers.
Under Flake’s thesis, the law should not use the same standard for discrimination by non-employees as it does for discrimination by fellow employees because an employer can more easily control its own employees’ harassing behavior. Flake offers a unitary standard of reasonableness for all employment discrimination claims involving acts by non-employees that would establish employer liability under a two-pronged approach: “(1) whether [the employer] knew or should have reasonably known about the non-employee discrimination and (2) whether it acted reasonably in response to the discrimination.” (P. 1173.)
In an intriguing classification of the ways in which non-employee discrimination against employees occurs, the article divides these claims into four categories:
(1) “conscious and direct (such as when a customer sexually harassed a waitress)”;
(2) also conscious but “indirect (such as when airlines hired only female flight attendants based on customer preference)”;
(3) “unconscious… directly, such as when restaurant diners unintentionally tip black servers less than white servers”; and
(4) also unconscious but “indirectly, such as when customers give implicitly biased feedback to employers that is then used to make employment decisions.” (P. 1174.)
The article also highlights how different analytical constructs may apply to these categories of claims. For harassment, an employer can be liable if it has actual or constructive knowledge of the non-employee’s behavior unless the employer shows that it promptly and reasonably acted to end the harassment. For an employer to prevail when subjected to a claim of customer-based preference as indirect discrimination, it must show that its actions were justified by a bona fide occupational qualification (BFOQ) necessary to the essence of the business. For unconscious discrimination, either directly from customers’ unintended actions or indirectly based upon customers’ hidden biases as submitted or inferred, an employer would need to establish that its actions were job-related and consistent with business necessity. Flake believes that these different approaches to dealing with non-employee discrimination have created confusion and fragmentation warranting a unitary standard requiring knowledge and reasonableness in responding as components related to establishing employer liability.
The article does not devote much detail to the inability of employers to control outsiders as compared to its own employees. In continuing explorations of these topics, it might be helpful to examine in more depth whether current employment discrimination analysis operates more as a shield for employer liability without the need for more flexible employer defenses. For example, one might question whether employees have the resources to bring claims challenging an employer’s systemic discriminatory decisions as being based upon customer preference or resulting in a disparate impact. Most discrimination claims tend to be focused on the treatment of individuals by their employers with employees facing difficult burdens of persuasion. Nevertheless, this article makes an important contribution by identifying how customers’ discriminatory preferences based upon unconscious bias might, at a minimum, require a more nuanced analysis regarding employer liability.
Furthermore, Flake asserts that any distinctions or difficulties in an employer’s ability to control the different actors may be covered within the reasonableness standard he suggests. That standard applies equally in cases involving both employee and non-employee harassment. The actual analytical changes imposed by the suggested unitary standard and its knowledge requirement would arise in intentional discrimination cases involving customer preferences and BFOQ claims that were not blatantly discriminatory when addressing concerns of privacy, safety, or authenticity. More provocatively, this unitary standard would also add an employer knowledge requirement in cases based on a disparate impact claim related to customer evaluations, a result possibly “unpalatable to some” as Flake has conceded. (P. 1215.) Apparently, he will address this issue more specifically in his next article, cited in footnote 88, When Should Employers Be Liable for Factoring Biased Customer Feedback into Employment Decisions? (forthcoming in the Minnesota Law Review in 2018).
Even if you do not agree with Flake’s assertion that lesser control over non-employees who discriminate and the challenges of identifying unconscious discrimination warrant a more flexible analysis requiring knowledge before employers become liable for intentional customer-preference discrimination or disparate impact, the article is an engaging read because of the creative way in which it chronicles the riveting theories of non-employee discrimination developed from the cases. Also, the article shines an important light on customer preference cases that may involve unconscious bias. Given the lack of scholarly attention to this subject, the article initiates some crucial steps in understanding the analytical development of employer liability related to the discriminatory behavior and preferences of influential outsiders.
Andrew Verstein, The Jurisprudence of Mixed Motives
, 127 Yale L.J.
(forthcoming), available at SSRN
To say that the law of causation in mixed motives cases is a mess would be an understatement, as Andrew Verstein highlights in his article, The Jurisprudence of Mixed Motives. Most antidiscrimination laws require causation. That is, these laws proscribe adverse employment actions when they occur “because of” a protected characteristic, such as race or sex. The problem is that there are several types of causation, particularly where multiple motives are involved – which is almost always. Yet, few of those statutes specify what type of causation is required. Other statutes specify what type of causation is required, but with no clear definition (e.g., “motivating factor” causation, referenced in the Civil Rights Act of 1991). To make matters worse, courts and commentators often throw other undefined or ill-defined terms into the mix. And if we were inclined to look at other legal fields, such as tort law or constitutional law, in order to make sense of causation in employment discrimination law, we tend to encounter yet more ill-defined terms.
One might think – or at least hope – that it would be possible to (1) identify the universe of potentially applicable causal standards; (2) clearly define each of those standards (and their relationship to one another); and (3) attach a universally applicable and accepted label to each causal standard. That is, we might imagine a Rosetta Stone that would allow us to clear up the confusion that reigns in the Babel of causation. Such a tool would allow us to describe the law with precision and engage in meaningful (and perhaps even cross-substantive) discussions about the normative merits of any particular causal requirement.
I attempted a project like this in 2006, in an article entitled The Fundamental Incoherence of Title VII: Making Sense of Causation in Disparate Treatment Law. That piece posited a universe of causal concepts based on core philosophic causal terms (necessity and sufficiency), arranged from least restrictive (most plaintiff-friendly) to most restrictive (most defendant-friendly):
Yet that piece had two important limitations. First, it conceptualized causation solely as qualitative. That is, in my work, a cause could be necessary, or sufficient, or some combination of those qualitative concepts. But I had no way to conceptualize one cause as “stronger” than another, or to conceptualize a cause as being “big” or “small” – concepts that are intuitively important, and to which many courts and commentators have referred. Second, and relatedly, without a quantitative component to my analysis, I undertheorized the concept of “minimal causation” (the best definition for “motivating factor” causation). There may be important variations within minimal causation that I failed to capture.
Now, in The Jurisprudence of Mixed Motives, Professor Verstein has developed a model that truly advances the search for a Rosetta Stone for causation. His model posits a quantitative view, in which motives have varying degrees of causal influence in decision-making. With this approach, he is able to depict the causal force of multiple motives on a graph as follows:
His graph depicts a simplified world in which a defendant bases a decision (such as a decision to fire the plaintiff) on two motives: B-Motive, which is proscribed (such as race), and A-Motive, which is not proscribed (such as tardiness). Once the causal force of either motive alone or the two motives combined reaches a value of 1 – i.e., the combined causal force is sufficient – the decision in question (the firing) will occur.
This model allows us to understand the relationships between the traditional quantitative concepts. Professor Verstein prefers other labels for the quadrants in his graph, but it is easy to translate his terms into traditional causal language as follows:
This provides an incredibly useful way of viewing these causal concepts and the relationship between them.
Three important concepts are readily apparent from this graph. First, we can illustrate the concept of “de minimis” causation: the area on the left side of the graph closest to the A-Axis. This concept of “de minimis” causation might explain the “substantial factor” language used by some courts and commentators: “substantial factor” might mean “more than de minimis.” Second, we can see that B-Motive can be “de minimis” even when it is a necessary cause (on the leftmost side of the gray triangle), as well as where it is neither necessary nor sufficient (on the leftmost side of the upper left quadrangle or the leftmost side of the lower left black triangle). This suggests a need to be more specific about other causal requirements if we want to use a “substantial factor” test. Third, we can see that there are actually two types of motivating factor causation. Recall that motivating factor means that B-Motive has some causal force, but is neither necessary nor sufficient. One type of motivating factor causation is depicted in the upper left quadrant and the other is depicted in the lower left black triangle. Given that the adverse employment decision (firing) will occur only in the upper left quadrant, that is the most likely candidate for the meaning of motivating factor causation in most statutes. However, in the lower left black triangle, which likely depicts what Justice O’Connor referred to as “thought crime,” the defendant still engaged in decision-making based on a proscribed criterion (race), which still raises normative issues. (This is why I noted that I undertheorized motivating factor causation in my 2006 piece.)
Next, Professor Verstein introduces the idea of B-Motive “predomination” (where the causal force of B-Motive is greater than that of A-Motive). We can see this on his graph, as follows:
This concept of predomination might explain the “primary factor” language used by some courts and commentators: “primary factor” might mean “B-predomination.”
Professor Verstein then combines these insights into a multi-zone graph that seems truly to define the universe of potential causal concepts:
From there, he goes on to label those concepts, focus on the most commonly used concepts, and compare those concepts across various fields of law – including not only employment discrimination law, but also fields as diverse as constitutional law and tax law. The potential for courts and scholars in one field to learn from those in other fields is exciting and unprecedented. Moreover, this approach lays the groundwork for a clear and fruitful discussion of the normative merits of various causation requirements that is unprecedented. In fact, Professor Verstein indicates that this is his next project. To say that this is an exciting development in the law of causation would be an understatement.
In closing, two notes seem warranted:
First, although I refer to his model as being about causation, Professor Verstein eschews thinking of motives as exerting causal force. He eschews causal language because he (understandably) does not want to take sides in the ongoing debate about the determinism of motives – i.e., whether we have sufficient self-determination to resist the influence of our motives. But for those of us who are more concerned with the law of causation and less concerned with how that law treats self-determination, his model provides an incredibly useful way of thinking about causation in mixed motives cases.
Second, I have some minor quibbles with Professor Verstein’s piece, and how I think he could make it even better, which I address in a forthcoming piece, A Rosetta Stone for Causation. None of those quibbles detracts from the fact that his piece is one of the most exciting and important ones I have seen in this field. I wholeheartedly recommend it.
Stephanie Bornstein, Equal Work
, 77 Md. L. Rev.
(forthcoming 2018), available at SSRN
In her article, Equal Work, Professor Stephanie Bornstein (Florida) does a superb job of providing a fresh approach to the continuing problem of pay discrimination in the workplace on the basis of gender and race. As Professor Bornstein correctly acknowledges, pay discrimination has remained an ongoing problem in our society for decades. Her article makes two extraordinarily useful contributions: first, it undertakes a comprehensive survey of the latest literature on pay discrimination and its causes, and second, it offers solutions that do not require legislative reform to chip away at this pervasive problem.
Early in her article, Professor Bornstein provides a comprehensive review of the existing data on gender and pay discrimination in the United States. This overview does a nice job of bringing together all of the most up-to-date research in this area. Then, Professor Bornstein makes an effort to explain why the pay gap continues to exist in the course of exploring recent research on occupational segregation and income inequality in this country. To this end, Professor Bornstein also addresses the complexities of the law on pay discrimination in the workplace, closely examining Title VII of the Civil Rights Act of 1964 and the Equal Pay Act (EPA), before discussing recent efforts on the state level to resolve these problems, including statutes passed in California, Massachusetts, and Oregon. The paper also correctly recognizes the many efforts to close the race and gender pay gap that have been made over many decades and at all levels — federal, state, and local. While some of these efforts have helped reduce pay disparities at different points in our nation’s history, the gap remains persistent and efforts to fix the problem have stalled in recent years.
Thus, Professor Bornstein provides an exhaustive descriptive review of the research in this area, the most current data, and an analysis of the basis for the problem. For this reason alone, the paper promises to serve as a seminal work in this area that other scholars can look to when examining different aspects of this topic. The greatest contribution of this work, however, is Professor Bornstein’s unique approach to helping to resolve these unfair pay disparities. Professor Bornstein’s proposal focuses on the first, threshold prong of the statutory test under the EPA — that the statute requires equal pay for “equal work.” This analysis distinguishes her scholarship from much of the other literature on this topic, which often focuses more on the possibility of narrowing the employers’ “any factor other than sex” defense in the statute.
In this way, the article suggests a new approach to addressing the pay problem. Noting the difficulty of bringing legislative reform to this area, this article discusses ways of addressing pay discrimination problems through existing legal frameworks. By way of example, the article explores how employers in the union and governmental sectors have found ways to create equal pay systems that do a better job than non-union private sector workplaces of paying minorities and women equally to what they pay white men. Professor Bornstein’s approach plays off these examples, arguing that employers must make broader comparisons between workers when reaching pay determinations. Her approach thus advocates that “every difference between jobs [created by an employer] need not be wage-determinative.” This approach explains how the current narrow interpretation of the law is outdated, and how a more comprehensive approach — which applies a broader framing of what constitutes equal work — is now critical to the modern workplace. The unique strength of this piece, then, is its detailed explanation of how we can work within existing legal structures to better protect women and minorities from pay discrimination. The paper thus avoids some of the practical pitfalls that can befall proposals for broad legislative reform in this area.
It is difficult to overstate the important contribution Professor Bornstein makes here with Equal Work. The vast collection of data on the topic and the exhaustive background information provided are by themselves quite impressive. However, the novel approach to helping fix the problem advocated by Professor Bornstein makes this work an invaluable contribution to the academic literature.
While some readers may already know this work, legal academics do not always keep up with monographs that focus on history. So, I will try to widen the audience for this excellent book.
A Class by Herself traces the story of “protective legislation” — e.g., laws regulating wages and hours — concentrating on debates over statutes that applied only to women. The story begins in the Progressive Era of the late nineteenth and early twentieth centuries, continues through the New Deal, and ends with questions about modern laws such as the Pregnancy Discrimination Act and Title VII. The book does an impressive job with multiple historical subjects: legal history, history of “worklaw,” history of feminist thought, and history of politics and of the state.
Most prominently, the book features a nuanced take on the tensions between “difference” feminists (who favored protections that applied only to women) and “equality” feminists (who insisted the same rules should apply to both sexes). Both sides get their due. The “Brandeis Brief” from Muller v. Oregon (1908), once romanticized for trying to bring evidence from social sciences into the courtroom and later castigated for its jarring patriarchal assumptions, gets a balanced treatment. Notably, the book covers a wide time period, and it shows the enduring importance of these debates while still putting them in specific political, social, and legal historical contexts. Scholars of modern law will have much to ponder with Woloch’s discussion of UAW v. Johnson Controls, Inc., 499 U.S. 187 (1991), an emphatic expression of the “equality” feminism the New Deal and Great Society had adopted, in which the Court held that an employer rule barring women from working around substances dangerous to pregnant women violated Title VII. While good history doesn’t necessarily need to draw explicit parallels with the present, it’s impressive to see such history done well.
Woloch also has a wonderfully interesting and complex cast of characters. The book features not only famous actors such as Florence Kelly (of the National Consumers League, an advocate of protective legislation for women) and Alice Paul (of the National Woman’s Party, an advocate of equality feminism), but also other fascinating, lesser-known figures, including but not limited to progressive contemporary Elizabeth Baker and, later, Women’s Bureau Director Esther Peterson. In this regard, Woloch adds some fascinating new primary sources, such as Baker’s PhD dissertation.
In telling this story, Woloch shows she understands the internal rules regarding legal doctrine (including debates between “sociological” and “formalist” jurisprudence) without pretending such evolution occurs in a vacuum. Much of the work is told from the point of view of reformers, and the book demonstrates both how political activists shaped the law and how the law shaped the strategies of activists. As with the best history, Woloch stresses how complex and contingent many events were: actual results were far from inevitable, and it is a virtue of the book that its goal is not to crown as “correct” one side or the other in the debates. Woloch rejects simplistic analysis, and her contributions include the memorable line, “[E]quality tends to favor those best equipped to claim it.” I liked this book a lot.
The hottest new subject area for legal academics is privacy law. The field is still in its infancy, which means that many of the foundational issues of categorization and taxonomy remain to be worked out. Even defining privacy is thorny, as the label is applied liberally to all sorts of invasions, intrusions, disclosures, and interests, with questions about how to delineate and frame privacy concerns arising in several sub-categories. In the labor and employment context, the Restatement of Employment Law has divided privacy interests into three categories: interests in the privacy of persons and locations (including electronic ones); interests in the privacy of personal information; and interests in the nondisclosure of information that was disclosed to the employer confidentially. Within these broad contours, a myriad of different types of violations sit uncomfortably next to one another, each raising its own specific issues.
In Limitless Worker Surveillance, Ifeoma Ajunwa, Kate Crawford, and Jason Schultz take on one specific type of privacy invasion: workplace surveillance. Because of employers’ ownership and control of the workplace, courts have generally interpreted the common law to allow employer surveillance of working areas. Moreover, employers can expand their observation into private areas when employees give their consent to the intrusion. Management has generally run into trouble only when it surreptitiously and secretly records employees in private areas, such as bathrooms, medical examination offices, and employee homes. But routinized, disclosed surveillance is commonplace and seen as part of the job. Ajunwa, Crawford, and Schultz, however, want to disrupt this equilibrium. They argue that freedom from surveillance should be a non-waivable right, and they propose three different federal statutes, varying in scope, to enforce variations of this right against employers.
The article does not spend a lot of time exploring why surveillance, at root, is problematic as a practice—the authors assume that sustained and continuous observation is noxious and enervating. Instead, they dig into the technological changes that afford companies cheaper and easier ways of observing, measuring, and tracking their employees than existed in the days of Frederick Taylor and Henry Ford. Now, digital cameras can record an eternity of activity without the cost of film or videotape. RFID tags and GPS tracking can follow workers all over town without significant investment. Computer software can record everything an employee does online without the employee ever knowing. There really has been a sea change in the levels and types of information available to most employers about their employees. The authors single out wellness plans and productivity apps for special attention, discussing how these programs generally work and how they access workers’ private information in the name of health outcomes and improved productivity.
Ajunwa, Crawford, and Schultz survey the existing legal protections for workers and find them wanting. They point out the absence of regulation in privacy statutes such as the Electronic Communications Privacy Act and the Computer Fraud and Abuse Act. Federal discrimination statutes likewise do not address surveillance; the NLRA does address surveillance, but only in limited circumstances. There are state-level regulations of video and audio monitoring, as well as a growing number of state restrictions on employer access to employee social media accounts. But these protections are spotty and often limited, sometimes allowing surveillance with notice (or even without it). (Interestingly, the authors use state statutes protecting off-duty smoking as a proxy for privacy, even when these statutes were often more a result of tobacco-industry lobbying than an interest in workers’ rights.) Although states like California have fairly robust surveillance regulations, many states offer little to no protection.
The solution, according to the authors, comes in the form of a federal statute to regulate surveillance on the job. They begin with the possibility of a comprehensive privacy regime along the lines of the European Union’s General Data Protection Regulation. Ironically, they argue such a wide-ranging approach might fail because it would necessarily be susceptible to too many exceptions based on consent or work-related data collection. Instead, they suggest a federal “Employee Privacy Protection Act” that would prohibit surveillance outside the workplace as a mandatory, non-waivable rule. A third possibility would be a federal “Employee Health Information Privacy Act,” which would fill the existing gap left by HIPAA regarding employer responsibility over personally identifiable health information. This act would give employees the right to consent to use of their health data as well as the right to have data destroyed at the end of the employment relationship.
Limitless Work Surveillance takes on an important area of workplace concern and provides a set of legislative solutions for consideration. And the authors savvily ascertain how technological changes are driving—and will continue to drive—the ways in which employees will find their personal privacy invaded and degraded. By calling attention to the issue of surveillance in the workplace at this particular moment in our history, Ajunwa, Crawford, and Schultz have made an important contribution to the literature. The article will hopefully spur additional research into the ways in which employers and employees can work together to manage their legitimate interests while protecting the core of human dignity.
Much ink has been spilled over whether platform workers — be they Uber drivers, Task Rabbit taskers, or others — are employees or independent contractors, and litigation over alleged misclassification of platform workers is ongoing. Likewise, there is robust debate over whether the rise of such platforms benefits workers by expanding their earning capacity and flexibility, or simply serves to increase income insecurity and income inequality. Beyond employment, similar debates rage over other platforms, such as whether Airbnb and other home-sharing platforms enhance consumer choices and provide individuals with positive ways to monetize underutilized space, or exacerbate shortages of affordable housing and undermine stable residential neighborhoods.
Orly Lobel’s article provides a broad framework in which to analyze such issues. The article is much broader than the work law implications of the platform economy, but it is extremely useful for scholars and policymakers facing work law issues.
Lobel usefully catalogues ten characteristics of platforms: They achieve economies of scale for individual-to-individual transactions. They facilitate utilization of idle capacity, whether it be spare bedrooms or workers’ otherwise unproductive time. They facilitate commerce over extremely small transactional units, even a few minutes. They allow individuals to monetize almost anything, turning them into mini entrepreneurs. They facilitate customization of transactions. They substitute access for ownership in consumption. They reduce overhead. They reduce barriers to entry. They facilitate dynamic pricing driven by demand. They offer dynamic ratings of providers by consumers and consumers by providers.
Lobel discusses what she regards as easy cases for applying traditional regulation to platforms. For example, she sees no difference with respect to taxation, which she regards as designed to extract a percentage of profits wherever they are produced. She sees the issue of taxing platform transactions as a question of efficient collection and suggests that requiring the platform company to collect taxes may be the most efficient solution. (Interestingly, Lobel does not follow through on the implications for collection of employment taxes.) Other easy cases are permitting and occupational licensing. Lobel urges that where these regulations serve primarily to erect barriers to entry, they be replaced by liability rules and insurance requirements.
Lobel regards the employment question as one of the hard cases. Another hard case is zoning regulations. These raise tradeoffs that policymakers must confront. With respect to the employment status of platform workers, Lobel suggests focusing not on classification but on the protections that are valuable to society, such as anti-discrimination, safety and health, insurance, and portable benefits, regardless of classification. Generally, she observes that “[o]ff-on categories such as consumer-business; employee-freelancer; residential-commercial are, in some instances, no longer viable as organizing frameworks…. What this means for regulators is that, rather than a unified legal entity, which has traditionally been the object of regulation, transactions are now shaped by multiple actors, with varying capacities, interests, and needs.”
Consistent with her scholarship concerning the “new governance” approach to regulation, Lobel highlights private approaches to handling risk: platforms providing insurance, platforms performing background checks, and dynamic ratings of service providers by consumers and of consumers by service providers. She recognizes that some of these developed as responses to litigation or were compelled by regulatory authorities. She observes that the advanced technologies employed by platforms enable better data collection and analysis, and urges that rather than devising regulations top-down, lawmakers collaborate with platforms to use the data to analyze problems and develop responses. Examples given include addressing ride-hailing platforms’ shortcomings in serving persons with disabilities and preventing discrimination by hosts on home-sharing platforms.
Lobel’s article raises many questions and provides no definitive answers. But it provides a very useful framework to consult in approaching legal issues raised by the platform economy with respect to treatment of platform workers as well as other social policy issues.
Editor’s note: For an earlier Jotwell review of The Law of the Platform see Margot Kaminski, Disruptive Platforms (July 19, 2017).