Nov 3, 2022 Michael C. Duff
Joshua Rosenberg Daneri & Paul Thomas,
Wrong Line: Proposing a New Test for Discrimination under the National Labor Relations Act, 56
U. Mich. J. L. Reform _ (forthcoming 2023), available at
SSRN.
No matter how clear a violation of labor law seems to be, it has to be proven within an administrative agency and upheld, if challenged, by a court. I litigated cases at the National Labor Relations Board (NLRB) for a decade and know full well that, despite how obvious unfair labor practices by Amazon or Starbucks may appear on the surface, they mean little if they cannot be proved before a federal Administrative Law Judge. Within the domain of federal labor law, theories of justice writ large must be fit to rules of evidence and concepts of causation. The recent article, Wrong Line: Proposing a New Test For Discrimination Under The National Labor Relations Act, written by NLRB agents Joshua D. Rosenberg Daneri and Paul A. Thomas (outside their affiliation with the agency) is exactly the kind of work that can help readers explore this fit.
In the kind of union organizing drive that observers are usually interested in, a union arrives on the scene and employees supporting the union are fired. Obviously, this kind of situation has nearly limitless variations. But common to most of them is the employer’s defense: that its decision to fire the employees was not motivated by anti-union considerations. These cases are the “bread and butter” of the NLRB, so how they get litigated is extremely important. The authors argue that the NLRB’s 1980 Wright Line decision, which established how judges are to consider evidence about employer motivation in unlawful termination cases, has for decades gotten these bread and butter “causation” cases wrong. In their view the NLRB should (and is legally able) to revisit Wright Line.
The way beginning labor specialists learn Wright Line is simple. One might even call it elementary. First, we must know what the National Labor Relations Act (NLRA) says (in relevant part) about firing employees who support a union: it is an “unfair labor practice” for an employer to act against an employee “by discrimination in regard to hire or tenure of employment or any term or condition of employment to encourage or discourage membership in any labor organization….” Wright Line in turn says that to prove that an employer violated this provision the NLRB must show that: an employee engaged in protected activity; the employer knew about the activity; and the employer “harbored animus toward both the Union and union activists.” Having established these elements of a “prima facie case”—and this is the important part—the burden shifts to the employer to show it would have taken the same action against the employee despite the known union activities.
Daneri and Thomas help us to recall that, in practical terms, the facially innocuous Wright Line test means that many employers found to have engaged in unlawful anti-union discrimination escape from cases without any legal finding of having violated the NLRA. In its greatest contribution to current scholarly dialogue, Wrong Line reminds readers that the Supreme Court, in its 1983 Transportation Management opinion, upheld the Wright Line test while cautioning that the NLRB could pursue “mixed motive” discrimination in employment differently. To the objecting employer it observed, “[w]e also assume that the Board might have considered a showing by the employer that the adverse action would have occurred in any event as not obviating a violation adjudication, but as going only to the permissible remedy, in which event the burden of proof could surely have been put on the employer.”
In other words, in very close cases in which an employer discriminates at least in part “to encourage or discourage membership in any labor organization,” the NLRB could find a violation of the NLRA. So, if union organizer Jada is accused of stealing money from the cash register during an organizing drive and the employer pounces on the opportunity to fire her, the result of the case is not necessarily that Jada will lose her job or that the union will lose a top organizer. Rather, that is a question of appropriate remedy, following a finding that the employer has violated the NLRA. Suddenly, an employer who gets rid of the union supporter or organizer and repeatedly wins cases despite its anti-union conduct must now defend its actions as a wrongdoer with unclean hands—and even if the Board does not order that Jada be reinstated, it might order other remedies. This practitioner’s insight is one of the most important observations in all of labor law. That determined anti-union employers can repeatedly use Wright Line to get away with firing workers because of their union activity leaves labor law nearly meaningless.
I also appreciate very much the authors’ focus on what a legal standard like Wright Line—which often lets employers completely off the hook even when part of their motivation for firing a worker is anti-union animus—does to local regional NLRB offices tasked with investigating labor law violations. Often employers present facially plausible defenses for firing employees in dual motivation discharge scenarios. The regional office is under constant and relentless pressure to dispose of cases. This was as true in the era of Clinton/Gore, when I practiced, as in the era of Trump. (One should be under no delusions about the bipartisan, decades-long demolition of labor law). But imagine a regional office that had already found a violation of labor law as opposed to one facing a tough Wright Line defense that might completely scuttle a case later at a formal trial. Which regional office do you imagine is most likely to bore in harder on a case’s preliminary investigation? My money is on the former.
Elsewhere in the article there are statements about causation with which I do not necessarily agree. But those trees should not obscure the forest—Wright Line can and should be changed, and the Supreme Court has already endorsed the idea. Of course, the federal courts have changed since Wright Line, and nobody should underestimate the likelihood of employer and judicial resistance to change. However, this article is a valuable doorway to the debates to come.
Oct 31, 2022 Henry L. Chambers, Jr.
In their article Employment Practices Liability Insurance and Ex Post Moral Hazard, Erin Meyers and Joni Hirsch argue employers should not be able to fully avoid employment discrimination liability through employment practices liability insurance (EPLI) when the liability results from employer-facilitated discrimination. The authors suggest full coverage under EPLI triggers ex post moral hazard–“[too little] care in reacting to wrongful employment acts” (P. 973) –and improperly lessens the deterrence employment discrimination liability promises. Their legislative solution would mandate employers pay part of the liability and allow public entities “the power to issue uninsurable fines” (P. 985) for liability stemming from employer-facilitated discrimination. The conditions would not apply to liability for employment discrimination by low-level employees for which the employer is vicariously liable.
The article is fascinating. Though it is as much an insurance article as an employment discrimination article, the definition of employer-facilitated discrimination is at the article’s core. The authors define employer-facilitated discrimination to include discrimination stemming from behavior the employer knew about but declined to address, and discrimination resulting from “a business’s failure to set up a reasonable reporting system for wrongful employment acts.” (Pp. 950-51.) That definition of employer facilitation is reasonable, but will necessarily cause employment-discrimination mavens to ponder if it is over-inclusive or under-inclusive. That is much of the article’s charm.
The relationship among liability insurance, moral hazard, and deterrence is at the heart of this article. Liability insurance arguably triggers ex ante moral hazard – the willingness to engage in risky behavior that might cause loss because such loss would be covered by insurance. EPLI coverage might trigger risky behavior by an employer, which might lead to employment discrimination liability, effectively negating employment discrimination law’s deterrent effect. Meyers and Hersch note EPLI does not appear to lead to ex ante moral hazard more than typical liability insurance, but they conclude it may cause ex post moral hazard – the refusal to address identifiable discrimination that may yield additional future employment discrimination liability because the future liability will be covered.
Using Harvey Weinstein’s (Weinstein) conduct and The Weinstein Company’s (TWC) reaction as an example, the authors argue a high-level executive’s long-term discriminatory behavior that is known to the company involves employer-facilitated discrimination, the liability from which EPLI should not fully cover. TWC’s lack of response to Weinstein’s ongoing discriminatory conduct reflects the ex post moral hazard EPLI incentivizes. Even though TWC appeared knowledgeable about and complicit in Weinstein’s behavior, TWC’s EPLI insurers offered to fully cover TWC’s employment discrimination liability stemming from Weinstein’s behavior. Meyers and Hersch argue an employer should not be allowed to use EPLI coverage to completely avoid liability for such conduct, suggesting full coverage under EPLI may yield coverups that risk additional employment discrimination, rather than investigations and an end to discriminatory conduct.
If Meyers and Hersch limited employer-facilitated conduct to behavior known to the employer, the article would still be interesting, but they also include behavior unknown to the employer due to an employer’s failure to create a reasonable system for reporting discrimination. The proper scope of employer-facilitated conduct is subject to debate. Discriminatory conduct by a high-level executive that likely would have been discovered and stopped if the employer had a reporting system in place arguably is employer-facilitated discrimination. If the primary way discriminatory behavior by high-level executives is brought to a company’s attention is through a reasonable reporting system, the failure to install a reasonable reporting system is a short step away from affirmatively refusing to address that discrimination. Further, reporting systems are common enough that declining to implement one arguably suggests indifference, implicitly inviting discriminatory behavior to continue. If the authors merely intend to suggest an employer’s ignorance of a high-level executive’s discrimination will not be a defense to limited insurance coverage in a case where a high-level executive has engaged in a pattern of discriminatory behavior that would have been uncovered if a reporting system had been in place, their approach is a sensible adjunct to their treatment of Weinstein’s behavior.
However, some might argue the employer facilitation should cover more territory, or less territory. If lack of a reporting system that leads to an employer’s ignorance of discrimination should be deemed employer facilitation in some cases, it could be deemed employer facilitation in all cases. Whether the perpetrator is a high-level executive, a mid-level manager, or lower-level employee, the employer could be deemed responsible for its lack of knowledge. This approach is sensible, but it may conflict with the authors’ suggestion that an employer’s negligent behavior can be fully covered by EPLI. (P. 950.) Unless the employer’s refusal to install a reporting system is an attempt to forestall reporting, its behavior appears negligent. However, if that is so for lower-level employees, it arguably could be so for higher level employees like Weinstein. This is a conundrum.
This Jot does not suggest the authors’ solution is lacking. Rather, it notes the difficulty in distinguishing between situations where an employer should or should not be allowed to fully insure against liability – that is, where discrimination occurred on its watch, versus where it facilitated the underlying discrimination. Meyers and Hersch argue employers should be partially financially responsible for discrimination they facilitate, but readers may disagree about where to place the boundaries of employer facilitation. That makes the article such an interesting read for those steeped in employment discrimination law.
More broadly, the article encourages the reader to think more deeply about corporate responsibility. There is much more to this article that cannot be addressed in this brief Jot. Read the article and you may have even more fun than I did.
Sep 29, 2022 Deepa Das Acevedo
Franchising is hardly a recent arrival to the American labor landscape, and yet there always seems to be something new and shocking to say about it. In Franchisor Power as Employment Control, Andrew Elmore and Kati L. Griffith weave together insights that have been percolating in legal and social science scholarship and add in some illuminating perspective for a new spin on the franchising model.
Unlike product franchising, which makes occasional appearances in the 1L Torts curriculum, business-format franchising receives little attention outside the work law universe. This has always struck me as odd: Tesla may still be considered a disruptor for selling directly to the public, but the type of product franchising strategy it’s famous for eschewing is now less ubiquitous—and less cultural influential—than the business-format franchising of a McDonald’s or a Domino’s. To a great and growing degree, we live in a franchised world, one where the sign on the door (or on the uniform, or delivery box) encourages us as consumers to see unitary corporate identity where there is none. At the same time, contracts and manuals demand that courts see independent and equally sophisticated actors where there are none. Despite this puzzling and omnipresent set of circumstances, business-format franchising continues to receive little attention in mainstream legal scholarship.
Elmore and Griffith bring some much-needed perspective to this situation, and in the rest of this Jot I’ll outline four ways in which their article contributes to both our understanding of business-format franchising and of work law more generally.
First, and alongside a growing cohort of work law scholars, Elmore and Griffith critique the exceptionally narrow understanding of freedom and control that have come to characterize American work law. Using the language of “direct” and “indirect” control, they show how courts have “often discount[ed] indirect control and require[d] evidence of direct, day-to-day supervision… to support a determination of joint employment.” (P. 1328.) This undue focus on “direct” control—essentially, a negative conception of freedom according to which only affirmative interference in another’s activity triggers liability—is something I’ve noticed in the gig work context as well, but it gets far too little attention in the franchising universe.
Second, and building on this first point, Elmore and Griffith offer nuts-and-bolts insight into how acutely control can be felt in the franchise context despite the absence of direct oversight. For instance, a Domino’s franchisee “stated that Domino’s reduced the score of one of his stores because an employee with an ingrown hair condition ‘didn’t have a doctor’s note’ to justify facial hair longer than an inch.” (P. 1354.) This kind of detail, which is usually only available through ethnographic social science is crucial to dismantling work law’s emphasis on negative freedom or direct control.
Third, Elmore and Griffith gesture heavily towards the mileage employers get out of claims that they are merely protecting their “brand value.” They note, for instance, that the main purpose of “operations manuals is to ensure that food preparation and ‘brand standards’ are uniformly implemented in franchised restaurants,” and that courts often agree that this focus on brand maintenance changes the implications of franchisor control. (P. 1347.) Although I’ve been struck by the exculpatory power of brand management in the gig context, and although the legitimacy of brand maintenance is often asserted by franchising enthusiasts, this issue has received too little critical reception in work law literature. What remains to be seen is whether law can catch up to the way brand management is understood in business literature—particularly in services marketing scholarship—where brands are recognized as co-created by firms (or franchisors) and workers (or franchisee employees).
Despite these contributions to our understanding of both business-format franchising and other work relationships, the undoubted centerpiece of Elmore and Griffith’s article is its focus on the powerlessness of franchisees. Worker-friendly commentators have tended, quite understandably, to focus on the far ends of the franchise relationship: on the franchisor, or lead firm, and on the individual employee who has no direct contractual relationship with that lead firm. This kind of polar orientation makes sense since the goal of most critical commentary is to argue that the lead firm should incur greater liability than it currently does (somewhere not too far from zero) for the poor working conditions of the individual employee.
But what Elmore and Griffith do to unusual and excellent effect is to focus on the connection between the lead firm and the franchisee, clarifying just how powerless that intermediate actor actually is. “Franchisors’ power to control is embedded into the very structure of the franchising business model,” they write. (P. 1338.) This is unarguably true; even franchising’s supporters describe the model, appreciatively, as “a business form that borders on a dictatorship.” From their study of franchising contracts, Elmore and Griffith note that 34 of the 44 contracts “give the franchisor… broad power to terminate,” almost all (41 of 44) “give franchisors the sole discretion to decide whether to renew,” and 38 of 44 “contain a restriction on competitive behavior after contract termination.” (Pp. 1340–44.) This emphasis on the unseen middle of business-format franchising—the franchisee—is powerful. It conveys exactly why franchisors ought to be held responsible for so much of what occurs in their franchisees’ businesses: not only because the individual employees are so vulnerable (although they are) but also because the franchisees themselves are deeply vulnerable vis-à-vis their lead firms.
Altogether, Elmore and Griffith offer a valuable and comprehensive take on a longstanding problem in work law, and they do so in a way that offers ready applicability to other types of labor relationships.
Aug 16, 2022 Aliza Shatzman
I read Professor Gilat Bachar’s excellent article, The Psychology of Secret Settlements, when I was wrapping up my own settlement negotiations and finishing a law journal article about my experience with harassment and retaliation by a former supervisor. While I was contemplating whether to sign a settlement agreement, I searched for research about complainants’ considerations and public perception about confidentiality agreements. Professor Bachar’s research found that both the severity of the wrongdoer’s misconduct and the victim’s financial status impact public support for Non-Disclosure Agreements (“NDAs” or “secret settlements”). Specifically, when the misconduct is more severe, and when the victim is more financially secure, the public opposes the use of NDAs; whereas when the misconduct is less severe, and when the victim is less financially secure, the public supports the use of NDAs. This public support, Professor Bachar argues, is important. If the public broadly endorses “sunlight laws” (laws limiting or altogether banning NDAs), these policies will be more effective, because less oversight and enforcement will be necessary. Professor Bachar’s empirical findings make important contributions in the area of employment litigation at a time when more states are enacting laws to restrict employers’ use of NDAs in employment discrimination cases.
In the #MeToo era, fifteen states have passed laws restricting or prohibiting the use of NDAs, either as a condition of employment or as part of a settlement agreement. However, as Professor Bachar argues, there are circumstances in which not just employers, but also mistreated employees, benefit from NDAs. Not only can victims potentially be “made whole” through financial settlements, but they may also seek confidentiality in order to avoid unwanted public attention and “victim blaming.” If one goal of the #MeToo movement, and the subsequent push to restrict the use of NDAs, is to affirm survivors, Professor Bachar asks, shouldn’t we respect their right to privacy, and support their desire to move on with their lives? Perhaps the obligation to blow the whistle on misconduct and to publicly identify harassers should not fall on victims. By restricting employers’ ability to trade money for silence, Professor Bachar argues, we may unintentionally disadvantage financially insecure victims who cannot afford to invest time and money in employment litigation.
Professor Bachar highlights two important tensions before introducing her research question, which asks, To what extent, and in what circumstances, do lay people support sexual harassment NDAs? The first tension is between the public’s interest in shining sunlight on misconduct, and the victim’s interest in confidentiality. The second tension is between the public’s right to know about misconduct, and its desire to know about it. Professor Bachar cites media reports from the 1980s about public hazards, which led to a wave of sunshine laws to prevent employers from concealing environmental hazards and dangerous products. She compares this to the recent rush to ban employment discrimination NDAs in the #MeToo era in order to protect the public against harassers.
In Professor Bachar’s study about public attitudes toward NDAs, she separated participants into four groups, in which they read a scenario depicting workplace sexual harassment and were then asked to approve or reject an NDA under the circumstances. The four categories were: sexual joke (low severity) and financially struggling victim; sexual joke and financially stable victim; exposing genitalia (high severity) and financially struggling victim; and exposing genitalia and financially stable victim. The study also asked participants to rate the relative importance of additional pieces of information to their support for an NDA, including whether the wrongdoer engaged in a pattern of harassment and whether the wrongdoer was terminated as a result of their behavior.
As I have detailed about my own experience, an individual’s decision about whether to sign an NDA in a case of workplace harassment can be very difficult. Beyond individual cases, Professor Bachar’s findings have important policy implications as we engage in public conversations about workplace misconduct in a variety of industries. First, if blanket confidentiality bans disproportionately harm financially unstable victims, it is important to create safeguards that protect victims’ ability to bargain. For example, laws could prevent employers from requiring NDAs in employment discrimination cases, but could still enable victims to choose them. Importantly, Professor Bachar argues that “allow[ing] victims to negotiate a settlement would help ensure confidentiality bans do not give rise to a chilling effect, discouraging victims who do not wish to speak out publicly from reporting the harassment they experienced.” (P. 40 n.1.)
Additionally, since Professor Bachar’s research suggests strong public opposition, among all political affiliations, to NDAs in cases of severe harassment, perhaps lawmakers advocating for sunshine laws should focus on banning NDAs in severe cases as an interim solution. However, as Professor Bachar concedes, it is important to define “severe” harassment, and further research is necessary. Professor Bachar’s findings also point to avenues for further study. She found that study participants seemed particularly interested in preventing “repeat offenders” from avoiding accountability for workplace misconduct. Further research should gauge how public support for NDAs is affected by information about the wrongdoer’s repeated misconduct.
Ultimately, the decision to sign an NDA, and the choice to speak publicly about one’s experience with workplace harassment, are deeply personal ones. I decided to share my story publicly in order to empower others. I was unwilling to sign an NDA that would restrict my writing, speaking, and advocacy. However, those are choices that not everyone would make. Professor Bachar’s research teases out some important factors—severity of wrongdoing and financial status of victims—that policymakers should consider as they explore the implications of sunshine laws for employment NDAs. However, both #MeToo advocacy work and legislation should consider the interests of marginalized victims, who may weigh confidentiality versus publicity concerns differently and be the least able to speak up for themselves.
Jul 18, 2022 Martin J. Katz
D'andra Millsap Shu,
The Coming Causation Revolution in Employment Discrimination Litigation, __
Cardozo L. Rev. __ (forthcoming 2022), available at
SSRN.
Two simple words, “because of,” are at the heart of most anti-discrimination statutes, which preclude employers from taking adverse action because of a protected characteristic. Two simple words. Yet, the myriad attempts by courts and commentators to make sense of these two simple words has appropriately been referred to as a “morass,” a “jungle,” and a “quagmire.”
There have been two battlegrounds. First is the question of which causal standard applies. Does the phrase refer to “but for” causation? “Motivating factor” causation? “Primary” or “predominate” causation? “Substantial factor” causation? “Sole” causation? Some combination of these? Or something else? Second–and the focus of Professor Shu’s article, The Coming Causation Revolution in Employment Discrimination Litigation–is that even when courts seem to agree on a standard, such as “but for,” they seem unable to agree on what that standard means. Now that the Court appears to have coalesced around the idea that “because of” generally refers to “but for” causation (even if some scholars might still argue for other standards), Professor Shu convincingly argues that the second battleground – over the meaning of “but for” – is the most important one.
My first question, as a scholar of causation, might be: How can people disagree over the meaning of “but for”? This concept, also known as “necessity,” has been with us since the time of the ancient Greek philosophers. It asks whether, if you remove Factor X, the event in question would still have occurred. If the answer is no, then Factor X is a “but for” cause of the event (or “necessary” to the occurrence of the event).
But never underestimate the ability of employment lawyers, professors, and courts to mess things up. And Professor Shu makes the case that our crowd managed to create uncertainty over the meaning of “but for,” with some pretty serious consequences.
The confusion has to do with a third word that the Gross court added to the phrase “because of.” Gross may be best known for equating “because of” with “but for” causation. But instead of saying that the ADEA required plaintiffs to prove that age was a “but for” cause of the adverse employment action, the Court said that plaintiffs need to show that age was the “but for” cause of that action. This may have been a mistake, or it may have been a backhanded attempt by the Court to invent a narrower version of “but for.” But as Professor Shu points out, the Court’s addition of the word “the” to “but for cause” added to the confusion in the causation arena, prompting several courts to assume (incorrectly) that there can be only one “but for” cause, and therefore effectively applying a “sole cause” standard in anti-discrimination cases. (“Sole cause” is much more restrictive than “but for.”)
This back-door “sole cause” test wrought havoc on cases with multiple causes – including those in which plaintiffs plead alternative theories (such as race or retaliation), those in which plaintiffs allege intersecting causes (such as age and sex), and even McDonnell-Douglas pretext cases in which the defendant was able to offer a single unrebutted legitimate reason for the adverse employment action.
Professor Shu makes the optimistic argument that the Supreme Court has now fixed this problem in Bostock. Though Bostock is known as the case that held that sex discrimination includes discrimination on the basis of sexual orientation and gender identity, Professor Shu focuses on its “but for” reasoning: that sex is a “but for” factor in sexual orientation or gender identity discrimination. In reaching that conclusion, Justice Gorsuch provided a mini-class on “but for” causation, emphasizing (correctly) that there can be – and often are – multiple “but for” causes of a decision. Not only does he debunk the idea that there can be only one “but for” cause, he makes painfully clear that the statute (Title VII, in that case) does not require “sole causation,” and that “but for” is the exclusive standard. For example, he makes clear that there is no “primary” or “predominant” cause requirement.
Professor Shu argues that Justice Gorsuch’s lesson in causation is completely clear and, perhaps more importantly, that it applies to any statute for which the Court has adopted its default “but for” standard. In other words, in any employment case involving “but for” causation, courts should now have a roadmap that lets them avoid the pitfalls of “sole cause,” “primary cause,” or any other distraction. I love her optimism, and I hope she is right (though she notes that at least one court–the 6th Cir.–has continued to hold to the Gross-induced idea that “but for” somehow means “sole cause.”)
The article is unabashedly doctrinal, though with a good understanding of and integration of the normative literature in the field. It identifies an important but underappreciated problem caused by an unheralded part of Gross, and a solution grounded in an unheralded part of Bostock.
Some of the many reasons to read Professor Shu’s new article include:
- A laser-like focus on “but for” causation. Many scholars have argued, based on normative and/or doctrinal reasons, that “but for” should be replaced by another standard, such as “motivating factor.” But Professor Shu argues persuasively that this boat has sailed; the Court has chosen “but for.” So we would do best to focus on making sure that the courts get “but for” right. She also includes a nice summary and interpretation of some empirical work suggesting that when judges and juries fully understand “but for” – and distinguish it from “sole cause” – they can and do find for plaintiffs in appropriate cases.
- An excellent typology and explanation of the stakes when the courts get “but for” wrong. Perhaps most important in her list is the concept of intersectionality, which, though well theorized, can quickly become a victim of bad causal reasoning. Additionally, she explains how bad causal reasoning can quickly derail McDonnell-Douglas pretext cases, erroneously allowing defendants to win if they advance a single unrebutted reason for their actions.
- A good explanation of how courts have been confused by – or perhaps simply resistant to – Justice Gorsuch’s attempt to clarify “but for” in Bostock, along with a good argument for why this clarification should apply in “but for” cases under all statutes; that it makes little sense to think of Bostock’s “but for” lesson as being limited to Title VII.
Perhaps what I like best about Professor Shu’s article is its reflection of her optimism. She believes that a clear, cogent explanation of “but for” by one of the top jurists in the country not only should, but just might, clear up the confusion in this area. Optimism is good. (Said the optimist.)
Jun 15, 2022 Kerri Lynn Stone
Pat K. Chew’s Hiding Sexual Harassment: Myths and Realities exhorts the reader to view sex discrimination’s and sexual harassment’s invisibility as being among their most nefarious attributes. This piece is convincing and thought-provoking. As the #MeToo movement hits a crossroads, this article deserves to be centered in the literature, and in any discussion of workplace sex discrimination and sexual harassment.
The article is organized as a series of myths: “Sex discrimination is no longer prevalent,” “Sexual harassment is no longer prevalent,” and “Sexual harassers are stopped and punished,” and upon reflection, it does appear that these are still widely-held societal beliefs. By probing into why these beliefs persist despite so much evidence to the contrary and into how they operate to obscure and amplify the harm caused by sex discrimination and sexual harassment, this piece yields a novel angle from which to confront these problems.
Of particular note is the author’s stating outright as her premise something that very much bears iteration: despite the much-lauded #MeToo movement and the heralded progress it has made in the headlines, this is just the proverbial “tip of the iceberg,” when it comes to truly ending this scourge on the American workplace. From there, Professor Chew’s handling of the three myths is rich in both its approach and its conclusions, one of the most powerful being that “harassed employees are disadvantaged at every stage of the reporting and resolution process, often leading to their frustration and failure.”
Myth number one, that sex discrimination is no longer prevalent, is, as the author notes, a widely-shared belief, but completely untrue. Professor Chew demonstrates this after concretizing notions of “discrimination,” as specifically: 1) pay disparities between the sexes; 2) the underrepresentation of women in whole career categories and spaces; and 3) microaggressions that women must disproportionately endure in the workplace. I really enjoyed Professor Chew’s discussion of the narrative that has emerged that the American workplace is somehow “post sex-discrimination,” and her probing and interrogation of that narrative.
According to Professor Chew, the commonly upheld narratives that 1) “there are natural and appropriate roles for women and men that justify discrimination in the workplace;” and that 2) “that it is just a matter of time for women to achieve parity and that it is largely up to women to do so,” serve to engender a complacency and even a denial of reality that harms women as a group. This articulation really hits the nail on the head, especially the first one, which invokes the idea of the “ideal worker,” whose attributes are at odds with those of the societally-held conception of the “ideal woman.” These narratives deserve aeration and probing.
The second myth, that sexual harassment is no longer prevalent, receives similarly thorough and eye-opening treatment. As with the first myth Professor Chew assembles the latest and greatest literature on the subject, adding her own illustrations and insights to illuminate and spark thought. The role of sex segregation in the workplace and the role of power disparities in engendering harassment are set forth and richly illustrated with caselaw. Professor Chew also establishes the interrelatedness of sexual harassment and sex discrimination in a way that is pointed and powerful.
The third and final myth explored in this piece, that “sexual harassers are stopped and punished,” is just as crucial to interrogate as the first two myths. After establishing that harassers are too often given license to become recidivists, Professor Chew breaks down the root causes of this phenomenon: victims failing to report harassment, the obstacles and impediments erected in victims’ paths by the litigation process (everything from stacked legal standards to the potential for retaliation from all angles), and arbitration’s disadvantaging victims in various ways. Illustrations animate and inform Professor Chew’s points in this well written, well-researched piece that ought to spark much conversation and thought.
In sum, it is crucial that we interrogate and eviscerate the rationalizations that drive complacency when it comes to sexual harassment and sex discrimination in the workplace. This piece identifies powerful forces that engender and perpetuate both workplace sexual harassment and sex discrimination. It also critiques the view that we, as a society, have somehow moved past these problems and that those responsible for them have been stopped.
Moreover, it furnishes proposals at its conclusion that are as worthy of consideration as they are ambitious. Centered around closing the loops of the aforementioned disparities in the workplace and reconciling society with the falsities embedded in so many of its popularly-held narratives, these proposals are concrete and detailed. This piece is a much-needed wakeup call, replete with the research, insights, and conclusions that everyone who cares about workplace equality ought to be focused on right now.
May 17, 2022 Ryan Nelson
Dozens of administrative agencies regulate American workplaces. Yet, those agencies often fail to coordinate to their full potential, leaving workers and employers without efficient and just labor market regulation. For example, consider the 2015 memorandum of understanding (MOU) between the EEOC and the DOJ’s Civil Rights Division regarding ADA and GINA charges against state and local governments, which clarifies the jurisdiction of the respective agencies, but fails to establish a mechanism for sharing information between them. On the other hand, the MOU between the DOL and the DOJ regarding criminal prosecutions of workplace safety laws from the same year establishes an information-sharing mechanism, but fails to coordinate interagency investigation and enforcement efforts. Neither commits to interagency consultations, compliance reviews, or research initiatives.
Should they? How are federal labor market regulators coordinating, and what might ideal coordination look like? Professor Hiba Hafiz’s new essay, Interagency Coordination on Labor Regulation, answers those questions with the support of untold legal histories, administrative law doctrine, and a remarkable empirical analysis. She assesses how these regulators coordinate in haphazard, ineffective ways—like long-time business partners slowly hammering out, over the span of decades, how to best work together when they could have sat down and established the framework for an efficient working relationship years earlier. Having explicated the problem, she concludes by identifying some best practices and offering a normative proposal for agencies to benchmark the effectiveness of their coordinating efforts. In my estimation, Hafiz’s essay is that rare piece that not only identifies a problem that has not been given proper attention, but also proposes a salve that would make regulation more just and more efficient at the same time.
Hafiz begins by untangling the history of interagency coordination of labor regulation, which predominantly has been achieved via MOUs. Shockingly, to me at least (and probably to many others in my generation who only began to first study workplace law during the Obama Administration), interagency coordination of labor regulation began in the Nixon Administration as a tool of deregulation. For instance, Nixon- and Ford-era interagency coordination sought to: (a) delimit agencies’ jurisdictional boundaries so businesses wouldn’t be regulated by competing forces; and (b) mandate a centralized review of significant regulations to minimize unnecessary and burdensome overlap. Future Republican administrations largely mirrored this approach, whereas Democratic administrations leveraged interagency coordination for pro-regulatory ends such as the Obama Administration’s “expansive use of MOUs to ensure interagency coordination on worker protections and labor market regulation”—part of its broader “system of ‘strategic enforcement’ to prioritize high-propensity violators.” (P. 218.)
This history is a law-reform goldmine. Trying to convince a conservative regulator to pursue interagency coordination? Talk up its deregulatory merits. Progressive regulator? Talk up its utility as a tool for strategic enforcement. Indeed, interagency coordination is often both at the same time, as with Obama-era initiatives to streamline investigations and coordinate referrals between agencies, which was simultaneously deregulatory (because it decreased regulatory overlap) and a conduit for strategic enforcement (because it “target[ed] policy priorities in a range of underregulated areas or areas where workers were particularly vulnerable”). (Pp. 218-20.) Consolidating this complex history into a few digestible pages not only offers an expansive menu of options for interagency coordination, but also demonstrates that such efforts can serve seemingly-discordant ends. While I fully recognize that others might value the history that Hafiz has marshaled here out of intellectual curiosity, a desire to be exposed to different perspectives, or to leverage that history in furtherance of legal arguments, I found it most beneficial as a means of highlighting the sorts of external pressures that can effectively shape regulation.
Subsequently, Hafiz analyzes 112 examples of interagency coordination (e.g., MOUs) in an effort to identify best practices like “joint enforcement, joint investigation, and information-sharing.” (P. 228.) She then concludes by proposing six policy considerations that ought to drive benchmarking of the effectiveness of interagency coordination. Grading agencies, as Hafiz has, on the extent to which they effectuate the purposes underlying marquee workplace laws is ideal. It helps further Congressional intent and, therefore, mitigate against the common critique in both administrative law and workplace law circles—a critique levied with renewed zeal in the wake of the Supreme Court striking down the Biden Administration’s flagship workplace vaccine-or-test mandate in National Federation of Independent Business v. Occupational Safety and Health Administration—that the regulation of workplaces by unelected agencies is undemocratic.
If laws are like sausages (it’s better not to see them being made), I can only imagine what metaphor might appropriately describe regulations. At present, regulating the workplaces is a complex and dirty affair. Overlapping and underlapping jurisdictions. Opaque policies and practices. Fragmented approaches. Entropy. Into that morass, Hafiz’s essay deftly shines a light. And, more than that, she offers sound solutions for how to clean it all up.
Apr 28, 2022 Michael Z. Green
Veronica Root Martinez and Gina-Gail S. Fletcher as co-authors of a Yale Law Journal Forum essay, Equality Metrics, as well as Katrina Lee as an author of a Denver Law Review article, Discrimination as Anti-Ethical: Achieving Systemic Change in Large Law Firms, have 2021 papers that offer excellent reads and make important contributions to the discussion of ways to evaluate and hold employers accountable for their diversity commitments to their employees. In recognizing that employers have a responsibility to deliver results in response to their diversity commitments, the paper by Martinez & Fletcher and the paper by Lee both focus on transparency and accountability by seeking measurable means to determine diversity successes in the workplace.
Martinez and Fletcher focus on corporate entities of all types and Lee focuses on law firms. Both employer groups responded with increased diversity commitments and training efforts in support of the Black Lives Matter movement when heightened concerns about systemic racism arose after the senseless killing of George Floyd in July 2020. With the resulting backlash toward workplace diversity training after an Executive Order by President Trump and related initiatives, the importance of measuring diversity consequences became a key issue for 2021 that both papers seek to address.
In Equality Metrics, Martinez and Fletcher assert that there are specific and concrete steps that institutional investors may take to make sure corporations adopt what they refer to as “equality metrics” that disclose the current demographic diversity of their workforces as well those of related businesses within their supply chain and identifiable measures to meet improved racial equity goals. The co-authors acknowledge that many corporations had responded to George Floyd’s death through statements that involved “performative actions that met the moment without doing more” or without “actions likely to create sustained, meaningful change throughout their organizations.” As a response, their paper focuses on “starting at the top” to make changes by having institutional investors use their power and influence as an incentive for corporations to be accountable for their diversity pledges.
Martinez and Fletcher note that institutional investors possess “approximately eighty percent of the outstanding equity in the top 500 companies.” Although corporations and investors have historically shied away from taking positions on controversial social issues, the co-authors suggest that changing societal expectations have led to corporations taking more public and progressive stances on environmental, social, and governance matters.
In particular, the co-authors highlight as a key example the actions taken in 2020 in response to the Black Lives Matter movement by institutional investor BlackRock, the world’s largest asset manager. BlackRock provided transparent information about its workforce diversity along with concrete goals on how it intended to increase Black representation at various levels within its organization. But, BlackRock went further by also asking corporations that it invests with to publish specific diversity data.
The co-authors also explained that their solution of relying on institutional investors to encourage corporations to make voluntary disclosures and chart specific measures for diversity success represents an alternative to using an external regulatory source such as the Securities Exchange Commission (SEC) which has issued a rule seeking some disclosure of diversity information. They note that there are some limits and doubts as to whether the SEC may mandate corporate diversity actions.
Finally, in what I consider the most important aspects of the co-authors’ arguments, they explain how the pressure by institutional investors to encourage more transparent data on diversity demographics and to seek more specific measures to deliver concrete results will have a synergistic effect on other market participants in addressing systemic workplace discrimination based on race. Specifically, they assert that creating a database of information “measuring a firm’s current state of demographic diversity, setting a goal, measuring the firm’s progress toward that goal in light of the strategies it employed” can lead to identifying broad and “valuable insights for not only the firm itself, but also for the market more generally.”
This data set can establish a baseline for more comprehensive empirical analysis as to what measures are successful and those measures proving to be ineffective. Also, this transparent database of “equality metrics” can guide institutional investors and lead to changes in corporate behavior while debunking critics who do not accept the existence of any systemic discrimination and challenge any diversity efforts as being unnecessary and discriminatory.
Likewise, Lee pursues the same agenda of making employers more transparent in providing diversity data and being held accountable for their diversity pledges. Unlike corporate entities, Lee focuses on large law firms in her article, Discrimination as Anti-Ethical: Achieving Systemic Change in Large Law Firms, Lee describes how large law firms in the United States responded to the killing of George Floyd and also Breonna Taylor in 2020 by “issuing statements acknowledging systemic inequities and bias” while also pursuing “their commitment to diversity and inclusion, and to racial justice.”
In noting that large law firms in the partnership ranks “remain very white and very male,” Lee seeks to discover a mechanism that “holds large law firms accountable for perpetuation of systemic discrimination.” Lee proposes that states should modify attorney ethics rules of professional conduct to require diversity transparency in pay practices, measures for self-assessment in obtaining milestones, and financial incentives to obtain compliance. Specifically, Lee seeks to modify Rule 8.4(g) of the ABA Model Rules of Professional Conduct and corresponding state ethics rules concerning discrimination and harassment in the legal profession.
In pursuing this objective, Lee catalogs the significant history of systemic bias and gender discrimination by large law firms in their partnership compensation decisions. Lee then explains how numerous initiatives aimed at increasing diversity and inclusion have failed in improving the representation of women and women of color at the partnership level. Lee asserts that current attorney ethics rules including Rule 8.4(g) regarding discrimination and harassment merely operate as “window-dressing . . . with no disciplinary force” to make law firms accountable to address terms and conditions including salary disparities. As a response, Lee argues for changes through a combination of state legislation and state modifications of the adopted Model Rules to mandate specific policies and procedures that law firms must comply with or face ethical sanctions.
In particular, and what is most salient to the issues identified in this Jot, Lee’s proposal would require large law firms to provide transparency in pay information decisions and a self-assessment and reporting of progress in achieving stated milestones developed by either the state supreme court or by the ABA in its model rules as adopted by the states. The firms must report mean and median pay data across the law firm, including for both associates and partners, and also provide the gender and racial make-up of those assessing partner compensation. The milestones might include “bias-interrupting suggestions [to] include instituting a formal succession planning process; annualizing billables based on the average of months the attorney was at work; and accounting for a ramp-up and ramp down period.” Lee views the self-assessment information as being extremely helpful in educating all firms in compliance with the diversity-related goals of the firm that have to involve more than just diversity training.
Lee ends her proposal by suggesting that there must also be a financial incentive for firms to comply with the transparency goals to achieve diversity and inclusion and to take efforts to meet established milestones. Such financial incentives might encompass payment of an administrative fee subject to refunding when goals are met or having state authority to punish non-complying firms with a donation as a financial penalty.
Lee recognizes that there are barriers to state adoption of her proposal including a lack of state resources, a need for law firm autonomy, unintended harms to lawyers in underrepresented groups due to financial penalties that may end up providing less opportunities for advancement, and the current problem that many states have not even adopted Rule 8.4(g) and would be even more unwilling to do so with the modifications Lee suggests. Lee argues, however, that law firms and their leaders who have heartfelt concerns that led them to adopt diversity pledges in response to the Floyd and Taylor deaths in 2020 will be helped by having state bar disciplinary bodies as an enforcing function when responding to those who object to their diversity pursuits.
As the papers by Martinez and Fletcher and by Lee highlight, employers must be incentivized to meet the need for transparent data aimed at adopting successful measures to achieve diverse workplaces. Regardless of whether their suggestions of using institutional investors or state ethics rules will result in the development of such transparent data will be a question for future development. These papers have independent and immediate importance by clarifying how necessary it is to find ways to obtain this data in the midst of employer responses to a desire for a racial reckoning in our society related to Black Lives Matter and related 2020 deaths. With little indication that diversity training and other related initiatives have moved the needle in any fashion in accomplishing key racial improvements in the workplace, these papers unearth different methods to provide employer transparency regarding their diversity results.
By also seeking to provide transparency about self-assessment of various measures, this Jot emphasizes the significant value presented by both papers in seeking to establish key databases that will assist with ongoing empirical assessments to address systemic workplace discrimination. Then employees will have the benefit of employing tools to measure and hold employers accountable for their diversity commitments rather than being subjected to empty statements and useless actions.
Apr 12, 2022 Catherine Fisk
Cynthia Estlund & Wilma Liebman,
Collective Bargaining Beyond Employment in the United States, 42
Comparative Labor Law & Policy Journal __ (forthcoming, 2021), available at
SSRN.
A conventional (and oversimplified) account describes U.S. work law as a mix of two regulatory structures: the labor law model and the employment law model. In the labor law model, law facilitates workers to act collectively to negotiate from a position of relative equality over any terms they and their employer consider important. The labor law model allows flexibility to address the different needs of different industries and minimizes judicial and agency intervention. In the employment law model, law imposes minimum conditions to protect workers regardless of whether they negotiate collectively. This model protects numerical minorities whose right to fair treatment will not be protected by the majority through collective bargaining; it protects those unable or unwilling to unionize; and it protects the interests of the public in ensuring that no individual or collective labor contract falls below certain minimum standards.
Companies determined to avoid both of these regulatory regimes have found a boon in classifying their work force to be nonemployees. Presto: no need to comply with the myriad employment laws, and no legal right to unionize! And, faced with the possibility that workers might unionize even without any legal protection, they invoke antitrust law – presto, collective action is not only unprotected, it is illegal! App-based ride hailing or delivery companies have been leaders in this strategy. Using technology, Uber, Lyft, DoorDash, and other companies have figured out they can have all of the benefits of a huge, centrally-managed, on-demand fleet of drivers and none of the costs. Without any employment protections or the power to bargain collectively, app-based drivers endure wages well below the federal minimum wage of $7.25 on hour, and no social insurance of any kind.
In some blue states and cities, worker advocates turned to legislation to secure protection denied to independent contractors under federal law. When Seattle, through a combination of state and city legislation, created a system allowing collective representation for drivers, the Chamber of Commerce destroyed it through protracted antitrust litigation. When the California Supreme Court and Legislature both extended many state employment protections to all workers, the app-based service companies spent over $200 million to secure adoption of a wildly misleading ballot initiative (Proposition 22) wiping out those protections. A hidden term in that measure—one buried so deep in fine print that the nonpartisan legislative analyst failed to mention it in the voter information pamphlet—prevents the Legislature from authorizing any collective representation. The obvious and only purpose of that hidden provision is to enable the app companies to use federal antitrust litigation against any drivers or unions that might seek to organize and negotiate collectively. Litigation challenging the validity of various aspects of Proposition 22 is now in the California Court of Appeal, after worker advocates won a trial court ruling that the initiative violates California constitutional restrictions on the permissible use of legislative initiatives.
Surveying the law that has led us to this situation and the welter of state and local efforts to address it, Cynthia Estlund and Wilma Liebman offer a crisply-written and clearly-argued analysis in Collective Bargaining Beyond Employment in the United. They explain how the field of work law in the United States has returned almost to where it was during the dark days of Jim Crow and the Gilded Age. Workers theoretically have legal rights, but companies use a combination of one-sided contracts, with class action waivers and arbitration agreements, and the threat of antitrust litigation to ensure that workers actually have no rights.
This article is an ideal source to use in a work law and policy seminar or as an overview for anyone curious about the state of the law and of political organizing to combat the deregulatory use of misclassification and the corporate turn to antitrust to thwart state or local efforts to address misclassification.
The article begins with an admirably clear explanation of the use of antitrust law to prevent collective action by “self-employed” workers. They point out that workers “are reenacting on a much smaller scale the pre-New Deal history of organized labor in the United States” when corporations and sympathetic courts wielded antitrust law as a powerful weapon against worker organizing.
Estlund and Liebman then explore three “safe harbors” from antitrust liability for self-employed workers. First, they briefly explain the so-called “labor exemption” from antitrust. This is the argument that both the 1914 Clayton Act, which amended antitrust law to exempt labor actions from antitrust liability, and the 1932 Norris-LaGuardia Act, which stripped federal courts of the power to enjoin “labor disputes,” protected from liability any worker collective action over working conditions, not just the activities of “employees.” Thus, as Estlund and Liebman explain, section 20 of the Clayton Act prohibits the application of antitrust law to “prohibit any person or persons, whether singly or in concert, from terminating any relation of employment, or from ceasing to perform any work or labor …, or from recommending, advising, or persuading others by peaceful means to do so.” And the Norris-LaGuardia Act strips jurisdiction from courts to issue injunctions or other relief in “any controversy concerning terms or conditions of employment, or concerning the association or representation of persons in negotiating, fixing, maintaining, changing, or seeking to arrange terms or conditions of employment, regardless of whether or not the disputants stand in the proximate relation of employer and employee.” They explain, relying in part on the Supreme Court’s recent construction of the 1925 Federal Arbitration Act, that in the early twentieth century a clear distinction between employees and independent contractors did not yet exist, and the term employment was used “more or less as a synonym for work,” and “[a]ll work was treated as employment, whether or not the common law criteria for a master-servant relationship happened to be satisfied.”
The second antitrust safe harbor is the First Amendment. Although the Supreme Court has denied First Amendment protection for concerted labor activity that is “coercive” or motivated by financial self-interest, however those are defined, it has under the Noerr-Pennington doctrine sheltered from antitrust collective lobbying for government action.
Finally, the article brings much needed clarity to the state action exemption from antitrust liability. A state can authorize anticompetitive activity if its policy is clearly articulated and if the state “actively supervises” the regulatory framework that authorizes anticompetitive activity. This exemption has been at issue when, as in Seattle, state or local governments have created collective bargaining rights for workers excluded from federal labor law. And it is the threat that Proposition 22 hangs over incipient organizing.
The second part of the article (“Experiments in Collective Bargaining Beyond Employment”) surveys the efforts (mainly on both coasts and in other blue areas) to find legal and organizing strategies for legislating and bargaining minimum labor standards for “non-employee” workers. A central choice worker organization leaders face is whether to accede to the companies’ adamant insistence that any collective bargaining must accept the premise that the workers are independent contractors (as the Machinists did when agreeing to a limited form of collective representation of New York for-hire drivers in 2016), or whether to push for employee status (as labor did in California until Proposition 22 wiped away labor’s win). This is an issue that has divided the labor community and, as Estlund and Liebman forthrightly show, there are good arguments on both sides of that debate within the house of labor.
One approach has been to push for state legislation creating a sectoral bargaining framework for drivers regardless of their employee status. The article describes legislative efforts in Connecticut and New York to achieve this. Although neither legislature has yet passed such a bill, it is clear that states can create collective bargaining rights for workers excluded from the NLRA. California did exactly that for farmworkers when it enacted the Agricultural Labor Relations Act in 1975, and other states did so too. Although agribusiness sued to invalidate the ALRA, and the United Farm Workers challenged Arizona’s more anti-labor agricultural labor relations act, in both instances asserting that Congress intended, when excluding farmworkers from the NLRA, to prevent collective bargaining, state and federal courts rejected the challenges to the ability of states to regulate farmworkers excluded from the NLRA.
Another approach that Estlund and Liebman consider is for states to create tripartite standards-setting boards composed of representatives of workers, employers, and the public. As Estlund and Liebman point out, tripartite negotiated labor standards-setting is common outside the U.S. and was used in the U.S. during both World War I and World War II. Tripartite negotiated regulation is also common in areas of law other than work. As Kate Andrias pointed out in her seminal work that has revived interest in tripartite sectoral bargaining, many states have tripartite boards in various sectors. California has them for regulating energy, public utilities, water, and for the state’s 840 miles of coastline, and is considering legislation that would adopt a tripartite board in the franchised fast-food sector. Seattle created a tripartite sectoral bargaining framework in 2018 for in-home care and cleaning work.
There is a bitter irony in reading an article by a leading scholar of labor law and the former Chair of the National Labor Relations Board that pays zero attention to the elegant structure of the federal labor law in which they have long worked. It’s a sign of how broken our legal system is that federal labor law experts must turn their back on that law and dig deep into both antitrust law and state and local law to find a path to legal protection for some of the poorest and most exploited workers in the world’s wealthiest country. As the authors acknowledge, millions of workers in the U.S. are designated as non-employees. Their article focuses on a single slice of them—those working for app-based driving and delivery services—because the handful of fantastically wealthy companies that dominate that space have acted as the most rapacious capitalists in driving down labor prices for their predominantly nonwhite and immigrant workforces, buying legislative dominance, and resorting to antitrust litigation to invalidate the few protective laws that manage to elude their legislative and litigation juggernaut. But the intriguing story told in this article is that there is a path forward.
Mar 3, 2022 Joseph Seiner
In [Un]Usual Suspects: Deservingness, Scarcity, and Disability Rights, Professor Doron Dorfman performs a superb analysis of the issue of accommodations for individuals with disabilities and the perception and attitudes of the public with respect to these accommodations.
The Americans with Disabilities Act (ADA) requires, under federal law, that those individuals with disabilities be provided with reasonable accommodations that do not cause undue hardship. The accommodation provisions of the ADA are wide-ranging, and cover both public and workplace accommodations. Though Professor Dorfman’s analysis in this paper is largely in the public accommodation context, the research is directly applicable, and important to, workplace issues and employment.
In this piece, Professor Dorfman looks at the many types of accommodations to which those with disabilities are entitled under federal law, and explores how nondisabled persons may perceive that these types of “special rights” are being abused. More specifically, he examines the perception by some that these accommodations are unnecessary or are being exploited, resulting in the (phrase coined by Professor Dorfman), “fear of the disability con.” In this paper, Professor Dorfman examines how these types of concerns by nondisabled members of the community can begin to erode trust in the ADA, as well as subject individuals with disabilities to both harassment and questions about their protected status.
In performing this analysis, the paper draws from an online experiment performed by the author involving 3,200 Americans on the topic, as well as numerous qualitative interviews. The results of this study were fascinating. Indeed, Professor Dorfman found that the relative scarcity of the resource being provided (e.g. parking spaces) did not impact the extent to which those perceived that individuals with disabilities were engaged in “the disability con.” Instead, Professor Dorfman’s novel research found that the suspicions were largely motivated by a subjective perception of “deservingness” of the accommodation by those non-disabled members of the public. This is a somewhat surprising and important distinction—those who believe that individuals with disabilities are engaged in a “con” of the system through their membership in a protected class hold these beliefs not because of the limited availability of a particular accommodation/resource but instead because of the perception that these individuals are not deserving of the particular accommodation in question.
There is far too little empirical work of the type being done so expertly here by Professor Dorfman in the legal academy. Both the numerical results and qualitative data are illuminating, and provide an important look at the perceptions of the public on this type of disability rights legislation. Professor Dorfman takes the next step with his research in the paper, and explains the importance of his research for the ways civil rights laws are drafted and implemented. As he eloquently concludes, “With regard to fear of the disability con, it is essential for policy makers, law enforcement personnel, disability rights advocates, and academics to continue to raise awareness of the topic, expand the views of deservingness with regard to disability rights, and take action to prevent the harassment of disabled individuals.”
As noted previously, this paper primarily explores these types of misplaced attitudes of the public in the context of public accommodations. The paper looks specifically at two examples of such accommodations, disabled parking and line-access at Disneyland, both of which provide fascinating examples for exploring this topic. Professor Dorfman uses these examples to examine the psychology of what he refers to as “the disability con.” The type of perceived “fakery” goes well-beyond the public accommodation context, however, and has direct implications for work law and employees across the country.
I selected this paper to review specifically because of the importance of Professor Dorfman’s work here outside of the public accommodation context. As others have addressed, there are similar misplaced concerns over these types of perceived “disability cons” taking place in the workplace setting. See, e.g., Nicole Porter, Special Treatment Stigma After the ADA Amendment Act, 43 Pepp. L. Rev. 213 (2016). Many non-disabled workers likely perceive that those receiving a requested accommodation as part of their employment are similarly “abusing” the system the same as those requesting public accommodations. Intuitively, it would seem that these misplaced perceptions are the result of scarce resources, i.e. employers providing limited resources to workers with disabilities instead of others. Professor Dorfman’s research suggests otherwise, and implies that these attitudes are instead the result of some workers’ belief that an employee with a disability is simply not “deserving” of a particular accommodation.
Of course, extrapolating Professor Dorfman’s research into the area of employment law must be done carefully, and further empirical analysis should be done in this area before drawing any firm conclusions. Nonetheless, it is an area worth exploring given the novel results of the research in this paper. Indeed, a better understanding of this area of workplace law will help legislators to craft future laws in this area, and assist employers in enacting these specific provisions. It is important to enhance trust in the workplace provisions of the ADA, as well as to help prevent individuals with disabilities from being harassed (as well as being subjected to other adverse treatment and unwarranted scrutiny) because of the misplaced perceptions of some over accommodations that are provided.
As a final note, Professor Dorfman follows up his work in this paper with another novel look at the perceived “disability con” in the context of service dogs and emotional support animals in his paper, Suspicious Species, 2021 U. Ill. L. Rev. 1364. That paper explores the perception of the public of this type of more specific accommodation.
Cite as: Joseph Seiner,
Public Accommodations, Public Perceptions, and Workplace Law, JOTWELL
(March 3, 2022) (reviewing Doran Dorfman,
[Un]Usual Suspects: Deservingness, Scarcity, and Disability Rights, 10
UC Irvine L. Rev. 557 (2020)),
https://worklaw.jotwell.com/public-accommodations-public-perceptions-and-workplace-law/.
