Employment Discrimination Law Research Articles

Reverse Discrimination: An Opportunity to Modernize and Improve Employment Discrimination Law

Reverse Discrimination: An Opportunity to Modernize and Improve Employment Discrimination Law

Laurie in Paris. Diffusion, discussion and influences of Lauren Edelman's work in France

As someone who was privileged to call Laurie B. Edelman a mentor and also a friend, I write this short essay to highlight the international diffusion of her research and in particular, the important legacy she has left to French scholarship on law and society. Laurie certainly preferred Italy, Bellagio, and Lake Como notably, but she did not hate Paris either, and she traveled here several times for academic events. Beyond this, however, her work has been very influential for many young French researchers in recent years. As an actor facilitating the diffusion and discussion of Laurie's work in France, I want to pay tribute to her by describing how the legal endogeneity theory that she gradually forged based mostly on her work in employment discrimination law has been understood by French sociologists, institutionalist economists and political scientists over the last 20 years. In the remainder of this essay, I first point to some milestones in the attention to and diffusion of her work in France. These include theses, invitations to colloquia, and the publication of books and special issues of journals. Second, I evoke various publications and how they have been further mobilized in French law and society scholarship. Third, I point to two main avenues of thought that have been opened up so far.

Laurie Edelman: Scholarship and mentorship in action

My last email to Laurie Edelman, sent in September 2022, forwarded a Tenth Circuit Judicial Council Order discussing allegations against a District of New Mexico magistrate judge related to a special committee's finding that it “had reason to believe that she had engaged in sanctionable misconduct.” In letting Laurie know that this was “piece of evidence 1,000,001” that she had long “been so very correct” in her scholarship, I noted that the Order had found that many of the magistrate judge's employees chose not to report the conduct “because they feared retaliation” and still others “did not know if her behavior would constitute abusive conduct or a hostile work environment.” This was exactly what her scholarship has always described as two significant weak points in the enforcement of employment discrimination law and the realization of a fair and equitable workplace (Edelman 2016). In my mind, this September 2022 email epitomized what I had come to know—first as Laurie's former graduate student and research assistant, and now as a practicing lawyer—that Laurie was right. Her theories about endogeneity, symbolic structures, and the challenges of enforcing regulatory laws had broad applicability and this was just another instance of how, in practice, her theories and predictions proved to correctly identify real-world problems.

Reasonably Accommodating Employment Discrimination Law

Reasonably Accommodating Employment Discrimination Law

ANTITRUST AND INEQUALITY

ANTITRUST AND INEQUALITY

Understanding Latinas/os/xs Undergraduate Experiences in a Business School through the Working Identity Lens

ABSTRACT Our study presents some of the voces of Latinas/os/xs undergraduates in a western U.S. business school to explore the concept of “working identity” in employment discrimination law under Title VII of the 1964 Civil Rights Act. While overt racial discrimination is outlawed, racial salience through factors such as phenotype, accent, demeanor, associations and assimilation all impact the way employers see potential applicants and fit with future corporate job roles. We used this conceptual framework to gain insights into ways that some Latinas/os/xs students initially experienced the pressure of “working identity” through their education in schools of business. We selected students majoring in business because it is a popular major and diversity, equity and inclusion efforts have taken hold in business school contexts. The five participants in our study were majoring in accounting, business administration and management, and preparing for their future as employees in the business world. The first part of our paper provides an overview of the context of business schools and diversity; research on Latina/o/x student experiences in higher education, and the significance of the “working identity” concept; followed by our methods section, results and interpretation of how the pressures to perform working identity negatively impacts Latinas/os/x students.

Working 9 to Non-Stop: The Fair Housing Act's Sexual Harassment Protections for Domestic, Agricultural, and Other Live-In Workers

Live-in workers, for whom their bosses are typically also their landlords, are often trapped in sexually harassing situations that feel as though they have no practical or legal redress, especially when the worker’s harasser can both fire and evict them in one fell swoop. This Note explores the novel possibility of using fair housing law, including the Fair Housing Act (“FHA”) and state/local fair housing statutes, as a tool to provide legal protections to workers with employer-provided housing (“live-in workers”) who experience sexual harassment or violence in the workplace. There is currently very little case law in which live-in workers have brought fair housing and employment discrimination claims simultaneously, and functionally no case law in which attorneys have brought both claims for live-in worker sexual harassment cases. This Note argues that, under existing fair housing law, many live-in workers should be eligible to bring claims under the FHA and equivalent state laws that prohibit discrimination in housing. As a result, the FHA and equivalent state claims can provide sexual harassment and assault protections for workers, including domestic workers and farmworkers, who may not receive protections under federal or state employment discrimination law. Furthermore, this Note argues that the FHA can provide supplemental or stronger protections from sexual harassment for live-in workers than traditional Title VII or employment discrimination claims. It accordingly suggests that plaintiffs facing harassment or sexual assault in live-in industries should pursue fair housing claims in addition to or in place of Title VII and employment discrimination claims, in order to achieve maximum protection and relief.

Epstein on Private Discrimination: Searching for Common Ground

In the midst of a brilliantly independent academic career, Richard Epstein wrote perhaps his most contrarian work in 1992: Forbidden Grounds: The Case against Employment Discrimination Laws. In this short essay, I ask whether there can be any common ground between Epstein and those who generally defend laws against private discrimination, including myself. One possibility is the more subtle contribution Epstein makes in shifting the evaluative discourse from the deontological to the consequential. Without agreeing with his assessment of costs and benefits, one can embrace Epstein’s normative framework (even) in this legal domain. As Epstein provides a compendium of costs to employment discrimination laws, I offer here a compendium of possible benefits against which the costs should be weighed. Doing so leaves plenty of room for disagreement but perhaps surprisingly provides additional support for Epstein’s critique of the Age Discrimination in Employment Act.

The Invisible Ban: Negligent Disparate Impact

The murder of George Floyd ignited a resurgence of civil rights activism. Spearheaded by Black Lives Matter, this movement has sparked a new dialogue to address racial inequities. In this current atmosphere of heightened awareness, Title VII of the Civil Rights Act of 1964 provides a unique opportunity to advance the cause of civil rights by expanding job opportunities for African Americans. As currently interpreted, Title VII provides two primary anti-discrimination theories: disparate treatment and disparate impact. Disparate-treatment law prohibits intentional employment discrimination against a member of a protected class. Disparate-impact law imposes strict liability on employers that use facially neutral employment practices that have a disproportionately adverse effect on a protected class. This Article suggests following the structure of tort law as a template for the law of employment discrimination. A comparison of Title VII to tort law reveals that an analogy to negligent torts is absent from Title VII. The means of rectifying this deficiency is clear. The very language of Title VII suggests the duty, causation, and injury elements of a claim of negligent disparate impact. Following the tort analogy, negligent disparate-impact claims would provide a more expansive array of remedies than those that are available under the current theory of disparate impact. Specifically, compensatory damages and a broad spectrum of equitable remedies would be available to victims of negligent disparate impact. In keeping with the negligence model, this Article then suggests how to adapt the business-necessity defense and the less discriminatory alternative doctrine to negligent disparate-impact theory. This Article concludes by pointing out the benefits of recognizing this claim. First, victims would be entitled to remedies that fit the level of wrongdoing, and enhanced remedies would incentivize victims to seek redress. The risk of such liability would spur employers to cleanse their workplaces of practices that might result in discriminatory outcomes. Negligent disparate-impact theory would therefore deter employment discrimination. Equally important, recognition of a claim for negligent disparate impact would reaffirm federal law’s dedication to achieving equal opportunity in the workplace.

The New Law of Gender Nonconformity

A central tenet of sex discrimination law is the protection of gender nonconformity: unless a feature of biological sex requires it, regulated entities may not expect that individuals will conform their gender performance to the stereotypes of their sex. This doctrine is critical to promoting the anti-stereotyping aims of sex discrimination law by allowing gender nonconformers from aggressive women to caregiving fathers to challenge expectations that would limit them to the gender performance that accords with their sex. Courts have extended gender nonconformity protection to transgender persons in cases where discrimination is due to gender performance. Notwithstanding its partial success, the gender nonconformity doctrine has been the wrong path for pursuing transgender rights. The doctrine has led to losses when transgender persons are discriminated against not for their gender performance, but for seeking recognition as their identified sex rather than the sex they were assigned at birth. Transgender plaintiffs are likely to continue to lose under the doctrine when seeking such recognition in the long list of contexts—like bathrooms, dress codes, sports, schools, and beyond—that are still lawfully sex segregated. Even transgender plaintiffs’ successes under the doctrine are Pyrrhic victories. Under the gender nonconformity doctrine, a plaintiff who was designated male at birth but who identifies as female is an effeminate man rather than a woman. The doctrine thus reinforces the notion that transgender persons are their birth-designated sex, contrary to substantial medical and legal authority, and to transgender persons’ own identity. And treating transgender plaintiffs as gender nonconformers risks harm not only to transgender rights but to protection for gender nonconformity by raising the bar to prove such claims, even in paradigm cases. These losses and harms are not inevitable. They all stem from one error—misunderstanding transgender status as a matter of gender rather than sex—that can be corrected. The Supreme Court decision this term in Bostock v. Clayton County holding that transgender discrimination is sex discrimination under federal employment discrimination law without relying on the gender nonconformity doctrine begins to show us how. But while Bostock’s textual approach avoids the pitfalls of the gender nonconformity doctrine, it places transgender discrimination outside the core anti-stereotyping concerns of sex discrimination law. This is harmful legally when courts have to balance transgender rights against religious freedom, and socially when transgender rights are seen to compete with women’s rights. So while courts should follow Bostock’s turn away from gender nonconformity in recognizing transgender discrimination across sex discrimination law, they should uphold what Bostock denies: that transgender discrimination is of a piece with well-recognized forms of sex discrimination and that protecting transgender rights promotes sex discrimination law’s historic role in fighting sex stereotypes.

Bostock v Clayton County Game Changer: US Federal Employment Law Now Covers Caste Discrimination Based on Untouchability

The California Department of Fair Employment and Housing (DFEH) sued Cisco Systems, Inc. regarding its discriminatory treatment of its employee John Doe, a Dalit (this group was formerly known as “outcastes” or “untouchables”). Before the summer of 2020, asserting an employment discrimination claim of intentional caste discrimination based on untouchability would have been very contestable. However, the legal analysis utilized by Justice Neil Gorsuch, for the Supreme Court’s decision of June 15, 2020 in Bostock v Clayton County appears tailored to the issue of whether the alleged employment discrimination suffered by Dalits fits within the prohibitions of Title VII and 42 USC $1981. Applying a textual analysis of Title VII, the Supreme Court concluded that discrimination against gays, lesbians and transgendered individuals meets the definition of sex discrimination because a person’s status as gay, lesbian or transgendered is inextricably entwined with their sex. Thus, while being homosexual or transgendered is a “but for” cause of their discrimination, their sex is another one. Caste discrimination based on untouchability derives from the dominant version of Hinduism that stems from India’s 3,000-year-old caste system. For simplification, in orthodox Hinduism the “caste system” consists of four distinct ‘varnas’ or major occupational groupings, also known as castes, with Dalits constituting a fifth caste outside the four-fold system. Dalits, who make up about 16.5 percent of India’s population, have traditionally occupied the very bottom levels of the caste structure and thus, India’s social-economic structure. The status of Dalits is associated with occupations historically regarded as ritually impure. For thousands of years, Hindus believed that Dalits were religiously polluted and this pollution was contagious. In the modern parlance of the COVID-19 era, Caste Hindus engaged in extreme social distancing measures to avoid contact with Dalits, including staying far enough away so that a Dalit’s shadow (six feet) did not touch them. Since this religious pollution stemmed from birth, Daltis, even today, cannot escape it by deed, increase in educational credentials or rise in social or economic standing. Caste discrimination is a mostly hidden form of discrimination in the US. As Indians emigrated from South Asia to other parts of the world, including the US, they brought their beliefs with them, including those about the caste system. There are now over 4 million people of Indian descent in the US. However, experts estimate that Dalits make up less than 2 percent of those of Indian descent. Nevertheless, as the number of Indian immigrants has increased, so have the incidences of caste discrimination based on untouchability. Dalit activists and their supporters throughout the world have advocated for global recognition of the discrimination they face not just in India, but other countries where they reside. But, caste discrimination does not fit neatly into the normal categories of discrimination of race, ethnicity, national origin or religion. As a result, a number of western countries have struggled to find legal protection for the discrimination Dalits encounter. And, India does not provide legal protection against caste discrimination by private employers. This article is the first major work to address the issue of caste discrimination based on untouchability under Title VII and Section 1981 in the aftermath of Bostock. In doing so, it asserts that caste discrimination based on untouchability is now illegal under both Title VII and Section 1981. Because of the prodigious international weight of US law, from a global perspective for the 200 million plus Dalits in India alone and the Dalit diaspora, a determination that US federal employment discrimination law now bans caste discrimination based on untouchability will have incalculable global ramifications. Thus, this article will also quickly draw huge international attention.

Why Retirement and Age Discrimination Policies Need to Consider the Intersectional Experiences of Older Women

We summarize how older women face intersectional experiences that affect their retirement security. These include differential trends in aging, life expectancy, labor supply, work history, retirement savings, and poverty at old age. We also highlight research showing that older women experience significantly more age discrimination than older men. affecting the ability for older women to improve their retirement security by working longer. We demonstrate through examples that these differential trends and intersectional experiences of older women have important policy implications. We provide examples of how Social Security policies, such as increases in the full benefit retirement age and changes to the retirement earnings test, have differential effects on older women. We also discuss how age and gender employment discrimination law fails to protect older women from intersectional sex-plus-age discrimination. We conclude by urging policymakers to consider how older women experience different challenges and how policy should consider their unique experiences.

Employers Must Beware of Scapegoating When Disciplining Employees During Union Activity

Employee discipline seems to become more complicated by the day. The concept of at‐will employment has been steadily eroded by a bevy of employment discrimination and related laws that prohibit discipline and termination on an ever‐increasing number of bases. For 85 years, the National Labor Relations Act has provided one of the longest‐standing limitations by prohibiting discipline based on employees' support for a union. Businesses faced with disciplinary decisions will often rely on the fact that they did not know a disciplined employee had engaged in protected activity as a defense if the lawfulness of its action is challenged. However, as recently announced in Napleton 1050 Inc. v. NLRB (D.C. Cir., October 6, 2020), an employer's lack of knowledge of an individual's participation in protected activity will not win the day with respect to an otherwise unlawful act.

Feminism and #MeToo: The Power of the Collective

In this chapter, written for the forthcoming Oxford Handbook on Feminism and Law in the U.S. (Deborah Brake, Martha Chamallas, & Verna Williams eds.) (forthcoming 2021), I situate #MeToo as a feminist movement and consider what it — and the responses to it — reveal about challenges for feminism, especially the challenges brought on by individualization and emerging anti-feminist collective narratives. In doing so, I draw lessons from history, including the effort to combat sexual harassment through employment discrimination law, as well as from contemporary commentary. #MeToo may turn out to be the most powerful feminist movement of the 21st century. It brings to the forefront the depth and breadth of sexual abuse and harassment in our society and calls for meaningful change. It will only achieve that change, however, if its supporters can resist individualization and respond adequately to competing collective counter-narratives.

People with Intellectual Disabilities and Employment Discrimination Law: A US Case Study

This article explores how anti-discrimination law has been applied in relation to employment discrimination faced by people with intellectual disabilities. Although disability discrimination laws are now found in many states, there has been relatively little litigation by those with intellectual disabilities as regards employment discrimination. This article examines experience in the USA in order to identify the potential of anti-discrimination law, as well as its limitations in practice. It considers litigation brought by individual plaintiffs, as well as enforcement actions by public bodies. This concerns employment in the open labour market, but also sheltered employment schemes. The article concludes by reflecting on what lessons may be derived from US experience.

Of Moral Outrage in Judicial Opinions

Moral outrage is a substantive and remedial feature of our laws, and the Article addresses three questions overlooked in the scholarly literature. What do judges mean when they currently express moral outrage in the remedies portion of their opinions? Should judges express such moral outrage at all? If so, when? Relying on a branch of legal philosophy known as hermeneutics that deals with the interpretation and understanding of texts, the Article argues that in interpreting and understanding cases judges should express moral outrage when faced with individuals from communities whose voice has historically been at risk, is currently at risk, or is likely to be at risk of being silenced. The Article draws from water law, tort law, employment discrimination, property, and family law, among others, to offer the core insight that moral outrage should be its own emphatic remedy, and a philosophically informed approach to judicial interpretation requires expressions of moral outrage from the bench to address ongoing injustice or the threat of injustice directed at vulnerable communities such as women and religious minorities in the current political climate in the United States.

Caught by the Cat's Paw

Federal employment discrimination law is enamored with court-created doctrines with catchy names. A fairly recent addition to the canon is the concept of the “cat’s paw,” formally recognized by the Supreme Court in Staub v. Proctor Hospital. With its name coined by Judge Richard Posner and drawn from a fable, the concept of cat’s paw has taken ground quickly, discussed in hundreds of cases. This Article argues that the cat’s paw doctrine is a mistake, and the courts should abolish it. Before the Supreme Court recognized it as a separate doctrine, the Supreme Court decided numerous cases with facts that could now be called “cat’s paw” cases. The Supreme Court did not need or even mention the need for a new doctrine to adjudicate those cases. Strangely, the Supreme Court does not cite to any of these cases in Staub. Indeed, these Supreme Court cases are going to cause a judicial headache as lower courts try to reconcile pre-Staub jurisprudence with the court-created cat’s paw doctrine. The current cat’s paw doctrine muddles rather than elucidates complex concepts of intent, causation, and agency liability. Before cat’s paw doctrine becomes further entrenched, this Article provides a new and more complete history of the doctrine. This new history shows that courts did not need the cat’s paw doctrine prior to its creation. Even the Seventh Circuit decision that coined the phrase “cat’s paw” did not rely on cat’s paw to resolve the case. Importantly, there is only one way to reconcile Staub with several other canonical Supreme Court cases — to read it as simply recognizing one set of facts under which a plaintiff could prevail under federal discrimination law. Some lower courts are interpreting Staub to place significant limits on the scope of discrimination law. However, using cat’s paw to limit the scope is inconsistent with numerous Supreme Court cases, as well as the text and purposes of the discrimination statutes. Cat’s paw doctrine should be abolished while it is in its infancy because it is not needed and will likely lead to decades of confusion in employment discrimination jurisprudence.

Improving Employer Accountability in a World of Private Dispute Resolution

Private litigation is the primary enforcement mechanism for employment discrimination laws like Title VII, the Americans with Disabilities Act, and many related state statutes. But the expansion of extrajudicial dispute resolution—including both arbitration and prelitigation settlement agreements—has compromised this means of enforcement. This Note argues that state-enacted qui tam laws can revitalize the enforcement capacity of private litigation and provides a roadmap for enacting such legislation.

Disparate impacts and GINA: Congress's unfinished business.

ABSTRACTThe Genetic Information Nondiscrimination Act of 2008 (GINA) deviated from preceding employment discrimination laws by excluding disparate impact liability, an important enforcement component to promote substantive equality. Nevertheless, Congress did not intend for this to be a permanent exclusion and, instead, assigned itself future work: after six years, a commission was to educate Congress on genetic discrimination incidents, update Congress on relevant scientific advances in genetics/omics, and provide recommendations to Congress on the need to enable disparate impact liability. Ten years after GINA became law, it seems appropriate to take a look back at the broader employment law context within which Congress made this decision to exclude disparate impact liability for genetic discrimination, explore how and why Section 208 became inserted into GINA, and provide a status update on the additional policy work mandated. After reasonable investigation, there is no information to indicate that Congress fulfilled its statutory obligation to appoint members to a Genetic Nondiscrimination Study Commission or that any policy work envisioned by Section 208 has commenced. To fulfill a promise of fairness and equality, Congress must revisit the issue and enable disparate impact liability to value genetic diversity and prevent any ‘genetic underclasses’ from forming.

Employment discrimination laws: a country level analysis of voice and accountability

PurposeThis paper aims to examine whether the number of employment discrimination laws in a country influences voice and accountability.Design/methodology/approachThe authors compared the number of employment discrimination laws in different countries to perceptions of voice and accountability.FindingsResults indicate that the number of discrimination laws enacted in a country has a positive impact on the voice and accountability perceptions of citizens. Further, this relationship is found to be moderated by two contextual factors: cultural assertiveness and the percentage of females in the population. Specifically, the positive impact of the number of discrimination laws on voice and accountability perceptions was found to be stronger in highly assertive cultures and in countries with a lower percentage of females in the population.Originality/valueThis is the first study to show a relationship between the number of employment discrimination laws in a country and perceptions of voice and accountability.