Thursday, September 22, 2016

Is race discrimination bad for business?

Economics tells us businesses that discriminate based on race are at a competitive disadvantage against non-discriminating firms. Common sense tell us that the discriminators also face increased costs imposed by anti-discrimination statutes (assuming the enforcement mechanisms of EEOC, state agency, and private litigation impose higher costs on discriminating firms). Do we have empirical evidence to confirm these theories?

Yes! Well, we at least have a start. Economist Alex Tabarrok at Marginal Revolution (and faculty at my law school alma mater, George Mason!) blogs Firms that Discriminate are More Likely to Go Bust. He links to a paper published in Sociological Science (Are Firms That Discriminate More Likely to Go Out of Business?) and notes:
The author, Devah Pager, is a pioneer in using field experiments to study discrimination. In 2004, she and co-authors, Bruce Western and Bart Bonikowski, ran an audit study on discrimination in New York using job applicants with similar resumes but different races and they found significant discrimination in callbacks. Now Pager has gone back to that data and asks what happened to those firms by 2010? She finds that 36% of the firms that discriminated failed but only 17% of the non-discriminatory firms failed.
As noted above, this seems logical; but, it's nice to have some actual data.

Thursday, September 15, 2016

New whitepaper: Defend Trade Secrets Act of 2016

Chris Michelone
On May 11, 2016, President Obama signed the Defend Trade Secrets Act of 2016 ("DTSA") into law marking one of the biggest expansions of federal intellectual property law in decades. My colleague, Chris Michelone, analyzed the new law and its implications for businesses and employers in a new whitepaper: Defend Trade Secrets Act of 2016 (PDF). Enjoy! 

Tuesday, September 13, 2016

Miles on New EEOC Retaliation Guidance

Not official use.
Straight from the shameless self-promotion department, here's a link to an HR BLR article regarding the EEOC's new retaliation guidance. I consulted with the author, Kate McGovern Tornone, and she included some quotes from me in the article.

You can read the EEOC's new Enforcement Guidance on Retaliation and Related Issues here. The article addresses a few hot-button issues, such as:
  • New protection for bad faith or unreasonable internal reports;
  • Protected activity relating to sexual orientation discrimination;
  • The "manager rule"; and 
  • ADA interference provisions.

Wednesday, September 7, 2016

Gretchen Carlson settlement already?

I often meet with employees who believe they are getting harassed at work. They want to know their options, and how the process ordinarily plays out. Let me tell you what I usually do not tell them:
Let's skip the agency charge process, and just file a lawsuit. In a few weeks, your employer will fire your harasser (who happens to be Chairman), issue you a public apology, and throw $20 million at you.
That never happens, right? Except, that's exactly what happened in the reported Gretchen Carlson-FoxNews settlement.

Tuesday, August 30, 2016

3d Cir. on authenticating social media exhibits

I don't usually cover criminal cases here, but this one deals with an interesting evidence issue. In U.S. v. Browne, the Third Circuit addressed authentication of social media evidence (the facts involve a scumbag who solicited sexually explicit photos from 12-18-year olds and then threatened to publish them if the kids didn't perform sex acts).

Not official use.
The analysis is surprisingly convoluted. The gist of it is that Facebook chat logs were not "self-authenticating." However, the government also provided "extrinsic evidence," such as the defendant identifying himself in the chat logs, telling the kids to call him on a phone number that matched his phone number, the kids testifying that they participated in the conversations, they met the defendant in person (and ID'd him) based on the chat messages, the defendant admitted that he used the account in question, and more.
[T]he Government not only provided ample evidence linking Browne to the Button Facebook account but also supported the accuracy of the chat logs by obtaining them directly from Facebook and introducing a certificate attesting to their maintenance by the company’s automated systems.
The opinion provides a good read for anyone looking to introduce social media into evidence.

Tuesday, August 23, 2016

BREAKING: NLRB "Student Assistants Covered by the NLRA"

Not official use.
You could see this coming a mile away; the only question was "when?" Today is the day. The NLRB issued its decision in Columbia University, holding that graduate students at private colleges and universities are employees who may form unions under the NLRA.

The NLRB concluded that graduate students, including teaching assistants and student research assistants, were "statutory employees: individuals with a common-law employment relationship with Columbia University." This decision overrules Brown University, which generally held that graduate students were primarily students and therefore not employees.

This decision does not directly impact public universities as they are generally governed by state bargaining laws (for example, in Pennsylvania we have the Public Employe Relations Act, which falls under the PLRB's jurisdiction). You can read the NLRB's announcement here.

Fed's transgender initiatives are struggling

Last week, the EEOC lost one of its first transgender discrimination cases. The Eastern District of Michigan dismissed the claims in EEOC v. R.G. & G.R. Harris Funeral Homes, Inc. (opinion here).
Not official use.

The Court noted that the protected classes under Title VII do not include transgender employees; but that doesn't really get us very far. You see, the case involved a sex-specific dress code and a male employee who was transitioning to female. Dress codes present particularly thorny issues under a "gender stereotyping" theory. So, even if Title VII does not specifically protect transgender employees, employers may still face liability for imposing gender stereotypes on employees regardless of whether they are male, female, transitioning, or transgender.

Here, however, the Court dismissed the claims based on the Religious Freedom Restoration Act (RFRA). The gist of the decision is that requiring the employer (a funeral home) to allow its biologically male employee to wear a skirt would impose a substantial burden on the employer's religious beliefs. Under RFRA, the EEOC could still win by showing a compelling government interest, and that it is using the least restrictive means to attain it. The Court assumed the former but held that the EEOC failed to establish the latter.  Eugene Volokh has some interesting analysis here.

On top of the Harris decision, a federal court in Texas issued a nationwide injunction blocking the President's Title IX guidance to schools on transgender bathroom usage.

I'm sure we haven't heard the last of these issues.