The Labor & Employment Blog is a forum for practitioners and Bloomberg BNA editors to share ideas, raise issues, and network with colleagues.
Tuesday, June 18, 2013
by Lydell C. Bridgeford
Legal scholarship sometimes gets a
bad rap for being too theoretical to address the complexities of
modern society, but this isn't the case for legal scholarship on
employment discrimination law, explains law professor
Paul M. Secunda.
"Employment discrimination and civil
rights scholarship tends to be practically oriented to provide new
ideas, theories, and approaches," Secunda, an associate professor
of law at Marquette University Law School and co-editor of Workplace
Prof Blog, said.
In this Q&A, Secunda lists five
areas of employment discrimination law that are attracting the
attention of legal scholars, and discusses the future of legal
scholarship examining employment discrimination law.
Bloomberg BNA: What are the hot topics in legal scholarship on
employment discrimination law?
Federal Rule of Civil
Secunda: One topic is the
intersection of procedure and employment discrimination, in
particular, the new standards under Federal Rule of Civil
Procedure 12(b)(6), the motion to dismiss for failure to
state a claim, as reinstated by the U.S.
Supreme Court in the Twombly and Iqbal cases.
The cases make it relativity easier
for employers to have discrimination claims dismissed at the
beginning of litigation as opposed to going through discovery, the
summary judgment process, and perhaps the trial process. The cases
say there has to be a plausible claim alleged in the plaintiff's
This heightened pleading standard has
made it more difficult for employment discrimination plaintiffs to
get by the first stage of litigation.
For the last two or three years, a
number of scholars have been writing on the impact of these
procedural decisions on employment discrimination law. There
has been theoretical work that describes why such a standard is
either a good standard or not a good standard from the perspective
of various litigants.
There also has been some
empirical research, which has actually looked at the numbers to
see if there has been an increase in employment discrimination
cases being dismissed at the pleading stage.
The numbers are pretty
clear that more employment discrimination plaintiffs are being
thrown out of court at an earlier stage of litigation. This
continues to be a hot area among employment discrimination scholars
because it has such a dramatic impact on the ability to get redress
under the current system of law.
Secunda: There also have been many discussions surrounding the Wal-Mart v. Dukes decision. The ruling says that the class
action among millions of women who currently or formerly worked for
Wal-Mart could not be maintain because it contained too many
individual issues of liability and damages.
As a result, practitioners--from
both from the plaintiff and defense perspectives--are spending more
time considering whether the requirements of Rule 23(a) of the
Federal Rules of Civil Procedure have been met for class
Scholars are writing on the impact
of this class action ruling for employment discrimination cases, as
well as considering alternatives if plaintiffs and their allies
want to get around this ruling.
For example, having the Equal
Employment Opportunity Commission take a more active role in
bringing class-wide litigation on behalf of certain plaintiffs. The
EEOC doesn't need to meet the requirements of Rule 23(a).
Given the additional case law that
has come down since the Dukes decision, we are going
to see more scholarship considering the best way for employees to
work together to get justice in the workplace.
third topic getting lots of attention revolves around the way that
we prove employment discrimination cases.
The Nassar case is pending before the Supreme Court. It
concerns what one needs to prove to make out a retaliation claim
under Title VII of the Civil Rights Act of 1964.
There are generally two different
proof schemes. One is the "motivating factor"' scheme in which you have
to prove that unlawful retaliation was a motivating factor behind
the employer decision. The other is the "but-for" causation
standard, which says that the retaliation has to be "but-for" reason why the employer took the action against the employee.
The "but-for" causation standard is
more employer-friendly than the motivating factor standard, which
tends to favor plaintiffs.
The 2009 Gross decision said the "but-for" cause standard
applied to the Age Discrimination in Employment Act. By a
matter of statute, the motivating factor analysis applies to
discrimination claims under Title VII.
Now the question under Nassar is:
What about retaliation claims under Title VII in which you are
claiming that you have been retaliated against because you have
opposed an unlawful employment practices or you have participated
in a proceeding by the EEOC or a state anti-discrimination
agency? Does that get handled under the "but-for" causation
standard or the motivating factor standard? This is what the
court is looking at in the Nassar case.
Many scholars have been writing
about which is the more appropriate standard. The impact for
practitioners really is how to structure your claims when you are
bringing different types of causes of actions in these cases. Do
you bring a discrimination claim alone, or do you combine it with
your retaliation claim? How do you, to the extent that the
higher causation standard is required, meet that standard?
From the judges' perspective, they
are looking to see what makes the most sense--given the purposes of
Title VII and the other employment discrimination laws--as to what
causation standards seem to serve the purpose of the statue most
fourth area is unconscious discrimination or implicit bias. Much of
the discrimination that occurs in the workplace today can be
characterized as benign. It is not based on hatred, animus, or
dislike of a given group. It's just that we as individuals
naturally have this type of discrimination we practice when we talk
to various people.
In the employment context, the
question is: In making employment decisions, are employers
implicitly or unconsciously relying on these impressible factors
like race, color, gender, religion, or national origin?
The scholarship out there so far has
seemed to show that many people do have implicit bias toward various
groups of individuals. This is something perhaps judges
should keep in mind when deciding whether or not employers are
acting in an unlawfully discriminatory manner.
Title VII and other discrimination
laws have never required hatred or animus against a protected
The laws have required intentional
discrimination against a group, which puts them at a disadvantage
compared with other groups in
the workplace whether there is hatred or dislike or not.
bias research might give plaintiffs' attorneys additional
theories on which to rely in bringing civil rights cases. Going
forward, I would expect to see more law and psychology approaches
to employment discrimination law.
Secunda: Finally, to close the circle, the
fifth topic is sexual stereotypes. The U.S. Court of Appeals for
the Fifth Circuit has an en banc decision in front of it right now
concerning whether or not it is going to give credence to certain
types of sexual
Here we are talking about men and
women not living up to gender norms; women not being feminine
enough and men not being masculine enough. There is case law going
back to the 1980s from the Supreme Court that would suggest that
this type of stereotyping discrimination is cognizable under
employment discrimination and civil rights law.
The question has not been directly
addressed by a circuit court in the way that the fifth circuit is
looking at it in
the current case. It is an important thing to consider because
the federal employment discrimination law in this country does not
The question here is: Is sexual
stereotyping a recognizable type of gender or sexual discrimination
under Title VII? The topic was of interest to scholars in the
1990s, and it seems like scholars are coming back to it again given
recent case law and recent decisions that are about to be
Bloomberg BNA: Any final thoughts on the future of legal
scholarship examining employment discrimination law?
Secunda: The future looks
bright for employment discrimination law scholarship, and hopefully
it will continue to have a good impact on practitioners and judges
in the area. If you look at the number of cases being decided by
federal and state courts, employment discrimination and civil
rights cases continue to lead the docket.
As long as these cases continue to
occupy the courts' time and practitioners continue to bring these
cases on a very frequent basis, there is going to be scholarship
from the labor and employment law professorial community to provide
guidance and ideas, as well as theories on how the laws should and
should not apply in the future.
Given the immense popularity of
employment discrimination law in the courts, practices, and with
law students, I would assumed that the scholarship in the
employment discrimination is going to be robust, diverse, and
involve many different topics; not only the five topics that we
just talked about.
For example, scholars also are
looking at what is a qualified disability under the Americans with
Disabilities Act and what it means to make the Equal Pay Act more
robust so that women are not earning less than men for comparable
There also are some remedial issues
to examine. For instance, whether people are getting around the
statutory caps on compensatory damages in employment discrimination
cases by bringing different types of claims under different civil
rights laws. There are many areas of employment discrimination law
that are ripe for exploration.
More Q&As on Labor & Employment
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to post a comment.
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