Q&A: Five Areas of Employment Discrimination Law Sparking Scholarly Interest

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 Procedure 12(b)(6)  

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 complaint.

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.

Wal-Mart v. Dukes Decision  

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 certification.

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.

Causation Standard  

Secunda: The 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 clearly.

Implicit Bias  

Secunda: The 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 group.

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.

Implicit 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.

Sexual Stereotyping  

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 stereotype discrimination.

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 cover sexual orientation discrimination.

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 considered.

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 work.

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.

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