Post-9/11 Backlash in the Workplace: Employer Liability for Discrimination against Arab- and Muslim- Americans Based on Religion or National Origin

In the wake of the September 11, 2001 terrorist attacks, discrimination and violence directed toward American immigrants in general, and Arab- and Muslim-Americans in particular, increased markedly. Yet, despite a November, 2001 joint initiative undertaken by the EEOC, the Justice Department, and the Labor Department to increase sensitivity to and combat instances of potential discrimination or harassment against individuals who are—or are perceived to be—Muslim, Arab, Afghani, Middle Eastern, or South Asian, EEOC charge statistics for workplace discrimination claims involving religion, ethnicity, national origin, and citizenship indicate that the reported incidence of such conduct has continued to increase. This paper examines recent federal court cases that involve employment discrimination claims by Arab- and Muslim-Americans at both the trial court and appellate court levels to identify problematic fact patterns that may give rise to employer liability and to better understand judicial treatment of the legal issues when such cases are taken up on appeal. Management guidance for reducing potential liability when such situations arise in the workplace is developed based on recent findings in the case law. Analogous international implications are also discussed.     

In Sickness and in Health: Recent Judicial Developments in Americans with Disabilities Act Association Discrimination Cases

A little-known provision of the Americans with Disabilities Act (ADA) prohibits covered employers from taking an adverse employment action against a qualified employee if a determinative factor in the adverse employment action is the disability of an associate or relative of the employee. A review of the reported court opinions indicates that plaintiff employees often encounter difficulty in these cases. Some plaintiffs are unable to prove that they are “qualified” employees at the time of the adverse employment action, and other plaintiffs find it difficult to prove that a determinative factor in the adverse employment action was the disability of the associate or relative. However, plaintiffs have achieved some success as evidenced in the 2008 U.S. Circuit Court of Appeals holdings in Dewitt v. Proctor Hospital and Trujillo v. PacifiCorp. This paper describes reported U. S. Circuit Court of Appeals opinions about ADA association discrimination, its relationship to the Family and Medical Leave Act and Employee Retirement Income Security Act, and the implications for employers, employees, and lawmakers. It also offers practical guidance to both employees and employers for asserting and managing rights and potential liability in this area.     

Regulatory Effects and Strategic Global Staffing Profiles: Beyond Cost Concerns in Evaluating Offshore Location Attractiveness

The practice of offshoring—staffing all or part of a business outside the home country—has proliferated to such an extent that the question for most multinational corporations (MNCs) is where, not if, some or all of its labor forces should be located beyond geopolitical borders. It remains an open question, however, where and under what conditions the hoped-for advantages of offshore staffing are best realized. While cost savings continue to play the major role for most companies, both quality and availability of worker skills and administrative and regulatory contexts of labor markets have increasingly influenced global staffing decision processes. This paper has two purposes: to examine the extent to which employment laws and other regulatory factors can impact—beyond cost concerns alone—the decision where to offshore, and to offer a methodology for developing attractiveness profiles that can help governments, service providers, and MNCs evaluate and improve the match between staffing needs and labor market characteristics. By examining financial considerations in conjunction with administrative and regulatory effects, the parties can better manage ongoing expansion of offshore staffing arrangements beyond more established locations such as India, China, and Malaysia. Strategic implications of a trend toward nearshoring—relocating offshore operations closer to or within the home country—are also discussed.     

An Affirmative Defense to Sexual Harassment by Managers and Supervisors: Analyzing Employer Liability and Protecting Employee Rights in the United States

Sexual harassment in the workplace is a serious worldwide employment problem. In the United States, courts have taken an increasingly expansive view of both employers' obligations and employees' rights in dealing with the issue. Landmark decisions of the U.S. Supreme Court addressing harassment by supervisors have sought to provide further guidance to employers in order to prevent harassment and refine their obligations. Yet despite the Court's efforts, harassment claims brought on by supervisor conduct continue to be a matter of great concern. This article offers a brief overview of U.S. sexual harassment law including its affirmative defense and provides a decision protocol for employers operating in the U.S. to follow in determining whether or not an affirmative defense can be confidently asserted. Finally management practices that respond to legal principles of an affirmative defense to prevent liability and protect employee rights are presented and discussed.     

Who is an Employer in the Triangular Employment Relationship? Sorting Through the Definitional Confusion

Employers in the United States are increasingly utilizing staffing firms, employee leasing firms, temporary employment agencies and other third parties to help manage contingent labor in their organizations. The use of such triangular relationships creates complexities in the rights and responsibilities of each party, partially due to the variation in how U.S. employment law defines employers and employees across statutes. We analyze the various definitions of employee and employer across key U.S. employment statutes (e.g., Civil Rights Act of 1964, ADA, FMLA, FLSA), tests used by the courts in their decision making, and IRS regulations and evaluate the impact of these definitions on the use of contingent employees in triangular relationships. We review existing case law relevant to discrimination and non-discrimination statutes and identify key areas of risk and responsibility for both the individuals employed as contingent workers and firms that use contingent labor. Finally, we offer recommendations for strategically managing contingent labor in the current legal context.     

Appearance-based Sex Discrimination and Stereotyping in the Workplace: Whose Conduct Should We Regulate?

Court treatment of sex discrimination and harassment claims based on appearance and gender stereotyping has been inconsistent, particularly where the facts involve reference to sexual orientation. Ironically, court willingness to allow such claims may turn on the choice of verbal or physical conduct by, or the sex or sexual orientation of, the alleged offenders. Because plaintiffs in such situations may assert retaliation claims to increase their chances of prevailing, employers should focus less on regulating aspects of personal appearance unrelated to job performance and more on problematic reactions by co-workers. Workplace civility policies may hold promise for limiting both legal liability and practical consequences in the absence of a legislative response.

An alternative employee rights paradigm: Labor process theory

A dialectical relationship exists between the capitalist desire for accumulation of wealth and profits, and the rights of employees. Labor process theory exposes facets of the fundamental incongruity between the interests of employers and workers in a capitalist political economy. An analysis of employee rights through the labor process framework facilitates the potential for human emancipation by illuminating the ideological, political, and economic sources of domination and repression that are embedded in the capitalist system. In this article, three core elements of labor process theory—the social relations of production, the managerial control imperative, and the restructuring of work—are used to highlight ways in which organizations maintain their hegemonic position. This exposé offers the basis for an alternative paradigmatic view of the employment relationship and informs our thinking of how employee rights are impacted, and often tempered, in work organizations. Portions of this article were presented by both authors at the 12th Annual International Labour Process Conference March, 1994 in Birmingham, England.     

The Implications of ADA Litigation for Employers: A Review of Federal Appellate Court Decisions

Analysis of litigation outcomes indicates that most plaintiffs who sue under the Americans with Disabilities Act are unsuccessful. Equal Employment Opportunity Commission enforcement data and six years of federal appellate court decisions were reviewed, as well as recent rulings of the United States Supreme Court. The courts are interpreting the ADA very narrowly, and very few plaintiffs prevail. The results of this research suggest that if employers engage in an individualized assessment of whether an individual is protected by the law and whether the requested accommodation is reasonable, legal liability will be minimized. © 2001 John Wiley & Sons, Inc.     

“Damn with faint praise” The legal,practical, and ethical implications of providing and not providing employee references

In the past decade, there has been a multiplicity of lawsuits by employees against former employers based on defamatory references. Many of these lawsuits have proven to be successful and have caused wary employers to use great care in providing references. A number have gone so far as to refuse to provide references at all, instead adopting a “no-comment” policy, often on the advice of legal counsel. This article reviews defamation laws within the context of employee references. Recent cases and trends are analyzed, guidelines to avoid liability are suggested, and a critique of the traditional legal advice of “no-comment” is provided. Finally, business-related and socioethical aspects of the problem are considered.     

Disciplining sexual harassers: What’s fair?

To avoid liability for hostile environment sexual harassment under Title VII of the Civil Rights Act, and to minimize the negative effects of such conduct on victims’ morale and perhaps their performance, employers must implement remedial measures that are capable of ending the harassment or even preventing it. Determining what constitutes adequate remedial action is difficult, and employers may administer excessively severe disciplinary penalties to ensure legal compliance. But such a response would contravene the tenets of just cause and industrial due process. This investigation examines relevant arbitration decisions to determine how labor arbitrators have balanced these competing interests. That is, it delineates the criteria that should be used to ensure that the disciplinary penalties levied against employees who sexually harass others are both adequate and fair.     

关于企业内部规章制度的法律思考

涉及劳动者切身利益的企业内部规章制度(劳动制度)是劳动关系的基本要素之一,直接关系到劳动关系乃至整个社会的和谐稳定,《劳动法》、《劳动合同法》都已对其内容、程序合法性做出了原则规定。其相关各方,包括用人单位、劳动者、行政主管部门及国家立法机关均应从法律的角度对其作认真的思考和审视。用人单位应切实按照三个合法性标准策划企业规章制度;劳动者在以规章制度作为行为规范的同时应懂得用其合法性标准维护自身权益;行政主管部门应切实履行职责,加强对企业规章制度合法性的专项监查;国家应实行劳动关系法治化,立法机关应进一步就企业劳动制度做出专项立法。     

In Sickness and in Health: Implications for Employers when Bipolar Disorders are Protected Disabilities

This paper explores the potential conflict between employment protections afforded to individuals with bipolar disorder, and employers’ obligations to maintain a safe working environment for others in the workplace. Both the Americans with Disabilities Act (ADA) and the Americans with Disabilities Act Amendments Act of 2008 (ADAA) provide workplace protections to those employees or applicants who are classified as qualified individuals with a disability. A disability is “a substantial impairment—a physical or mental impairment—in a major life activity that would substantially limit that major life activity.” ( 42 U.S.C. §§ 12102(1)(A)-(C)), and “mental impairment” is defined to include individuals with bipolar disorder (42 U.S.C. § 1630.2(h)(2)). These statutes further impose a requirement on employers to make reasonable accommodations for such individuals. In essence, they protect the bipolar employee from any discrimination in the workplace based on their disability, to include harassment by coworkers. However, employers may find themselves caught on the horns of a dilemma. Depending on the nature and severity of the bipolar employee’s conduct toward coworkers, they may also be exposed to liability for harm done to coworkers under negligent retention laws, or even the anti-harassment provisions of other equal employment statutes. If a bipolar employee’s negative behaviors toward coworkers are sufficiently severe or pervasive, they can result in coworkers suffering harassment sufficient to constitute actionable conduct under the ADA. To reduce exposure to litigation, employers must understand both their obligations under the ADA, and the nature of bipolar disorder.     

Managing the Contingent Workforce—Gaining the Advantages, Avoiding the Pitfalls

Part-time employment arrangements constitute a rapidly growing segment of the U.S. labor force. Such employment arrangements offer advantages to both employers and employees. Part-time employees offer employers reduced wage and benefit costs, workforce flexibility, aid for special projects, replacement fill-ins and a chance to preview candidates for full-time employment. Part-time work enables employees to supplement family income, enjoy flexible hours as well as a change in job environment and a chance to substitute for full-time employment when there is no choice. The advantages of contingent employment come at a cost. Employers must comply with laws and give up control over much of the employment relationship in order to avoid co-employment status and to gain the benefits of contingent employment. Employees in contingent work arrangements frequently do not qualify for many of the benefits available to full time employees. Suggestions made for managing contingent workers may reduce some of the problems, but they would also remove some of the advantages.     

THE IMPACT OF IMMIGRATION ON THE LABOR MARKET

The literature on the impact of immigration on the labor market is highly controversial. The aim of this paper is to review the existing literature and draw some general conclusions on how wages and employment respond to immigration. Economic studies indicate that the impact of immigration on the average wage and employment of native workers is null or slightly positive. However, because adjustments take time, the immediate labor market effects of unexpected (as opposed to expected) migration episodes can be detrimental. Immigration also can have distributional consequences. In particular, the skill composition of immigrants matters in determining their impact on native labor market outcomes. An inflow of immigrants will tend to reduce the wages of competing native workers (with skills similar to those of the migrants), and increase those of complementary workers (with skills that complement those of immigrants). By affecting the skill composition of the workforce, immigration can create winners and losers among native workers via changes in the wage structure.     

Employee-initiated defamation lawsuits: Organizational responses and dilemmas

The fast-growing category of defamation lawsuits in the United States involves actions by employees against their employers. Over the last decade, the courts have increasingly ruled in favor of the employee plaintiffs, thus creating an employee's right to reputation. This article identifies a variety of responses undertaken by organizations to reduce their legal liability and lessen the likelihood of employee defamation lawsuits. We argue that while organizational actions to reduce their legal liability may appear rational, such responses may also be creating situations in which employers, employees, and the public may be the unintended victims of a law without justice. The article concludes with a discussion of balancing the freedom necessary for managers to communicate about employees and the fairness of that communication.     

“We do not hire smokers”: May employers discriminate against smokers?

Smoking employees are less healthy than nonsmokers, are absent more, make more and more expensive claims for health and disability benefits, and endanger co-workers who breathe smoky air. Employers may establish smoke-free workplaces, but—beyond that—employers may absolutely discriminate against smokers. Absent some common-law or statutory prohibition, employers are free to hire whomever they wish. The Americans with Disability Act prohibits discrimination against “disabled” applicants or employees, but smokers are not “disabled,” nor “regarded as” being disabled. Moreover, statutory construction does not lead to the conclusion that smokers are “disabled.” Since the policy of government is to discourage smoking, and discrimination against smokers promotes nonsmoking, such discrimination is not only not illegal, it is good social policy.     

Sexual Harassments: Criteria for difining hostile enviorment

Sexual harassment in the workplace continues to be one of the most controversial and complex legal and ethical issues facing empolyers. The U.S. Supreme Court's June 1986 decisiion inMeitor Savings Bank v. Vinson, which applied Title VII of the Civil Reights Act to situations involving sexual harassment, is discussed. The Court's definition of hostile environment is reviwed, and federal court cases interpreting the Supreme Court's pronousncements are examined. The cases provide guidance on the kinds of situations that result in employer liability for sexual harassment. A primanry conclusion is that employers may easily avoid liability by exercising learned judgment and sound management practices.     

Immigration policy: a selective approach

Recommendations are offered concerning Japanese policy on the immigration of foreign workers. The author notes that even those countries that used to welcome such immigrants now restrict their entry. The need for a selective policy that would aid internationalization in Japan and strengthen controls on illegal immigrants by requiring employers to secure permits before hiring foreigners is stressed.     

Organizationally Sensible vs. Legal-Centric Responses to the Eroding Employment At-Will Doctrine

Most private sector American employers have responded to the uncertainty created by the erosion of the employment at-will doctrine by adopting tactics aimed at avoiding the perceived costs associated with salient legal concerns (e.g., requiring written agreements to preserve the at-will relationship and defeat implied-contract claims). This article discusses the limitations of such a highly legal-centric approach, and provides an alternative decision framework that will promote more strategic, or organizationally sensible, employer responses. In addition to providing specific guidance for employers facing the employment at-will issue, the article's analysis and discussion illustrates a general approach that has relevance wherever organizational decision makers address employment decisions with potential legal implications.     

Immigration, Labor Market Mobility, and the Earnings of Native-Born Workers

A bstract .   This article seeks to improve on previous estimates of the impact of immigration on native wages by using an occupational segmentation approach that directly controls for regional migration and other shifts in the native-born U.S. labor supply. The U.S. labor market is segmented by occupation in order to determine which, if any, native workers tend to be vulnerable to increased immigrant competition for jobs. The results suggest that native-born workers in the primary sector are the main beneficiaries of increased immigration, while native-born Hispanic females in the secondary sector are the most susceptible to downward wage pressures.