Angry Employees: Revisiting Insubordination in Title VII Cases

In too many Title VII cases, employees find themselves thrown out of court because they reacted angrily to reasonable perceptions of employer discrimination. In the race context, supervisors repeatedly call employees the n-word and use other racial epithets, order African American employees to perform work others in the same job classification do not have to do, and impose discipline white employees do not face for the comparable conduct. In the gender context, courts throw out plaintiffs’ cases even where supervisors engage in egregious sexual harassment. Employees who react angrily to such demeaning treatment—by cursing, shouting, refusing an order or leaving the workplace—find themselves fired for “insubordination.” Their acts fall short of threats of violence and are brief in duration, but courts nonetheless uphold employers’ invocation of “insubordination” as a “legitimate, nondiscriminatory reason” for plaintiffs’ discharge. The article argues that courts should more carefully scrutinize the relationship between discrimination-tinged work environments and employees’ angry reactions. This article makes specific proposals about how Title VII courts should handle insubordination cases that raise discrimination concerns. To gain ideas for this purpose it looks both to Title VII precedent and doctrines the National Labor Relations Board has developed in the exercise of its special expertise in regulating workplace relations. Unlike many Title VII courts, the NLRB and courts reviewing its decisions often grant some leeway to “angry employees”—i.e., employees who have gone some distance past the line of proper decorum (but not too far) in expressing indignation at what they reasonably perceive as violations of their statutorily protected rights. Instead of routinely accepting insubordination as legitimate grounds for an adverse employment action, as Title VII courts often do, the NLRB more carefully scrutinizes the context giving rise to “angry employees.” This article argues that Title VII courts should do more of that scrutiny too. It proposes doctrinal modifications Title VII courts could implement in the exercise of their interstitial statutory interpretative powers to better serve Title VII’s dual purposes of (1) better enforcing the workplace antidiscrimination mandate and (2) encouraging employers and employees to resolve discrimination disputes in real time in workplaces rather rendering employees so docile that that they must “make a federal case” out of all discrimination disputes

Modulated voltage metastable ionization detector

The output current from a metastable ionization detector (MID) is applied to a modulation voltage circuit. An adjustment is made to balance out the background current, and an output current, above background, is applied to an input of a strip chart recorder. For low level concentrations, i.e., low detected output current, the ionization potential will be at a maximum and the metastable ionization detector will operate at its most sensitive level. When the detected current from the metastable ionization detector increases above a predetermined threshold level, a voltage control circuit is activated which turns on a high voltage transistor which acts to reduce the ionization potential. The ionization potential applied to the metastable ionization detector is then varied so as to maintain the detected signal level constant. The variation in ionization potential is now related to the concentration of the constituent and a representative amplitude is applied to another input of said strip chart recorder

The University of Alaska Anchorage experience

In the fall 2005, when two faculty librarians at the University of Alaska Anchorage’s (UAA) Consortium Library realized that three people on the library staff were enrolled in library school, they saw the perfect opportunity to start a discussion group that would benefit both currently employed librarians and students entering the information field. The original three students were enrolled in the MLIS distance program at the University of Washington, working in the Consortium Library, and taking classes part-time. The two faculty librarians had been out of library school for more than ten years by then, so the intent was to organize a forum with an informal, relaxed atmosphere that would be an engaging way to keep up with current curricula, to learn about class projects the students were working on, and to hear about their experiences. While the librarians learned from the students, the students could, in turn, share their new expertise with the library faculty. That was the beginning of what came to be known as FLIP: Future Library and Information Science People.1 Now, nearly seven years later, FLIP is still going strong. What the name stands for has changed slightly—to Future Librarians and Information Professionals—and the membership has expanded to include anyone considering a career as a librarian or enrolling in an MLS or MLIS program. Characterizing FLIP as a “mentoring” program misses the mark, since so much more than just mentoring is happening. Because the benefits go both ways, we prefer the term “un-mentoring” to describe FLIP. Regardless of its definition or description, however, the original purpose remains the same: to provide an informal discussion forum that enriches library school studies with librarian expertise, advice, and insight

Why the U.S. Founders’ Conceptions of Human Agency Matter Today: The Example of Senate Malapportionment

This Article links the U.S. founders’ ideas about “human agency”—i.e., their understandings of the link between the individual and the social and political structure—with how they designed the Constitution and, in particular, how they designed the U.S. Senate as a non-majoritarian institution. I mine primary sources to show that although the founders struggled with many disagreements in drafting the Constitution, they shared an amalgam of historically received ideas about human agency derived from both liberal and civic republican traditions. I identify five such ideas and then parse which of them continue to pertain today. I argue that although contemporary and mainstream Western political thought continues to regard individuals’ pursuit of happiness and enjoyment of liberty as essential ends of government, the founders’ views about property and “independence” as prerequisites to having political rights no longer pertain. Yet those views provided the founders’ explicit rationale for the Senate’s anti-democratic design. This, I argue, is an important yet overlooked reason why that design must be rethought today, even though the Constitution purports to make this feature unamendable through a last minute revision arguably extracted under duress

Debunking the Myth of Civil Rights Liberalism: Visions of Racial Justice in the Thought of T. Thomas Fortune, 1880-1890

n recent years, the supposed achievements of the American civil rights movement have come under attack as part of a critique of the ideology of legal liberalism. That critique argues that civil rights lawyers and other activists too greatly emphasized court-focused strategies aimed at achieving what would turn out to be pyrrhic civil rights victories - i.e., gains solely in formal equality in requirements enshrined in law as to how the state should treat its citizens. This critique of legal liberalism is well deserved insofar as it is aimed at a tendency within legal academia to extol the virtues of the American legal system, especially the U.S. Supreme Court\u27s allegedly laudable protection of civil and political rights. But in this Article I argue such critiques of legal liberalism should not be allowed to bleed into evaluations of the goals of the civil rights movement itself, especially when taking a long view on the movement for racial justice. I seek to promote taking such a long view of the movement for racial justice by evaluating the legal liberal critique of that movement in relation to an important early leader: T. Thomas Fortune, a law-educated militant journalist, public intellectual and organizer. In 1887, Fortune founded the Afro-American League, a national organization that was short-lived but nevertheless played an important historical role in the transmission of ideas to later groups including the Afro-American Council, the Niagara Movement, and the NAACP. Fortune\u27s multi-dimensional view of the struggle for racial justice embraced a number of ideas we tend to see as distinct or even opposing today. Fortune supported reactive court battles and proactive legislative reform, establishment of equal civil and political rights and an ultimate goal of economic justice, intra-race self-help and interracial coalition politics aimed at eliminating poverty for all persons regardless of race. Examining Fortune\u27s ideas helps remind us that the history of the civil rights movement was more complex and multidimensional than the contemporary legal-liberal gloss remembers today

A Social Movement History of Title VII Disparate Impact Analysis

This Article examines the history of Title VII disparate impact law in light of the policy and potential constitutional questions the Court’s recent decision in Ricci v. DeStefano raises. My analysis shows that, contrary to popular assumptions, disparate impact doctrine was not a last-minute, ill-conceived invention of the EEOC following Title VII’s passage. Instead, it arose out of a moderate, experimentalist regulatory tradition that sought to use laws to motivate employers to reform employment practices that posed structural bars to employment opportunities for racial minorities, regardless of invidious intent. Non-lawyer activists within the National Urban League first pioneered these experimentalist regulatory strategies at the state level. They then passed them on to the EEOC for use in the early years of its existence, backed by the potential litigation threat posed by the NAACP. This Article argues that a closer look at the origins of disparate impact law should change the assessments of participants on all sides of the current debate about the future of this doctrine. Both critics of Ricci and disparate impact law should realize that this doctrine can do important legal work even if Ricci creates a new defense for employers who undertake good faith efforts to comply with disparate impact standards. Those who question the doctrine’s constitutionality should recognize its legitimacy as a “soft” regulatory approach that can lead to an appropriate balancing of pro-employer concerns about preserving business discretion and enhancing business rationality with the civil rights movement’s central concerns about identifying and dismantling intent-neutral but historically laden sources of unnecessary structural exclusion

Reconstruction\u27s Lessons

In the current moment in the legal struggle for racial justice in the United States, the Nation appears at risk of repeating its history. The country stands at a time of some hope but more cause for pessimism. The current United States Supreme Court has exhibited hostility towards key legal priorities of the racial justice movement, and all indications point to this trend continuing or getting even worse. Leading commentators on race issues have suggested that the United States is headed back to the post Reconstruction era, sometimes referred to as “Redemption” in reference to southern states’ reassertion of white supremacy in their state governments, along with obliterating civil rights gains, after 1876. In that period the Court undid much of the legal work of advocates of racial equality during Reconstruction. Public intellectual and New York Times opinion columnist Jamelle Bouie has written, for example: “if the civil rights movement was Second Reconstruction, then—if we need a name for today’s push against its key measures—you could do worse than the Second Redemption.” The Nation’s justice correspondent Elie Mystal argued: “We have literally been here before, when the Supreme Court remained inert as the Fourteenth and Fifteenth Amendments were violated with impunity.” According to Mystal, “the conservatives on this [C]ourt have now aligned themselves with the very worst courts that have propped up white supremacy throughout American history.” And The Atlantic staff writer Adam Serwer, after pointing out a number of analogies between the opinions of post-Reconstruction courts and the Roberts Court, forecast: “Not since the end of Reconstruction has the U.S. government been so firmly committed to a single, coherent program uniting a politics of ethnonationalism with unfettered corporate power. As with Redemption, as the end of Reconstruction is known, the consequences could last for generations.

Comment: Unpaid Internships and the Rural-Urban Divide

In this Comment, I first note how much the existing literature on unpaid internships under the FLSA focuses on urban contexts. Next, I briefly sketch some of the literature on the rural-urban divide, a topic I argue needs much more analysis from legal scholars in coming years. Third, I show how Morris’s work brings together these two literatures, which to this point have not been in conversation with each other. Finally, I note a few questions Morris’s work raises for future attention

Foreword Introduction to Symposium: Enhancing Anti-Discrimination Laws in Education and Employment

When this Symposium was first conceived in the Summer of 2021, the nation was just emerging from the first phases of the COVID-19 pandemic. This was the beginning of trying to go back to life as normal. Given this reawakening, the Symposium’s planning committee felt the urgency of a need to regroup, rethink, and reassess the state of employment antidiscrimination law. We were not sure where others would be on this possible project, given the newness of the hopeful end to lockdowns and social isolation and return to “normal” concerns. But we quickly found that those who joined the Symposium planning group, and then those who responded to our calls to contribute to the Symposium, were more than ready to join in a reassessment and relinking of the many unresolved issues confronting employment anti-discrimination law. We saw such reassessment as all the more pressing in light of the multiple pressures of the COVID-19 pandemic, the #MeToo Movement, and the racial reckoning that followed the state sponsored murders of George Floyd, Breonna Taylor, and 184 other persons of color in the spring of 2020,1 on top of the countless state-sponsored murders of persons of color stretching far back into the past and the rise of Sinophobic violence

Acting Differently: How Science on the Social Brain Can Inform Antidiscrimination Law

Legal scholars are becoming increasingly interested in how the literature on implicit bias helps explain illegal discrimination. However, these scholars have not yet mined all of the insights that science on the social brain can offer antidiscrimination law. That science, which researchers refer to as social neuroscience, involves a broadly interdisciplinary approach anchored in experimental natural science methodologies. Social neuroscience shows that the brain tends to evaluate others by distinguishing between “us” versus “them” on the basis of often insignificant characteristics, such as how people dress, sing, joke, or otherwise behave. Subtle behavioral markers signal social identity and group membership, which in turn trigger the brain’s tendency toward us versus them thinking. This research speaks to the considerations underlying antidiscrimination law and suggests that social neuroscientists and antidiscrimination theorists should be in conversation. Indeed, my investigation shows that social neuroscience and legal antidiscrimination theory are reaching a “consilience”—meaning an unlikely agreement in approaches between disparate academic subjects. Both agree on the importance of promoting tolerance for human behavioral difference. The time is ripe to explore this consilience more deeply. I do so preliminarily in this Article, proposing that antidiscrimination law should pay more attention to (1) the ways in which discrimination occurs through decision-makers’ distaste for those who “act differently” (rather than identity status alone), and (2) the need for more theory supporting a general human right to “act differently” within reasonable bounds