Understanding the Unrest of France’s Younger Workers: The Price of American Ambivalence

The youth of France refer to themselves as the “throwaway generation,” in part because they perceive that their value to the labor market is simply disregarded by the government. Against this backdrop, young French workers recently took to the streets in riot to protest a newly enacted employment law that stripped employees under the age of twenty-six of many of their employment protections. The protests persisted after the French Constitutional Council held that the law did not violate France\u27s constitution. The continued violent opposition ultimately forced French President Jacques Chirac to abandon the law, resulting in an embarrassing defeat for the government. Through unified action, French students, accompanied by union support, had forced the government to back away from a law that the youth perceived would limit their employment rights. In the United States, Congress has passed similar legislation affording greater employment protections to older workers. The U.S. Supreme Court has also recently acted in General Dynamics Land Systems, Inc. v. Cline, to make clear that protection from age discrimination in employment was intended for older, rather than younger, employees. Even more recently, in Smith v. City of Jackson, the Court further restricted the employment protections of all employees on the basis of age. In response to this legislation and these Court decisions limiting their employment rights, however, American youth have remained silent — their complacency standing in stark contrast to the reaction of French youth. By failing to act, young American workers have permitted the erosion of their employment rights. This article examines the structure and social context of employment law in France and the United States in an effort to explain the disparate reaction of the youth to similar labor laws and court decisions. The article provides a detailed analysis of relevant age-related legislation in each country, and examines the reasoning behind the recent French Constitutional Council and U.S. Supreme Court decisions. The article concludes that the different reactions of youth in France and the United States can be explained by three factors: (1) the varying unemployment rates between the two countries; (2) the different role that unions play in France and the United States; and (3) the fact that the French government, as opposed to the United States government, has a recent history of acquiescing to the demands of youth. The article proposes that by finding a collective voice, American youth — through peaceful means — can act to ensure that their employment protections are not limited any further. Ambivalence is simply not an answer

Plausibility and Disparate Impact

In Twombly v. Bell Atlantic Corp., 550 U.S. 644 (2007), and Ashcroft v. Iqbal, 129 S. Ct. 1937 (2009), the Supreme Court introduced a new plausibility pleading standard, abrogating well-established precedent. Under this standard, a plaintiff must now allege enough facts in the complaint to state a plausible claim to relief. Twombly and Iqbal transformed civil procedure law, and both the courts and litigants have struggled with its meaning. One area that has been dramatically affected by these recent decisions is the field of workplace discrimination. There are two types of employment discrimination claims – intentional (or disparate treatment) and unintentional (or disparate impact) discrimination. The academic scholarship is replete with discussions of the problems that the plausibility standard has created for victims alleging disparate treatment claims. Discriminatory intent is difficult to establish, and this is particularly true where a plaintiff has not had access to discovery. One area that has remained unexplored in the academic literature, however, is the effect of Twombly and Iqbal on disparate impact cases. This Article seeks to fill that void in the scholarship. This paper closely examines the two most likely approaches for applying the plausibility standard to unintentional discrimination claims. This paper offers an analytical framework for considering these claims under either standard, and explains why a more streamlined approach to the Supreme Court’s recent decisions is preferable. Navigating Twombly, Iqbal and other Supreme Court decisions, this paper explains how the plausibility standard should be applied to unintentional discrimination cases. This Article provides a blueprint for the courts and litigants to follow when considering a disparate impact claim, and addresses the implications of adopting the proposed approach. Twombly and Iqbal represent a sea change for workplace plaintiffs, and this Article attempts – for the first time – to make sense of these decisions in one of the most complex areas of employment discrimination law

Weathering Wal-Mart

In Wal-Mart Stores, Inc. v. Dukes, 131 S. Ct. 2531 (2011), the Supreme Court held that a proposed class of over a million women that had alleged pay and promotion discrimination against the nation’s largest retailer could not be certified. According to the Court, the plaintiffs had failed to establish a common thread in the case sufficient to tie their claims together. The academic response to Wal-Mart was immediate and harsh: the decision will serve as the death knell for mass employment litigation, undermining the workplace protections provided by Title VII of the Civil Rights Act of 1964 (Title VII). This Article embraces the view offered by scholars to date, and does not engage the debate over the extent to which Wal-Mart will eviscerate the employment rights of workers.Instead, this Article attempts — for the first time — to find a solution to the problem created by Wal-Mart. The academic literature has yet to explore possible ways to minimize the impact of the Court’s decision, and this Article seeks to fill that void in the scholarship. Though the case undoubtedly weakens the ability of Title VII plaintiffs to pursue class-action claims, the decision still leaves substantial room for creative approaches to systemic discrimination. This paper offers three such solutions to the problem created by Wal-Mart: the governmental approach, the procedural response, and revised relief. This Article critiques each approach, and explains how they are useful in pursuing workplace cases that involve company-wide discrimination. This paper also situates these proposals in the context of the existing literature.The thesis of this Article is simple. Taking at face value the argument of scholars that Wal-Mart has created a gaping hole for victims of systemic discrimination, this paper asks what tools are still available for plaintiffs to help fill that hole. Wal-Mart signals a sea change for mass-employment litigation. The challenge now will be to find imaginative ways of pursuing systemic discrimination claims. For the first time in the academic literature, this Article takes on that challenge

Punitive Damages, Due Process, and Employment Discrimination

The Supreme Court has failed to provide any substantive guidance on when punitive damages are appropriate in employment discrimination cases since it issued its seminal decision in Kolstad v. American Dental Ass\u27n over twelve years ago. The Court has recently expanded its punitive damages jurisprudence in the high-profile decisions of Philip Morris USA v. Williams and Exxon Shipping Co. v. Baker. While these cases dramatically altered the way exemplary relief is analyzed in civil cases, the extent to which these decisions apply in the workplace context remains unclear. Surprisingly, there has been almost no academic literature to date explaining how Philip Morris and Exxon impact punitive damages claims brought by employment discrimination plaintiffs. This Article seeks to fill that substantial void in the scholarship, looking specifically at the potential due process implications. Navigating the recent Supreme Court cases, this Article proposes a uniform analytical framework for analyzing punitive damages in cases brought under Title VII of the Civil Rights Act of 1964. The model proposed in this Article provides a blueprint for courts and litigants when considering whether punitive relief is appropriate in an employment discrimination case. If adopted, the model set forth in this Article would resolve much of the uncertainty that currently exists in the lower courts over how to apply the remedial provisions of Title VII-as interpreted through the confusing Kolstad decision-to employment discrimination claims. This Article explains how this proposed framework would bring much more efficiency to the judicial process and help define the future of workplace punitive damages

Time, Equity, and Sexual Harassment

Sexual harassment remains a pervasive problem in the workplace. Recent studies and empirical research reveal that this unlawful conduct continues to pervade all industries and sectors of the economy. The #MeToo movement has made great progress in raising awareness of this problem and in demonstrating the lengths that some employers will go to conceal a hostile work environment. The movement has further identified the lasting emotional toll workplace harassment can have on its victims. The research in this area demonstrates that the short timeframe harassment victims have to bring a federal discrimination charge—180 or 300 days depending on the state—is wholly inadequate. The deception, misrepresentation, and sexual abuse encountered by many workplace harassment victims can make it impossible to file a timely charge. The pandemic has further highlighted the difficulties harassment victims can face in meeting this deadline through no fault of their own. This Article argues that the only practicable solution to this problem is a more robust application of the centuries-old doctrine of equitable tolling to pause the harassment time filing deadline where appropriate. This Article identifies five equitable tolling guideposts that the courts should consider before dismissing a sexual harassment claim on the basis of an untimely charge—psychological harm, employer threats, fear, workplace deception, and public health. This Article discusses how each of these markers may impact the timeliness of a harassment claim and explains when the use of equitable tolling may be appropriate. Given the extensive research in this area, as well as our expanded understanding of the pervasiveness of sexual harassment in the workplace, employers should no longer be permitted to run out the clock on these claims through their own improper conduct

Plausible Harassment

Despite the overwhelming public awareness of sexual harassment in the workplace, many federal courts still apply an unnecessarily stringent evidentiary burden to these claims. Following the Supreme Court’s lead in Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007), and Ashcroft v. Iqbal, 556 U.S. 662 (2009), the lower courts have imposed a heightened plausibility pleading standard on harassment cases, preventing these claims from proceeding at the nascent stages of the case. Workplace harassment is an undeniable fact of our society, and the courts should accept this fact when it is pled in a discrimination complaint, rather than prematurely eviscerating these claims on dismissal. This Article argues that, given the current public awareness of harassment, along with the concomitant social science research and data supporting its prevalence in the workplace, any individual claim of harassment is inherently plausible. Thus, Twombly and Iqbal are largely irrelevant for harassment cases, and these claims are better vetted after discovery. This Article reviews the existing research on harassment and proposes a new framework for pleading hostile work environment claims. Navigating the procedural rules and Supreme Court precedent, this Article explains how the proposed model can be used by the courts to more fully analyze sexual harassment cases

Commonality and the Constitution: Applying Wal-Mart to State Court Cases

In Wal-Mart Stores, Inc. v. Dukes, 131 S. Ct. 2541 (2011), the Supreme Court concluded that the allegations of pay discrimination in a case brought by over a million female employees lacked sufficient commonality to warrant class certification under Federal Rule of Civil Procedure 23(a). Though the case was expressly decided under the federal rules, some well-known employer groups have begun to advance the argument that Wal-Mart was decided on constitutional grounds. These advocates maintain that the Supreme Court’s decision creates a commonality standard for all class-action plaintiffs — regardless of whether those litigants bring their claims in federal or state court. This Article explores the possible constitutional implications of the Wal-Mart decision. This paper explains the potential due process concerns of commonality in class-action claims, and critiques the argument that Wal-Mart creates a constitutional floor for all systemic litigation. This Article further fills a void in the scholarship by establishing a framework for analyzing whether class-action claims satisfy commonality under the Constitution. This paper develops a normatively fair definition of commonality, identifying five core guideposts that should be considered when determining whether a class-action claim complies with due process guarantees. This Article explains the implications of adopting the proposed guideposts, and situates the suggested framework within the context of the existing academic literature. Wal-Mart signals a sea change for how commonality will be analyzed in all class-action cases. This Article helps define what commonality means under the Constitution, and the guideposts identified here will help streamline all future complex litigation

The Discrimination Presumption

Employment discrimination is a fact in our society. Scientific studies continue to show that employer misconduct in the workplace is pervasive. This social science research is further supported by governmental data and litigation statistics. Even in the face of this evidence, however, it has never been more difficult to successfully bring a claim of employment discrimination. After the Supreme Court’s controversial decisions in Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007), and Ashcroft v. Iqbal, 556 U.S. 662 (2009), all civil litigants must sufficiently plead enough facts to give rise to a plausible claim. Empirical studies show that this plausibility test has been rigidly applied in the employment context, creating a heightened pleading standard for workplace plaintiffs.This paper argues that Twombly and Iqbal are largely irrelevant for employment discrimination claims. As employment discrimination is a fact, most allegations of workplace misconduct are plausible on their face, rendering these Supreme Court cases meaningless for this subset of claims. This Article summarizes the overwhelming number of social science studies which demonstrate the fact of employment discrimination, and this paper also synthesizes the governmental data and litigation in this field. This Article offers a model framework that the courts and litigants can use to evaluate workplace claims, taking into consideration the widespread scientific research in this area.This proposed model navigates the Supreme Court decisions and federal rules and provides a new approach to pleading employment claims, where the fact of discrimination is presumed. This Article concludes by situating the proposed framework in the context of the broader academic scholarship