Duke-ing out Pattern or Practice after Wal-Mart: The EEOC as Fist

The Equal Employment Opportunity Commission (EEOC) has an essential role to play in bringing pattern or practice suits, and now is the time for it to assert its role. A pattern or practice claim, also called a systemic claim, is one in which an employer has regularly and purposefully discriminated against a class of employees based on their religion, race, sex, color, or national origin, such that the discrimination is the employer\u27s standard operating procedure. In recent years, the Supreme Court has limited private litigants\u27 access to the courts in ways that impact the ability of plaintiff classes to assert systemic claims of employment discrimination under Title VII of the Civil Rights Act of 1964. The culmination of the Court\u27s limitation on private Title VII pattern or practice suits was the 2011 case, Wal-Mart Stores, Inc. v. Dukes. Post Wal-Mart, the private pattern or practice class appears to be dead, and with it the advantages of pattern or practice suits for litigants and the courts. At the same time, lower courts have begun to limit the EEOC\u27s ability to bring pattern or practice claims in its own name. Specifically, they have restricted the scope of the EEOC\u27s class and limited remedies for an employer\u27s pattern or practice of discrimination. What these decisions fail to recognize, however, is the EEOC\u27s unique role and history in enforcing Title VII. As an institutional player and by design, the EEOC is best suited to litigate systemic violations of Title VII. Additionally, the EEOC\u27s administrative process addresses many of the due process concerns of both employee-victims and employers. Preserving the EEOC\u27s litigation authority-both in terms of the scope of employees for whom the EEOC can seek relief and the type of damages it can recover-is necessary to ensure the effective enforcement of Title VII

Free Trade, Immigrant Workers, and Employment Discrimination

This article reframes the outward-looking perspective on workers’ rights provisions in free trade agreements. It argues that those provisions provide an opportunity to reinforce the workplace rights of noncitizen workers in the United States. Scholars and worker advocates have criticized recent free trade agreements for their lack of enforcement mechanisms and protections for workers in developing countries. They argue that this has encouraged a race to the bottom on the part of multi-national corporations who relocate to developing countries to take advantage of cheap labor costs, thereby costing U.S. workers’ jobs. This article shifts the focus. Instead, it argues that the anti-discrimination provisions and regulatory cohesion requirements in trade agreements can be employed to protect the rights of vulnerable, and, in particular, noncitizen workers in the United States. The provisions in the most recent iteration of trade promotion authority reinforce the rights of noncitizen workers in the United States in three ways. First, they have the potential to fill in gaps in U.S. agency enforcement of workplace rights; second, they provide additional incentives for the United States to enforce existing worker protections; and third, they provide a legal hook for workers’ advocates to exert political pressure on U.S. agencies to enforce anti-discrimination laws and multi-national corporations to change discriminatory practices

Misconstruing Notice in EEOC Administrative Processing & Conciliation

Federal courts have misconstrued notice in the US Equal Employment Opportunity Commission\u27s ( EEOC or Commission ) administrative processing and conciliation of charges of discrimination. By requiring that the notice given to employers during the Commission\u27s processing of a claim be equivalent to that of notice in civil litigation, courts have conflated the purpose of notice in the former with the latter. Some of this conflation may be a consequence of the Supreme Court\u27s tightening of pleading standards, class certification requirements, and other procedural requirements, which are primarily focused on providing adequate notice to a defendant regarding the scope of the plaintiffs\u27 claims. In the fifty years since Congress enacted Title VII of the Civil Rights Act of 1964, the procedural landscape for plaintiffs asserting claims under the Act has changed dramatically. A series of decisions by the courts in the 1980s and early 1990s meant that plaintiffs increasingly failed to reach the trial stage of their employment discrimination suits because courts decided their cases using procedural devices. In a series of more recent decisions, the Court has limited the ability of plaintiffs, particularly those making class allegations, to move beyond the pleading stage. In the wake of these decisions, Defendant employers have increasingly used a litigation tactic that centers on the sufficiency of the notice the EEOC provided them during the EEOC\u27s pre-suit administrative processing of charges of discrimination. In considering the employers\u27 arguments, courts have assumed that conciliation and other steps in the EEOC\u27s multi-step administrative process serve the same purposes of well-pleaded complaints and discovery in civil litigation and, therefore, require an attendant level of notice to the employer during the administrative processing. When courts misconstrue notice in administrative proceedings, they impermissibly enlarge the due process rights of defendants in ways that undermine the effective enforcement of Title VII. Part I of this essay gives an overview of the EEOC\u27s litigation authority and its administrative processing duties under Title VII. In Part II, the essay describes decisions in which courts have conflated notice in the EEOC\u27s administrative processing of the charge with notice in civil litigation. Part III of the essay discusses the purposes of notice in civil litigation, and contrasts those purposes with the purposes of notice in the EEOC\u27s administrative processing. Importantly, a civil action under Title VII results in a trial and formal finding of liability while administrative processing results in an opportunity to voluntarily comply with Title VII. Finally, Part IV highlights the harm caused when courts import the principles underlying notice in the litigation stage of an employment discrimination suit to their review of the EEOC\u27s administrative processing. By not acknowledging the very different rights at stake in the two proceedings, courts have failed to take into account basic principles governing due process and erroneously have required higher levels of notice for employers at the expense of Title VII enforcement

Free Trade, Immigrant Workers, and Employment Discrimination

This article reframes the outward-looking perspective on workers’ rights provisions in free trade agreements. It argues that those provisions provide an opportunity to reinforce the workplace rights of noncitizen workers in the United States. Scholars and worker advocates have criticized recent free trade agreements for their lack of enforcement mechanisms and protections for workers in developing countries. They argue that this has encouraged a race to the bottom on the part of multi-national corporations who relocate to developing countries to take advantage of cheap labor costs, thereby costing U.S. workers’ jobs. This article shifts the focus. Instead, it argues that the anti-discrimination provisions and regulatory cohesion requirements in trade agreements can be employed to protect the rights of vulnerable, and, in particular, noncitizen workers in the United States. The provisions in the most recent iteration of trade promotion authority reinforce the rights of noncitizen workers in the United States in three ways. First, they have the potential to fill in gaps in U.S. agency enforcement of workplace rights; second, they provide additional incentives for the United States to enforce existing worker protections; and third, they provide a legal hook for workers’ advocates to exert political pressure on U.S. agencies to enforce anti-discrimination laws and multi-national corporations to change discriminatory practices

Framing and Contesting Unauthorized Work

Unauthorized workers face precarity in the workplace and the threat of forced expulsion from their communities. Some of the reasons for that precarity result from how the law frames unauthorized workers. The law views unauthorized workers as lacking full human or civil rights, as “unauthorized,” to the exclusion of their other identities. The legal system also creates a binary that views unauthorized workers as either criminals who are complicit in their exploitation or passive victims for employers to exploit. This Article draws on social movement literature to theorize the processes that result in this framing and to explore how immigrant social movements have contested that framing. That contestation has led to less precarity and greater social membership for unauthorized workers. First, this Article demonstrates that the law relies on a moral deservedness frame that has contributed to unauthorized work’s precarity and made unauthorized workers’ social membership more tenuous. Second, the Article argues that by contesting the law’s moral deservedness frame, movement actors have decreased workplace precarity and increased social membership. They have called on frames that center on workers’ human and civil rights, and their identities as family members and workers. Movement actors have worked around and through the law to empower unauthorized workers to engage in claims-making and organize worker co-operatives that provide workplace protections. They also have engaged in direct action and acts of civil disobedience that have led to greater mobilization and participation in the movement. Finally, immigrant rights organizations have changed the law by lobbying for policy changes and changes to state laws that benefit unauthorized workers. Besides reducing precarity, the contestation itself can become a source of social membership for unauthorized workers. In effect, the contestation allows unauthorized workers to exercise their political voices

Misconstruing Notice in EEOC Administrative Processing & Conciliation

Federal courts have misconstrued notice in the US Equal Employment Opportunity Commission\u27s ( EEOC or Commission ) administrative processing and conciliation of charges of discrimination. By requiring that the notice given to employers during the Commission\u27s processing of a claim be equivalent to that of notice in civil litigation, courts have conflated the purpose of notice in the former with the latter. Some of this conflation may be a consequence of the Supreme Court\u27s tightening of pleading standards, class certification requirements, and other procedural requirements, which are primarily focused on providing adequate notice to a defendant regarding the scope of the plaintiffs\u27 claims. In the fifty years since Congress enacted Title VII of the Civil Rights Act of 1964, the procedural landscape for plaintiffs asserting claims under the Act has changed dramatically. A series of decisions by the courts in the 1980s and early 1990s meant that plaintiffs increasingly failed to reach the trial stage of their employment discrimination suits because courts decided their cases using procedural devices. In a series of more recent decisions, the Court has limited the ability of plaintiffs, particularly those making class allegations, to move beyond the pleading stage. In the wake of these decisions, Defendant employers have increasingly used a litigation tactic that centers on the sufficiency of the notice the EEOC provided them during the EEOC\u27s pre-suit administrative processing of charges of discrimination. In considering the employers\u27 arguments, courts have assumed that conciliation and other steps in the EEOC\u27s multi-step administrative process serve the same purposes of well-pleaded complaints and discovery in civil litigation and, therefore, require an attendant level of notice to the employer during the administrative processing. When courts misconstrue notice in administrative proceedings, they impermissibly enlarge the due process rights of defendants in ways that undermine the effective enforcement of Title VII. Part I of this essay gives an overview of the EEOC\u27s litigation authority and its administrative processing duties under Title VII. In Part II, the essay describes decisions in which courts have conflated notice in the EEOC\u27s administrative processing of the charge with notice in civil litigation. Part III of the essay discusses the purposes of notice in civil litigation, and contrasts those purposes with the purposes of notice in the EEOC\u27s administrative processing. Importantly, a civil action under Title VII results in a trial and formal finding of liability while administrative processing results in an opportunity to voluntarily comply with Title VII. Finally, Part IV highlights the harm caused when courts import the principles underlying notice in the litigation stage of an employment discrimination suit to their review of the EEOC\u27s administrative processing. By not acknowledging the very different rights at stake in the two proceedings, courts have failed to take into account basic principles governing due process and erroneously have required higher levels of notice for employers at the expense of Title VII enforcement

Why Protect Unauthorized Workers? Imperfect Proxies, Unaccountable Employers, and Antidiscrimination Law\u27s Failures

This article explores a gap in the scholarship regarding the unauthorized workplace. It describes and names the two main justifications on which advocates and courts have relied to extend federal antidiscrimination protections to unauthorized workers. First, the proxy justification insists that workplace protections must include unauthorized workers because their protection is necessary to protect U.S. citizen and authorized workers. Second, the deterrence/accountability justification states that workplace protections must include unauthorized workers because it will deter employers from future violations of antidiscrimination laws and hold them accountable for violations of immigration law. While these justifications have led to some protection for workers, especially under federal antidiscrimination laws, unauthorized workers have still found themselves without full remedy. The existing scholarship attributes this to the Supreme Court’s decision in Hoffman Plastic Compounds, Inc. v. NLRB and its emphasis on the Immigration Reform and Control Act of 1986 (IRCA)’s prohibition on hiring unauthorized workers.This article argues that attributing the lack of full remedy solely to Hoffman is an incomplete account. It ignores the role that antidiscrimination law’s two primary, normative principles play in the justification’s limitations. First, anticlassification’s status-neutral and individually-focused principles exacerbate the stereotyping effects of the proxy justification, which results in limited access to remedies and misapplication of legal doctrines. Antisubordination also fails to achieve full protection for unauthorized workers. It can be difficult to get buy-in to the idea that workers who are unauthorized should be protected because antisubordination principles, unlike anticlassification principles, do not protect all workers regardless of status. Its historical reliance on immutability also means that courts and some policy makers may resist protecting unauthorized workers because they view immigration status as changeable. This also can lead to further stereotyping. Accordingly a fuller account of the unauthorized workplace shows that the proxy and accountability/deterrence justifications’ failure to fully protect unauthorized workers is not only the result of IRCA and immigration policy. The drawbacks of anticlassification and antisubordination principles lead to less robust protections for unauthorized workers, too

Fetal origins of malarial disease: cord blood cytokines as risk markers for pediatric severe malarial anemia.

BACKGROUND: Severe malarial anemia (SMA) remains a major cause of pediatric illness and mortality in Sub-Saharan Africa. Here we test the hypothesis that prenatal exposures, reflected by soluble inflammatory mediators in cord blood, can condition an individual's susceptibility to SMA. METHODS: In a Tanzanian birth cohort (n = 743), we measured cord blood concentrations of tumor necrosis factor (TNF), TNF receptors I and II (TNF-RI and TNF-RII), interleukin (IL)-1β, IL-4, IL-5, IL-6, IL-10, and interferon gamma (IFN-γ). After adjusting for conventional covariates, we calculated the hazard ratios (HR) for time to first SMA event with log(e) cytokine concentrations dichotomized at the median, by quartile, and per standard deviation (SD) increase. RESULTS: Low levels of TNF, TNF-RI, IL-1β, and IL-5 and high levels of TNF-RII were associated statistically significantly and respectively with approximately 3-fold, 2-fold, 8-fold, 4-fold, and 3-fold increased risks of SMA (Hb < 50 g/L). TNF, TNF-RI, and IL-1β concentrations were inversely and log-linearly associated with SMA risk; the HR (95% confidence interval [CI]) per 1-SD increase were respectively 0.81 (.65, 1.02), 0.76 (.62, .92), and 0.50 (.40, .62). CONCLUSIONS: These data suggest that proinflammatory cytokine levels at birth are inversely associated with SMA risk and support the hypothesis that pediatric malarial disease has fetal origins

The Lantern Vol. 47, No. 2, May 1981

• Festival • Ode to Old Tom • Living Room • Writing a Poem • Mission Impossible • The Hinge is Oiled • The Potter\u27s Field at Malvern • Points of Time • Attempted Autonomy • My Love • Love, not War • Death Comes Quickly • You Can\u27t Always Get What You Don\u27t Really Want • You See (Johnny\u27s Tale): An Elegy • Sanguine Hopeshttps://digitalcommons.ursinus.edu/lantern/1118/thumbnail.jp