Symposium - Introduction to Labor and Employment Law - Introductio

Blumrosen, Alfred W.

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Introduction to Labor and Employment Law Symposium

Mississippi College School of Law

Mississippi College Law Review Volume 11 Issue 2 Vol. 11 Iss. 2 Article 3 1991 Introduction to Labor and Employment Law Symposium Alfred W. Blumrosen Follow this and additional works at: https://dc.law.mc.edu/lawreview  Part of the Law Commons Custom Citation 11 Miss. C. L. Rev. 195 (1990-1991) This Comment is brought to you for free and open access by MC Law Digital Commons. It has been accepted for inclusion in Mississippi College Law Review by an authorized editor of MC Law Digital Commons. For more information, please contact walter@mc.edu. MISSISSIPPI COLLEGELAW REVIEWINTRODUCTION TO LABOR AND EMPLOYMENT LAW SYMPOSIUMAlfred W Blumrosen *The invitation to introduce this symposium came through the auspices of friendand former colleague J. Allen Smith. It has provided me with an opportunity toreflect on the extraordinary legal radiations from the simple but profound princi-ples of Title VII of the Civil Rights Act of 1964. It also brought backs vivid recol-lections of the late '60's, when, as the first Chief of Conciliations at EEOC, I triedto conciliate Title VII claims in the South. Now, of course, the principles of TitleVII have achieved wide acceptance. It was beyond imagination then that the equalemployment opportunity principle would spread so widely that this symposiumwould have a special focus on the "new frontier" of opportunities under the Amer-icans with Disabilities Act (ADA).IThis symposium contains an elegant reminder from Professor Cornelius J.Peck, that courts may limit the scope of workers' rights by adopting erroneous orover simplified assumption about industrial relations. 2 Professor Peck illustratesthis point by examining the concept of "employer" under one of our oldest laborlaws, the National Labor Relations Act. The issue he examines - the nature of theemployer-is central to all statutes which address the employment relationship.The assumption that "the employer" is a small business person struggling in a"mom and pop" environment is, as he points out, often so unrealistic as to distortthe interpretation of the law. This tendency to oversimplify the industrial relations* Thomas A. Cowan Professor of Law, Rutgers-The State University of New Jersey. B.A., J.D., University ofMichigan. Consultant, Director of Federal-State Relations and Chief of Conciliations, U.S. Equal EmploymentOpportunity Commission, 1965-1967; Special Attorney, U.S. Dept. ofJustice, 1968; Consultant, U.S. Dept. ofLabor, 1969-71; Consultant to Chair, EEOC, 1977-79, concerning Uniform Guidelines on Employee SelectionProcedures, Affirmative Action Guidelines and agency organization; Of Counsel, Kaye, Scholer, Fierman, Hays& Handler, New York, 1979-82; Counsel to NAACP in NAACP v. Meese, 615 F. Supp. 200 (D. D.C. 1985);and on Amicus Brief in Wards Cove Packing Co. v. Atonio, 490 U.S. 642 (1989); labor arbitrator; author BlackEmployment and the Law (1971); American Bar Association Ross Essay Prize, 1983 for "Six Conditions forMeaningful Self Regulation," 69 A.B.A. J. 1264 (1983). Professor Blumrosen has advised federal, state, andlocal governments, employers, unions and individual workers on equal employment matters.1. American with Disabilities Act of 1990, Pub. L. No. 101-336, 104 Stat. 327 (codified at 42 U.S.C. §§12101-12213 (1990)) [hereinafter ADA].2. Peck, The Meanings of Employer: Consequencesfor the National Labor Relations Act, II Miss. C. L. REv.309 (1991) [hereinafter Peck].SPRING 1991 ISSUE 2VOLUME I IMISSISSIPPI COLLEGE LA W REVIEWsystem so as to minimize important workers' rights has also appeared in Title VIIThis tendency to oversimplify can be addressed by the kind of careful analysis ofreal economic conditions that Professor Peck has provided.The Congress has begun to recognize that all employers are not alike, and thatlarger employers can be expected to bear a heavier burden of social responsibility.This is true not only with respect to the WARN statute which Professor Peck ad-dresses,4 but also with recent amendments to equal employment laws. In both theADA and the 1991 Civil Rights Act, Congress has mandated that larger employersbe subjected to more intensive legal requirements. Under the ADA, the larger theemployer, the more extensive is its obligation to accommodate to the employee'sdisability.5 Under the Civil Rights Act of 1991, the extent of liability for punitiveand compensatory damages for intentional discrimination is directly related to thenumber of employees of the employer.IThree articles in this symposium deal with the newest anti-discrimination law,the Americans with Disabilities Act.7 Their collective analysis demonstrates therange of issues which remain to be addressed on a "case by case" basis, despite theefforts of Congress and the EEOC, to solve as many problems as possible throughrulemaking.8 Congress required the EEOC to adopt rules to interpret the law. Thisis a desirable feature of modern regulatory legislation. Congress cannot "fine tune"a massive regulatory statute. Therefore, it should require agencies to do so, in or-der to give guidance to interested parties, rather than leave major issues to the va-garies of "case by case" adjudication.Nevertheless, as the three articles demonstrate, many issues under the ADAwill be litigated over the years. In light of this fact, it is somewhat surprising thatemployers offered relatively little resistance to the ADA (or to the 1990 amend-ments to the Age Discrimination Act'), as compared to their objections to exten-sion of rights to be free from sex, race or national origin discrimination in the1991 Civil Rights Act.10 The wide distribution of disabilities and the inevitability3. See Blumrosen, Society In Transition H: Price-Waterhouse and The Individual Employment DiscriminationCase, 42 RUTGERS L. REv. 1023, 1024-30 (1990) (all Justices of the Supreme Court assume that Title VII mustbe construed under the presupposition that discrimination is as pervasive as it was in 1965 or that it is now anuncommon phenomena).4. Peck, supra note 2, at 342-43.5. See Gerson & Addison, Handicapped Discrimination Law and the Americans with Disabilities Act, IIMiss. C. L. REv. 233 (1991).6. See § 102(b)(3)(A)-(D) Civil Rights Act of 1991, Pub. L. No. 102-166, 105 Stat. 1071 (to be codified at42 U.S.C. 1981 (1991)) (caps of $50,000 for employers of 15-100 employees; $100,000 for employers of 101-200 employees; $200,000 for employers of 201-500 employees; and $S300,000 for employers of more than 500employees).7. See Gerson & Addison, Handicapped Discrimination Law and the Americans with Disabilities Act, 11Miss. C. L. REv. 233 (1991); Irby, TheADA: The Employer's Perspective, II Miss. C. L. REv. 263 (1991); Miko-chik, Employment Discrimination Against Americans with Disabilities, II Miss. C. L. REv. 255 (1991).8. See ADA § 106 requiring the EEOC to issue substantive regulations which would have the force of law.9. The Age Discrimination Act was amended in 1990 to reverse the decision in Public Employees Retire-ment System of Ohio v. Betts, 492 U.S. 158 (1989). See also Older Workers Benefit Protection Act, Pub. L. No.101-433, 104 Stat. 978 (codified at 29 U.S.C. §§ 621-623 (1990)).10. Employer resistance to the Civil Rights Act of 1990 contributed to President Bush's veto, which was sus-tained in the Senate.[Vol. 11 : 195LABOR AND EMPLOYMENTLA W SYMPOSIUMof aging made it easier for white males to empathize with the disabled and theaged, than with women or minorities. The irony, of course, is that anti-discrimi-nation laws benefiting older and disabled workers emerged only after race, na-tional origin and sex discrimination laws were understood to be necessary.We still seem hesitant to recognize that race, national origin and sex discrimi-nation are matters of universal conern. Despite this hesitancy, the national effortto establish equal employment opportunity has had remarkable success, in boththe economic and legal spheres. The improvement in occupational distribution ofboth minorities and women between 1965 and 1990 has been most impressive.11The 1991 Civil Rights Act was passed with the largest majorities of any CivilRights Act in our history. 12 That statute repudiates the 1989 Supreme Court deci-sions which had narrowed both Title VII and the post civil war Civil Rights Act."In addition, the 1991 Act provides for compensatory and puntive damages for in-tentional discrimination under Title VII and the ADA.14 It leaves in place the af-firmative action opinions of the Court, and makes it more difficult to challengeaffirmative action provisions in court decrees."5 Title II, the "Glass Ceiling" Act,adopts the methodology which has been basic to affirmative action programs fortwenty years. 1The 1991 Civil Rights Act addresses a problem which has been of special con-cern in the South. That problem relates to the definition of "intent" to discriminate.Is the concept limited to a deliberate conscious desire to subordinate an individualbecause of race or sex, which was characteristic of the economic and social systemin the South before the civil rights era? Or does it encompass the subtle subcon-scious assumption of the inferiority of minorities or women which may influence"subjective judgments" which affect employment decisions?17 This issue was notimportant in the early years of the Civil Rights Act in the South because of thebackground of overt discrimination. The primary question at that time waswhether employers' actions perpetuated the effects of prior deliberate discrimina-tion.18 As the era of overt racial segregation faded, and evidence of such deliberate11. Blumrosen, Society in Transition 1: A Broader Congressional Agenda for Equal Employment-The PeaceDividend, Leapfrogging, and Other Matters, 8 YALE L. & POL'Y REv. 257, 260-62 (1990).12. The vote was 93-5 in the Senate, 137 CONG. REc. S 15503 (daily ed. Oct. 30, 1991); the vote in the Housewas 381-384, 137 CONG. REc. H9557-58 (daily ed. Nov. 7, 1991).13. See Blumrosen, The 1989 Supreme Court Rulings Concerning Employment Discrimination and AffirmativeAction: A Minefield for Employers and a Gold Mine for Their Lawyers, 15 EMPLOYEE RELATIONS L.J. 175 (1989).14. See supra note 5.15. Civil Rights Act §§ 108, 116.16. Civil Rights Act § 202(a). That methodology involves (1) identifying "underrepresentation" of minoritiesor women in a particular job category and (2) seeking to eliminate "artificial barriers" which have contributed tothat underutilization.§ 202 in its entirety revives the issue of the relationship between appropriate affirmative action and inappro-priate use of "quotas." See Blumrosen, Society in Transition 111; Justice O'Connor and the Destablization of theGriggs Principle of Employment Discrimination, 13 WOMEN'S RTS L. REP. __ (1991).17. Welch, Removing Discriminatory Barriers; Basing Disparate Treatment Analysis On Motive Rather ThanIntent, 60 S. CAL. L. REv. 733 (1987).18. See BAZEMORE v. FRIDAY, 478 U.S. 385 (1986); SCHLEI & GROSSMAN, EMPLOYMENT DISCRIMINATIONLAW 3-26 (2d ed. 1983).19911MISSISSIPPI COLLEGE LA WREVIEWdiscrimination faded with it, the question became whether subjective attitudes as-sociated with the previous era were also encompassed within the concept of "in-tent" to discriminate.Two recent cases suggest that "subjective judgments" which incorporated un-conscious bias are embraced within the concept of illegal discrimination under Ti-tle VII. In Watson v. Fort Worth Bank and Trust,19 the Court held that suchsubjective judgments were subject to the "disparate impact" branch of Title VIIlaw."2 The 1991 Civil Rights Act supports these conclusions.First, it validates the disparate impact doctrine of Title VII, as it was under-stood prior to the 1989 Supreme Court decision in Wards Cove Packing Co. v. An-tonio.21 This would include the Watson case applying disparate impact law tosubjective judgments which was decided in 1988.Secondly, it reversed the aspect of the Price Waterhouse case which absolved theemployer of Title VII liability in "mixed motive" cases if the employer could showthat it would have made the "same decision" against the employee in the absence ofdiscrimination.22 Congress adopted the view that Title VII liability was "estab-lished when the complaining party demonstrates that race, color, religion, sex, ornational origin was a motivating factor for any employment practice, even thoughother factors also motivated the practice."23This provision recognizes the possibility of multiple motivations for an employ-ment decision. It does not suggest that each of the "motivating factors" had to be"conscious" or "rational." The 1991 Act, together with Watson and Price Wa-terhouse establish that subjective judgments which harbor unconscious bias aresubject to both disparate impact and disparate treatment branches of Title VII law.This is a realistic conclusion. While the era of deliberate subordination is over,changes in deeply held attitudes are most difficult to achieve, and long held andoften subconscious assumptions of inferiority fade slowly. 24The 1991 Civil Rights Act did impact directly on one of the papers in this sym-posium. Professor Monique C. Lillard critiqued the "Flimsy Canon" which justi-fied denying extraterritorial effect to Title VI." She called for an amendment toalter the decision. The amendment has been adopted as part of the Civil Rights Act19.487 U.S. 977 (1988).20. Id. at 999-1000.21. 490 U.S. 642 (1989); see Civil Rights Act § 2(2) (Wards Cove weakened the scope and effectiveness ofcivil rights laws); § 3(3) (confirming statutory authority for disparate impact suits); § 3(4) (to respond to recentSupreme Court decisions by expanding scope of relevant civil rights statutes).22. The "same decision" doctrine had been criticized. See Blumrosen, Society In Transition 11: Price Wa-terhouse and The Individual Employment Discrimination Case, 42 RUTGERS L. REv. 1023, 1033-42 (1990).23. Civil Rights Act § 107(a). § 107(b) provides for tailored relief if the employer demonstrates it would havemade the same decision absent discrimination.24. The collapse of the Soviet Union demonstrated that regional differences which had been suppressed for 73years under a totalitarian regime, reemerged with vigor as soon as the control of the central government wasrelaxed.25. Lillard, Flimsy Precedent and Narrow Vision: A Call for Congressional Amendment of Title VII and theADA in Response to Bourselan, 11 Miss. C. L. REv. 271 (1991).[Vol. 11: 195LABOR AND EMPLOYMENTLA W SYMPOSIUMof 1991.26 Under this amendment, employers may defend against extraterritorialdiscrimination claims on the grounds that the law of the foreign country requireddiscrimination. Is "law" to be defined as including customary policies, "commonlaw," or only legislation? Labor law now embraces both the political and commer-cial aspects of international law. Professor Lillard's article, written to advocate aview which Congress has now adopted, has become a useful examination of rea-sons for the adoption of this new law.Labor and employment law is in no danger of becoming obsolete. While orga-nized labor and collective bargaining have declined in influence, the past quartercentury has seen an extraordinary growth in the statutory rights of workers. Work-ers' rights have become more central to the political/legislative process than everbefore. The range of statutory matters addressed in these essays attest to the con-tinuing vitality of the field and to the high quality of its scholarship.26. Civil Rights Act § 109(a) expands the definition of employee in both Title VII and the ADA to include:"With respect to employment in a foreign country, such term includes an individual who is a citizen of the UnitedStates." § 109(b) provides an exemption with respect to an employee in a workplace in a foreign country, "if com-pliance with such section would cause such employer ... to violate the law of the foreign country in which suchworkplace is located."1991]

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Introduction to Labor and Employment Law Symposium

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