That's a Wrap

The 2007 group of Work/Life/Law bloggers had our "final" meeting today.

I want to thank the students for some really excellent and insightful commentary. It was a kick for me to read what you posted here throughout the semester.

Thank you also to any non-class readers or lurkers who have or will check out this blog.

Good luck to the graduates!

Have a wonderful summer all.

Ready to Work Abroad?? (by Fatima)

Globalization is a key word today. The world is shrinking and we now know the importance of understanding different cultures. I found an excellent article followed by a questionairre at the end which helps you assess what kind of person you are and how well you can adapt to change. The level of your ethnocentrism will help you assess how well you can adapt to the laws of other countries and your chances of flourishing if you are interested in working abroad.
I enjoyed this, I suggest you give it a try!

A Comparison of Laws (by Fatima)

Yesterday, after my team’s presentation, I pondered over the many laws of my country. I wondered whether the laws would have been different had we not been partitioned from India in 1947. This invoked my interest and hence I researched specifically over sexual harassment laws in India to find out how different we were. Much to amazement I found out that it has only been six years since sexual harassment was recognized for the "first" time by the Indian Supreme Court as a human rights violation and gender based systemic discrimination.
I was very surprised to read about this because my perceptions were that sexual harassment laws would be much stricter and well defined in India, due to its economic growth, foreign investment and different religion. This was obviously not the case. Even in India it appears to be that sexual harassment laws and policies are ‘weak’ and cultural implications are intertwined. Also, I was very surprised that six years ago was the first time that this was brought up because India has been economically successful over the past fifteen years with huge multinationals and foreign companies located there. However, it appears to be that South Asian countries give huge importance to culture and hence formulate their laws around that very aspect even if it means differentiating themselves from the rest of the world’s definition of what is the "right" thing to do.

Get Excited For Cubicles

Since many of us are in our last days as undergrads and we will soon find ourselves in a small cubicle that will be our workplace home. I found this kind of shorter article about some of the do's and don'ts of cubicle etiquette. I think that most of the advice is legitimate, although I think you're boss might disagree with you turning off your cell phone at work. anyway it is kind of lighter article to ease some of the mood and tension of "dead week" But it's still dealing with censorship issues and workplace privacy. Let me know if you agree or disagree with any of these guidelines

Cubicle Etiquette

Does Title IX make retaliation illegal?

Here is an article i read that is a little old (2003) but it talks about a coach who was a whistle-blower in saying that his women's teams did not have the same opportunities and facilities as the men's teams. After he complained he got negative performance evaluations, and was finally removed from his coaching position. But continued to hold a tenured position as a physical education teacher at the school. He says that his removal from coaching was retaliatory.

So does Title IX prohibit not only sex discrimination itself, but also retaliation against those who complain about sex discrimination? And another thing to think about is if a person can sue for retaliation?

I couldn't find out if the supreme court took the case and what the outcome was, but if anyone finds anything let me know!

Discrimination and Harassment: South Asia vs. USA (by Fatima)

Tomorrow my team and I will be talking about sexual harassment policies in the USA v. Pakistan. My team and I chose this topic especially because they were interested in exploring the topic from a first hand perspective. However, on researching for the presentation I also learned so many facts about Pakistan law that I was unaware of. Even though this is going to be a very drastic comparison (comparison of a first world nation to a third world) it is something enlightening to understand some of the South Asian laws in general. In such a fast paced economy today, where men and women are on equal footing in most nations, some nations are still holding on to the past. Many people argue that in some countries like Saudi Arabia women are not put in the forefront even when they are capable. Most people argue that this is done to protect and safeguard women, and because most clients would not like to deal with women. I wonder if safeguarding women and keeping the clients satisfied can be seen as a mission of firms, or can it still be regarded as discrimination? What do you think??

Health Care Debate (by Fatima)

Lauren, Kelley and Sara's presentation on Health Care debate was especially interesting and insightful in many aspects. I come from a country where the private sector health care is very limited in nature, and most people have to make do with the universal health care which is of very poor quality.Here in the USA, the private sector health care is flourishing and I know many of my family friends that either wish to come to USA to get medically treated, or wish to come here to study so that they can become successful doctors in the US. I believe that even though it is very hard to justify that why a 70 year old woman would not get treated just because she cannot afford it, it happens to be the inevitable truth that the private sector health care is driven by monetary incentive. This incentive leads to a much higher quality of health care provided to citizens.Today, some of the diseases that have been eradicated from the world such as small pox, are due to the fact that private companies had monetary incentive to come up with wonder drugs. To simply analyze this issue from a cost-benefit analysis perspective, it does not make sense for a pharmacuetical company to spend so much time and effort in creating a new drug other than them having a moral imperative towards the public.

(Professor Prenkert's Comment: Fatima's Blogger account is messed up, so her posts are going to be showing up under my name.)

Data Protection in the European Union

Our group tomorrow is going to talk about privacy law between the United States and the European Union. I am concentrating on data protection between the two countries. A relevant court case which broadened the European Union General Privacy Directive is the Lindqvist decision. I will discuss it more in our presentation, but I felt it would be relevant to post the entire scenario of the case on the blog. Here is the link: http://www.olswang.com/news.asp?page=newssing&sid=125&aid=670. With the European Union having more uniform rules with privacy and the United States being more self-regulatory, how do you think the courts would have interpreted a case like this in the United States. Let me know what you think after hearing our presentation tomorrow.

Watch Out! Don't fire a complaining employee.

Here is an interesting article about at-will in America form this week's BusinessWeek. This is one of the major issues I have been dealing with the more I learn in this class. Frankly, I am still very afraid of just what can happen when you have to fire someone. I understand better now the need to keep documentation of every contact with each employee/person (this is why I prefer to e-mail everything now), but still this doesn't protect from a lawsuit. In the article GE was sued because of alleged discrimination, but the judge said the proof was so weak he wouldn't allow the plaintiff to present the discrimination as evidence. However, the plaintiff was awarded $11.1 million because of the alleged retaliation stemming from complaining about the alleged "discrimination" complaints!

Enough with the French

After yesterday's love fest with France, I was feeling down about the good old US of A so I wanted to look into if there was something that I could find in American employment law that could make up for our health care being so inferior to France's. I know yesterday's presenters showed us that graphic about how much Americans spend on health care. I also remember hearing that our medical systems are successful just not accessible. So what about our wonderful capitalist society makes medicine affordable to most Americans? And what monetary law were we discussing last week? That's right minimum wage laws.

So knowing American minimum wage is $5.15 an hour, I found this website that said that French minimum wage is 7.61 Euros/hr (approx. $10.35) starting with people who work 39 hrs a week.
http://www.eurofound.europa.eu/eiro/2005/07/study/tn0507101s.html Unfortunately we lose again, Dang it!

Can any restore my faith in our country? What makes up for our low minimum wage and unaccessable healthcare?

Discussing Virginia Tech

Obviously universities around the country have been affected by the tragic events that took place last week at Virginia Tech. Towards the end of last week, an adjunct professor at Emmanuel College in Boston was fired for leading a discussion about the events that took place in Blacksburg, Virginia. The article I found from AHN gives a very mild description of the events that took place in the classroom. However, a video shown on CNN gives a more descriptive analysis of the specific actions of the professor. Specifically, the administration at Emmanuel College had apparently asked their instructors to engage students on the issues surrounding the tragedy. The recently fired professor gave a lecture where he paced around a classroom and simulated murdering students by pointing a marker at them individually and saying "bang". The lecture was intended to promote the discussion of the public's "celebration of victimhood". The professor considers his dismissal as being a challenge to academic exploration and free speech.

At this point, it is unclear whether or not this professor was the subject of employment at-will or bound to a contract. Regardless of the terms of his employment, should this individual have been fired based on his actions? Although it seems that the professor's actions could be construed as insensitive, his actions did meet the guidelines set forth by Emmanuel College. Does the college bear any responsibility for not approving or reviewing this lecture before it was given to students? Does the professor's firing infringe upon his first amendment rights? Tell me what you think.

The Young and Uninsured

Kelley, Lauren, and Sara's informative presentation today reminded me of an article I'd read recently. It is from New York magazine and discusses how many young people don't have healthcare.

It makes interesting points about the ineffectiveness of our healthcare system and how as a group, our generation has been passed up. It also talks about how we generally think that we are healthy and don't need any type of care (as Kelley mentioned). I know it's a long article, but it is definitely worth your time!

http://nymag.com/news/features/29723/

It's Not as Private as You Think

While Little 5's weeklong festivities are something to get excited about, it also got me thinking about a more serious employment topic that we touched on a few months ago.

Privacy issues and the internet have become more prevalent in the last few years. It is a neccessity to realize that your online profiles (Facebook, Myspace, etc) are available to anyone who is interested, even employers. As graduating or soon to be graduating, students should keep this in mind when posting those great pics. Don't forget that there are privacy options that you can take advantage of so that you are only visible to your friends.

This article gives some examples of the negatives that can happen when you're not too careful. Check it out.

A World-Wide (Web) Convergence on a Single Topic?

It seems that everyone was talking about work-life/work-family balance issues this week. Check out these two posts from Workplace Prof Blog:

First, the Workplace Profs report that Georgetown University Law Center has received a sizeable grant to continue its efforts on the Workplace Flexibility 2010 initiative, which is "a campaign to support the development of a comprehensive national policy on workplace flexibility." The website for the program describes the goal of the initiative as follows: "By the year 2010, we hope to have helped develop consensus-based policy solutions that work for business and families."

Second, on Wednesday as we were discussing the very topic in class, the EEOC was hosting a discussion about Family Responsibility Discrimination. The meeting included testimony by Joan Williams, director of the Center on WorkLife Law at UC-Hastings College of the Law (the organization whose webpage you read for class on Wednesday); Zachary Fasman of Paul, Hastings; Heather Boushey, Center for Economic and Policy Research; Jennifer Tucker, Center for Women Policy Studies; and Elizabeth Grossman, EEOC Regional Attorney. Cynthia Calvert, also of Hasting's WorkLife Law center, has a more extensive post about the discussion at the WorkLife Law Blog. You will note that the panelists comment negatively about the "sex-plus" concept, which I mentioned in class on Wednesday.

I thought this was a nice convergence of news on the topic we were discussing at the very time we were discussing it.

A Career Path to Motherhood?

I was doing some more thinking about what Professor Prenkert said about the debate surrounding the FMLA and other work/family balance issues. Is it as he suggested, a choice only for the upper middle class and above? I had never considered that issue, but the more time I spend thinking I believe that is the case. A senior at The George Washington University, Juliet Moser wrote an op-ed for the New York Times this week. In the piece, "A Letter to My Mother" (NYT Select, you can sign up for a free two week trial). Ms. Moser discusses her feelings on the work/family debate. She begins by saying that she wants "no ankle biters" (children) of her own, but later in the letter wonders if she will "wake up one day and decide that my 22-year old self was ridiculous and that I do want children--hordes of them?" She worries that if that does happen, it'll be too late. Ms. Moser believes that she'll lack the option to make the choice of having children after establishing herself professionally because "opting out is the domain of a privileged few." Another point that Ms. Moser makes I found especially interesting. She refers to the increasing number of well-educated women who plan to spend only a few years in the workplace and wonders what effect that has on women like her who plan to remain childless. She asks if employers will consider her as a "flight risk" and limit her the opportunities needed for advancement in a career because she has the ability to bear children.

The phenomenon of well-educated women leaving (or never entering) the workplace is analyzed in an article mentioned by Ms. Moser and published in the NYT in 2005. The article "Many Women at Elite Colleges Set Career Path to Motherhood" (again, NYT Select) describes a study of female students at top universities in the United States. Sixty percent of those interviewed said that they planned to stop working entirely or cut back on work when they had children. Of that 60%, half planned to stop entirely and half planned to work part time. Many of those interviewed were planning on attending graduate school and then becoming full-time mothers. They believed it was impossible to be a professional and a good mother.

What are your thoughts? Is it possible to combine both jobs (career & children) or does a total choice need to be made between the two to succeed?

Pay Disparity between Men and Women

Yesterday's class discussion regarding pay differences got me thinking. Considering it is something that affects all of us, I wanted to get some real numbers and here is what I found:

EARNINGS--Women's median weekly earnings in 2005: $585 for full-time wage and salary workers, $722 for men.
Overall, women’s earnings as a percent of men’s were 81.0 percent.
Women's median hourly earnings: $10.31 for those paid hourly rates, $12.16 for men.

2006: The median weekly earnings of women who were full-time wage and salary workers was $600, or 81 percent of men’s $743. When comparing the median weekly earnings of persons aged 16 to 24, young women earned 94% of what young men earned ($395 and $418, respectively).
Source: U.S. Department of Labor, Bureau of Labor Statistics, Employment and Earnings, January 2006.

However, I also found this article:
http://www.forbes.com/work/compensation/2006/05/12/women-wage-gap-cx_wf_0512earningmore.html
It gives a completely different point of view than most of us had in class and raises some interesting points.
Let me know what you think!

I also didn't forget that Valerie mentioned the difference between women and women with children is even greater. I think that pay disparities within genders is just as important; unfortunately, I couldn't find numbers on the topic.

Work-Life Balance

In our discussion in class today about work-life balance, I kept thinking about a statistic I once heard about Americans, Europeans, and vacation days. I tried to find it online but I had no success so I will tell you and you can believe me or not. Americans on average are given 2 weeks of vacation or personal days a year, while the European average is more like 4-6 weeks of paid leave (depending on the country). I did find support for this. One website gives the average number of vacation days per country, and another gives the minimum number of paid vacation days per country that a company must give it's employees. I remember when I was in Italy last summer being told by an Italian friend that Italians usually get 6 weeks of vacation time and it would be extremely uncommon for an Italian not to take every single day possible. In the U.S. it's rare for an employee to take the full 2 weeks that they are given. So when we sit around discussing how we all want to have work-life balance, I guess we need to remember that some of it is in our hands. In our society it seems that there is a sense of guilt associated with taking a day off, and personally I don't think that's a positive thing. What do you think about the topic? Is it bad or good that there is a pressure not to ever take a day off work? Do you think it speaks of work ethic or obsessiveness?

Law Students Building a Better Legal Profession

As I mentioned I would do in class, I'm posting this to direct you to the website for Law Students Building a Better Legal Profession. Here is also a post on the Wall Street Journal's Law Blog discussing the group and its goals.

IU Employee Wages

The Indiana minimum wage that the Bloomington area adopted, which was described in the article from class, applies to Indiana University employees. I work at the IU golf course, and recently talked to my boss about the minimum wage that he is required to pay his course maintenance employees. He notified me that the University mandates a $9 minimum wage for these employees. This wage however is much higher than what I started out at in a golf course in Ft. Wayne, IN that I worked at with basically the same duties. So, my question is if you think the University is being somewhat careless with its money in paying this high of a wage in an area with a relatively cheap standard of living? Although it benefits me, I feel the University is not being economically efficient with how it distributes some of their employee wages. I know this is not a very popular topic, but thought it was relevant to the discussion we had in class.

Depression? Isn't that just a fancy word for feeling "bummed out"?

If you're a fan of The Office, you probably recognize the title. Our impending discussion of work-life balace and last week's episode of The Office got me thinking, what are the psychological and emotional threats of excessive work? How many people suffer from depression as a result of job-related stress? What kind of steps do employers need to take to ensure the mental and emotional safety of their employees?

Why such stress? According to an article in Workforce Performance Magazine, "Among industrialized economies, the U.S. ranks as one of the highest in average annual hours worked per person, a rank that has remained virtually unchanged since 1990, according to statistics from the International Labor Organization at the United Nations." The American Institute of Stress published the following statistics from the National Institute for Occupational Safet and Health (NIOSH) on their website (http://www.stress.org/job.htm).

• 40% of workers reported their job was very or extremely stressful;

• 25% view their jobs as the number one stressor in their lives;

• Three fourths of employees believe that workers have more on-the-job stress than a generation ago;

• 29% of workers felt quite a bit or extremely stressed at work;

• 26 percent of workers said they were "often or very often burned out or stressed by their work";

• Job stress is more strongly associated with health complaints than financial or family problems.

So what can employers do to prevent the adverse effects of a poor work/life balance and promote a healthy and productive environment? Employers can provide flexible working hours, such as a compressed work week. This allows workers to work more during four days of the week to allow for a longer weekend. Some employers allow their workers to work from home which provides the employees with a more comfortable environment. Employers should also monitor the satisfaction of their employees with their work/life balance. This can help the employer to establish guidelines for the business that will allow employees' personal obligations to be met. Many employers also provide the option for maternity and even paternity leave (as Daya mentioned).

As an employee, it is important to take time for yourself. And you can always remember Michael Scott's wise words, "An office is only as safe as the people in it."

Stay at Home Dads

Be honest. What do you think of when you hear "stay at home dad"? Like Dunham's article referred, do you find it synonymous with "couldn't find work"?

For our research paper, I read "Discrimination by Default: How Racism becomes Routine" and it briefly touched on the idea of women as caregivers. We assume women are naturally more affectionate, "motherly", and have certain domestic roles. Employers often only apply maternity leave to mothers, and fathers are not given the same workplace benefits a woman might receive. These stereotypes create a self-fulfilling cycle that force women to be the primary caregiver and possibly discourage willing fathers from taking on the role. This subtle discrimination is so ingrained that we may not even realize we are participating in it.

If you are interested in the life of a stay at home dad, check out rebeldad.com, one father's blog devoted to such topics. I found this particular post very interesting:
A 2005 Gannon University study, for example, found that the most popular child-rearing books used mother twice as often as father when referring to parenting in general. According to the study, even when the authors used gender-neutral language, it was usually clear that they were speaking to mothers. Why else would they suggest parental stress-management techniques that included "getting one's nails done" and "talking with a girlfriend"?

Clearly, even the people who *should* be more conscious of child rearing issues still have a bias towards women as caregivers.

So what are your opinions on the legal system or the attitudes of employers? Clearly we still live in a society that involves dad "bringing home the bacon" and mom barefoot and pregnant.
How were you raised? Do you think it was an equal parternship or more your mother/father doing the work?
Is it just the legal system that is at fault or do you feel there are deeper roots to this problem?
What ideas do you have to help rectify this gender-biased thinking?

Living Wage Calculator

In the spirit of our upcoming living wage discussion, I have found a very interesting website that calculates the hourly wage necessary for you to live in a particular area. (http://www.livingwage.geog.psu.edu/) The website will give you output for regional expenses for items such as food, housing, medical care, etc. for just about anywhere in the U.S. If you scroll down, you can find what the living wage for the area would be based on how many people you support. This wage is then compared to what the actual minimum wage is. You can also examine the average hourly wage for various industries and determine if a career in this field would adequately cover the necessary expenses.

For example, for Prof. Prenkert to support a wife and two kids in Bloomington, he would need to make $19.29 an hour. The minimum wage for Bloomington is only $5.15 an hour, however. If he were in the Farming, Fishing, & Forestry industry, the typical hourly wage for Bloomington is $9.95, which would mean that he would be almost $10 short of having the ability to adequately cover his expenses. (Lucky for him, he's a successful Harvard Law grad!)

Take a look at the area where you're from or where you'll be living next year. Do you notice any surprising results? As young adults entering the work force, the cost of living can be quite surprising. However, as well educated individuals with bright futures, we are not often concerned that we will be able to cover these costs. It is important to consider some of the questions Daya posed and the policy arguments for and against the living wage. Although it may not affect us directly, it is policy battle that will continue to be fought on Capital Hill. Who knows, it may be an interesting consideration for you before the next election season.

If you're interested in finding more information, I would suggest visiting ACORN's Living Wage Web Site (http://www.livingwagecampaign.org/).

Living Wage

Tomorrow we will be discussing living wage issues. The basic idea behind living wage involves paying workers a wage that sets them at a certain income level--in this case, above poverty.
Do you see this as a moral/ethical issue or simply an economic one?
Does setting a living wage seem idealistic or is it a necessity?

There are several arguments for each side. One one hand, many believe that artificially fixing a price for labor above the market price causes a decrease in the overall demand for labor, leading to increased unemployment. Many also think that goverment intervention, however well-intentioned, never bodes well for our economy.
On the other hand, studies like that of David Card and Alan Kreuger (What is a Living Wage? article) show that an increase from $4.25 to $5.05 did not cause any harm to employment. In some cases, an increase in wage increased employment as well.
Do you have additional arguments for either side?

You may also want to keep in mind that the living wage ordinances normally affect businesses that have contracts with the government or get taxpayer's money in some way. Do you think that this is the best policy or should it be expanded to include the private sector?

College Admissions: Affirmative Action and Legacy Preference

Recently some Princeton (see article) sociologists conducted a study on legacy applicants and minority/athlete applicants at competitive colleges nationwide. The study indicated that minorty students/athletes fair better academically than do legacy students.

These sociologists found that on average legacy students receive a boost equivalent to 47 SAT points, while athletes and minority students receive a boost of about 108 SAT points during the admissions process. In 2004 Yale accepted 30 percent of legacy applicants which is roughly three times the acceptance rate for non-legacy applicants. Some people argue that these boosts allow students to be admitted even though their qualifications are slightly sub-par, and speculate that the students will not be able to keep up with the elite academics. The study was conducted to see whether or not these speculations were true. According to the sociologists, the study showed that "Affirmative action programs do not appear to set up either minorities or athletes for academic failure by dumping them unprepared into a very competitive academic environment." Surprisingly, the only evidence the study did suggest was that children of the alumni were slightly unprepared compared to the average student. (See Yale's article for further details.)

In light of this information has your opinion changed about affirmative action? Do you agree with the study that minority students/athletes are sufficiently prepared for the elite universities, and that legacy students may be unprepared?

Few people seem to debate the fairness of legacy status as intensely as they debate the fairness of affirmative action programs. Which preferential treatment do you think is more "fair"? Affirmative action or legacy? If legacy preferences are already given, does it seem more appropriate that programs are implemented to balance the admissions process for minorites?

Lastly, this college comparison can translate into the work world. Many people get jobs through nepotism, i.e. "networking" or because somebody "puts in a good word for them." This in a way, is similar to "legacy status" of college admissions. This may be one reason that makes it much harder for minorities and women to obtain higher executive jobs because they do not have people pulling for them. With this in mind does affirmative action seem necessary in order to balance this out?

"Logical End Point?"

Justice O'Connor delivered the opinion for the 2003 affirmative action case Grutter v. Bollinger. When she closed the case by saying that the judges are "mindful" of the 14th Ammendment, and its purpose to do away with all "governmentally imposed discrimination based on race." That being said the judges believed that race-conscious admissions policies should be limited in time, and have a "logical end point."

In your opinion, what would be a "logical end point" for programs like affirmative action? Do you think they should still be used 10, 20, 50 years from now? Do you think there should even been an endpoint, or should this policy be maintained indefinitely?

Now almost 4 years later Sandra Day O'Connor reaffirms the idea that the future of affirmative action still remains "muddy." In a recent article on April 6 for The Chronicle of Higher Education, she notes that some private colleges end up being more diverse in their enrollment than public colleges. This trend seems "ironic" since private colleges are not covered by state bans on racial preferences.

What do you think might be some of the reasons that private colleges have more diverse enrollments than public? What do you think this indicates about the effectiveness of the policy?

Employment Issues on Public Air Waves

As I'm sure most of you have seen, popular radio host Don Imus was fired yesterday by NBC in response to his recent radio comments. Here's a link for those who have not followed the story: http://www.foxnews.com/story/0,2933,265441,00.html.

NBC's decision raises several questions concerning employer decisions related to whether or not individuals should be retained after discriminatory comments like that of Imus. Many have argued that Imus should not have been fired, and that the decision is a threat to free speech on the air waves. In other words, "let the free market punish Imus". If people no longer would like to listen to him, then he will indirectly be punished through poor ratings and station cancellations. What do you think of this?

Do you feel that employers in this industry have a duty to fire individuals (like Imus) in verbal situations that have gone too far?

Also, it seems to me that companies like General Electric (parent of NBC) do not really care about the man's comments; it is only about money. By that I mean that NBC would never have dropped Imus for the racist comment unless advertising sponsors cancelled deals (which they did). After all, Imus has dropped other crazy comments before, and nothing happened.

Should companies like GE be concerned about what their employees say on the airwaves as long as sponsors are happy and money keeps rolling in? I'm sure this issue will continue to arise as this is not the first time that an employee in the entertainment industry has been fired for unreasonable comments.

Possible Weakness of Proposition 209

From what I remember of the discussion on affirmative action in today's class, Proposition 209 came up, which states that you cannot, "discriminate against, or grant preferential treatment to, any individual or group on the basis of race, sex, color, ethnicity or national origin in the operation of public employment, public education or public contracting."

Prior to the approval of Proposition 209 in 1996, Beverly Hills High School used "diversity permits" to enroll a mixture of different minorities in its predominantly affluent, Caucasian school. However, after this was enacted, the school "no longer asks children who apply for diversity permits to state their race or ethnicity. As a result, 108 of the 159 Los Angeles students attending Beverly Hills High on this program are Asian, while 19 are black and 16 are Latino." http://web.lexis-nexis.com/universe/document?_m=1dfa7a04e9baf75e721528018a7e253d&_docnum=9&wchp=dGLbVzW-zSkVb&_md5=8484d1674e0bf69d6aadeb34a91ebc59

From this situation, the argument can be made that instead of increasing opportunity and diversity in schools for all races, that it can limit such opportunities for members of some groups.

What do you think?

ADEA vs. Title VII

In class on Monday we started to discuss some of the differences between age discrimination and sex, race, religion discrimination protected under Title VII. We observed that the disparate-impact liability under Title VII is narrower than that under the ADEA.

For a quick summary, disparate impact addresses and employer who may not be motivated by discriminatory intent, however Title VII still prohibits an employer from suing "facially neutral" employment practice that has an adverse affect on members of a protected class. For example, a company may require a highschool diploma in order to be promoted or to work in a certain sector of the business. The "facially neutral" requriment may actually may be considered discriminatory under disparate-impact because it adverseley affect african americans who as a percentage do not hold HS diplomas as much as whites.

This type of discrimination is recognized under Title VII, but not under the ADEA. This is interesting because the ADEA was very closely modeled after Titile VII, except for the RFOA provision, which diluted the disparate -impact liability. In other cases of Title VII discrimination the law protects against stereotypes and related variables that can implicitly act as forms of discrimination. However, the ADA only protects narrowly, only against age stereotypes. And it does not protect against discrimination such as pension benefits.

Is this fair? Or should the ADEA be as inclusive as Title VII provisions?

Affirmative Action in K-12 education.

Tomorrow's topic is affirmative action. The Grutter case (in the reading tomorrow) describes the Supreme Court's interpretation of what role race may play at a higher education level (in terms of admissions). However, the issue of affirmative action is still being highly debated at lower levels of education.

The Supreme Court has agreed to soon hear a case (this year) out of Seattle, Washington involving affirmative action decisions in K-12 public education (something new and unique). The Seattle School District is allowing families to choose and apply for high schools in the district that they wish to attend. However, the district is using race as one part of a tiebreaker to assign children to high schools when there are not enough spots for all applicants to attend one particular school.

The Seattle School District is citing the Grutter case (from our assigned reading) as justification for such an affirmative action policy. Here is a link to announcement of the Supreme Court's decision to hear the case: http://www.cnn.com/2006/LAW/06/05/scotus.schools.race/index.html.

Before we discuss this highly debated issue tomorrow in class, does anyone have any insight on their initial reaction to the pending case?

Legally Passing the Costs on to Smokers..

On CNN.com, I found an interesting article today about how employers can deal with providing insurance to employees who smoke. Although there are lifestyle statutes in 38 states that protect employees against discrimination based on off-the-clock activities, in New York it is legal for employers to pass along the extra cost they face by insuring smokers directly TO the smoker so long as they provide a statement detailing the amounts. If the smoker does not want to pay, he/she can quit smoking.

Read more: http://money.cnn.com/2007/04/09/magazines/fsb/AskFSB_smokers.fsb/index.htm?postversion=2007041009.

Do you think that it is fair for employers to be able to pass along the additional costs of health insurance to employees? If so, should they be able to pass along other costs as well? What are some other examples of costs that you think employers should or should not be able to pass on to employees? Do you think that New York's law allows employers too much say in employees' off-the-clock activies, or do you think it's fine because the employees could decide to work somewhere else?

Stray Remarks and Effects on Court Decisions

On another employment law blog, I discovered an interesting post about stray remarks (http://employment.lawfirmnewjersey.com/archives/age-discrimination-age-discrimination-stray-remarks.html). This story a good reminder that: "professionals should not be lulled into a false sense of security by the stray remarks...". As the professor mentioned in class, courts are usually negative in using stray remarks to find age discrimination.

In this particular case, a supervisor made comments to an older worker such as "In your day and age" and "take time off to rest". Ultimately, the employee was fired and replaced by a significantly younger worker.

Do you think the stray remarks were and should have been enough to show discrimination? Was the supervisor simply making light conversation and being courteous...or was he discriminatory based on age?

The blog post also has a link to the case itself...

Grand Ole Opry and Age Discrimination

I found an interesting article regarding age discrimination and the Grand Ole Opry. Older country stars feel that they are being pushed off the weekly radio show. Many older country stars feel that they joined the Opry with the original understanding that if they were to make regular appearances at the peak of their careers (and make less than they would touring), they would be offered a place to perform when not quite as successful. Stonewall Jackson feels that the Opry has not lived up to its part of the unwritten deal and is now filing an age discrimination lawsuit. Gaylord Entertainment Co., which owns the Opry, denied these claims stating that the Opry members are not employees and thus are not entitled to a certain number of performances. "If I had been at that place 40 years and done the things those folks had done, I'd feel slighted too sometimes," Vince Gill, a 17 year member, said. "But the management has bosses, too, and they want to see it grow and only have so many slots a night to get filled."
Gill advocates a return to a mandatory minimum number of appearances for cast members, plus a cap on the maximum. That would make more room for older stars, and ensure that the more contemporary members do their part, he said.

Disparate Impact

I was a little unclear on if disparate impact applies to ADEA. If it does, would these decisions about pension plans create a greater impact on older employees? Even if there are just as many young people who have pension plans as elders, isn't there a greater impact on those who are about to retire?

Pension Plans

I found this article on nytimes.com today, and I believe it is relevant to our discussion today in class. I understand that the main reason for withholding pensions is an economic reason, but isn't a pension based on age? Does anyone else find this to be giving an unfair advantage to employers? If social security and pension plans are unreliable, what are we supposed to retire with?

Elaboration of Class Discussion - Fairness to Younger Workers?

We learned today in class (and from the case readings) that older workers over 40 are protected against younger employees in the workforce. As we discussed, the courts decided that Congress intended for the statue (ADEA) to address and protect concerns of stereotyping for older workers only from younger ones. Since we did not have time to elaborate on this in class, I am curious about thoughts on the limitation of this law.

As a college student (likely prepped to soon enter the workforce), does this seem fair to younger workers? Could some of us be directly affected by the lack of protection against discrimination towards younger workers? Does anyone think that Congress should extend the act to protect discrimination towards younger workers or do you feel satisfied with the current law as it stands?

Cancer and the Workplace

Cancer is a disease that impacts many Americans. Since 2005, cancer surpassed heart disease as the leading cause of death in the United States. The American Society of Clinical Oncology says cancer survivors who return to the workplace can face subtle or obvious discrimination. Some employers, the Society says, may assume that a worker's productivity will decline or that performance will fall below the company's standards. There may be discrimination when it comes to promotions or transfers, the Society says. This may include a demotion, being refused a job opening or having trouble taking time off for medical appointments. There is no legal requirement in place that holds employees to tell their employers about their cancer. Some feel that if cancer does not affect an employee's ability to do their job, there is no reason they should be required to inform their employer of their disease. Even prospective employers do not need to be informed unless the applicant is currently in treatment. The Americans With Disabilities Act prohibits workplace discrimination based on disabilities, including diseases such as cancer, for employers with more than 15 workers. The Family Medical Leave Act requires employers with 50 or more workers to provide up to 12 weeks of unpaid leave for serious illness. Do you think cancer negatively impacts productivity? Employees have been found to be more productive after treatment. Does the possible future productivity of the employee outweigh the current implications associated with cancer (medical appointments, etc.)? Is it wrong to deny promotions to someone with cancer? Companies worry that soon after promotion and more responsibility, employees will have to leave work to care for their illness. Is this a viable concern or is it simply an excuse? Lastly, should employees be required to tell employers of their disease? Many employees fear losing their health insurance and job if their employer were to know of their cancer. However, cancer does demand a lot from an employer and the company's resources.

Violent Behavior Covered under ADA?

I just found this article about a recent case where an employee's violent behavior was excused under the ADA because of her bipolar disorder. The employee was irritable and moody towards her coworkers and because of this was asked to attend a meeting with her supervisor to discuss ways in which she could alter her behavior. During the meeting, she became outraged, yelled at the supervisor, slammed the door, and began throwing things around at her desk. As a result, she was fired from her job and she sued the company, saying that they should have accommodated her violent act because of her bipolar disorder. The courts agreed with her, based on a previous case where the employer was held to be in violation of the ADA in terminating an employee whose Obsessive Compulsive Disorder made it difficult for her to follow attendance and punctuality rules. After reading the article, how do you feel about this?
Clearly the article is opinion based, and clearly the author feels the court made the wrong decision; however, do you think that a violent act (assuming it does not put anyone in direct danger) should be covered by the ADA if an individual has a disorder which makes them prone to mood swings? I myself have mixed feelings, I understand the court's argument, but I feel that attendance problems because of a mental disorder are somewhat different than subjecting other employees at the company to the threat of working with someone who could potentially act violently. Do you agree with the author's point when he says that this decision could create a "slippery slope" where employers must accommodate other inappropriate actions simply because they are a symptom of a mental disorder?
I also am wondering why this employee was not taking one of the many available drugs that can treat the symptoms of bipolar disorder. But then again, if she had been, would she be considered as "disabled" by the courts?

Genetic Discrimination Bill

In January of 2007, supporters pushed for a bill to bar discrimination against people because of their genetics. The bill hopes to ban health insurance companies from denying healthy person coverage or charging higher premiums on the basis of genetic predispositions. It would also prohibit employers from hiring or firing employees on the basis of genetic information. The downside of genetic discrimination is the possible loss of job or health insurance. However, some argue that for the potential of genetic technology to be truly realized, genetic testing should become common place so as the general public is accustomed to it rather than frightened by it. If a bill was passed to ban genetic discrimination, new regulations would have to be set in place. Some feel that defining what genetic discrimination is could host a new set of problems and therefore excessive lawsuits may occur. Lastly, some feel that the issue of genetic discrimination may be the Civil Rights movement of the 21st century where as others feel it is not a growing problem as there have been few suits brought regarding genetic discrimination. This poses some questions. Should health insurance companies be allowed to discriminate based on genetics? Companies often are simply looking out for their best interest to ensure survival in the market. Is it wrong for health insurance companies to do this (even if it negatively impacts others)? Will the possibilities of genetic technology never be fully utilized if not allowed in the workplace? Would the costs of implementing a bill (administrative and legal costs) outweigh the benefits? Is genetic testing a serious issue that will continue to grow worse unless addressed?

Continuation of Today's Class

Today in class we were discussing how the ADA does not define an individual as "disabled" if he or she uses corrective measures or compensatory strategies to function as the average person does in regards to major life activities. In the cases where the individual may be facing physical challenges that the average person does not face, but compensates in a way that makes them able to live almost identically to the average non-disabled person, I feel that this rule is justified. For example, in the Sutton v. United Airlines case, the women had 20/20 vision with glasses and lived "normal" lives. On the other hand, cases such as the ones we discussed in class where individuals are ruled as not having a disbility because they can perform most major life activities even though they are limited in a variety of other tasks, I feel that the court should be more inclined to rule that the individual is disabled. For example, in class Professor Prenkert discussed a case where the individual had severe arthritis and other bone problems and was ruled not disabled because they could do such things as walking. For an individual like this, who may be able to perform central tasks but is severely limited in many other life activities, I feel that it is unfair to say that they are not disabled and put them in a position where one party (the court) is saying "you're too capable to be disabled" and another (their employer) is saying "you're too incapable to do this job." Does anyone agree/disagree? How do you think the court should decide if a person is disabled "enough"? If a person can perform central functions such as walking, do you think it's fair for the court to say they're not disabled, even if they are limited in performing many other tasks?

Disparate Impact and the ADA

In class we didn't really discuss disparate impact on employees with disabilities. We spent a lot of time on the subject when we were talking about Title VII and I think it's an interesting topic, because it's something that a lot of employers don't see as being discriminatory. The Americans with Disabilities Act prevents employers from using selection techniques or other qualifications that screen out individuals with disabilities. For example, late last year, UPS was found to be in violation of the ADA by refusing to hire drivers who could not pass a hearing test. This is another example where the test being used did not test attributes that are needed to perform the central tasks of the job. What do you guys think about this case?
This has also made me think, what about the use of personality tests and other forms of mental ability tests? Do these create a disparate impact for people with psychological disorders? Can you think of any other screening processes that would violate the ADA?

A Lawsuit to Avoid Daily Lunch Break

Overlawyered, a blog dedicated to tracking cases and laws that the authors see as clogging up the legal system (often in the form of frivolous law suits), had an interesting article last week. The post, "Give me a break. Or not." describes a postal worker who is suing U.S. Postal Service under the ADA because his bosses are forcing him to take lunch breaks. The worker claims the lunch breaks aggravate his arthritis as they require him to stop moving around. I thought this case was interesting as it brought up a topic that none of us brought up or thought about in class today. Can an employer be sued for being too nice to an employee?

Maternity Leave

As I was doing the readings for today discussing disabilities and the Family and Medical Leave Act, I kept thinking about maternity leaves and the very minimal accommodation that women are given by employers when they are pregnant. I found this very interesting article on the topic. According to a study done by Harvard and McGill University, "the United States is one of only five countries out of 173 in the survey that does not guarantee some form of paid maternity leave; the others are Lesotho, Liberia, Swaziland and Papua New Guinea." California is the only state to have a state law providing paid family leave. Certainly some employers choose to give paid maternity leave, but there isn't much incentive for them to do so. Why do you think the U.S. is so far behind on the trend? Do you think the current plan is bad or good? (Under the current plan women are given 12 weeks of non-paid leave). I feel that the U.S. has such a broad spectrum of equal opportunity laws that it is surprising that this issue is being overlooked. Are there any problems with creating a national paid maternity/paternity leave plan? Countries in Europe often have plans where parents are given several months of full pay, followed by several more months of partial pay. These countries also allow men to take paternity leaves, which the U.S. does not accommodate for at all. I am surprised that more working parents are not upset by this issue. Please leave your comments to tell me what you think.

First Amendment Right or Not Following Directions?

As I was reading the online version of my hometown newspaper, I came across an interesting article regarding an instructor who was fired because of an editorial in the school paper. The editorial was not written by the instructor, however she was responsible for editing the student newspaper before it was to be published. The editorial piece which created such a stir, projected its community in an unflattering manner as being intolerant of homosexuals. Although the newspaper does have first amendment rights, was the school justified in firing the instructor because she didn't follow directions outlined by the school? Please read the article, and share your thoughts.