Next is an article by Robert S. Mantell, an employee-side employment law attorney, entitled, The Island Defense—When a Discriminatory Workplace Includes an Innocent Decisionmaker. The article explores how courts treat evidence of bias by non-discriminators, showing wide variation. Given that variation, Mantell suggests a standard for courts to use to determine when such evidence is relevant—the “position of influence” standard. In support of that standard, he catalogues a large number of cases where non-decisionmaker bias has been found relevant, providing a useful guide for future courts.
Also focused on employment discrimination, Mark Edward Blankenship, Jr., Senior Associate at the Ott Law Firm, has written Oli London in the Workplace: Transracial Identity and Employment Discrimination in the Post-Bostock Era. This article explores the modern phenomenon of people who change their appearance and adopt racial identities different from those they would be assigned by society, contrasting this practice with historical cross-racial performances. The article then explains how the Supreme Court’s decision in Bostock v. Clayton County, which recognized that discrimination against transgender employees would violate Title VII’s ban on sex discrimination, would likewise seem to ban discrimination against employees who identify as transracial. Blankenship argues that this result would create significant mischief and provides suggestions to allow courts to avoid that effect.
Bayley F. Johnson, an employer-side Associate at Jones Day, and Trisha S. Pande, an employee/union-side Partner at Patterson Harkavy, LLP, provide the next piece, Free Speech on the Clock: Tesla/Troy Grove, Captive Audience Meetings and GC Memo 22-04. In this article, the authors explore hot topics involving rights of free expression and association under the National Labor Relations Act. The first part of the article analyzes a 2022 National Labor Relations Board General Counsel memorandum limiting captive audience speeches by management in organizing drives in light of historical precedent and recent state legislation. The second part of the article analyzes Board precedent on the freedom to wear union insignia and the application of that precedent in proceedings against Tesla, which had banned t-shirts with union insignia.
Our next article comes from the annual writing competition sponsored by the ABA Section of Labor and Employment Law and the College of Labor and Employment Lawyers. Abigail Schwarz, a 2023 graduate of the University of Denver Sturm College of Law, wrote Beyond Binary: Bostock’s Implications for Employer Dress Codes. In this article, Schwarz examines the law on discriminatory dress codes, which, historically, generally allowed sex-specific rules under Title VII as long as no sex suffered an undue burden. The article then demonstrates how the Court’s decision in Bostock significantly undermines the rationale of this view without resolving the issue, leaving employers with little guidance. Given the lack of clarity, Schwarz provides recommendations for employers including a sample gender-neutral dress code.
Following that article is a piece by the winner of the Alvin D. Lurie Memorial competition held by the American College of Employee Benefits Counsel, Brendan Mohan, a 2024 graduate of the University of Akron School of Law. In Dobbs v. Employee Benefits: Major Questions Left After the Landmark Decision, Mohan explores whether and to what extent the Employment Retirement Income Security Act (ERISA) might preempt state abortion limitations in light of Supreme Court decisions limiting the power of administrative agencies to interpret the laws that they enforce. The article explains how ERISA might be implicated where employer-provided health insurance covers abortion services, and how the Department of Labor and the Employee Benefits Security Administration might issue guidance on preemption. It categorizes the types of state laws that regulate abortion and evaluates the potential for conflicts and then considers how the Court’s recent decisions in Loper Bright Enterprises v. Raimondo and West Virginia v. EPA limiting agency power might affect how courts treat that guidance.
Wrapping up the issue is a note by the Journal’s Editor-in-Chief, Macin Graber, also on ERISA. In Feeling SECURE for Retirement? The Complexities of “Hybridizing” a Benefit Under ERISA, Graber explores a new kind of benefit. The Securing a Strong Retirement Act of 2022 allows employers to treat employee student loan payments as retirement contributions for purposes of employer matching amounts. This allows employees who might not be able to contribute to their own deferred compensation plan to nonetheless start saving for retirement and take advantage of employer matching. In this note, Graber identifies the absence of rules governing this “hybrid” benefit and analyzes whether ERISA preemption might interfere with remedies for abuse.
Thanks as always go to the authors of these pieces, as well as the students who serve on the Journal’s editorial board and as staff editors for all of their hard work bringing this issue to press.