The Editors’ Page
Stephen F. Befort & Laura J. Cooper
The University of Minnesota Law School has been the editorial home of the ABA Journal of Labor & Employment Law since 2009. Today, the Journal’s editorial work is accomplished collaboratively by two Faculty CoEditors, seven third-year student editors, and nine second-year student staff members. The ABA Section of Labor and Employment Law provides funds to the Law School to facilitate our work and enrich the students’ education in labor and employment law and their engagement with attorneys who practice labor and employment law. This year, we had sufficient funds to pay the travel expenses for all of our student editors to attend the Section’s Tenth Annual Labor and Employment Law Conference in Chicago in November 2016. Six of our seven editors were able to attend. This was an extraordinary experience for our students and we are enormously grateful to the Section for making it possible.
Whistleblowers and Safety at Work: An Analysis of Section 11(c) of the Occupational Safety and Health Act
Emily A. Spieler
Northeastern University School of Law Professor Emily A. Spieler brings her experience as Chair of the Whistleblower Protection Advisory Committee to examine the effectiveness of protection for employees reporting workplace safety hazards. The Occupational Safety and Health Act (OSH Act) relies on worker reporting to monitor and enforce the Act, but employees will only come forward if they expect protection from retaliation. Professor Spieler’s detailed review of data on processing and litigation of OSH Act whistleblower claims reveals the ineffectiveness of current statutory protections. She compares these weaknesses with the strengths of other federal workplace whistleblower protection laws and draws from that comparison specific suggestions for improving OSH Act whistleblower protection.
Changing Definitions of Sex under Title VII
Lisa J. Banks & Hannah Alejandro
Plaintiffs’ employment attorneys Lisa J. Banks and Hannah Alejandro highlight the administrative and judicial trend of reinterpreting existing legal doctrine to expand Title VII protection to sexual orientation and gender identity discrimination. The authors explain how legal definitions of sex and gender differ from those used by medical and social science professionals. They next describe the evolution of the Equal Employment Opportunity Commission’s (EEOC) view that Title VII does prohibit transgender and sexual orientation discrimination. Here, the EEOC relies on the Supreme Court’s holding in Price Waterhouse that adverse employer treatment of an employee who fails to comply with societal gender norms can constitute discrimination “because of sex.” The authors identify the limitations of this
The Equal Employment Opportunity Commission as a Change Agent: Tracing the EEOC’s Relentless Pursuit of “Retaliatory” Waiver Provisions in Employer Severance Agreements
Leslie E. Silverman
Details the agency’s development of a theory that relies on section 707(a) of Title VII to challenge such waivers as a “pattern or practice of resistance” to employees’ enjoyment of Title VII rights. She objects that this resistance theory allows the EEOC to sue whenever severance agreement language could potentially interfere with an employee’s ability to interact with the EEOC, even if the employer never acts in reliance on the agreement. Silverman predicts that courts are unlikely to permit the EEOC’s use of resistance theory to challenge waivers because it depends on an overly broad interpretation of section 707(a), and bypasses procedural requirements of section 706 of Title VII.
Does Title VII Preempt State Fair Pay Laws?
Allan G. King
Notes that Title VII’s prohibition of
Deference to EEOC Rulemaking and Sub-Regulatory Guidance: A Flip of the Coin?
Eric Dreiband & Blake Pulliam
To explain the Supreme Court’s three alternative tests of judicial deference to agency action, and how these tests are applied significantly differently under each of these nondiscrimination statutes. The authors draw from the Supreme Court’s jurisprudential theories and holdings to offer practical advice to attorneys arguing for or against deference to EEOC regulations and sub-regulatory guidance, including specific questions to address under each of the deference tests.
E.I. Dupont and Manhattan
Kate M. Swearengen
Union attorney Kate M. Swearengen provides a detailed description of two recent National Labor Relations Board cases on unionized workers’ rights to representation in employer disciplinary investigations. E.I. Dupont protects employees forced to attend interviews without union representation from adverse consequences resulting from the lack of representation by granting make-whole relief in viii The Editors’ Page some circumstances. Manhattan Beer extends representational rights to non-traditional employer investigations, such as drug testing. Swearengen contends both cases are consistent with the text of the National Labor Relations Act and are logical and reasonable applications of the Weingarten doctrine. The Article concludes by highlighting the practical effects for union employees of the newly-recognized rights.
Factors in Police Misconduct Arbitration Outcomes: What Does It Take to Fire a Bad Cop?
Tyler Adams
Adams analyzes ninety-two arbitration awards involving police officers discharged for misconduct and finds that the principal reasons for overturning discharges are police departments’ failures to provide sufficient evidence of guilt and to observe required procedures. Evaluation of an