New Articles:
Rachel Arnow-Richman, Just Notice: Re-Reforming Employment at Will, 58 UCLA L. Rev. 1 (2010). Abstract Below:
This Article proposes a fundamental shift in the movement to reform employment termination law. For forty years, there has been a near consensus among employee advocates and worklaw scholars that the current doctrine of employment at will should be abandoned in favor of a rule requiring just cause for termination. This Article contends that such calls are misguided, not—as defenders of the current regime have argued—because a just cause rule grants workers too much protection vis-à-vis management, but because it grants them too little.
A just cause rule provides only a weak cause of action to a narrow subset of workers: those able to prove they were fired for purely arbitrary reasons. It fails to account for the justifiable, but still devastating, termination of workers for economic reasons, by far the most common reason for job loss today. In this way, a just cause rule is not only inadequate, but also anachronistic. Just cause protection is consistent with a mid-twentieth-century view of the social contract of employment, one that anticipates a long-term, symbiotic relationship between employer and employee in an economy dependent on internal labor markets. Under such a system, a just cause rule gives legal force to parties’ mutual and implicit understanding of their obligations to one another.
In contrast, today’s employers operate principally in an external labor market in which implicit promises of long-term employment have been replaced by implicit promises of long-term employability. Companies and workers alike anticipate significant job turnover both in times of economic turbulence, such as the recent downturn, in which employers were forced to shed numerous workers due to financial hardship, as well as during economic bubbles, in which companies lay off workers and reorganize for strategic reasons. Given these practices and expectations, the goal of termination law should not be protecting individual jobs but assisting workers in the inevitable situation of job loss.
To that end, this Article proposes the adoption of a universal “pay-or-play” system of employment termination. Absent serious misconduct, employers would be required to provide advance notice of termination or offer wages and benefits for the duration of the notice period. In contrast to just cause proposals, “pay-or-play” recognizes the necessity and inevitability of employment termination. Rather than encourage parties to maintain status quo relationships, “pay-or-play” facilitates transition. It affirms managerial discretion to hire and fire by eliminating fact-intensive inquiries into the reason for termination. At the same time, it makes real employers’ implicit promise of employability by granting workers a window of income security during which they can comfortably search for the next opportunity.
Cheryl I. Harris & Kimberly West-Faulcon, Reading Ricci: Whitening Discrimination, Racing Test Fairness, 58 UCLA L. Rev. 73 (2010). Abstract below:
This Article posits that the Supreme Court’s decision in Ricci v. DeStefano does not evaluate all claims of discrimination on a level playing field but rather “whitens” discrimination and “races” test fairness. The authors explicate how Ricci whitens discrimination by reframing antidiscrimination law’s presumptions and burdens to focus on disparate treatment of whites as the paradigmatic and ultimately preferred claim; Ricci races test fairness by finding that efforts to use job-related assessment tools that correct racial imbalance and better measure merit constitute racially disparate treatment of whites. Under Ricci all forms of racial attentiveness— like attending to the racial impact of promotional exams—become racial discrimination. This conflation derives in part from the application of the colorblindness/race- consciousness dyad, which obscures the more finely grained distinctions between racial attentiveness and inattentiveness that better parse the question of whether, in a given circumstance, taking account of race constitutes race discrimination. Contrary to Ricci’s presumptions, not all racially attentive conduct is discriminatory; nor is all racially inattentive conduct nondiscriminatory. Secondly, while Ricci was framed as a reverse discrimination case, the authors evaluate it as a disparate impact claim using empirical analysis to examine the promotional lists at the heart of the Ricci lawsuit and to assess the effect of the City’s failure to comply with accepted professional standards for proper test design and test use on Black and Latino firefighters and white firefighters who were not part of the Ricci plaintiff class. From this vantage point, New Haven’s exams did not identify the most qualified candidates but instead unfairly and unnecessarily reproduced the fire department’s racially skewed status quo. Nevertheless, in Ricci, the City’s efforts to ameliorate this racial imbalance were themselves treated as attempts to racially rig the results, exemplifying how the pursuit of fair testing was raced. The Article concludes by evaluating proposals geared towards rectifying Ricci’s dilution of Title VII disparate impact law, situating these alternatives in the broader context of the agenda to prevent the conversion of antidiscrimination law into discrimination itself.
Poverty Law 