Saturday, February 19, 2022

Amy Coney Barrett is not being honest about what the Supreme Court is up to - Vox

Amy Coney Barrett is not being honest about what the Supreme Court is up to - Vox

The Supreme Court is not being honest with you

Justice Amy Coney Barrett appears to be quite unfamiliar with her own judicial record, and that of her colleagues.

Sunday, February 13, 2022

S.2342 - Ends Forced Arbitration of Sexual Assault and Sexual Harassment claims | | Library of Congress

Senator Kirsten Gillibrand with former
Fox News Anchor Gretchen Carlson

In S. 2342 
Congress has opened a substantial breach in the wall erected by the United States Supreme Court blocking access to the courts by persons seeking redress for sexual harassment or assault.  The Supreme Court has routinely enforced arbitration clauses in contracts of employment and elsewhere.  The result has been that at their election employers can block access to the courts.  Neither federal law - under Title VII of the 1964 Civil Rights Act, nor state laws against discrimination have been available under the contracts of adhesion - take it or leave it terms set by contracts of employment or company rules.  Now Congress has amended the Federal Arbitration Act and imposed similar limits on state laws.

Now the Congress has opened the courthouse doors in a measure sponsored by New York Senator Kirsten Gillibrand.  She first introduced the bill in 2017 and on Friday stood victorious side by side with former Fox News Anchor Gretchen Carlson.  The one-time Miss America had successfully sued Fox News leader Roger Ailes.

Although the National Labor Relations Act protects "concerted activity" in Epic Systems - a 2018 wage and hours law case -the Supreme Court  allowed employers as a condition of employment - to bar lawsuits arising from sexual harassment or assault.  Compulsory arbitration deprives workers of a neutral judge, trial by jury, the benefit of court-ordered discovery, and public justice.  Writing for the Court Neil Gorsuch asked
Should employees and employers be allowed to agree that any disputes between them will be resolved through one-on-one arbitration? Or should employees always be permitted to bring their claims in class or collective actions, no matter what they agreed with their employers?

His answer was:

companies may require workers to settle employment disputes through individual arbitration rather than joining to press their complaints, a decision affecting as many as 25 million workers”

But Ruth Ginsburg, dissenting wrote:

    T]he edict that employees with wage and hours claims may seek relief only one-by-one does not come from Congress. It is the result of take-it-or-leave-it labor contracts harking back to the type called “yellow dog,” and of the readiness of this Court to enforce those unbargained-for agreements. 

Though Epic Systems itself is largely untouched its embrace of "choice"  will no longer apply to sexual harassment claims.  In a major victory for employees they will no longer be forced to "consent" to arbitration of sexual harassment or assault cases.  Even courts that have sought to preserve the right to go to court have sometimes failed.  Thus in Skuse v. Pfizer a divided New Jersey Supreme Court in 2020 voted to enforce a mandatory arbitration clause compelled post-employment by the drug giant Pfizer, Inc..

- GWC 
Text - S.2342 - 117th Congress (2021-2022): Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act of 2021 | | Library of Congress

9  U.S.C. § 401. Definitions

“In this chapter:

§ 402. No validity or enforceability

Lipton: Capital Discrimination - was SSRN bullied?

Ann Lipton, an Associate Dean at Tulane Law School, has written a very interesting article which she posted pre-publication by Houston Law Review.  But SSRN - the Elsevier owned platform which exists for such purposes - removed her article and Houston withdrew its publication commitment - when lawyers for a target of the article's criticism threatened suit in a cease and desist letter.
Tulane's lawyers responded - in a letter that IMO is a concise and correct statement of the law of defamation.  The cease and desist letter does not demonstrate such competence. I'm disturbed that Elsevier caved.

But more importantly the article addresses an interesting issue: our anti-discrimination laws don't adequately address the issue of arbitrary discrimination by those whose power is due to capital, not an employer-employee relationship. 

Previously, I announced that my paper, Capital Discriminationwould be forthcoming in the Houston Law Review, and had just been posted publicly to SSRN.  As I explained in that post, the paper explores the problem of gender discrimination against women as business owners and capital providers, and proposes changes to both statutory law and common law fiduciary duties in order to address gender-based oppression in business.

The paper itself describes several business law cases from different jurisdictions, including Shawe v. Elting, a matter very familiar to business lawyers, and which involved an acrimonious dispute in the Delaware courts.  Just before Christmas, an attorney representing Philip Shawe sent this cease and desist letter to SSRN, demanding that the paper be removed from that site as defamatory. 

On New Year’s Day, SSRN removed the paper in response to Shawe’s letter.  After that, Houston Law Review could no longer assure me that the article would run in its journal, and stated that they would not preclude me from submitting the paper for publication elsewhere.   

Tulane’s counsel has sent a response letter to SSRN in hopes of having the paper restored but for now, to ensure that the paper is not kept out of sight indefinitely, I have made a copy available at this link.  This draft of the paper includes a reference to Mr. Shawe’s defamation claims.