Putting the Work of Academia Back into Academic Freedom Debates

Dec 2, 2025 Deepa Das AcevedoAdd a Comment

Deepa Das Acevedo

I’m always a little surprised by how rarely debates about academic freedom pay attention to the actual work of academia. Sure, there are anecdotes featuring syllabi wars or lectures gone wrong (or wrongly prevented from going on at all). But those vignettes —used to illustrate and persuade—are always hurried along so that the author can get to their normative argument defending academic freedom or announcing, once again, its demise. The vignettes aren’t really there to make us focus on the “what” and “how” of academic labor.

Archana Sridhar’s recent article isn’t exactly about granular academic labor practices, either. I doubt she’d consider it a “labor” piece at all. But in very refreshing way, she focuses on academic work structures and patterns in ways that generate insights about what makes academic freedom possible.

Sridhar’s central argument is that universities are, should be thought of as, and should think of themselves as analogous to platforms like Google, Facebook, and X. Faculty, meanwhile, are analogous not to the employees of those platforms—they’re not Googlers—but to user-moderators. Or, as she states in the conclusion: “universities should be considered analogous to internet platforms: more passive or neutral hosts of content created and owned by individuals and groups who moderate their own content collectively.”

Sridhar admits that “[t]he analogy is not perfect.” And indeed, there is likely no end to the number of plausible counterarguments and counter-hypotheticals we might drum up. Sridhar highlights the fact that user-moderators are often “poorly paid employees in countries around the world, whose incentives are not to prioritize facts or truth, but rather to efficiently remove content that violates certain corporate policies and to promote other content that will attract views.” We might even start a few steps earlier: Platform companies are companies—and not of the B corp variety—defined above all by the profit motive. Or we might go a few steps further down the analytic line: Those user-moderators are not lengthily and expensively trained specialists in and around the content they are charged with moderating. There are a lot of “Yes, but…” possibilities when it comes to Sridhar’s analogy.¹

But Sridhar’s analogy holds up better than expected. As higher ed scholars have been documenting with increasing urgency, most of the faculty doing the bulk of “content-moderation” work in American academia—the peer reviews and book reviews and committee work and such—are “poorly paid employees,” or even poorly paid independent contractors. And thanks to this precariousness, their “incentives are not [only] to prioritize facts or truth.”

Besides, the real value of Sridhar’s article is not its central analogy, but how it nudges us towards thinking about labor patterns and managerial patterns, oversight mechanisms, and other mundane, institutional, organizational dynamics. Such dynamics deserve at least as much attention as explaining why the university matters for democracy. For instance, Sridhar discusses the 2019 incident involving George Washington University (GWU) professor David Karpf and New York Times columnist Bret Stephens, whom Karpf offended via a tweet comparing Stephens to bedbugs. Stephens replied to Karpf by email, cc’ing the GWU provost.

Sridhar alludes to this episode not to make the usual point that Karpf had a right to critique Stephens or why it matters that Stephens thought GWU could and should rein in Karpf. Rather, Sridhar highlights that GWU did not exercise—and was rightly glad to not exercise—managerial oversight over Karpf’s activities. Academics are in the business of pushing boundaries, thinking critically, and generating new knowledge—and teaching others to do likewise. None of these activities are easily translated or packaged for a non-specialist audience, let alone for an audience with ruffled feathers and a national readership. It was better for GWU to be able to stay out of it.

That point, though, is grounded in the “how” of academic labor more than the “why” of academic freedom. As I’ve similarly argued,² we in the academy take it to be self-evident that, despite our W2s, we are more like free agents sharing a building than like employees sharing an employer. That arrangement is both under particular (but not unprecedented) stress right now and its extraordinariness needs an explanation. Sridhar encourages us to think through such issues.

1. Deepa Das Acevedo, The War on Tenure 13 (2025).
2. Deepa Das Acevedo, Extramural Absolutism, 6 J. Free Speech L. 321 (2025).

A Constitutional Reckoning for Workers’ Compensation

Nov 5, 2025 Charlotte S. AlexanderAdd a Comment

Charlotte S. Alexander

I really like articles that take big swings. When I read a good one, and Michael C. Duff’s Reverberations of Magna Carta falls into that category, it teaches me something, reveals assumptions that I didn’t know I held, and points the way to new ways of thinking. Reverberations takes as its starting point the fact that state workers’ compensation systems are covering a dwindling share of the costs of work-related illness and injuries. A U.S. Department of Labor study puts the percentage at only 21%, while workers themselves, their families, private insurance, and taxpayer-funded Medicare, Medicaid and Social Security programs are covering the rest. Duff casts this remedial deprivation as a constitutional problem.

Duff roots his argument in the original “Grand Bargain” that produced the workers’ compensation system, where workers give up their right to sue in tort in exchange for a workers’ compensation remedy. He contends that states’ chipping away of workers’ compensation protection through caps, time-limits, and procedural barriers effectively strips workers of the remedies they are due in exchange for the common law rights they relinquished. In Duff’s view, those common law rights are protected from state interference under the Ninth Amendment, which recognizes unenumerated rights “retained by the people,” and Section 1 of the Fourteenth Amendment, which safeguards the “privileges and immunities of citizens of the United States” against state interference.

He argues, “[A] state’s dilution of tort remedies through a slow, but deliberate, imposition of inadequate workers’ compensation benefits increases the risk of injury. Such dilution is incompatible with any role the fourteenth amendment might have played in policing encroachment on, and protecting established tort rights.” (P. 17.) If – as Duff claims – states cannot constitutionally eliminate tort law, then it follows that states cannot also eliminate, or substantially hamper, tort’s replacement. Duff is bullish about both this argument’s legal and moral weight, and urges workers to adopt it in developing “a legal theory of rights violation” and advocating for workers’ compensation reforms. (Pp. 9, 18.)

Even readers who do not sign onto Duff’s constitutional argument can find something to like in this article. He offers a host of statistics on the present state of the workers’ compensation system across states. He provides a case study of the problem of occupational diseases, especially those with long latency periods and tricky questions of causation, resulting in “the sheer horror of over 100,000 untracked occupational disease deaths per year.” (P. 36.) He walks through a catalog of examples of worker-protective approaches to this problem, including a legislatively established presumption of causation for firefighters diagnosed with certain types of cancer and similar (temporary) presumptions covering workers who contracted COVID during the pandemic.

He also carefully analyzes the interaction of federal labor law with state-level workers’ compensation laws. And, throughout, he prompts us to question the language that is commonly used to describe “accidental” harm to workers, thereby also questioning our complacency about such harm: “[A]ssuming that all work injury is ‘accidental’ puts the cart factually before the horse. Work harming workers is no accident. All industry foreseeably harms workers. The only unknown fact is which particular employer, or industry, will harm which particular employee.” (P. 4.)

In sum, Duff goes beyond the well-documented weaknesses of modern workers’ compensation. Instead, he asks a deeper question: What becomes of the original “Grand Bargain” when the substitute for tort law no longer provides adequate redress? His big swing in answering this question is to find constitutional protection for injured and ill workers in the Ninth and Fourteenth Amendments. I like that this article forces readers to confront the hollowing out of workers’ compensation, to consider the real losses to workers, and to be ambitious in the search for legal tools that might restore workers’ dignity and security.

Deciding Whether A Reasonable Jury Would Find Harassment Severe or Pervasive Enough

Oct 3, 2025 Sachin S. Pandya1 comment

Sachin S. Pandya

How often and why do judges erroneously conclude, in Title VII harassment cases, that there isn’t enough for a reasonable jury to find that the plaintiff suffered “severe or pervasive” enough harassment for Title VII liability? These questions are not easy to answer. No one can directly observe the counterfactual, i.e., how a jury would have ruled had the case gone to trial. And if deciding what a “reasonable” jury might do requires inferring what most juries, or a jury under ideal conditions, would do, then judges could still be good forecasters even if any particular jury would have gone the other way.

Enter Tippett and Williams with a study that provides serious leverage for answering these questions. They first sampled Title VII harassment case opinions in Westlaw between 1995 – 2019 (n = 81, mostly summary judgment motions) in which the court decided whether or not there was “an issue of fact on whether the conduct qualified as ‘severe or pervasive’” enough for a Title VII violation. In 53 of the 81 cases (65%), the court found that no reasonable jury could find that the conduct was severe or pervasive enough. (P. 19.)

Next, Tippett and Williams deployed an online Qualtrics survey during 2019, 2020, and 2022, recruiting respondents from Amazon’s Mechanical Turk platform (n = 699). Their survey randomly assigned to each MTurk respondent an excerpt from the fact section from one court opinion in their sample of court cases. This excerpt (500 words or less) described only the allegations and evidence relevant to the alleged harassment, not how the court weighed them. All respondents also got a “jury instruction” on a Title VII harassment claim (adjusted for whether their case concerned harassment due to race, sex, or both). That instruction included that the conduct had to be “sufficiently severe or pervasive that a reasonable person in the plaintiff’s position would find the plaintiff’s work environment to be hostile or abusive.” Then, the survey asked each respondent to rate to indicate how severe or pervasive the conduct was (from 0 (‘not at all’) to 100 (‘extremely’)); whether that conduct was severe or pervasive enough to satisfy the jury instruction (“Yes” or “No”); and to “[p]lease explain why” via an open text box. (Pp. 21-22, 33.) In this way, Tippett and Williams got multiple MTurk respondent reactions to the same case fact pattern.

With their survey results, Tippett and Williams compared what courts had done with how their individual survey respondents reacted to the same fact pattern. Figure 1, Figure 2, and Figure 3 depict the distribution of MTurk survey respondent numerical ratings, stratified by whether or not the rated fact pattern came from a Title VII harassment case for which a court concluded that a reasonable jury could or could not find the harassing conduct to be severe or pervasive enough for Title VII liability. (The authors provided me with the underlying data.) Figure 1 also indicates by point color the survey respondent’s decision as to whether their randomly-assigned fact pattern was severe or pervasive enough for Title VII liability.

Figure 1: Boxplot of Survey Respondent Ratings.

Figure 2: Histogram of Survey Respondent Ratings.

Figure 3: Density Plot of Survey Respondent Ratings.

However you visualize it, the key takeaway is the same: Whereas most survey respondents assigned high “severe or pervasive” ratings to fact descriptions from the “reasonable jury could” cases, many survey respondents also assigned high ratings even in cases where the court had concluded that a reasonable jury could not find “severe or pervasive” enough conduct. And in those cases, when asked simply whether their randomly-assigned fact pattern was severe or pervasive enough, over sixty percent of the survey respondents said yes. If courts were good predictors of what a reasonable jury would do in those cases, we should expect to see far less spread in ratings – perhaps something more like a reverse-mirror image of the spread of ratings on the “reasonable jury could” cases (the green left-side plots in Figure 2 and Figure 3). In fact, however, the ratings in the “reasonable jury could not” cases (the red right-side plots in Figure 2 and Figure 3) exhibit a lot of spread. Assuming the survey respondents’ ratings and judgments are, in the aggregate, a valid proxy for what a “reasonable jury” would do, Tippett and Williams infer that judges are “far too aggressive in dismissing cases on the basis of the ‘severe or pervasive’ element” of the Title VII harassment claim. (P. 26.)

If so, why? To advance the ball here, Tippett and Williams compared the court opinions in their case sample with what the survey respondents wrote in the survey’s open text box (median number of words = 25) to explain why they believed the conduct they rated was or was not severe or pervasive enough to satisfy the Title VII jury instruction. In general, they found judges assigned far less weight to certain kinds of evidence on the “severe or pervasive” issue as compared to the survey respondents. Such evidence included whether other employees suffered the same harassment, the harasser’s continued harassment even after a company warning, and company complicity in not stopping the harassment. (P. 58.) This result, they conclude, is consistent with what Zimmer (2000) once called “slicing and dicing”³ – the theory that, in Title VII cases, judges tend to take the probative value of each item of evidence (usually offered to prove discriminatory motive) in isolation, whereas laypeople tend to weigh such evidence as a whole (as the law requires). On this account, judges slice-and-dice even though, on summary judgment motions, they are supposed to construe all available inferences from the evidence in favor of the non-moving party.

As usual, answers beget more questions. If slicing-and-dicing accurately describes how judges reason (not just how they write opinions strategically), what about Title VII harassment cases causes judges to think this way? How are those causes related to other factors, including judge/juror demographics, political attitudes, or whatever might lead judges to effectively conflate what a “reasonable” jury could find with what they think a real jury should find? And would this study’s inferences hold if we did it with actual mock juries, i.e., laypeople who could discuss the facts with each other before deciding? No one study is an island, and this study’s design – like any study – carries some limits on what we can validly infer from it. Still, if you care about Title VII harassment cases (or employment discrimination litigation generally), Tippett and Williams’ paper deserves your time and attention.

Editors note: Reviewers choose what to review without input from Section Editors. Jotwell Worklaw Section Editor Elizabeth C. Tippett had no role in the editing of this article.

1. Michael J. Zimmer, Slicing & Dicing of Individual Disparate Treatment Law, 61 La. L. Rev. 577 (2000), https://lawecommons.luc.edu/facpubs/290/.

Beyond Collapse: Why Labor Law Probably Can’t End

Sep 5, 2025 Michael C. Duff1 comment

Michael C. Duff

In The Death of Labor Law, Professor Alvin Velazquez asks: what if the National Labor Relations Act (NLRA) dies because, as some employers want, the US Supreme Court declares – at this very late hour – that Act unconstitutional? (P. 18.). Assuming that happens, Velazquez offers “a silver lining” by showing how, by doing so, “the Court could serve as a catalyst for a series of (most likely) unfortunate events as well as fervent organizing opportunities.” (P. 7.) Thus, from death comes life. The article falls within a tradition of labor law scholarship that insists (like Oliver Wendall Holmes’ dissent in Vegelahn v. Guntner) that labor conflict is inevitable and labor law is always a provisional accommodation between labor and capital.

In particular, Velazquez considers how the NLRA might collapse (Pp. 13-25); reminds readers that labor law and labor conflict preexisted the NLRA (Pp. 49-50); takes solace in the Norris-LaGuardia Act’s bar on federal courts issuing labor injunctions in peaceful private-sector labor disputes (P. 38); and reminds readers that a defunct NLRA may mean a dissolution of unduly complex federal preemption doctrines, in turn freeing states to innovate in the area of labor relations in ways they cannot do now. (Pp. 31-38.) The article covers a great deal of ground. It will stimulate and provoke labor law readers and perhaps also general legal readers focused on major administrative law developments.

Current courts may attempt to disable the NLRA from regulating labor-management conflict in a variety of ways. One possible way is by using the recently-invented Major Questions Doctrine (MQD) – a clear statement rule of statutory interpretation that ostensibly applies when a federal administrative agency “asserts authority of ‘economic and political significance.’” (P. 14.) Once upon a time, the American legal order accepted instinctively that labor conflict itself was of “vast economic and political significance,” placing the burden on employers covered by the NLRA to justify increasing the risk of industrial strife. Courts today, however, acknowledge neither the risk of industrial strife nor that the NLRA reduces it. What if the “the Court applied the MQD to the NLRA?” (Pp. 14-15.) Disagreeing somewhat with other scholars, Velazquez concludes that “[i]t would be easy for the Court to find a lack of delegation by Congress to the Board, especially if the NLRB interprets the parts of the NLRA defining coverage to new economic industries.” (P. 16.) This insight connects dubious legal protection of the rights-stripping gig economy to MQD invocation. Velazquez concludes that the Court may have ideological reasons to supplement doctrinal reasons for expanding the black hole that is the MQD to undermine the NLRA. (Pp. 16-17.)

Velazquez also considers that the Court may cripple the NLRA by ruling that the NLRA’s removal protection for members of the Board and the ALJs violates the Constitution under the unitary executive theory under which the President may remove all administrative officials “at will” and not just “for cause.” (Pp. 18-23.) (This is the Humphrey’s Executor issue currently working its way through the circuit courts.) Velazquez wonders if the unitary executive theory will capsize the NLRB. He suggests that the Court could use such a challenge to extend its decisions in Free Enterprise Fund v. Public Company Accounting Oversight Board, Seila Law and Collins v. Yellen to hold that the NLRB’s termination protections for both its members and ALJs are unconstitutional. (Pp. 20-21.) This development seems plausible.

If the NLRA falls in whole or in part on various constitutional grounds, structural questions arise. For example, could the NLRA function without its constitutionally infirm “head”, that is, without the NLRB? As Velazquez observes (P. 25), the NLRA’s “separability” provision states, “[i]f any provision of this subchapter . . .shall be held invalid, the remainder of this subchapter, or the application of such provision to persons or circumstances other than those as to which it is held invalid, shall not be affected thereby.” 29 U.S.C. § 144. Velazquez seems to prefers an actually-dead NLRA to a severed, hampered NLRB. The “merely hampered” NLRB that exists but has no powers to actually enforce labor law despite being intimately intertwined with the Act “actually suppresses the ability for states to engage in creative law making.” (P. 46.) Perhaps the NLRB could be reconstructed in some way, but Velazquez seems to doubt this possibility. (Pp. 46-47.)

Velazquez concludes his article by anticipating objections. If the NLRA completely crashes (as opposed to morphing into a statute implemented with a reconfigured NLRB), workers may be utterly unable to mount a counterinsurgency. Today is not the 1930s, when labor law (on a narrow reading) was born. (P. 60.) But he notes there have been a series of labor protests going on just under the surface of public awareness for decades. (Pp. 61-63.) Such potential worker power, if combined with increasing inequality, might fuel real countervailing worker collective action. (P. 65.) Although Congress may refuse to enact a post-NLRA labor law, even in the wake of increased state-based labor insurgency (Pp. 63-65), such inaction matters depending on how one views the federal labor law project overall. Velazquez seems genuinely worried about the loss of federal labor law, but not to the point of retreat. It may be that “blue state” labor law will provide innovations for other states. Workers in some states may be left with fewer collective bargaining rights, even in the handful of states where their state constitutions nominally protect those rights. (Pp. 31-32.) Organized labor may die “while waiting for Government Action.” (P. 67.) But unions have been resilient. With private sector union density at six percent, maintaining the status quo is difficult to justify. (Pp. 71-72.) In any event, as Professor Velazquez’s article reveals, the U.S. Supreme Court is cutting off options.

Two Frameworks for Employee Data Empowerment

Jul 23, 2025 Matt Bodie1 comment

Matt Bodie

The Yale Law Journal Forum recently hosted a collection of essays under the rubric of “Reimagining and Empowering the Contemporary Workforce.” Two of these works deal specifically with the challenges for workers posed by the dramatically reoriented data landscape: Data Laws at Work by Veena Dubal, and AI and Captured Capital by Ifeoma Ajunwa. Both essays are essential reading for those interested in data protection and regulation within the workplace.

Professors Dubal and Ajunwa present a nice contrast in their approaches to empowering workers within the data revolution. Dubal follows a more traditional privacy-oriented approach, seeking to further restrict employer access to, and use of, employee data through narrow permissions and harsher penalties. Ajunwa, on the other hand, argues that worker data represents business capital, and she contends that employees should have long-term rights to the value generated from that data. These two avenues—inalienability restrictions and property rights—should both play bigger roles in our system of workplace data regulation, especially within the world of algorithms and artificial intelligence.

For American audiences, the European Union’s approach to data regulation may seem like an unattainable dream of privacy protection. Since 2018 the General Data Protection Regulation (GDPR) has required justification for the processing of someone’s data, and has offered a panoply of rights to data subjects, such as notice, portability, rectification, and erasure. Dubal’s theme in Data Laws at Work, however, is that even this idealized set of protections ultimately fall short in the context of the workplace.

For those looking to understand the current state of European protections, Dubal provides thoughtful reviews as to the employment data ramifications for the GDPR as well as two EU initiatives from the past year: the Artificial Intelligence Act and the Platform Work Directive. As Dubal describes, the AI Act requires that workers be directly informed about the use of AI systems and bans the production and use of AI systems that emotionally manipulate people, while he Platform Work Directive provides a set of specific rights to these workers, including and transparency obligations, the prohibition of processing certain types of data, and required impact assessments for automated decision-making systems.

These employment data regulations are clearly more robust than those in the rest of the world, including the United States. But Dubal does not believe the EU’s approach is sufficient to protect workers from the depth and breadth of Big Tech’s reach. In the clutches of new systems of massive data collection and analysis, workers lack the independence to exercise individual data rights meaningfully. Static models of scientific management have given way to dynamic models of algorithmic management that assess workers on a collective and relational basis. As a result, rights of notification or rectification do not properly empower workers, as the information is difficult to understand and must be challenged collectively.

Instead of individual causes of action, Dubal argues for stronger affirmative requirements: disclosure obligations, periodic impact assessments, and independent third-party data audits. She also makes the case that policymakers should impose outright bans, rather than just disclosure or limitations, on employer tools such as algorithmic decision-making as to wages, discipline, and termination. As Dubal concludes, “data laws focused on the workplace must affirmatively proscribe—not merely elucidate—these forms of worker control.” (Dubal, p. 447.)

In AI and Captured Capital, Ajunwa similarly sees worker vulnerability to machines of mass analysis and the companies that control them. At present, workers are feeding these particular beasts through “captured capital”—her description for the coercive collection and use of worker data that further refines and expands the algorithms that may eventually replace them. Worker data, Ajunwa argues, should be considered capital, as it is used to create value and must be considered valuable on its own, and that capital should be owned by workers, rather than the entities that employ them.

As Ajunwa describes, workers are uniquely disempowered with respect to their data under current law: default rules assign property rights to the firms; automated systems are developing at a surprising rate and may soon overtake people-based productivity in many fields; and labor rights are unenforceable in the face of boundary-less global labor markets. Her picture, like Dubal’s, is fairly grim.

Ajunwa, however, takes a different approach to fighting back. Rather than beefing up privacy protections, she advocates for the creation of ongoing property rights for workers in the value that their data generates. She proposes three different potential models: (1) worker data as “stake capital,” providing governance rights to workers similar to angel investors or venture capitalists; (2) a communal data-licensing regime similar to agreements between actors and film studios for the use of their likeness, image, or voice; and (3) an ongoing source of stable funding, similar to a universal basic income, to be administered by the International Labor Organization or other NGO. Logistical and organizational hurdles confront all of these proposals, but each takes a real-world example and applies it to ameliorate the economic and power imbalances of the data-centric economy. These efforts to redress the harms from captured capital would “ensure that workers regain some measure of control over their data and can benefit from the data they create for firms.” (Ajunwa, p. 404.)

Employee data protections have too long been mired in the paradigm of privacy protections based on liability for individual harms. A worker can sue if the employer breaks open a locker without permission or exigent circumstances, or sets up a secret camera in a private area, or intercepts a personal phone call without notice. But the ongoing campaigns of data incursions and degradation, cogently described by Dubal and Ajunwa, are largely allowed even in the most restrictive of jurisdictions.

Both authors present novel and impactful ideas for reforms: Dubal supporting prohibitions rendering certain personal data inalienable, and Ajunwa providing property interests to workers in the ongoing processing of their information. These proposals have the potential to change the data dynamics within employment relationships in meaningful ways. Kudos to these talented scholars for their insightful and important contributions on data in the employment relationship.

Lawyers Can Build Worker Power

Jun 25, 2025 Cesar Rosado MarzánAdd a Comment

Cesar Rosado Marzán

Elizabeth Ford’s Alt-Legal Services offers a bold and refreshing take on the role of lawyers in worker movements. Can lawyers empower workers—or do they undermine organizing efforts? Ford tackles this long-standing debate head-on, arguing that the tension stems from competing ideas about what worker power really means. Her perceptive solution: a new model of “alt-legal services” that fuses legal advocacy with grassroots organizing to build worker power.

Ford argues that when people disagree about the role of legal services for worker power, they tend to misunderstand what it entails. Some believe that lawyers undermine worker power by taking control of campaigns and fragmenting workers through individual litigation. Others see litigation as essential for improving workers’ material conditions and securing remedies for workplace harms, such as wage theft. Ford argues that this conflict arises because both sides differ in what they assume worker power is. To resolve this conflict, she introduces an analytical framework that she develops from Galvin that distinguishes between “power over” and “power with.”⁴

“Power over,” recognized as “countervailing power” by the traditional labor movement, refers to the capacity of some individuals to exert their will on others. Unions obtain power over employers via membership organizations that have both economic and legal power (via labor law) to compel employers to bargain collectively with workers and reach legally binding agreements. Worker centers, not being unions, cannot develop “power over” in the same manner, but have other options. Ford identifies three key sources of “power over” for worker centers:

1. Authority through enforcement—Collaborating with government agencies to enforce labor and employment laws. Here, Ford highlights the importance of the so-called “co-enforcement” literature.⁵
2. Normative power through storytelling—Using workers’ stories to spotlight their moral and dignitary rights, build public pressure, and challenge the status quo. Here, Ford highlights scholarship on the normative dimension of power.⁶
3. Resource aggregation—Leveraging fee-shifting provisions that hit scofflaw employers’ bottom lines, while also funding the work of their lawyers.

“Power with” refers to the power rooted in solidarity and relationships—what I have called elsewhere the “social capital” of worker centers.⁷ “Power with” is the typical way community-based groups build power.

Armed with these conceptions of power, Ford shows what they imply for alt-legal services. For example, Ford argues that alt-legal services should not be used for base building—that is, attracting new members to worker centers. Using legal services to recruit not only conflicts with what clients expect but also may be unethical. Besides, traditional organizers are simply better at base building. Legal work is slow. It often requires confidentiality, which can strain relationships between organizers seeking access to workers and lawyers bound by attorney-client privilege.

At the same, alt-legal services lawyers do not live by a stylized attorney-client relationship. Alt-legal services lawyers understand their client relationships through a flatter, Freirean popular education model that transforms client intakes into learning processes. The model empowers workers as teachers.

For example, consider wage theft. Ford argues that alt-legal services lawyers must learn the workers’ stories behind wage theft. Workers teach lawyers and become part of their own solution. These stories also become powerful resources for the low-wage worker movement. As both workers and lawyers get to understand the structural causes of wage theft, alt-legal services lawyers can shape more effective legal reforms and litigation strategies to address those root causes.

Ford outlines four core strategies for alt-legal services: supporting and holding government enforcement accountable, engaging with large numbers of workers, litigating individual wage theft cases, and building a bank of worker stories. These activities, she argues, are essential for building both “power over” and “power with” within the worker center framework. Ford also emphasizes sustainable funding by way of fee-shifting provisions, partnerships with government agencies, and limited charitable support. Reliable funding is critical, given the persistent financial challenges facing the alt-labor movement.

Ford’s article speaks directly to alt-labor organizing and its campaigns, but we can extend its lessons to labor unions. Union lawyers could think more about how to contribute to “power with.” By limiting secondary boycotts and related activity, the Taft-Hartley Act severely undercut union capacities to build “power with.” Yet, by protecting employees’ “concerted activities for … mutual aid or protection,” section 7 of the National Labor Relations Act (as interpreted in Eastex, Inc. v. NLRB, 437 U.S. 556 (1978)) helps employees mobilize for legislation that impacts all employees and can thus support worker coalitions beyond a single union in one workplace. Union lawyers might find similar ways to build “power with” via other federal and public sector labor law.

Ford’s article is valuable for those who view lawyers as integral parts of social movements. Like Cummings,⁸ Ford shows how legal advocacy and organizing are not inherently at odds. Legal strategies can strengthen community ties and give meaning to campaign messages. Building those bonds and spreading workers’ moral fights doesn’t have to be the job of traditional organizers alone. Alt-legal services lawyers can help too.

Ford’s article also aligns with my research on alt-labor, which shows that social capital, symbolic capital, and framing strategies are central to the success of alt-labor organizations.⁹ The “power with” idea underscores how alt-labor uses social and symbolic capital to mobilize workers and shape policy. But Ford goes further. She explains how story banks—a collection of client stories that lawyers gather with workers’ permission—could help worker centers frame their campaigns more effectively. This is a new idea. Worker stories don’t have to stay buried in law office files or the occasional newspaper article. Instead, these stories could drive public education and policy campaigns to fix the deeper problems low-wage workers face.

In short, Ford delivers a creative blueprint for lawyers, law students, other legal workers, and organizers urgently trying to find ways to work together to build worker power in perilous times. By showing us the distinct value of “power over” and “power with” for alt-legal services, Ford fuses legal strategy with grassroots organizing, popular education, and strategic storytelling. In a time when oligarchs dominate, democracy rots, and the rule of law decays, Ford’s article is simply essential reading.

1. Daniel J. Galvin, Alt-labor and the New Politics of Workers’ Rights (2024); Daniel J. Galvin, Alt-Labor’s Turn Toward Politics and Public Policy to Combat the Exploitation of Low-Wage Workers: Building Power and ‘Punching Above their Weight’, Econ. Pol’y Inst. (2021).
2. E.g. Jance Fine, Enforcing Labor Standards in Partnership with Civil Society: Can Co-enforcement Succeed Where the State Alone Has Failed?, 45 Politics & Society 359-88 (2017).
3. E.g. Diana S. Reddy, After the Law of Apolitical Economy: Reclaiming the Normative Stakes of Labor Unions, 132 Yale L.J. 1391-461 (2023).
4. César F. Rosado Marzán, Worker Centers and the Moral Economy: Disrupting through Brokerage, Prestige, and Moral Framing, 2017 U. Chi. Legal F. 409, 420.
5. Scott L. Cummings, An Equal Place: Lawyers in the Struggle for Los Angeles (2021).
6. Marzán, supra n.4.

Whistleblowing, Revisited

May 27, 2025 Joseph SeinerAdd a Comment

Joseph Seiner

In More Accommodation, Less Technicality for Workplace Whistleblowers, Professor Craig Senn performs an excellent analysis of the vast array of federal whistleblower and retaliation laws. He engages in a much-needed deep dive into the distinctions between these laws and proposes a new standard for worker protections. Professor Senn appropriately critiques the coverage employees receive when blowing the whistle under these laws and proposes a well-considered alternative and unified approach to protect workers.

The law in this field is confusing, at best. The various federal whistleblower statutes are articulated differently and have been applied in many ways. Without sufficient protection for those who appropriately complain, the statutes can lose all meaning and impact. Indeed, workers will be chilled from blowing the whistle if their careers and employment hang in the balance. Over the years, many courts have applied rigid standards for gaining protection, often holding employees to overly high standards and expectations in their knowledge and understanding of the law and statutes.

Professor Senn’s groundbreaking paper encapsulates the problem and expertly proposes a novel solution. He outlines six different federal laws and discusses the retaliation component of each. These include the Family and Medical Leave Act, Title VII of the Civil Rights Act of 1964, the Americans with Disabilities Act, the Age Discrimination in Employment Act, the Fair Labor Standards Act, and the Sarbanes-Oxley Act. In outlining the whistleblower and/or retaliation provisions of each statute, Professor Senn further explains the various “technical provisions” that exist and explores the “precedent in which federal courts apply a hypertechnical approach . . . ultimately leading to dismissal of retaliation claims.” (P. 1909.)

This exploration and comparison of the various federal statutes is extraordinarily helpful. It provides the decisive overview of the many different laws in this area, and this detail and analysis were badly needed in this muddled field. Professor Senn’s further examination of the numerous federal court approaches to these statutes is equally important and helps summarize the varied ways that courts have declined to extend protections under the many workplace laws. This summary of both the law and federal court analysis will thus appropriately provide an important resource for those researching in this area.

Beyond this survey of the statutes and court-interpretations, however, Professor Senn engages in an expert analysis on how the law can be reformed in this area. In particular, Professor Senn argues that the law is far too complex in this field for the average worker to understand. He suggests moving away from this technical type of consideration to a more reasoned approach to whistleblower claims, emphasizing that the analysis will inherently be case specific and that the facts of each situation will have to be looked at individually.

In this way, Professor Senn argues for what he coins a Layperson Accommodation Approach for workers considering bringing a claim in this area. Pursuant to this approach, he recommends eliminating any hyper-technicalities associated with these coverage issues to better consider whether the legal provisions should protect workers in their specific situation. In this way, Professor Senn notes that his approach would provide a number of different parameters for a court to consider. This would include a recommendation that a court weigh, “(1) the amount of experience and legal sophistication of a reasonable layperson, (2) the formality or density of the sources evidencing the legal technicalities, (3) the complexity of the legal technicality itself, and (4) an understanding and availability of relevant facts needed to apply that technicality.” (Pp. 1909-10.)

In advocating for this more relaxed standard and broad-based approach to be applied by the courts to whistleblowers, Professor Senn notes that this philosophy has previously been applied by the legislature. He specifically highlights the Older Workers Benefit Protection Act of 1990 which allows for this “layperson-protective” standard, and further notes that in other contexts the courts have looked to the “totality of circumstances” analysis in considering the waiver of workplace claims. Just as Congress and the courts have been cautious in allowing workers to waive their own protections, a sensible workplace standard would protect those employees that blow the whistle on improper workplace conduct.

Workplace whistleblowing and retaliation are notoriously under-researched and misunderstood areas of the law. Professor Senn’s piece provides important research for those considering writing or litigating in this area. More importantly, however, this Article does a beautiful job of advocating for the next step and explaining why the law often requires too much of the average layperson. Professor Senn’s approach is straightforward and easy to apply and provides just the right mixture of considerations for both advocates and the courts. There is little doubt that this article will quickly become the seminal piece in this field, and that it will be well-relied upon by both academics and litigants alike.

As Professor Senn correctly notes, there is a widely held view that the provisions discussed throughout the paper must “encourage workplace whistleblowing and ferret out employers with retaliatory intent.” (P. 1910.) His well-balanced approach and provided guideposts to clarifying this area will serve as a template for others to follow. The wealth of research provided in this Article make it a must-read for all employment law scholars. The new approach identified by Professor Senn make it one of the most important pieces ever written on whistleblowing clams. If followed, the sensible, well-balanced approach identified by Professor Senn will undoubtedly help “ferret” out the type of misconduct with which we should all be concerned.

Antidiscrimination Law Cannot Accommodate Asymmetry

Apr 28, 2025 Kerri Lynn StoneAdd a Comment

Kerri Lynn Stone

In a field as volatile and fragmented as employment discrimination law, it helps to see how courts take the same concept in different statutes and apply that concept against different backdrops. In Reasonably Accommodating Employment Discrimination Law, Professor William Corbett has done just that by examining “reasonable accommodation” in federal employment discrimination law as a mandate, an entitlement, and a capacious concept. He focuses on the employer duties under Title I of the Americans with Disabilities Act (enacted 1990, amended 2008) to provide “reasonable accommodations” to employees and job applicants for “known physical or mental limitations” absent “undue hardship on the operation of the business”; the Pregnant Workers Fairness Act (enacted in 2022), which requires employers to make “reasonable accommodations” for an employee for “known limitations” related to pregnancy, childbirth, and related medical conditions absent “undue hardship on the operation of the business”; and the employer’s duty under Title VII of the Civil Rights Act of 1964 (as amended) to “reasonably accommodate” current and prospective employees’ religious practices absent “undue hardship on the conduct of the employer’s business.” Corbett finds that these accommodation duties “demonstrate the largely dysfunctional, piecemeal approach that Congress and the Supreme Court have followed for over half a century in revising and updating employment discrimination law.” (P. 539.) His insights throughout the article and his use of the lens of comparison make the piece exceptional.

Corbett sharply and thoroughly excavates the problem from Supreme Court opinions like Groff v. DeJoy (2023), EEOC v. Abercrombie & Fitch (2015), and Young v. United Parcel Service, Inc. (2015). First, according to Corbett, the Court approaches the statute at issue to engage in statutory interpretation. Next, Congress responds to the decision by amending the statute at issue or otherwise changing the decision’s result with a “patch.” At this point, the Court sets about interpreting the new statutory language. It is there that Corbett extracts his key observations about the asymmetries inherent in accommodation jurisprudence.

According to Corbett, for example, the Abercrombie Court inexplicably integrated a “motivating factor” standard, used in Title VII for employer discrimination cases, into how it decided a failure to accommodate claim, and, just as inexplicably, “refus[ed] to recognize a separate cause of action for failure to accommodate” in the case. In so doing, Corbett concludes, the Court “created asymmetry among the three protected characteristics for which federal employment discrimination law recognizes a duty of reasonable accommodations— religion, pregnancy, and disability.” In another example, Corbett recounts how, in some ways, the Supreme Court in Groff “made progress” toward affording more equivalent entitlements to accommodation between disability and pregnancy on one hand, and religion on the other hand, but still contoured disparate undue hardship standards in the failure to accommodate analyses.

Corbett’s tour through the statutes and case law is as thorough as these initial observations. By the tour’s end, it is evident that, as Corbett concludes, “there are now three separate laws governing the law of reasonable accommodations.” His writing reads like a hornbook, peppered with insightful, and sometimes prescient thoughts. These sections, in particular, make this the kind of thought-provoking and informative article that I would want to assign my law students.

After Corbett’s spot-on account of the inconsistent and ever-vacillating way in which the law in this area has evolved, drastic overhaul seems like a perfectly reasonable solution. Indeed, cobbled together by piecemeal, haphazard discourse between Congress and the Supreme Court, the laws of accommodating religion, pregnancy, and disability have their genesis in “three separate statutes . . . with different causes of action/theories of recovery, different causation standards, and different proof frameworks.”

In one of the most interesting parts of the piece, Corbett explains the reason that “general, but not complete, symmetry in employment discrimination law is desirable,” noting that while some statutory features, like defenses, or other built-in concepts, may be necessitated by the protected classes enumerated by a statute, or the language in a statute, “asymmetries raise questions about why there are differences among the duties of accommodations.” For example, a plaintiff need not prove her employer knows her religion when she brings a Title VII failure to accommodate claim, because according to Abercrombie, section 703(a)(1) of Title VII contains no such knowledge requirement. Why then did Congress require that a plaintiff prove that her employer failed to reasonably accommodate her “known” limitations under the ADA or the PWFA? (The PWFA also expressly imports the ADA’s meaning of “reasonable accommodation” and “undue hardship”.) More broadly, Corbett asks: “Why does the duty to accommodate not apply to other protected characteristics beyond the three for which the statutes currently provide?”

Corbett’s solution is to have Congress repeal these laws affording accommodation and replace them with a unitary statute, enabling “Congress to retain or create any intended asymmetries within that single statute and eliminate the unintended ones.” This is a great thought exercise for students, scholars, and jurists alike. For example, I am thinking of having the students in my survey classes on Employment Law and Employment Discrimination read this piece and, in a classroom exercise, imagine what such a statute must look like. To do this, the class would have to interrogate the “reasonable accommodation” concept—it’s elasticity, its capacity, its role as a vehicle that drives equality in employment. For its wonderful synthesis of the law of reasonable accommodation in federal employment discrimination law, its keen observations, and its provocative and innovative suggestions, you should read Corbett’s article. You, too, will like it lots!

Interpreting Reverse Discrimination Proof

Mar 31, 2025 Michael Z. GreenAdd a Comment

Michael Z. Green

When considering how to prove statutory employment discrimination claims, and in particular those actions relying on so-called reverse discrimination, William R. Corbett has authored a crucial and timely article. In Reverse Discrimination: An Opportunity to Modernize and Improve Employment Discrimination Law, Professor Corbett reveals important and modern-day considerations regarding employment discrimination proof structures.

More importantly, the article identifies key points about those proof structures that the Supreme Court will have to face this term after granting certiorari on October 4, 2024 to hear Ames v. Ohio Dept. of Human Services to determine whether “a majority-group plaintiff must show ‘background circumstances to support the suspicion that the defendant is that unusual employer who discriminates against the majority.’”

Over the last fifty years, the Supreme Court has forged an arduous trail in trying to create a clear methodology that can guide parties in how to prove statutory employment discrimination claims. Through interpreting statutory language that regulates an employer’s discriminatory actions via the plain words “because of” an employee’s protected class, the Court’s stilted framework has provoked a lot of scholarly criticism. (P. 172.)

Corbett joins those critiques by “cast[ing] doubt on the continuing confidence in and commitment to the [Court’s] analysis . . . after six decades of employment discrimination law.” (P. 179.) Corbett also provides an insightful and up-to-date review of the patchwork of Court decisions related to statutory employment discrimination proof structures and how those decisions require further clarity. (Pp. 167-73, 179.)

In one of its earliest cases interpreting Title VII of the Civil Rights Act of 1964, McDonnell Douglas v. Green decided in 1973, the Court constructed a unique pathway to identify the level of proof a plaintiff must offer to create an inference of intentional discrimination “because of” the protected class involved. In referring to this initial stage of proof as a prima facie case requirement to establish circumstantial evidence, the Court attempted to divine the initial elements that an employee must prove to allow that claim to proceed absent a responsive explanation from the employer.

The Court started by requiring that the plaintiff be a member of the protected class covered by Title VII. That was not difficult in McDonnell Douglas as the plaintiff was Black. The other requirements of the prima facie case included assertions that the employer refused to hire him based upon his race even though he had applied, was qualified, and the employer continued to seek candidates after rejecting the plaintiff’s application for employment. The McDonnell Douglas structure has become the sine qua non component in civil procedure motion practice involving statutory employment discrimination claims.

The Court agreed recently to hear Ames because of a circuit split over whether the prima facie case in a reverse discrimination case requires some additional background circumstances as proof before being able to infer intentional discrimination. Corbett provides helpful details to explain how and why the D.C. Circuit Court of Appeals “originated the background circumstances requirement” in 1981 by relying on historical race discrimination inferences for “disfavored groups” that is not present in a reverse discrimination claim. (P. 177.)

Corbett’s thesis addresses the uncertainty about inferences in reverse discrimination prima facie case analysis and asserts that Ames provides an opportunity for the Court to rid itself of the McDonnell Douglas analysis as a proof structure. Specifically, Corbett “urge[s] the Court, at long last, to take a reverse discrimination case as an opportunity to jettison the prima facie case . . . proof framework that the Court developed half a century ago in McDonell Douglas . . . as it has long since outlived its usefulness, and it has become an impediment to needed innovation in doctrine.” (Pp. 155-56.)

In an interesting discussion, Corbett also explores the possibilities or lack thereof in pursuing reverse discrimination claims beyond race, sex and national origin (for “American-born individuals”) to include reverse religion, age, or disability claims. (Pp. 175-76, 182.) This analysis begs the question of whether one can establish basic inferences regarding intentional workplace discrimination without also examining the unique context of reverse claims.

In Ames, the question of whether an employer has discriminated against a female employee based on sexual orientation for being heterosexual may have broader implications than just the proof structure. Nevertheless, as Corbett explains it so eloquently, the “context” matters. If so, then using a standard prima facie case for all discrimination claims without considering context neither helps those historically discriminated against nor those seeking so-called reverse discrimination claims in determining what level and type of proof they must establish to survive motion practice.

Corbett argues that it would be shortsighted for the Court in Ames to merely reject the additional requirement for reverse discrimination claims while maintaining the McDonnell Douglas structure. He refers to this approach as “an inferior solution” to rectify the “flaws” present from the McDonnell Douglas analysis (P. 182.)

Instead, Corbett argues that the Court should seize this opportunity to adopt a suggestion that Professor Charles Sullivan initially proposed in 2004 that has even more resonance in today’s anti-diversity climate. That suggestion would require courts to “just consider whether any plaintiff has produced sufficient evidence of discrimination” in ruling on motions to dismiss and for summary judgment. (P. 181.) Plaintiffs could draw from a “nonexhaustive list” of evidence from prior cases to show there is sufficient evidence present to prove discrimination. (P. 184.)

Whether the Court will issue a decision addressing what Corbett invites them to do is uncertain. Because he makes it so clear at this important moment as to why the Court should consider his proposal, this is an article that I like a lot and believe you will find it of value as well. And even if the Ames Court does not directly address his suggestion, the lower courts can still pursue his proposal in later lawsuits.

Providing a Bold New Solution to an Old and Growing Problem

Feb 25, 2025 Henry L. Chambers, Jr.Add a Comment

Henry L. Chambers, Jr.

Dave Hall and Brad Areheart have written an article that anyone who cares about employment discrimination and workplace bias should read. In it, they propose to amend Title VII to provide that “when a worker makes a prima facie showing that she is a member of a protected class and has experienced a bad outcome at work, that showing should trigger a rebuttable presumption that the defendant-employer unlawfully discriminated against the worker.” To rebut that presumption, the defendant-employer would have to show “by clear and convincing evidence that the adverse outcome was solely job related for the position in question.” (P. 777-78.) Even if Congress is unlikely to amend Title VII, the authors’ proposal should start a serious discussion about whether and how to address an article of faith, that the courts’ current interpretation of Title VII does not hold liable as many employers for employment discrimination as it should.

At just under 40 pages, the article is an easy read. It provides a good outline of the problem it proposes to solve. Many employers escape Title VII liability for instances of workplace discrimination because of Title VII’s narrow focus on intentional discrimination, a proof structure that tends to search for specific animus-based instances of discrimination. In addition, federal judges tend to see less discrimination than jurors. The authors note that even though much less overt animus exists in society and in the workplace than in the past, substantial employment discrimination manifests through lingering animus, apathy, implicit bias, and structural bias that may be unrecognized.

That, according to the authors, prompts the need for the bias presumption. In so arguing, they discuss prior suggested revisions to Title VII as inadequate by comparison. For example, the authors discuss the benefits and shortcomings of Title VII reform offered by Professor Sandra Sperino and Professor Mark Brodin. The authors argue that those prior proposals would either leave bias-detection to judges who cannot fully identify bias or would not apply to enough cases to matter.

In contrast to the proposals they critique, the authors suggest their proposal would have four principal effects: allow plaintiffs to survive summary judgment, hold employers accountable for explicit and implicit biases they could not use to support a negative job action, force employers “to consider employment polices and actions in the broader context of structural biases,” and drive courts “to consider employment actions in the boarder context of structural biases.” (P. 779.) In addition, they reply to some possible objections: their proposal will cause a flood at the courthouse; it functionally requires just cause; it ends at-will employment, and it will trigger a de facto quota system.

There are concerns and quibbles that even supporters of the general approach may have with the proposal. Indeed, opponents of their proposal would likely have many objections that the authors do not address. For example, the amount of bias that their proposal would reduce or redress is unclear, and the authors do not propose a way to measure it. The authors also do not explain why their proposal imposes a clear and convincing standard of proof on the employer rather than a preponderance of the evidence standard, but they suggest the clear-and-convincing standard is easy to meet by employers who have clear, unbiased reasons for their job actions.

The article provides a specific solution to a specific problem albeit in the context of a larger issue. What role should Title VII or its proof structure play in encouraging a bias-free workplace? The answer may be contested. Some may argue Title VII merely seeks a workplace free of animus-based discrimination without regard to whether free-flowing bias (implicit or otherwise) exists in the workplace. For those people, the bias presumption may appear unnecessary or improper, with the presumption being a liability bludgeon that may provide liability for non-discriminatory behavior and force employers to overcorrect in a manner Title VII does not require. Conversely, the authors appear to suggest the bias presumption merely addresses discrimination that is not being identified under current doctrine, with that–not unfair liability–encouraging employers to address bias before it triggers discrimination. An employer’s desire to avoid liability based on discrimination may lead to a less biased workplace regardless of whether Title VII requires it. The debate the article may foster is critical to have.

This article requires a reader to think on multiple levels. It encourages readers to ponder the bigger issues surrounding how Title VII should apply to the workplace and whether it should be used to attack the somewhat intractable issue of bias, as well as the narrower issue of whether a bias presumption is the right solution. Based on that alone, the article is undoubtedly worth a read.