University of Colorado Law Review
Volume 79, Issue 4, Fall 2008
SECOND ANNUAL COLLOQUIUM ON
CURRENT SCHOLARSHIP IN LABOR AND
EMPLOYMENT LAW
FOREWORD
MELISSA HART*
In 2006, a group of labor and employment scholars conceived
and put together the First Annual Colloquium on Current
Scholarship in Labor and Employment Law.¹ The event,
held in Milwaukee, Wisconsin, was such a remarkable success
that the Second Annual Colloquium was scheduled almost immediately, to take place in Colorado a year later. The University
of Denver, Sturm College of Law and the University of
Colorado Law School agreed to host the event jointly and to
hold sessions on both campuses. Over two days in September 2007, scholars from around the world presented and commented
on papers that highlighted the enormous diversity of
scholarly work in labor and employment. In conjunction with
the colloquium, the University of Colorado Law Review decided
to build this symposium issue for Volume 80 around articles
developed there.
The articles included in this issue represent a remarkably rich and broad range of approaches to thinking about the law
governing relationships between employers and employees. Like the scholarship in the field more generally, the symposium includes a mix of doctrinal analysis that closely examines how courts think and talk about employment claims; intersectional
approaches to employment that draw parallels and borrow
ideas from other doctrinal areas; and application of social
science research and theory to assess the assumptions underlying judicial decisions.
In three articles exploring the reach of employment discrimination
laws, the authors consider how different social theories might suggest a need to expand or alter the frames for
evaluating whether particular conduct constitutes workplace
discrimination. Each of these articles draws on interdisciplinary
insights to support the author’s argument for a more nuanced
interpretation of discrimination claims. In Accommodating
the Female Body: A Disability Paradigm of Sex Discrimination,
Jessica L. Roberts not only draws on insights from architectural
theory, but also explores the similarities between
disability discrimination and sex discrimination. Using these
theoretical intersections, Roberts explores the contours of a
new disparate impact discrimination claim challenging the
ways in which the “built environment” is created for the male
body and presents unnecessary roadblocks to women’s access in
the work place. Ann McGinley offers a very different application
of social science research and theory to refocus our understanding of legal doctrine. In Creating Masculine Identities:
Bullying and Harassment “Because of Sex,” Ann C. McGinley
suggests that research on bullying demonstrates that the legal
standards, applied to assessing whether conduct is “because of
sex” for Title VII disparate treatment purposes, are underinclusive. This research, she argues, supports a more expansive
understanding of what kinds of conduct should be prohibited if
the law truly aims to eliminate gender discrimination in workplace
interactions. D. Wendy Greene’s article, Title VII: What’s
Hair (and Other Race-Based Characteristics) Got to Do with It?,
makes the case for a broader standard for disparate treatment claims involving mutable, racialized characteristics. Greene
argues that courts should focus their analysis on whether employers
are perpetuating racial stigmatization with their judgments
about an employee’s appearance. This more-nuanced
analysis would, she argues, give full effect to the law’s goal of
truly rooting out invidious discrimination at work.
While interdisciplinary approaches are increasingly common
in employment scholarship, a surprising number of core
doctrinal questions remain unresolved in discrimination law.
One of the most fruitful areas for scholarship in the field lies in
working through the underbrush of judicial confusion. In this
vein, Michael J. Zimmer takes on the question of how to prove
discriminatory intent in A Chain of Inferences Proving Discrimination,
suggesting a general approach to proof of individual
disparate treatment claims under Title VII. His article
seeks to clarify how, exactly, Title VII should be interpretedand applied, arguing that the courts’ efforts to bifurcate claims
into either 703(a) and 703(m), either McDonell-Douglas v.
Green² or Price Waterhouse v. Hopkins,³ have been misdirected.
Instead, Professor Zimmer argues that the case law suggests a
more holistic approach, recognizing the wide range of fact patterns
that can be used to demonstrate discriminatory intent
and focusing less on categorizing a particular case and more on
assessing the core question of whether the evidence supports a
finding of discrimination.
Three of the articles included in this symposium highlight the particular importance of whistleblower protection in current scholarship as well as in public debates about what the law is and what it should be. These very different approaches to the law surrounding whistleblower protections offer a snapshot of the enormous variety of legal responses to conflicts that arise at work and the range of other substantive legal doctrines
that might be implicated in finding solutions. Paul M. Secunda
takes an empirical look at the consequences of the Supreme
Court’s 1983 decision denying court access for federal employees
punished for exercising their free speech rights on the job.
In Whither the Pickering Rights of Federal Employees, Professor
Secunda finds that the alternative administrative scheme
presumed to be adequate for vindicating the rights of those
employees does not, in fact, offer meaningful redress. In light
of the evidence he uncovers, he argues for the reversal of the
Court’s decades-old decision. In Retaliatory Discharge and the
Ethical Rules Governing Attorneys, Alex B. Long looks at a particular category of employee—the lawyer—and explores what kind of protection against retaliation attorneys might find in the ethical rules governing their conduct when they decide they must “blow the whistle” or take other steps to comply with
their professional ethical obligations. Richard Moberly takes quite a different approach in Protecting Whistleblowers by Contract, arguing that statutory and common law tort protections may not provide sufficient protection for employees who report employer misconduct. As an alternative, he suggests that corporate ethics codes might provide an avenue for breach of contract claims by employees who face retaliation for reporting corporate misconduct.
In another piece that considers the relationship between
corporate law and work law—in this case labor law—Matthew
T. Bodie explores the evolving relationship between labor and
capital. In Mother Jones Meets Gordon Gekko: The Complicated
Relationship Between Labor and Private Equity, Professor
Bodie raises questions about the role unions might play in
fostering the growth and health of corporate entities and challenges standard conceptions of unions as political actors.
As the articles offered here demonstrate, labor and employment
scholarship is varied and resistant to easy thematic
characterization. What these articles share is, most evidently,
the commitment of their authors to thinking seriously about
the range of problems that confront workers, their employers,
and the judges who are charged with addressing the conflicts
that the employer-employee relationship present.
__________________________________________________________________________
* Associate Professor of Law, University of Colorado Law School.
¹ Scott Moss, Paul Secunda, and Joseph Slater are owed a debt of gratitude
by those in the field for starting this tradition.
² 411 U.S. 792 (1973).
³ 490 U.S. 228 (1989).