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Accommodation Mandates
Abstract
The history of employment law has witnessed a move from mandates directed to workers as a whole, such as workers' compensation, to mandates directed to particular, identifiable groups of workers, such as the reasonable accommodation mandate of the Americans with Disabilities Act. These newer "accommodation mandates" are ordinarily analyzed using an economic framework developed for mandates directed to workers as a whole. However, this framework yields misleading and incorrect conclusions when applied to accommodation mandates. This Article offers a new framework for analyzing accommodation mandates. The framework generates testable predictions about the effects of these mandates-predictions that are largely confirmed by the existing empirical evidence.
... In Section 1.5.1.2 above we show that tying a firm's costs for DI to DI claims of their own employees increases the cost of hiring higher-disability-risk workers relative to lower-disability-risk workers, which would shift the relative demand curve in the affected sector back, assuming as the previous literature does that disabled and ablebodied workers are substitute inputs (see Jolls (2000)). How this shift in the affected sector impacts the relative employment and wages of higher-disability-risk workers compared to lower-disability-risk workers depends on the elasticities of relative supply and relative demand, if and by how much relative labor supply responds to the provision of accommodations, and whether relative wages are fixed, for example by custom, minimum wage laws, or enforcement of equal-pay and anti-discrimination laws. ...
... Second, restrictions on wage differentials between employees with and without disabilities are likely to be binding. Legal restrictions on wage differentials are easier to enforce than employment differentials (Jolls, 2000(Jolls, , 2006. The strength and reach of labor unions in Finland in the 1990s might make this particularly true in our context. ...
... The strength and reach of labor unions in Finland in the 1990s might make this particularly true in our context. 34 Moreover, workers who do and do not enter DI are largely integrated by occupation (see Table 1.8) indicating that restrictions on differential wages would be likely to hold (Jolls, 2000(Jolls, , 2006. Therefore, we might reasonably expect the bulk of the effects of the reform to fall on relative employment rather than relative wages. ...
My dissertation explores how social insurance and public assistance programs affect individual and firm decision making, with a particular focus on their implications for the labor market. The three chapters of my dissertation investigate in various contexts how unexpected deterioration in health or low initial health endowments affect individual and household employment and well-being, what private and public resources people draw upon in those events, and how the design of social insurance and public transfer programs - programs which aim to palliate the risks of unexpected income loss - affect these outcomes in intended and unintended ways. The first chapter “Paying for Disability Insurance?: Firm cost sharing and its employment consequences,” joint work with Salla Simola, offers the first empirical evidence on the employment consequences and trade- offs of tying a firm’s Disability Insurance (DI) tax payments to the DI claims of the firm’s own workers. The evidence comes from a reform in Finland that increased employer DI co- insurance rates while decreasing (non-experience rated) payroll taxes. The reform applied to some firms but not others, and to varying degrees. The evidence indicates that among firms bearing higher costs of DI claims by their own employees, (i) DI receipts of their employees declined, (ii) the composition of new hires shifted away from higher-disability-risk groups, and (iii) among current employees the expected gains from increased sustained employment exceed the declines in expected DI receipts. The second chapter “Supplemental Security Income and Child Outcomes: Evidence from Birth Weight Eligibility Cutoffs ,” joint work with Melanie Guldi, Jeff Hemmerter and Lucie Schmidt, examines whether income transfers in the form of Supplemental Security Income (SSI) payments for children with disabilities can help close the gap in outcomes due to this initial health and environmental disadvantage. Low birth weight infants born to mothers with low educational attainment have a double hurdle to overcome in the production of human capital. We exploit a discontinuity in SSI eligibility at 1200 grams and use a regression discontinuity approach to produce causal estimates of the effects of SSI eligibility. We find that eligibility increases disability benefit participation, improves child outcomes and parenting behaviors, and shifts maternal labor supply from full to part time. The third chapter “Do Medicaid Expansions Affect Supplemental Security Income Disability Benefit Take-Up?” investigates the effects of expanding Medicaid coverage on the demand for and use of the Supplemental Security Income (SSI) program. SSI provides two major benefits to recipients: (1) a cash transfer and (2) categorical eligibility for Medicaid, in most states. Ex-ante the effects of Medicaid expansion on SSI are ambiguous. On the one hand, public health insurance coverage may drive the decision to obtain SSI benefits. Hence, by providing Medicaid coverage through other pathways, a Medicaid expansion could decrease SSI applications. On the other hand, successful SSI applications have a doctor’s diagnosis of a disabling condition. A Medicaid expansion may facilitate the SSI application process and increase SSI applications/beneficiaries. This paper uses changes across states and over time to the Medicaid and the State Children’s Health Insurance Program (SCHIP) income eligibility rules to estimate the causal impact of health insurance eligibility on SSI receipt. I estimate that Medicaid eligibility increases the likelihood of SSI participation by 0.5 percentage points for children but has no discernible effect for parents.
... An efficient mandate will have positive employment effects (because the full cost of the mandated benefit will be shifted to employees' wages), while an inefficient mandate will have negative employment effects (because such cost-shifting will be impossible) (Summers 1989). But the situation is different with respect to mandates – such as mandated medical leave – targeted to a particular subgroup of employees: in some circumstances such mandates can reduce the employment of targeted individuals even if the mandate is efficient, while in other circumstances such mandates can increase the employment of targeted individuals even if the mandate is inefficient (Jolls 2000). ...
Many studies have addressed the effects of the Americans with Disabilities Act (ADA) on the employment levels of individuals with disabilities. However, no analysis has been undertaken of the effects of family and medical leave mandates - which exist at both federal and state levels in the United States and require employers to provide leave from work for employees with medical problems - on the employment levels of individuals with disabilities. These leave mandates generally require employers to provide up to twelve weeks of unpaid medical leave from work annually and, relative to the ADA, have much greater potential to produce employment gains for individuals with disabilities because many of the covered medical problems are less likely (by comparison with the disabilities covered by the ADA) to be observable to - and thus potential bases of discrimination by - employers at the time of hiring. The empirical evidence suggests that, indeed, mandated medical leave had positive effects on the employment levels of individuals with disabilities. More specifically, comparison of disabled employment levels in states that had mandated medical leave at the state level prior to the enactment of the federal Family and Medical Leave Act of 1993 (FMLA) to disabled employment levels in states that did not have pre-FMLA mandated medical leave at the state level shows, across a variety of specifications, rising disabled employment in the latter states, particularly for individuals over 40 (who are most likely to take leave). The frequency of medical leave-taking also increased in states without pre- FMLA state-level mandated medical leave relative to states with pre-FMLA state-level mandated medical leave. At a minimum, there is no evidence that mandated medical leave had the negative disabled employment consequences that some believe accompanied the enactment of the ADA.
Previous empirical literature on US wrongful discharge laws, a judicial form of employment protection, has identified ways in which these policies have changed employers' hiring and firing practices, but has lacked a systematic analysis of the impact on workplace gender composition. This paper is the first to investigate the impact of state adoption of wrongful discharge laws on occupational gender diversity within American workplaces. We use restricted establishment‐level longitudinal data that are uniquely suited for the analysis of this topic obtained from the United States. Equal Employment Opportunity Commission (EEO‐1 Employer Information Reports). We utilize difference‐in‐differences regression methodology to first estimate the overall impact of wrongful discharge laws, and then examine the dynamics of wrongful discharge law impacts using event study regressions. We then examine the interplay between state wrongful discharge laws and state gender employment discrimination laws in shaping female employment composition at workplaces. First, we find that the adoption of one wrongful discharge law in particular, the good faith doctrine, is associated with an increase in women's employment share in laborer jobs within private‐sector establishments of 0.80 percentage points, and that this is a causal impact given the pattern of yearly impacts found using our event study analysis. Our findings suggest that the good faith doctrine has facilitated reduction in barriers women have historically faced in blue‐collar jobs. Second, while we find that the good faith doctrine is associated with a statistically significant increase in the share of women in officer and managerial jobs, and that the public policy doctrine is associated with a significant rise in women's share of professional jobs, our event study results cast doubt that these are causal impacts. Finally, our exploration of the interaction between state wrongful discharge laws and state gender discrimination laws reveals that, generally, state gender discrimination laws neither amplify nor diminish the impact of wrongful discharge laws on women's occupational employment within establishments.
This chapter delves into the nature of discrimination, departing from the earliest studies proposed by social scientists and exploring its different forms. Discriminatory practices are then tackled from a legal perspective, providing a detailed examination of their consequences, with a particular focus on the LGBTQ+ community and its impact on economic growth. Economic studies are finally reviewed. The interplay between power dynamics, social norms, and legal frameworks that perpetuate discrimination is discussed, while also considering its profound effects on the labour market and overall economic performance. By advocating for a precise and comprehensive understanding of discrimination, the chapter underscores the importance of recognising and addressing its various manifestations to foster a more equitable and prosperous society.
In the wake of the pandemic, many employers continue to allow their employees to work from home, but much of the workplace remains governed by strict structural norms such as shifts, schedules, attendance, and leave-of-absence policies that determine when and where work is performed. In The Workplace Reimagined, Nicole Buonocore Porter explores how these workplace norms marginalize people with disabilities and workers with caregiving responsibilities. Using COVID-19 as a lens to illustrate how entrenched workplace norms are often not inevitable or necessary, Porter theoretically and practically reconceptualizes the workplace to end the stigmatization of these employees and helps readers understand the value of accommodating all workers. The Workplace Reimagined is timely, eye-opening, and will help us realize a workplace in which we account for the reality, the precarity, and the diversity of all our lives and bodies.
Critics have long maintained that the rights revolution and, by extension, the postwar turn to litigation as a regulatory tool, are the product of a cynical legislative choice. On this view, legislators choose rights and litigation over alternative regulatory approaches to shift costs from on-budget forms (for example, publicly funded social provisions, public enforcement actions by prosecutors or agencies) to off-budget forms (for example, rights-based statutory duties, enforced via private lawsuits). This “cost-shift” theory has never been subjected to sustained theoretical scrutiny or comprehensive empirical test. This article offers the first such analysis, examining a context where the cost-shift hypothesis is at its most plausible: disability discrimination laws, which shift costs away from social welfare programs by requiring that employers hire and “accommodate” workers with disabilities. Using a novel dataset of state-level disability discrimination laws enacted prior to the federal-level Americans with Disabilities Act (ADA) and a range of archival and other materials drawn from state-level legislative campaigns, we find only limited support for the view that cost shifting offered at least part of the motivation for these laws. Our findings offer a fresh perspective on long-standing debates about American disability law and politics, including judicial interpretation of the ADA and its state-level analogues and the relationship of disability rights activism to other rights-based political movements.
We estimate the impact on female labor outcomes of the extension in maternity leave period from 12 to 14 weeks, an amendment to the Colombian labor law in 2011. To identify this impact, we compare labor market outcomes of different groups of individuals with women of child-bearing age. First we compared two groups of women with different fertility rates (low elasticity of substitution), finding that, as result of the extension, women in the high-fertility age group experience an increase in inactivity, informality, and self-employment. When comparing high-fertility age women with men in the same age group (high elasticity of substitution), we find that the extension increases the probability of unemployment, informality and self-employment and decreases wages of women compared with men.
Employment civil rights laws require employers to make reasonable accommodations for certain workers so that they can perform their jobs. The “reasonableness” of an accommodation request should be based largely on the cost of the accommodation relative to the company's resources, but how do people really evaluate such requests? This study examines determinations of the reasonableness of workplace accommodation requests made by trial judges and ordinary people. Using a 2 × 3 × 3 between‐subjects factorial design, we test the effect of worker identity (nursing‐mother worker, transgender worker, and Muslim worker) and cost on determinations of reasonableness. We find that (1) the identity category of the requesting worker impacts determinations of reasonableness by both judges and laypeople, (2) the cost of the accommodation impacts determinations of reasonableness, (3) judges are more likely to think that accommodation requests are reasonable than are laypeople, (4) there is a complicated relationship between accommodation cost and employee identity, and (5) the cost of the requested accommodation mitigates the effect of identity significantly for judges but less so for ordinary citizens. While judges are less influenced by the identity category of the employee‐requestor than are their lay‐counterparts, social status plays a role in determining what constitutes “reasonable accommodation.”
It has been more than 25 years since the Americans with Disabilities Act (ADA) was passed by Congress. Many supporters of the law hoped that it would improve the employment outcomes for people with a disability, yet many scholars argue that it has fallen short in achieving this goal. Such judgments of success or failure are typically offered with little regard for the complex relationship between law and social change. In this paper, I apply a socio-legal perspective to scholarly research regarding the impact of the ADA on employment. Socio-legal studies offer a variety of concepts and perspectives, which better capture the complexity of law's impact on social life, and the various paths through which it might have an impact on social change. From this perspective, studies tend to assume that ADA law will either impact social change directly or indirectly. I discuss the findings of both of these approaches and conclude with some directions for future research.
The European Court of Human Rights (ECtHR) and the Council of Europe have recently recognised “living together” as a legitimate dimension of the rights of others that could justify limitations on various European Convention on Human Rights (ECHR) rights, including the rights to freedom of religion and respect for private life. This article argues that the important, yet still unexplored in human rights law, idea of “living together” stems from the republican ideal of fraternity and supplements the distinctive links between democratic principles and rigorous human rights protection. Even so, its justifiability as a limitation ground depends on which conception of the idea is compatible with core values and functions served by human rights under the Convention. This article distinguishes between two main interpretations of “living together”, grounded on responsibility and conformity. It is argued that, in cases touching on our expressive conduct in public, including cases on the wearing of full-face veils, a conformity conception of “living together” sits uneasily both with firmly established case law of the ECtHR and with certain key functions of rights, such as the exclusion of moralistic majoritarian preferences as grounds for coercive prohibitions.
There is a rich philosophical literature on the value of equality: on whether and why it matters, what its “currency” ought to be, and whether it should be balanced against other important values, such as freedom, or conceptualized in terms of equal access to them. Most of this literature is a contribution to debates about distributive justice: it is concerned with how we should understand equality when our aim is to arrive at general principles of justice that could guide social or political authorities in distributing goods under their control. But there is also a different context in which we can, and do, ask about equality. Sometimes, when we ask whether someone has been treated equally, our aim is to assess whether they have faced discrimination. This is, of course, what courts and human rights tribunals do when interpreting constitutional or statutory equality rights – for these rights are usually understood not as general rights to equal treatment in the distribution of social goods, but rather as rights not to be discriminated against on the basis of a select number of prohibited grounds.
Often employers will agree to pay their employees more than the minimum the employees would accept for performing the job in question. One reason for this behavior is that such "fair" treatment by employers may encourage better job performance by employees. In her contribution to the Symposium, Professor Christine Jolls examines some of the legal implications of this "fairness dynamic." Empirical evidence strongly supports the idea that some employers will offer to pay employees more than the minimum amount the employees would accept in order to induce them to exert more effort, and that employees respond in turn by, working harder. Fairness behavior is of special relevance to employers when monitoring and punishment for inadequate performance would prove difficult. Once the fairness dynamic described here is taken into account, the argument for the minimum wage requirement imposed by the Fair Labor Standards Act is undercut in situations where employees are relatively difficult to monitor, as fairness considerations will tend to drive the wage up regardless. This legal conclusion is a reminder that while behavioral law and economics may sometimes be more likely than traditional law and economics to support legal intervention, in other cases the opposite is true.
The use of predispute arbitration agreements, those that require the use of arbitration to resolve future disputes, has been widely debated by both academic scholars and the courts. While federal courts generally enforce these agreements, many academics disfavor their use, especially when used in contracts between businesses and consumers, employers and employees, and franchisors and franchisees. Critics of these types of arbitration agreements label them as mandatory and unfair. In fact, some courts have begun to recognize these criticisms in a variety of decisions that refuse to enforce such arbitration agreements. In this article, Professor Christopher Drahozal fills a void in the existing literature by utilizing empirical methods to analyze predispute arbitration agreements in consumer contracts. Through his research, Professor Drahozal finds that not only are unfair predispute arbitration agreements less prevalent than the existing literature might suggest, but that not all arbitration clauses can be labeled unfair. In addition, even unfair clauses may actually provide net benefits to the parties. The research identifies the circumstances in which courts and scholars should be wary of arbitration clauses in consumer contracts. At the same time, however, Professor Drahozal paints a more optimistic picture of this type of arbitration.
There is a standard analysis of default rules in contract law, including those forms of contract law that fall under the label of employment law. But behavioral economics raises many complications. Professor Cass R. Sunstein explains that the default rule can create an endowment effect, making employees value certain rights more, simply because they have been granted such rights in the first instance. New evidence, based on a survey, of law students, is introduced to show a significant endowment effect in the context of vacation time. Similarly, the default rule for savings plans, set by employers or by law, seems to have a large effect on employee behavior. When the default rule affects preferences and behavior, conventional economic analysis seems indeterminate, either default rule can be efficient. In employment law, analysis of distributive consequences also suggests the difficulty of deciding which default rule to favor, because any switch in the rule is unlikely, to have significant redistributive effects. Nonetheless, switching the default rule can, in certain circumstances, have desirable effects on workers' welfare, A central question is whether the stickiness of the default rule reflects a genuine change in values, or instead, employee confusion or bargaining strategy.
. The Article advances a workplace accommodation model that improves upon the Family & Medical Leave Act (FMLA) to address routine parental obligations and contingencies such as staying home with a child who has a common medical ailment, meeting with teachers and other educational officials, picking up a child early from school, and securing childcare arrangements. Studies show that these types of obligations, which are excluded from the FMLA's protection, represent the most pressing work-parenting conflicts confronting workers. The accommodation model developed herein is unique in that it draws primarily upon Title VII's religious accommodation provision as opposed to the accommodation mandate of the Americans with Disabilities Act (ADA). Although scholars have frequently hinged work-parenting accommodationist proposals on the ADA, they have completely ignored Title VII's accommodation framework. The Article argues that Title VII's accommodation mandate provides a far better blue print, than does the ADA, to address the types of routine work-parenting issues that most often threaten employees' job security. The ADA is largely concerned with bringing individuals into the workforce. However, similar to employees whose religious needs class with job demands, workers with parental obligations require flexibility to remain gainfully employed without sacrificing the welfare of their children. The Article demonstrates how the principles undergirding religious accommodation case law can be readily and fruitfully extended to help workers forge an acceptable balance between work responsibilities and parental obligations.
After the Supreme Court's decision in Shelby County v. Holder, voting rights activists proposed a variety of legislative responses. Some proposals sought to move beyond measures that targeted voting discrimination based on race or ethnicity. They instead sought to eliminate certain problematic practices that place too great a burden on voting generally. Responses like these are universalist, because rather than seeking to protect any particular group against discrimination, they formally provide uniform protections to everyone. As Bruce Ackerman shows, voting rights activists confronted a similar set of questions-and at least some of them opted for a universalist approach-during the campaign to eliminate the poll tax. Universalist responses have many possible strengths: tactically, in securing political support for and broader judicial implementation of laws that promote civil rights interests; substantively, in aggressively attacking the structures that lead to inequality; and expressively, in emphasizing human commonality across groups. But they have possible drawbacks along all three of these dimensions as well. Although scholars have addressed some of these strengths and drawbacks in the context of specific proposals for civil rights universalism, no work has attempted to examine these issues comprehensively. This essay attempts such an examination.
This book describes and analyzes the notion of Mahr, the Muslim custom whereby the groom has to give a gift to the bride in consideration of the marriage. It explores how Western courts, specifically in Canada, the United States, France, and Germany, have approached and interpreted Mahr. Returning to the overarching concept of liberalism, the book proposes that distributive consequences rather than recognition occupy central place in the evaluation of the legal options available to Muslim women upon divorce.
Food, water, health, housing and education are as fundamental to human freedom and dignity as are privacy, religion or speech. Yet only recently have legal systems began to secure these fundamental individual interests as rights. This book looks at the dynamic processes that "constitute" the legality of economic and social rights. It argues that processes of interpretation, enforcement and contestation each reveal how economic and social interests can be protected as human and constitutional rights, and how their protection changes public law. Using constitutional examples from South Africa, Colombia, Ghana, India, the United Kingdom, the United States and elsewhere, the book examines innovations in the design and role of institutions such as courts, legislatures, executives, and agencies, in the organization of social movements and in the links established with market actors. This comparative study shows how legal systems protect economic and social rights by shifting the focus from minimum bundles of commodities or entitlements to processes of value-based, deliberative problem solving. Theories of constitutionalism and governance inform the potential of this approach to reconcile economic and social rights with both democratic and market principles, while addressing the material inequality, poverty and social conflict caused, in part, by law itself.
This Article concerns a relatively unseen form of labor that affects us all, but that disproportionately burdens women: admin. Admin is the office type work - both managerial and secretarial - that it takes to run a life or a household. Examples include completing paperwork, making grocery lists, coordinating schedules, mailing packages, and handling medical and benefits matters. Both equity and efficiency are at stake here. Admin raises distributional concerns about those people - often women - who do more than their share of this work on behalf of others. Even when different-sex partners who both work outside the home aspire to equal distribution of household labor, it appears that the family's admin is more often done by women. Appreciating the unequal distribution of this work helps us to see the costs of admin for everyone. These broader costs include wasted time, lost focus, and interpersonal tension. Though the types of admin demands that people face vary by gender, class, age, and culture, admin touches everyone. The Article makes this form of labor more salient, both analytically, through an account of its features and costs, and practically, through proposals for public and private interventions. Admin is "sticky." It frequently stays where it lands, whether with female partners of men, one member of a same-sex couple, an extended family member managing another's affairs, or parents of some adult children of the so-called millennial generation. By demanding time and attention, admin impinges on leisure, sleep, relationships, and work. Admin warrants a range of possible regulatory responses. Government should create less admin and possibly do more kinds of admin for people. Regulatory infrastructure should protect people's time and spur technological innovations that reduce admin. Courts should allow parties in civil suits to claim damages for lost personal time. These and other initiatives should help to make admin more salient as a legal and cultural matter and to reduce its burdens overall. Reducing admin should benefit everyone and, in turn, disproportionately benefit those who bear its greatest burdens.
The laws on unfitness to stand in criminal trials have not been examined in great detail by scholars since the coming into force of the United Nations Convention on the Rights of Persons with Disabilities ('CRPD') in 2008. This is perhaps surprising given the considerable law reform activity on unfitness to stand trial laws in a number of common law countries during this period. After all, persons with disabilities are more likely to be deemed unfit to stand trial. Indeed the aim of rules on unfitness to stand trial is to prevent disadvantage flowing from mental impairments. However, the consequence of an unfitness determination in criminal trials can result in a person being detained in a prison, psychiatric setting or being subject to a coercive supervision order for longer periods than if there had been conviction and maximum sentencing. Equally, there remain defendants who do not meet the definition of unfit to stand trial yet still appear neither to understand or meaningfully participate in proceedings against them. A key recommendation of law reform agencies to prevent this discrimination in recent years is to introduce functional assessments of mental capacity to replace out-dated standards for judging unfitness to stand trial. Yet paradoxically, this conclusion runs counter to the CRPD, as interpreted by the UN Committee on the Rights of Persons with Disabilities ('CRPD Committee'), which calls for the introduction of alternative frameworks for ensuring equal recognition before the law, access to justice and the right to liberty and security of the person for people with disabilities. Law reform activity in England, Wales, Northern Ireland and Australia will be drawn upon to support the discussion. This paper seeks to clarify the major issues as a first step in reconciling the sometimes conflicting reform trends in domestic and international human rights law regarding unfitness to plead laws.
Current estimates of regulatory benefits are too low and possibly far too low. This is because the standard economic approach to measuring costs and benefits, which attempts to estimate people's willingness to pay for various regulatory benefits, ignores a central point about valuation, thus producing numbers that systematically understate those benefits. Conventional estimates tell us the amount of income an individual, acting in isolation, would be willing to sacrifice in return for, say, an increase in safety on the job. But while these estimates are based on the implicit assumption that economic well-being depends only on absolute income, considerable evidence suggests that relative income is also an important factor. When an individual buys additional safety in isolation, he experiences not only an absolute decline in the amounts of other goods and services he can buy, but also a decline in his relative living standards. In contrast, when a regulation requires all workers to purchase additional safety, each worker gives up the same amount of other goods, so no worker experiences a decline in relative living standards. If relative living standards matter, an individual will value an across the board increase in safety more highly than an increase in safety that he alone purchases. Where the government currently pegs the value of a statistical life at about 4.7 million and $7 million. A conservative reading of the evidence is that when government agencies are unsure how to value regulatory benefits along a reasonable range, they should make choices toward or at the upper end.
The Americans with Disabilities Act (ADA) is a significant legal intervention designed to improve outcomes for people with disabilities. An informal model of worker-firm matching provides the organizing framework for this article to explore the economic effects of disability discrimination law in the workplace. The framework shows how the presence of individuals with disabilities in the labor market creates precisely the conditions – incomplete and asymmetric information – that can lead to inefficient mismatching, “employee churning,” and “scarring.” The framework thus sheds new light on how disability discrimination law influences labor market efficiency. In contrast to the conclusions of more conventional economic analyses, I argue that the statutory duty of reasonable accommodation promotes labor market efficiency by combating churning and scarring. The duty to accommodate constrains employers whose private gains from discharging disabled employees often produce social losses which are borne by other employers and by public disability insurance schemes. It is important to remember that arguments based on distributive justice and the dignitary interests of people with disabilities have always been – and will no doubt remain – a critical part of the policy debate. Nevertheless, an efficiency defense of accommodation mandates bolsters these non-economic arguments offered in support of the ADA. It also challenges the conventional conclusion that a statutory duty of accommodation most closely resembles an implicit tax and transfer scheme with purely redistributive effects. On the other hand, my analysis of comparative accommodation costs illustrates some areas of tension between dignitary and efficiency approaches to accommodation. We can pursue complete freedom of choice for individuals with disabilities only if we are willing to compromise significantly the economic objective of matching. By identifying more clearly the diverse ways in which accommodation promotes both economic and non-economic goals, we can hope that legal doctrine will tend to express a more orderly balancing of these values.
We claim that the endowment effect rarely justifies legal intervention in private ordering. We present the first theory, to our knowledge, to explain how institutions inhibit the endowment effect without altering people’s rights to their entitlements. The endowment effect is substantially caused by anticipated regret. We show that people experience regret only when they feel responsible for the decision and can mute regret by trading through institutions that let them share responsibility with others. As entitlement holders typically transact through institutions, we expect most people to make unbiased trading decisions in real markets. We test two common institutions—agency relationships and voting—that divide responsibility between multiple actors. Each caused most subjects to debias and trade in our study. We also show that people intentionally debias by employing institutions in order to share responsibility. Thus, when people can freely transact, private ordering generally overcomes the endowment effect.
Prior inquiries into the relationship between equal protection and disparate impact have focused on whether equal protection entails a disparate impact standard and whether laws prohibiting disparate impacts can qualify as legislation enforcing equal protection. In this Article, Professor Primus focuses on a third question: whether equal protection affirmatively forbids the use of statutory disparate impact standards. Like affirmative action, a statute restricting racially disparate impacts is a race-conscious mechanism designed to reallocate opportunities from some racial groups to others. Accordingly, the same individualist view of equal protection that has constrained the operation of affirmative action might also raise questions about disparate impact laws. Those questions can be satisfactorily answered: the disparate impact standards of statutes such as Title VII are not now unconstitutional. But by exploring the tensions between those standards and the now-prevailing view of equal protection, the Article illuminates many indeterminacies in both of those legal concepts. It also argues against interpreting disparate impact standards in ways that most easily align with the values of individualist equal protection. Such interpretations offer easier defenses against constitutional attack, but they also threaten to cleanse antidiscrimination law of its remaining concern with inherited racial hierarchy.
Since its enactment in 1990, the Americans with Disabilities Act (ADA) has dominated discussions of disability law in the legal academy. While the ADA's achievements must be celebrated, the statute's limitations have become increasingly apparent. In particular, the statute appears to have had little, if any, positive effect on the overall employment of people with disabilities. That result has occurred, Professor Bagenstos contends, not because of the narrowing interpretations the Supreme Court has placed on the ADA, but because of the inability of antidiscrimination laws to eliminate the deep structural barriers to employment that people with disabilities face. Even the ADA's requirement of accommodation-which has been seen as a far-reaching expansion of the scope of civil rights law-operates in a way that is much more similar to traditional antidiscrimination laws than many commentators have appreciated. To eliminate the structural barriers to employment for people with disabilities, the government must do more than simply mandate that individual employers cease discriminating and provide accommodations; the government must adopt more direct and sustained interventions such as the public funding and provision of benefits. Indeed, activists "on the ground" have increasingly understood the importance of the social welfare system to achieving the goals of the disability rights movement. But if it is to be true to the disability rights movement, any turn (back) to social welfare law must seek to solve the problems of paternalism and oppression that advocates identified in an earlier generation of disability welfare programs. Professor Bagenstos hopes to show some of the ways that current social welfare initiatives pursued by disability rights advocates do and do not take account of these problems, and to highlight the dilemmas advocates face in relying on the social welfare system.
Questions of how and why organizations respond to legal rights are analyzed in several sociolegal research traditions, including studies of legal mobilization, regulation, and neo-institutionalist accounts of the diffusion of organizational structures. Using original qualitative and quantitative data, this article examines the responses of ten organizations to wheelchair access rights that are found in various provisions of the Americans with Disabilities Act (ADA) and related state laws. We find that concepts from each of the research traditions are useful in understanding the sources of variance in response among the organizations in our sample. We focus on four key variables: legal mobilization, commitment, professionalization, and routinization. We contend that these variables offer a relatively parsimonious language for studying organizational responses to the law and for aggregating insights from competing approaches in the literature, both of which are essential to advancing our understanding of the conditions under which law changes society.
Americans have always framed claims of injustice in the language of rights, but the late twentieth century saw a large expansion of the domain in which the language of rights played a major part in political and legal contestation. This “rights revolution” in the twentieth century also transferred large parts of that contestation from purely political arenas to administrative and judicial forums. Rights consciousness has been an important component of the way in which ordinary Americans have seen their place in the social world. Americans have translated their claims about what they wanted and needed for fulfillment in life – claims about their interests – into claims about their rights as human beings. The American Revolution was in part fueled by the widespread belief that the British Parliament was denying Americans their rights as Englishmen. Economic development produced conflicts over land and the use of public space that Americans framed as conflicts about their rights to property. For most of U.S. history Americans sought to vindicate their rights through legislative action. The rights revolution of the twentieth century expanded the number and nature of the claims that could be presented as claims about rights and added the courts to legislatures as important venues for appeals to rights. The rights revolution was indeed revolutionary, but that revolution had significant conservative elements. Claims about rights were typically appeals to existing values that were not adequately realized in current practices, rather than appeals for some basic reorientation of American values. In presenting rights claims to courts, participants in the rights revolution called on judges to draw on traditions and doctrines that the advocates and the judges could find already in place.
The recent surge of women and mothers into the workforce has generated a call for changes that make it easier to combine employment with family life. Because neoclassical economic theory assumes that existing workplace structures are efficient, suggestions for reform have encountered resistance on the grounds that familyfriendly reforms will prove costly for firms and society as a whole. In particular, so-called “accommodation mandates,” which require employers to extend benefits like paid leave and job protection to parents, have been attacked as potentially inefficient and as harmful to those they are designed to help. This article challenges the suggestion that existing arrangements maximize social welfare and that family-friendly reforms will undermine efficiency. Using dynamic game-theoretic models, it explains how management-worker interactions can get stuck in equilibria that generate less wellbeing overall than more family-friendly alternatives, and it shows how family-friendly arrangements may be difficult to maintain despite their potential for making everyone better off. The article speculates on measures that might foster the adoption and stability of family-friendly workplace forms.
Human rights advocates and international lawyers view international agreements and other international norms as important tools to improve human rights around the world. This Article explains that, contrary to widely held beliefs, international human rights norms are not a one-way street. Norms capable of generating improved behavior in poorly performing states will also tend to exert a downward pull on high-performing states. This downward pull leads to what we term “human rights backsliding” — a tendency for high-performing states to weaken their domestic human rights regimes relative to prior behavior or relative to what they would otherwise have done. The theory of backsliding is a novel one, and so we introduce it with several real-world examples. In order to make the theory, its assumptions, and its consequences as explicit as possible, we also provide a formal model of backsliding. We then explain how an understanding of human rights backsliding helps explain state behavior that is otherwise puzzling. We explore some of the implications of backsliding for the design of international agreements and we consider strategies for advocates seeking to advance the cause of human rights internationally.
What is the normative justification for individual employment law? For a number of legal scholars, the answer is economic efficiency. Other scholars argue, to the contrary, that employment law protects against (vaguely defined) imbalances of bargaining power and exploitation. Against both of these positions, this paper argues that individual employment law is best understood as advancing a particular conception of equality. That conception, which many legal and political theorists have called social equality, focuses on eliminating hierarchies of social status. Drawing on the author’s work elaborating the justification for employment discrimination law, this paper argues that individual employment law is justified as preventing employers from contributing to or entrenching social status hierarchies — and that it is justifiable even if it imposes meaningful costs on employers.The paper argues that the social equality theory can help us critique, defend, elaborate, and extend the rules of individual employment law. It illustrates the point by showing how concerns about social equality, at an inchoate level, underlie some classic arguments against employment-at-will. It also shows how engaging with the question of social equality can enrich analysis of a number of currently salient doctrinal issues in employment law, including questions regarding how the law should protect workers’ privacy and political speech, the proper scope of maximum-hours laws and prohibitions on retaliation, and the framework that should govern employment arbitration.
Legal rules governing the employer-employee relationship are many and varied. Economic analysis has illuminated both the efficiency and the effects on employee welfare of such rules, as described in this chapter. Topics addressed below include workplace safety mandates, compensation systems for workplace injuries, privacy protection in the workplace, employee fringe benefits mandates, targeted mandates such as medical and family leave, wrongful discharge laws, unemployment insurance systems, minimum wage rules, and rules requiring that employees receive overtime pay. Both economic theory and empirical evidence are considered.
This paper aims to contribute to a larger research agenda concerning the possibility of meaningful transatlantic dialogue about private-law reform. Both the European Union and the United States regulate private autonomy extensively. In spite of contextual similarities, however, there are several barriers making dialogue among legal scholars difficult. In particular, the conversation about social justice—by now an important element of private-law reform within the European Union—is less prominent in American contract law scholarship. In U.S. legal academia, social justice is a matter for moral philosophers, development economists, and constitutionalists, and also provides normative frameworks for current property and torts debates, but its impact on contracts scholarship has declined over the past few years, and efficiency discourse has often replaced social justice parlance.
Against this background, this paper takes a close look at a recent transatlantic exchange in matters of private-law reform—a Chicago Law School conference on a proposed Common European Sales Law—and identifies a few counter-intuitive points of convergence between U.S. and European scholarship. Along the way, the paper also highlights structural and discursive incompatibilities, but concludes that the dialogue is, as a whole, valuable and should be kept alive.
In designing post-national rules for private autonomy, Europe may draw better lessons from U.S. regulatory experiences if it first deconstructs the wholesale pro-market rhetoric of otherwise relevant literature. When this is done, the payoffs of American commentaries become more appreciable. Taking the lead from some Chicagoan insights, this paper recommends customizing the empirical investigation of EU markets so as to factor socio-economic asymmetries into the equation of private-law reform.
This Article evaluates the merit of liberalizing unemployment insurance eligibility as a means to achieve progressive wealth redistribution-an idea that has recently gained popularity among policymakers and legal scholars. UI provides temporary, partial wage replacement to workers who suffer unexpected job loss, but it tends to exclude workers who have unstable, low-wage jobs (such as temporary workers), or who quit or limit their work hours (e.g., to accommodate family demands). I argue that while redistribution to these workers is a desirable goal, expanding UI is a poor way to do it. First, UI benefits are triggered not by low income potential, but rather by the incidence of job loss (which affects both wealthy and poor workers). Second, a comprehensive and ethical program of support for families with caregiving needs would have design features and goals that diverge sharply from UI. Instead of unemployment insurance, I argue, other methods such as direct tax and transfer programs and comprehensive family assistance programs are superior ways to transfer wealth to poor workers and families with caregiving obligations.
In this article, we offer innovative analysis and additional evidence on the relationship between the Americans with Disabilities Act ("ADA") and the relative labor market outcomes for people with disabilities, the very class protected by its landmark provisions. Using individual-level longitudinal data from 1981 to 1996 derived from the previously unexploited Panel Study of Income Dynamics ("PSID"), we examine the possible effect of the ADA on (1) annual weeks worked; (2) annual earnings; and (3) hourly wages for a sample of 7120 unique male household heads between the ages of 21 and 65 as well as a subset of 1147 individuals appearing every year from 1981 to 1996. Our analysis of the larger sample suggests the ADA had a negative impact on the employment levels of disabled persons relative to non-disabled persons but no impact on relative earnings. However, our evaluation of the restricted sample raises questions about these findings. Using these data, we find little evidence of adverse effects on weeks worked but strong evidence of wage declines for the disabled, albeit declines beginning in 1986, well before the ADA's passage. These results therefore cast doubt on the adverse ADA-related impacts found in previous studies, particularly Acemoglu and Angrist (2001). The conflicting narratives that emerge from our analysis shed new light on, but also counsel caution in reaching final conclusions about, the impact of the ADA on employment outcomes for people with disabilities.
Legal rules governing the employer-employee relationship are many and varied. This review is concerned with the economic analysis of such rules. The review focuses on areas of employment regulation that have not been reviewed elsewhere from an economic perspective. Topics considered in the review include workplace safety regulation, privacy protection in the workplace, fringe benefits mandates, targeted mandates such as medical and family leave, and rules requiring that employees receive overtime pay. Both economic theory and empirical evidence are considered.
Approaches to the employment of people with disabilities generally fall into two types: the equality of opportunity approach , based on anti-discrimination laws, and the employment quota approach , which is based on employment quota systems. The US has adopted an equality of opportunity standard for the employment of people with disabilities, and the defining characteristics of its approach lie in its mandate to provide reasonable accommodations by employers for people with disabilities. In contrast, Japan has adopted an employment quota system. This system is premised on a distinction between people with disabilities and people without disabilities, and mandates the employment of people with disabilities according to established numerical standards. Japan and the US thus have adopted extreme ends of the spectrum of employment protections for the disabled. While the equality of opportunity approach practiced in the US guarantees remedies against discrimination and allows for flexible responses to specific circumstances, it creates problems for employers attempting to predict what constitutes discrimination. The Japanese system, which has adopted an employment quota approach, is able to secure positive effects within certain parameters, but is characterized by an inadequate perspective on the equal treatment of people with disabilities and on prohibitions against their discrimination, and lacks a sense of association between disabilities and job performance.
The Americans with Disabilities Act provides a clear mandate that disabled workers be provided with "reasonable" accommodations, but does not meaningfully articulate the standards by which reasonableness ought to be measured. Until now, neither courts nor commentators have provided a systematic model for analyzing accommodation claims. This Article articulates an initial law and economics framework for analyzing disability-related accommodations. In doing so, it demonstrates how accommodations span a cost continuum that can be divided into areas of Wholly Efficient and Semi-Efficient Accommodations to be funded by private employers, Social Benefit Gain Efficient Accommodations where the costs should be borne by the public fisc, and Wholly Inefficient Accommodations that ought not be provided. It also delineates the boundaries between each category, and explains why the entities designated should bear the accommodation costs assigned to them. The analysis of disability accommodations uses, questions, and at times goes beyond the neoclassical economic model of the labor market, and also engages arguments from the jurisprudence of social justice. By utilizing both these fields, this Article stakes out a unique perspective on disability accommodations, and provides an avenue for continued discussion and debate over how disability accommodations ought to be measured.
Governments should embrace randomized trials to estimate the efficacy of different laws and regulations. Just as random assignment of treatments is the most powerful method of testing for the causal impact of pharmaceuticals, randomly assigning individuals or firms to different legal rules can help resolve uncertainty about the consequential impacts of law. We explain why randomized testing is likely to produce better information than nonrandom evaluation of legal policies and offer guidelines for conducting legal experimentation successfully, considering a variety of obstacles, including ethical ones. Randomization will not be useful for all policies, but once government gains better experience with randomization, administrative agencies should presumptively issue randomization impact statements justifying decisions to implement particular policies. Making the content of law partially contingent on the results of randomized trials will promote ex ante bipartisan agreements, as politicians with different empirical predictions will tend to think that the experiments will support their position.
Economic theory suggests that, in most circumstances, market forces will ensure that stan-dard form contracts contain terms that are not only socially efficient but also beneficial to non-drafting parties as a class compared to other possible combinations of price and terms. This analy-sis in turn suggests that courts should enforce all form terms or, at a minimum, all form terms that non-drafting parties read and understand. Relying on social science research on decisionmaking, this Article argues that non-drafting parties (usually buyers) are boundedly rational decisionmak-ers who will normally price only a limited number of product attributes as part of their purchase decision. When contract terms are not among these attributes, drafting parties will have a market incentive to include terms in their standard forms that favor themselves, whether or not such terms are efficient. Thus, there is no a priori reason to assume form contract terms will be efficient. The Article then argues that the proper policy response to this conclusion is greater use of mandatory contract terms and judicial modification of the unconscionability doctrine to better respond to the primary cause of contractual inefficiency.
Courts and agencies interpreting the Americans with Disabilities Act (ADA) generally assume that workplace accommodations benefit individual employees with disabilities and impose costs on employers and, at times, coworkers. This belief reflects a failure to recognize a key feature of ADA accommodations: their benefits to third parties. Numerous accommodations - from ramps to ergonomic furniture to telecommuting initiatives - can create benefits for coworkers, both disabled and nondisabled, as well as for the growing group of employees with impairments that are not limiting enough to constitute disabilities under the ADA. Much attention has been paid to how the integration of diverse groups of people helps to ameliorate discriminatory attitudes through contact. But integrating people with disabilities also means integrating accommodations. These accommodations affect and benefit third parties in the workplace and thus shape attitudes toward both disability and the ADA. An understanding of third-party benefits is crucial to designing and disclosing accommodations in ways that will best promote the aims of the statute and the prospects of disabled people.
Economic analysis of law is a powerful analytical methodology. However, as a purely consequentialist approach, which determines the desirability of acts and rules solely by assessing the goodness of their outcomes, standard cost-benefit analysis (CBA) is normatively objectionable. Thus, for example, it presumably approves the deliberate killing of one innocent person to save the lives of two, and the breaking of a promise whenever it would produce slightly more net benefit than keeping it. Moderate deontology prioritizes such things as autonomy, basic liberties, truth telling, and promise keeping over the promotion of good outcomes. It holds that there are constraints on promoting the good. Such constraints may be overridden only if enough good (or bad) is at stake. Thus, it may justify killing an innocent person only for the sake of saving many more (perhaps hundreds or thousands) people, and breaking a promise only to avoid considerable losses. Moderate deontology conforms to prevailing moral intuitions. At the same time, it is arguably lacking in methodological rigor and precision. Can the normative flaws of economic analysis be rectified without relinquishing its methodological advantages? Can deontological moral constraints be formalized and modeled so as to make their analysis more rigorous? This Article examines the possibility of combining economic methodology and deontological morality through explicit and direct incorporation of moral constraints into economic models. It discusses various substantive and methodological choices involved in modeling deontological constraints. It proposes to determine the permissibility of any act or rule infringing a deontological constraint by means of mathematical threshold functions. The Article presents the general structure of threshold functions and analyzes their elements. It then illustrates the implementation of constrained CBA in several contexts, including discrimination in the marketplace, legal paternalism, and risking innocent people while fighting terrorism. It then addresses possible objections to our proposal. Deontologically constrained CBA is more complex than standard CBA. Yet, we maintain that it is superior to its alternatives. It rectifies the normative flaws of conventional CBA without significantly compromising its methodological rigor. Concomitantly, it improves deontology by making the analysis of threshold constraints more precise and its policy implications potentially more determinate. Constrained CBA also better explains people's behavior and prevailing legal doctrines.
Economic analysis of law usually proceeds under the assumptions of neoclassical economics. But empirical evidence gives much reason to doubt these assumptions; people exhibit bounded rationality, bounded self-interest, and bounded willpower. This article offers a broad vision of how law and economics analysis may be improved by increased attention to insights about actual human behavior. It considers specific topics in the economic analysis of law and proposes new models and approaches for addressing these topics. The analysis of the article is organized into three categories: positive, prescriptive, and normative. Positive analysis of law concerns how agents behave in response to legal rules and how legal rules are shaped. Prescriptive analysis concerns what rules should be adopted to advance specified ends. Normative analysis attempts to assess more broadly the ends of the legal system: Should the system always respect people's choices? By drawing attention to cognitive and motivational problems of both citizens and government, behavioral law and economics offers answers distinct from those offered by the standard analysis.
Workers compensation was established by a coalition of workers, employers, and insurers who anticipated gains from replacing negligence liability. Employers anticipated reduced uncertainty and administration costs and were able to pass some of the costs of workers' compensation benefits on to workers through lower wages. The average worker anticipated higher postaccident benefits. Even if lower wages meant they "bought" better benefits, they anticipated better "insurance" of accident risk. Insurers expected to expand their coverage of workplace accidents. Legislative action was required because the courts did not recognize private contracts in which workers waived their rights to negligence suits prior to an accident. Changes in employers' liability served as the catalyst uniting the groups in support of the legislation. Workers' compensation was adopted earlier in states where employers' liability costs were increasing more, unions were stronger, plant sizes were larger, and to some extent where the Progressive movement was stronger. Copyright 1998 by the University of Chicago.
This study investigates the economic consequences of rights to paid parental leave in nine European countries over the 1969
through 1993 period. Since women use virtually all parental leave in most nations, men constitute a reasonable comparison
group, and most of the analysis examines how changes in paid leave affect the gap between female and male labor market outcomes.
The employment-to-populations ratios of women in their prime childbearing years are also compared with those of corresponding
aged men and older females. Parental leave is associated with increases in women's employment, but with reductions in their
relative wages at extended durations.
Whether the costs of job accommodation remain low as more persons with disabilities enter the work force is a crucial issue in evaluating the progress of the employment provisions of the Americans with Disabilities Act (ADA). Much depends on the extent to which health and economic factors thought to raise or lower the costs of accommodation to employers actually predict accommodation outcomes. An empirical model of employer accommodation is specified and tested with data on a representative sample of Americans in their fifties. Among others, the results show that both the likelihood and extent of job accommodation are significantly influenced by cost-increasing and cost-decreasing factors, in each case in the direction predicted by the model. Inferences about the future trajectory of the costs of job accommodation and the employment effects of the ADA are discussed. Copyright (C) 1999 John Wiley & Sons, Ltd.
Comparable worth is one of the most controversial issues in the current debate over civil rights law and policy. Under this theory, employers would be required to pay comparable wages for different jobs that are comparable in value or worth, where these jobs are filled predominantly by women and men respectively. For proponents, comparable worth is an indispensable instrument in the achievement of pay equity for women because so many working women are segregated into identifiably "female" jobs, the wages for which, it is argued, are depressed precisely because of their traditionally "female" character. Critics contend that comparable worth is a perilous legal intrusion into our competitive labor market because it would require courts to make impossible judgments about the relative value and "just price" of entirely different jobs. In this Article, Professor Weiler challenges the assumptions on both sides of the debate. He contends that, in principle at least, there is a solution to the valuation problem compatible with both the operation of our market economy and with the basic themes of our antidiscrimination law. Yet because the concentration of women in a distinctive set of jobs has contributed relatively little to the aggregate gender gap in earnings, Professor Weiler argues that the benefits of a judicially enforceable right to comparable worth would not exceed the substantial costs of implementation in our decentralized economic and legal system. Finally, he concludes that a plausible case nevertheless exists for pursuing this policy through voluntary affirmative action by public and private employers, through collective bargaining, and eventually through a carefully tailored contract compliance program under Executive Order 11,246.
Economists have long disputed the wisdom of a governmental decision to determine centrally the quality of housing on the rental market. In this Article, Professor Markovits suggests that previous analyses of housing code enforcement have been overly simplistic. After attempting a more complete evaluation of the determinants of the allocative efficiency, distributive desirability, and overall attractiveness of such policies, he compares their effects with those of untied dollar transfer programs and housing subsidies. Although the data necessary for a definitive judgment are lacking, Professor Markovits concludes that codes which are carefully designed and implemented could well be preferable to all viable alternative policies.
Pregnancy discrimination exhibits a coherent social logic. The exclusion of women from employment on the basis of pregnancy perpetuates the sexual division of productive and reproductive labor, thereby confirming women's second class status in the work force. The Pregnancy Discrimination Act of 1978 amends Title VII of the Civil Rights Act of 1964 by clarifying that the Act's proscription of sex-based employment discrimination includes discrimination on the basis of pregnancy. The PDA has been construed to require that pregnant employees be treated comparably with others on the basis of ability or inability to work. This Note challenges the sufficiency of a standard of comparable treatment on statutory and broader, equitable grounds.
Whether the costs of job accommodation remain low as more persons with disabilities enter the work force is a crucial issue in evaluating the progress of the employment provisions of the Americans with Disabilities Act (ADA). Much depends on the extent to which health and economic factors thought to raise or lower the costs of accommodation to employers actually predict accommodation outcomes. An empirical model of employer accommodation is specified and tested with data on a representative sample of Americans in their fifties. Among others, the results show that both the likelihood and extent of job accommodation are significantly influenced by cost-increasing and cost-decreasing factors, in each case in the direction predicted by the model. Inferences about the future trajectory of the costs of job accommodation and the employment effects of the ADA are discussed. Copyright © 1999 John Wiley & Sons, Ltd.
Family leave coverage increased after the passage of the Family and Medical Leave Act in 1993, the increase was sharpest among workers covered by the Act, suggesting that the law had a positive impact on coverage.
The focus of all statistical analyses of alleged employment discrimination is to compare the treatment of similarly situated individuals. Economists and statisticians as experts offering quantitative support for or against allegations of employment discrimination are now commonplace in the courtroom. Although there is a rich and growing literature dealing with the tools and techniques used by these experts in large, class action litigation, relatively little of this literature addresses the problems associated with the approaches that may be used when the sample size being analyzed is small. The purpose of this paper is to outline the problems of developing statistical analysis involving "small sample size" problems and to present techniques for dealing with this problem. The paper provides several hypothetical examples of employment discrimination cases involving small sample sizes, illustrates alternative statistical techniques that can be used, and discusses the important consideration of the differences between statistical significance and practical significance.
This paper examines the development of the law and economics approaches to discrimination in employment. The early work of Gary Becker was used to argue against the need for antidiscrimination laws since the market would tend to discipline any firm that failed to maximize profits by harboring animus against certain types of employees. The tension between a theory that, in Kenneth Arrow's phrase, predicted the absence of the phenomenon that it purported to explain and the fact that discrimination thrived in the American South for long periods of time has led to two responses: some have argued that the Becker model was inapplicable since the Southern labor market was not competitive (the approach of Richard Epstein), and others have argued that the Becker model is simply wrong in that whites benefitted from racial discrimination, which therefore enabled the practice to persist (the work of Richard McAdams). The paper discusses the efficacy of various antidiscrimination initiatives, the explosive growth of the antidiscrimination caseload and its change in composition from hiring to discharge cases, and the proliferation of employment discrimination laws that prohibit not only the core areas of race and sex discrimination, but also discrimination on the basis of age, disability, and other grounds.
Empirical studies of post-ADA employment effects foreground a phenomenon that is puzzling. Although analyses suggest that employing workers with disabilities can be cost effective, and despite a burgeoning economy in which the unemployment rate for most categories of workers has plummeted, unemployment of working age individuals with disabilities appears not to have similarly diminished. From the point of view defined by scholars applying the neoclassical labor market paradigm to Title I, the clearest explanation of this phenomenon would seem to be that the studies reporting the cost effectiveness of employing the disabled are incorrect (even if only overstated). Following from this explication is the conclusion that selecting workers with disabilities over nondisabled workers is an inefficient practice. In what follows, I examine and assess the arguments made by proponents of the view that the inefficiency of employing workers with disabilities is a deterrent to their inclusion in the labor market. If these arguments are sound, then rational market forces appear to be inexorably at work to attenuate the strategy embodied by Title I of the ADA. To the contrary, however, I will identify a market failure that prevents certain employers from reaching rational labor market decisions by creating a "taste for discrimination" in which the costs of including people with disabilities in a workforce are perceived as being greater than they really are. Further, I will propose an improved manner for assessing the efficiency of employing workers with disabilities and consider what this method implies regarding the rationality of Title I's strategy. Finally, I will show that the failure of the existing neoclassical economic model, as well as the Title I critiques that rely on it, is attributable at least in part to societal misconceptions about people with disabilities being built into the model's assumptions. That is, far from being neutral or objective, these critiques sanction and perpetuate the very irrational biases the ADA was designed to correct.
Over the past three years, an increasing number of disability rights activists, practitioners, and scholarly commentators have claimed that a powerful judicial and media backlash against the Americans with Disabilities Act is underway. Even before issuance of three Supreme Court decisions in the Summer of 1999 narrowly construing the Act's coverage, there existed ample evidence supporting the backlash hypothesis. In two papers, a Foreword and an Afterword, Professor Krieger frames an interdisciplinary symposium on public, judicial, and media responses to the Americans with Disabilities Act soon to appear in the Berkeley Journal of Employment and Labor Law. In the first article, Backlash Against the Americans with Disabilities Act: Interdisciplinary Perspectives and Implications for Social Justice Strategies, Professor Krieger situates the intellectual project undertaken by the Symposium and introduces the fourteen articles and three responsive commentaries that comprise it. In the second paper, Socio-Legal Backlash, Professor Krieger posits a theoretical model of socio-legal change and retrenchment, situates the concept of backlash within that model, and applies the model to investigate and explain patterns of public, judicial and media reactions to the ADA.
This article examines the legal and economic arguments behind the separate versus equal treatment approaches to maternity/parental leave. Three sets of legal arguments that were advanced in the U. S. Supreme Court case California Federal Savings and Loan Association v. Guerra, 1987 are examined. The economic arguments that correspond to each of these legal arguments are then developed, including the arguments of groups who (1) oppose all versions of mandated leave, (2) support mandated parental leave without qualification (the Separate Treatment Approach), and (3) support some, but not all formulations (the Equal Treatment Approach).
Each of these theoretical perspectives generate specific hypotheses regarding the potential compensation and employment effects for women of childbear‐ing age. These hypotheses are tested with data from the Current Population Survey, May 1979 and May 1983. Overall the empirical findings suggest that parental leave legislation can significantly improve the labor market position of women of childbearing age, but all approaches are not equal and some methods may undermine, rather than improve their position.
Changes in public policy and in macroeconomic conditions have dramatically affected the economic well-being of people with disabilities over the past two decades, both absolutely and relative to people without disabilities. Using data from the Current Population Survey (1968-1988), we find that the households of white or well-educated males with disabilities have fully recovered from the program cuts and recession of the early 1980s. However, much of this recovery was due to additional earnings by other household members. The households of males who are “doubly handicapped”-nonwhite or poorly educated males with disabilities-have not recovered. We conclude that the new mandates on business aimed at integrating people with disabilities into the workplace are not likely to significantly benefit the doubly handicapped.
This chapter examines the impact of wage-setting institutions and government policies on wages and employment, focusing on the OECD countries. There is considerable evidence that centralized collective bargaining, minimum wages and antidiscrimination policies raise the relative wages of the low paid. Evidence of the impact of these institutions and other policies such as mandated severance pay, advance notice or unemployment insurance is more mixed with some studies finding negative employment effects while others do not. This may reflect the adoption by many OECD countries of off-setting policies, such as public employment, temporary employment contracts and active labor market programs, which, while they may have reduced the adverse relative employment effects of their less flexible labor market institutions on the low skilled, appear not to have prevented high overall unemployment.
Regulations for the content of private health plans, called mandated benefit laws, are widespread and growing in the United States, at both state and federal levels. Three aspects of these laws are examined: their current scope; some economic reasons for their existence; and the theory and empirical evidence for their effects in health insurance markets. A growing body of literature suggests that society is paying a high price for enhanced coverage via mandated benefits. These laws increase insurance premiums, cause declines in wages and other fringe benefits, and lead some employers and their workers to forgo health benefits altogether. The cost of mandated benefit laws falls disproportionately on workers in small firms.
Mandating that employers provide job-related benefits is not a free lunch for employees. Despite the claims of some advocates of mandated benefits, economists have long recognized that much of the cost of those benefits is passed on to employees in lower wages. What has gone unrecognized is that the more employees pay for a mandated benefit relative to its cost the more they gain from having the benefit provided. Copyright 1996 by Oxford University Press.
Many laws create important rights for today's employees, but the availability of legal representation for employees seeking to enforce those rights is uncertain. The goal of the present paper, part of the Emerging Labor Market Institutions for the 21st Century Project at the National Bureau of Economic Research, is to examine some of the distinctive public-interest legal organizations that exist to help to enforce the employment laws. The chapter focuses on two broad categories of such organizations: 'national issue organizations,' which are organizations that focus on one or more broad-based issues and are funded predominantly by private donations; and legal services organizations, which serve exclusively low-income individuals and are funded primarily by the government.
The Equal Employment Opportunity Act (EEOA) of 1972 extended civil rights coverage to employers with 15-24 employees, while leaving unaffected the civil rights protection for employees of larger firms. In conjunction with pre-existing state fair employment practice (FEP) laws, the EEOA provides a "natural experiment" in which the treatment and control groups are defined by differences across industries in the fraction of workers employed in the newly covered establishments and across states in the scope of the FEP laws. Applying the treatment and control group methodology to Current Population Survey data, the author finds that there were large shifts in the employment and pay practices of the industries most affected by the amendment. The timing of the relative gains and their concentration by industry and region provide evidence that the EEOA had a positive impact on the labor market status of African-Americans. (Abstract courtesy JSTOR.)
- E G See
- Derrick Bell
- Faces At
- Bottom
- Of
- Well
See, e.g., DERRICK BELL, FACES AT THE BOTTOM OF THE WELL: THE PERMANENCE OF
RACISM 47-64 (1992);
Discrimination in Employment, in I
- J John
- Iii Donohue
John J. Donohue III, Discrimination in Employment, in I THE NEWv
PALGRAVE DICTIONARY OF ECONOMICS AND THE LAW 615, 619 (Peter Newman ed., 1998).
The Limited Vision of the Family and Medical Leave Act, 44 VILL
- Michael Selmi
Michael
Selmi, The Limited Vision of the Family and Medical Leave Act, 44 VILL. L. REV. 395, 407-10
(1999);
Monarch Paper Co., 939 F.2d 1138 (5th Cir. 1991) (upholding a $3.1 million verdict on a tort claim of intentional infliction of emotional distress brought by an employee)
- E G See
- Wilson V
See, e.g., Wilson v. Monarch Paper Co., 939 F.2d 1138 (5th Cir. 1991) (upholding a $3.1
million verdict on a tort claim of intentional infliction of emotional distress brought by an employee).
stating that the control-group results are "more methodologically convincing"
- Lawrence F Katz
Lawrence F. Katz,
Commentary on Chapter 3, in GENDER AND FAMILY ISSUES IN THE WORKPLACE, supra note 55, at
86, 87 (stating that the control-group results are "more methodologically convincing").
Parental Leave Mandates, supra note 9
- Ruhm
Ruhm, Parental Leave Mandates, supra note 9.
181. Id. at 286.
Equality's Riddle: Pregnancy and the
- Wendy W Williams
Wendy W. Williams, Equality's Riddle: Pregnancy and the
[Vol. 53:223
HeinOnline --53 Stan
HeinOnline --53 Stan. L. Rev. 297 2000-2001