Lawyering in Color: The Ethics of Diversity and Inclusion
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SPRING 2020 ■ VOLUME 48, NUMBER 3
SECTION OF LABOR AND EMPLOYMENT LAW ■ AMERICAN BAR ASSOCIATION
Lawyering in Color: The Ethics of Diversity and Inclusion
By Shelly C. Anand and R. Nelson Williams
I
In the middle of depositions for
an OSHA case involving a farm-
worker sickened by heat stress,
the deponent—the worker’s
supervisor—testified on the
record: “These Mexican workers
are made for this kind of labor.”
The deposing attorney, a Latinx
woman, reeled in shock from this
racialized statement. Yet the
deponent’s attorney said nothing,
and the deposition continued.
For attorneys of color, this
story, while shocking, is not sur-
prising or uncommon. And until
very recently, there was no
explicit recourse for this kind of
misconduct. That changed in
August 2016, when the American
Bar Association formally adopted
Model Rule 8.4(g). Under Rule
8.4(g), it is professional miscon-
duct for a lawyer to:
a lawyer to accept, decline from engaging in “conduct that is were limited to the “administra-
(g) engage in conduct that or withdraw from a repre- prejudicial to the administration tion of justice.”
the lawyer knows or rea- sentation in accordance of justice.” The comments to Rule Rule 8.4(g) made critical
sonably should know is with Rule 1.16. This para- 8.4(d) clarified that “[a] lawyer changes to the Model Rules.
harassment or discrimina- graph does not preclude who, in the course of representing First, it added a knowledge/intent
tion on the basis of race, legitimate advice or advo- a client, knowingly manifests, by requirement. Second, it
sex, religion, national ori- cacy consistent with these words or conduct, bias or preju- expanded the list of protected
gin, ethnicity, disability, age, Rules. dice based on race, sex, religion, classes to include ethnicity, gen-
sexual orientation, gender national origin, disability, age, der identity, and marital status.
identity, marital status or Before this addition, the Rules sexual orientation, or socioeco- Third, whereas 8.4(d) applied
socioeconomic status in did not directly or expressly nomic status violates paragraph only to conduct occurring in the
conduct related to the prac- address discriminatory conduct (d) when such actions are prejudi- administration of justice, 8.4(g)
tice of law. This paragraph in the legal field. Rule 8.4(d) came cial to the administration of jus- broadened the scope of its reach
does not limit the ability of close, as it prohibited lawyers tice.” However, these admonitions continued on page 8
Published in Labor and Employment, Volume 48, Number 3, Spring 2020. © 2020 by the American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof
may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association
THE SECTION By Christopher T. Hexter
T
This is my last column to the Section as its 2019-2020 Chair. It has been quite addressed its consequences to the workplace with leading public and pri-
a year that I hope you will catch by the tone and hope expressed in this col- vate sector experts. To help our members adjust to this new world, we
umn. However, before going further, I wish to thank the many people in and have held webinars focused on using videoconferencing to conduct media-
out of the Section that helped me as Chair. First I owe my colleagues on the tions and arbitrations, how new and young lawyers can make the most of
Section’s Executive Committee a debt of gratitude – Chair-Elect Samantha the new COVID-19 terrain to advance their practice in the legal world, and
Grant, Vice Chairs Steve Moldof and Doug Dexter and Immediate Past Chair protecting LGBT rights under Title VII. Before September 1, the Section has
Joe Tilson – all of whom guided me through the different land mines any scheduled many more webinars on both substantive law issues and the
Chair of the Section will likely face in his/her term in office. Then I owe a big practice of labor and employment law relevant to our Section’s members.
debt to the Section’s former Associate Director, Chris Meacham, who facili- See the webinar schedule at www.ambar.org/labor.
tated many of the Administrative Committees, worked with the newlsetters Most recently, we have been rocked by the deaths of Breonna Taylor,
and Journal, and assisted with many of the Midwinter Meetings. Chris will be George Floyd, Ahmad Arbery, and Rayshard Brooks. Clearly, these incidents
missed by me as well as many others in the Section, and I wish him well in are a microcosm of a systemic abuse of power to African Americans that has
his new ABA position. I also have had the luck and pleasure of working with gone on for 401 years since the first slaves were delivered to English settlers.
Judy Stofko, who is certainly the friendliest and most accessible Administra- That abuse needs to end – no matter how hard it is or will be for many to
tive Assistant that I know. come to grips with that reality. In our Section, we represent employers,
Almost last but certainly not least, I can’t overstate my debt to Brad unions and individual employees in the private and public sectors. It is our
Hoffman, who is the most efficient and organized director of a complex responsibility to put our full weight against the tide of history and take
organism that I know – always on top of where everything is, unflappable in advantage of our access to so many people at all levels of power to steer
the face of periodic crises that erupt during the Section year, a very good each and every one of them to build a more humane society appreciating the
listener and sounding board and an encyclopedic source of who everyone multihued colors of our people. That is the goal we must set for ourselves in
is in the Section. Now last, I thank my wife Shellie, who didn’t quite know our homes, in our communities, in our workplaces, in the country and most
what would follow for me in this Section leadership gig: how often I would immediately in our Section for next year and in the future.
disappear to take the fourth or fifth conference call on any given day, how
much time I would spend engaged in promoting the Section and the ABA to Labor and Employment Law (ISSN: 0193-5739)
whomever would listen and the amount of time I spent on making our Sec- is published four times a year by season, by the
tion Committees the vital glue that hold our Section together. Section of Labor and Employment Law of the
During my year a syour Section Chair, I have observed how much this American Bar Association, 321 North Clark Street,
Chicago, Illinois 60654, 312/988-5813.
Section intersects with the economy and social lives of people throughout
www.americanbar.org/laborlaw
the U.S. and the world. I succeeded to this position on August 10, 2019 on
the same day that Jeffrey Epstein, who for many years had trafficked in and Chair, Christopher T. Hexter, St. Louis, MO
abused young women, committed suicide in New York. At the same time Chair-Elect, Samantha C. Grant, Los Angeles, CA
the U.S. Immigration and Customs Enforcement Agency arrested and initi- Vice Chair – Union & Employee, Stephen B. Moldof
ated deportation proceedings against 680 undocumented non-nationals in Vice Chair – Employer, Douglas E. Dexter
Mississippi with no notice to their children or families. Both events directly Immediate Past Chair, Joseph E. Tilson
related to the interests and work of our Section’s Immigration and Human Editors
Trafficking Committee and later to the work of our Pro Bono and Commu- Channah S. Broyde, U.S. Department of Labor, Atlanta, GA, broyde.channah@dol.gov
nity Outreach Committee. Amy Moor Gaylord, Akerman LLP, Chicago, IL, amy.gaylord@akerman.com
From August 10, 2019 through much of the year including the exciting Robert B. Stulberg, Stulberg & Walsh, LLP, New York, NY, rstulberg@stulbergwalsh.com
13th Annual Section Conference in New Orleans, Law Student Trial Advo- Lesley Tse, Getman & Sweeney, PLLC, Kingston, NY, ltse@getmansweeney.com
cacy Competition, and Midwinter Meeting season beginning in late Janu-
Associate Editors
ary, things moved smoothly and efficiently for the Section. But in early
Amanda R. Clark, Asher, Gittler & D’Alba Ltd., Chicago, IL, arc@ulaw.com
March, we met our match in the Coronavirus pandemic that brought to a
grinding halt our four last Midwinter Meetings, the 2020 ABA Annual Meet- H. William Constangy, Arbitrator and Mediator, Constangy@mindspring.com
ing and our 14th Annual Section Conference. Despite these setbacks, the Todd F. Jackson, Feinberg, Jackson, Worthman & Wasow, Berkeley, CA,
Section has continued its programming and service to our members and todd@feinbergjackson.com
others. This has been accomplished when the majority of our Section mem- Amber M. Rogers, Hunton Andrews Kurth LLP, Dallas, TX, arogers@huntonak.com
bers are learning to work at home and a significant number are doing this Young Lawyers Division Liaison
with childcare duties added to their daily tasks. And of course, this has Sarah Bryan Fask, Philadelphia, PA, sfask@littler.com
been in a country that, as of May, faced nearly 21 million unemployed work-
Managing Editor, Brad Hoffman
ers up 15.2 million since February 1, suffered 119,055 deaths due to COVID-
19, discovered major disruptions to our health care system and presently Art Director, ABA Design, Mary Anne Kulchawik
lives with anxiety among many that we have not yet overcome the ravaging The views expressed herein are not necessarily those of the American Bar Association or its
Section of Labor and Employment Law. The articles published in this newsletter are presented
consequences of the pandemic in the absence of a successful vaccine. for informational purposes only and are not intended to be construed or used as general legal
In the face of these major disruptions for so many, the Section has advice or as solicitations of any type. Copyright © 2020 American Bar Association. Produced
by ABA Publishing. No part of this publication may be reproduced, stored in a retrieval system,
or transmitted in any form or by any means (electronic, mechanical, photocopying, recording,
Christopher T. Hexter (cth@schuchatcw.com) is a Partner with Schuchat, Cook or otherwise) without the prior written permission of the publisher. To request permission,
email the ABA’s Department of Copyrights and Contracts at copyright@americanbar.org
& Werner in St. Louis, Mo. He became Chair of the Section on August 10, 2019.
2 Labor and Employment Law Spring 2020 www.americanbar.org/laborlaw
Published in Labor and Employment, Volume 48, Number 3, Spring 2020. © 2020 by the American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof
may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association
The Department of Labor’s and National Labor Relations Board’s
New Joint Employer Rules
By Brian Nugent and Tiffany D. Hendricks
B
Both the Department of Labor
(DOL) and the National Labor Rela-
tions Board (NLRB) recently issued
important final rules as guidance to
employers to determine joint
employer status under the Fair
without some actual exercise of
control.
The final rule establishes that
certain business models (i.e., fran-
chises), certain business practices
The NLRB’s Joint Employer
Final Rule
Right on the heels of the DOL issu-
ing its joint employer test, the
NLRB issued its own final rule for
determining joint employer liability
isolated, or de minimis) over the
“essential terms and conditions of
employment” (wages, benefits,
hours of work, hiring, discipline,
discharge, supervision, and
direction).
Labor Standards Act and the (i.e., allowing the operation of a under the NLRA. The NLRB’s final The NLRB issued a fact sheet to
National Labor Relations Act store on one’s premises), and cer- rule is scheduled to become effec- provide additional guidance to
(NLRA). tain contractual agreements (i.e., tive April 27, 2020. employers regarding the circum-
requiring a party in a contract to The NLRB’s joint employer stan- stances when one company may
The DOL’s Joint Employer institute sexual harassment poli- dard returns the NLRB to past be considered a joint employer of
Final Rule cies) do not make joint employer interpretation. Under that old prec- another company’s employees. An
Effective March 16, 2020, employers status more or less likely under the edent, the NLRB found a joint- employer will be considered a
will be able to use a four-factor bal- FLSA. Thus, the existence of a fran- employer relationship existed only joint employer when:
ancing test in determining joint chise relationship or other busi- where two separate employers ■ The employer shares or codeter-
employment status under the ness arrangement, without more, codetermined matters governing mines the essential terms and
FLSA. will not likely lead to a finding of the essential terms and conditions conditions of employment of a
The four-factor balancing test joint employment. of employment. In meeting that different employer’s employees;
focuses on whether the other indi- Notably, the final rule states that joint employer standard, the NLRB ■ The employer possesses and
vidual or entity: an employee’s economic depen- looked for evidence that the puta- exercises substantial direct and
■ hires or fires the employee; dence on a potential joint employer tive joint employer had “direct and immediate control over one or
■ supervises and controls the is not relevant in determining immediate” control over key mat- more essential terms and condi-
employee’s work schedules or whether that individual or entity is ters of the employment tions of employment of another
conditions of employment to a an FLSA joint employer. Further, relationship. employer’s employees; and
substantial degree; the mere reservation of a contrac- In 2015, the NLRB departed ■ The employer possesses more
■ determines the employee’s rate tual right of direction and/or con- from this precedent in its Brown- than indirect influence or a con-
and method of payment; and trol over an employee, without ing-Ferris decision and established tractual reservation of a right to
■ maintains the employee’s more, is not enough to create joint a new standard: it would no longer control over a different employ-
employment records. employer status. The rule also com- require evidence of direct and er’s employee. However,
ments on the effect of other con- immediate control. A joint evidence of that is probative of
The DOL stated that in evaluat- tractual rights between possible employer finding could be based joint employer status to the
ing the four factors above, all facts joint employers, and states that not on evidence that an employer extent that it supplements and
will be considered, and no one fac- wanting to discourage parties from exercised indirect control or reinforces evidence of direct and
tor is more relevant than another. requiring compliance with health, reserved authority to exercise con- immediate control.
The DOL made it a point to provide safety, and legal obligations is not trol over employees of another
clarification regarding the mainte- an indication of joint employer employer. Many employers, especially
nance of employee’s employment status. In its December 2017 Hy-Brand those who rely on staffing compa-
records: maintaining employment The DOL’s final rule provides decision, the NLRB overruled nies to provide temporary employ-
records will not, without more, cre- much needed guidance for FLSA Browning-Ferris, and returned to ees and those in the franchise
ate a basis for a finding of joint compliance, and clarifies whether the prior requirement of “direct industry, will likely have to reas-
employer. certain facts or arrangements, and immediate” control. The Hy- sess whether they may be consid-
The rule expressly states that to without more, indicate joint Brand decision was vacated, how- ered a joint employer under the
be a joint employer under the Act, employment. Employers now ever, because of a conflict of inter- final rule, and how that may affect
have guidance for erecting guard est of one of the NLRB members their business relationships before
the other person must actually rails when forming business rela- who participated in the decision. the rule goes into effect on April 27,
exercise-directly or indirectly- tionships with other parties, Thereafter, the NLRB took a new 2020. n
one or more of the four control some “bright lines” to provide a tack. Instead of creating law by rul-
factors. The other person’s clearer path under certain cir- ing on cases—as the NLRB has
ability, power, or reserved cumstances (e.g., franchising, long done—in September 2018, the Brian Nugent is a partner at
right to act in relation to the maintaining employee records) NLRB formally proposed a new Akerman LLP and represents
employee may be relevant for with this new final rule from the rule codifying the standard employers in labor and employment
determining joint employer DOL. However, employers will pre-Browning-Ferris. matters. Tiffany D. Hendricks is
status, but such ability, power, also need to pay attention to The new codified rule focuses an associate at Akerman LLP and
or right alone does not dem- courts’ acceptance (or not) of the on an employer’s “direct and focuses her practice on employment
onstrate joint employer status final rule. immediate control” (not sporadic, litigation and counseling.
www.americanbar.org/laborlaw Spring 2020 Labor and Employment Law 3
Published in Labor and Employment, Volume 48, Number 3, Spring 2020. © 2020 by the American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof
may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association
You Negotiate Like A Girl—Thank You!
By Amanda Clark
W
While off-season sports labor and agreement expired before the
employment related news is usu- 2013 post-season ended, and the
ally dominated by pending strikes players agreed to finish that sea-
in baseball or football, and player son without a contract. The 2014
trades during the free-agency contract increased player rosters
periods, the past year has really back to 12 members after it was
been the year of women. Not all decreased from 13 to 11 the prior
of the news has been great. The season. This was the lynch pin
U.S. Women’s National Team is issue for the WNBPA in these
locked in a vicious gender dis- negotiations. The agreement also
crimination case against the U.S. provided for more limited annual
Soccer Federation, alleging pay increases to the salary cap,
disparity with the men’s team. allowed owners’ ability to
Despite the women’s team having increase fines and penalties when
won four World Cups to the men’s players played oversees and did
team zero, U.S. Soccer fanned the not fulfill WNBA obligations, and
flames when it filed documents improved the players’ revenue
alleging that the men’s team1 had sharing program.
more responsibilities and biologi- The 2020 contract not only
cal differences and “indisputable built on the work that had been
science”, as a justification for the done in the prior contracts, but it
men’s team being paid more. The also filled longstanding holes in
president of the U.S. Soccer Feder- the benefits provided to the pro-
ation resigned during the outcry fessional athletes. The WNBPA
after the filing became public, and sports organizations in their col- individual team ownership model. sought to address four major
the new president has indicated a lective bargaining negotiations. During these negotiations, David areas of concern: compensation,
different approach to resolving The WNBA was founded in Stern, president of the NBA, revenue split, travel arrangement
the lawsuit. Nike also came under 1996, with its inaugural season in which was still providing $12 mil- and benefits. The 2020 contract
fire in 2019 when female athletes 1997 with eight teams, all owned lion in assistance to the WNBA, is a three-year agreement that
it sponsored went public with by the NBA until 2002. It is cur- threatened to cancel the season if provides a 53% increase in cash
lack of maternity protections in rently comprised of twelve teams. an agreement was not reached by compensation. It raises top
its contracts. However, again after The WNBPA was formed in 1998. early April, 2003. The 2003 con- player salary caps to $215,000
public uproar, Nike rewrote its It is the first labor union of profes- tract ushered several changes: it with up to $300,000 in “league
contracts and made clear that it sional women athletes. It negoti- introduced free agency for any market agreements” and cash
could not apply any performance ated the first collective bargaining player with six years of experi- bonuses for mid-season tourna-
related reductions for 18 months, agreement on behalf of its players ence and an expired contract; ments, All-Star game selections,
starting eight months before the in 1999, gaining impressive bene- increased by 17 percent what and similar honors. It is also the
athlete’s due date. fits: an 75% increase in top play- teams could spend on salaries first time that players other than
Not all the news in the profes- ers’ salaries; an 100% increase in over the life of the contract— the elite players will earn six fig-
sional women’s sports arena has the minimum salary; paid mater- including the extension year; and ures, with average compensation
started with a large public uproar. nity leave; year-round health and dropped from 18 to 6 the prohib- at $130,000. Players will also
The Women’s National Basketball dental insurance; a retirement ited categories of player endorse- start earning a 50/50 split of
Association (“WNBA”) and the plan; and a limit on the number of ments (no list of the prohibited League revenue, up from 20/80.
Women’s National Basketball Play- players from the American Bas- categories has ever surfaced pub- The increased compensation
ers Association (“WNBPA”) ketball League, a professional licly). The 2008 CBA resulted in: a portions are intended to keep
reached agreement on a ground- league for women, which only guarantee that player salaries players from having to supple-
breaking collective bargaining lasted two seasons. That first con- would at least increase each year ment their income by playing in
agreement in January of 2020, to tract lasted until 2003. of the contract; an increase in overseas leagues during the off
run for eight years. The agree- The 2003 contract was a three- player minimum and maximum season.
ment was a huge step forward for year deal, and the WNBA exer- salaries; a limitation on the num- For travel arrangements, all
the players and a dedication to cised an option under the con- ber of players who could be desig- players will now get their own
the future of the sport and its ath- tract to extend it an additional nated as “core”, which would pre- hotel rooms, instead of having to
letes for the league. The agree- year, through 2007. That was the vent free agency and player wait until they had five years in
ment is worth examination, as it last year that the League’s side of movement; and individual hotel the league. In addition, players
may provide a path forward for the negotiations were handled as rooms for players with five or will fly in at least economy plus
other women’s professional a single entity before shifting to more years in the league. This continued on page 9
4 Labor and Employment Law Spring 2020 www.americanbar.org/laborlaw
Published in Labor and Employment, Volume 48, Number 3, Spring 2020. © 2020 by the American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof
may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association
Representing Employees at the United Nations and Affiliated Organizations
Through a Unique “Internal Justice System”
for Grieving and Resolving Workplace Disputes
By Robert B. Stulberg and Zachary R. Bergman
F
Founded in 1945—fresh off the the multinational, multi-faceted recruitment, and required linguis- to serve in field missions and pro-
heels of World War II—the United nature of the UN Family’s mission tic and cultural proficiencies: (1) vide administrative, technical,
Nations (the “UN”) was initially and workforce, the intricacies of “Professional and higher,” logistical and other support ser-
staffed by a mere 300 workers, employment issues confronting recruited internationally, with the vices; and (5) “Senior Appoint-
tasked with preserving interna- UN Family staff is unparalleled. expectation that they will be ments,” appointed by one of the
tional peace and security, improv- For example, the UN Secretariat, assigned to duty stations around UN’s legislative organs or by its
ing relations among nations, pro- which is responsible for carrying the world; (2) “General Service,” Chief Administrative Officer.
moting international cooperation, out the UN’s day-to- day functions typically recruited locally and Reflecting this extraordinary
and encouraging collective and is representative of the UN as performing administrative, secre- mix of positions, UN staff com-
action. Today, the “UN System,” a whole, is headquartered in New tarial and clerical tasks, and also pensation, which is tax exempt,
also known as the “UN Family,” York; maintains offices in Geneva, engaging in specialized technical varies widely. Some staff are paid
employs tens-of-thousands of Vienna and Nairobi; has economic functions like printing, security in accordance with prevailing
workers around the globe in a commissions in Bangkok, Beirut, and building maintenance; (3) local wages, and other staff
vast array of professions and Addis Ababa, Geneva and Santi- “National Professional Officers,” receive annual base salaries rang-
occupations. Those workers, like ago; and runs other offices and typically locally recruited ing between $31,000 to $123,000,
workers everywhere, can benefit programs around the world. It because of the need for particular subject to potentially significant
from legal representation in nego- employs nearly 44,000 staff mem- language and custom fluencies post adjustment increases. Simi-
tiating and enforcing their work- bers, approximately 60% of whom and placed in non-headquarter larly, benefit packages vary
place rights. This article provides work in field locations. Those stations in positions like interpret- widely, and may include, among
an overview of the UN Family’s workers are arranged into the fol- ers, civil engineers and medical, other things: rental subsides;
global workplace and the legal lowing five categories—each dra- human rights, political affairs, dependency allowances; hardship
rules and procedures that protect matically different from the legal, child protection and human- allowances; hazard pay; health
its workers’ rights. next—based on, among other itarian affairs officers; (4) “Field insurance; and a retirement
The UN Family is comprised of: things, job function, tenure, Service,” internationally recruited continued on page 10
the UN’s six principal organs
(General Assembly; Security
Council; Economic and Social
Council; Trusteeship Council;
International Court of Justice; and
UN Secretariat); the UN’s affiliated
Funds and Programmes (such as
the United Nations Children’s
Fund (“UNICEF”) and United
Nations Development Programme
(“UNDP”)); and the UN’s special-
ized agencies (such as the United
Nations Educational, Scientific
and Cultural Organization
(“UNESCO”) and the World Health
Organization (“WHO”)). The UN’s
affiliated Funds and Programmes,
and specialized agencies, each
have their own leadership, budget
and funding sources (as recently
highlighted by President Trump’s
decision to halt United States
funding for WHO in the midst of
the COVID-19 pandemic).
UN Family staff and employ-
ers are governed by a sophisti-
cated civil service-type system
infused with generally pro-
worker protections. Because of
www.americanbar.org/laborlaw Spring 2020 Labor and Employment Law 5
Published in Labor and Employment, Volume 48, Number 3, Spring 2020. © 2020 by the American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof
may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association
Natural Hair Movement Spurs Nationwide Legislative
Response to Prevent Hairstyle Discrimination
By Katherine P. Sandberg, J. Drei Munar and Amber D. Rogers
H
Hairstyle discrimination has been likely to be perceived as “unpro-
a trending topic in the national fessional” in comparison to Cau-
news media over the past year as casian women, and African Amer-
a flurry of states passed legisla- ican women were 50% more likely
tion to extend protected status to than white women to be sent
employees’ hairstyles. Most of the home from their workplace
media attention has focused on because of their hair.
cases in which schools told Afri-
can American students that their What Does Case Law
natural hairstyles violated the Say Regarding Hairstyle
school dress code. Discrimination?
For example, Deandre Arnold, The case law on whether protec-
a senior at a high school in Texas, tions against race discrimination
was suspended for his dread- extend to a person’s hairstyle is
locks. The school gave Arnold an sparse, but it generally concludes
ultimatum: cut the dreadlocks, or that anti-discrimination protec-
be prohibited from walking at tions do not extend to hairstyle
graduation. The school’s policy on its own. The most notable case
drew national attention, and was brought by the EEOC on
Arnold was invited to and behalf of Chastity Jones against
attended the Oscars with his fam- Catastrophe Management Sys-
ily. At the Oscars, Matthew tems (CMS). The EEOC alleged
Cherry won the Oscar for best that Jones was discriminated
animated short film for “Hair against when CMS rescinded her
Love,” which tells the story of an job offer because Jones refused to elected not to appeal to the U.S. protective hairstyles,” which
African American father trying to cut her dreadlocks. The compa- Supreme Court. include “braids, locks, and twists.”
do his young daughter’s natural ny’s hairstyle policy stated that a In 2018, the NAACP filed a New York and New Jersey have
hair for the first time. During his “hairstyle should reflect a busi- motion to intervene to allow passed legislation that similarly
speech, Cherry advocated the ness/professional image” and “[n]o Jones to bring the appeal, but expands the definition of race to
passage of the CROWN (Create a excessive hairstyles or unusual that motion was denied. Similar include traits associated with
Respectful and Open Workplace colors are permitted.” The EEOC decisions in various district race (such as hairstyle) in New
for Natural Hair) Act, which refers argued that dreadlocks are a courts considering dress code York’s Human Rights Law and
to a California law that prohibits “racial characteristic, just as skin policies like the one at issue in Dignity for All Students Act and in
discrimination by schools and color is a racial characteristic.” Jones’ case have likewise found in the New Jersey Law Against Dis-
employers on the basis of traits, The district court judge dis- favor of the employer. crimination. At a local level, Cin-
such as hairstyle, commonly missed the lawsuit, and the EEOC cinnati, Ohio and Montgomery
associated with race. appealed to the 11th Circuit. A State Laws and Municipal County, Maryland have also
At the same time, a movement unanimous panel upheld the Ordinances Banning Hairstyle enacted ordinances that prohibit
for natural hair is growing. This lower court’s ruling, stating that Discrimination hairstyle discrimination.
movement is made up of partici- the EEOC “did not state a plausi- Taking note of the national atten- Virginia recently became the
pants (usually African American) ble claim that CMS intentionally tion on hairstyle discrimination, fourth state, and the first South-
who wish to forego chemicals, discriminated against Ms. Jones multiple states have passed legisla- ern state, to ban hairstyle dis-
heat damage, time, and expensive because of her race.” The EEOC tion prohibiting discrimination on crimination. The bill amends Vir-
upkeep for styles that aim to requested a rehearing en banc, the basis of a person’s hairstyle. ginia’s Human Rights Act to
smooth or straighten the hair. but was denied. A majority of The national trend was spurred by include a section that extends the
The natural hair movement has judges in active service in the a new California law known as the definitions of “because of race” or
gained traction through YouTube 11th Circuit sided with the three- CROWN Act, which went into effect “on the basis of race” to include
and social media outlets, where judge panel, and stated that “[u] on January 1, 2020. The CROWN traits that are historically associ-
users can document and share nder our precedent, banning Act extends the definition of race in ated with race, such as a hair tex-
their journeys on reclaiming their dreadlocks in the workplace the Fair Employment and Housing ture, type, or style. The law will
natural hair via tutorials and under a race-neutral grooming Act (FEHA) and the Education take effect on July 1, 2020.
posts. Yet in a study sponsored in policy—without more—does not Code to include “traits historically As recently as March 6, Colo-
part by Dove, an African Ameri- constitute intentional race-based associated with race, including, but rado also enacted CROWN Act
can woman’s hair is 3.4 times as discrimination.” The EEOC not limited to, hair texture and legislation. The law specifies that
6 Labor and Employment Law Spring 2020 www.americanbar.org/laborlaw
Published in Labor and Employment, Volume 48, Number 3, Spring 2020. © 2020 by the American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof
may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association
the state’s anti-discrimination have also announced that they will and Western Center on Law & Katherine P. Sandberg is an
laws will cover discrimination be drafting a bill for the 2021 legis- Poverty. Beauty brand Dove is associate at Hunton Andrews Kurth
based on hair texture, hair type, lative session in response to Deandre also a supporter. In the House of and has extensive experience in
or protective hairstyle, such as Arnold’s story. At the local level, Representatives, U.S. Representa- wage and hour class actions and
braids, locks, twists, tight coils or ordinances in Baltimore, Maryland tive Cedric Richmond has intro- high-stakes trade secrets litigation.
curls, cornrows, Bantu knots, and Toledo, Ohio are pending. duced companion legislation. J. Drei Munar is an associate
Afros, and headwraps. at Hunton Andrews Kurth where
Federal Legislation Takeaway for Practitioners her practice focuses on complex
Pending Legislation On December 5, 2019, U.S. Senator Given the widespread trend of employment, wage and hour, and
States and Municipalities Cory Booker introduced a states enacting CROWN Act legis- public accommodations litigation.
CROWN Act legislation is pending CROWN Act bill that would pro- lation, practitioners should care- Amber D. Rogers is a partner
in other states including Arizona, hibit discrimination based on hair fully monitor the laws in the juris- at Hunton Andrews Kurth. Her
Connecticut, Florida, Georgia, textures and styles. Any such dis- dictions where they practice and national practice assists clients
Illinois, Michigan, South Carolina, crimination would be classified as where their clients are located. with traditional labor relations
Kansas, Kentucky, Louisiana, race or national origin discrimina- If the federal legislation passes, and litigation, employment advice
Washington, Tennessee, Wisconsin, tion. The Senate bill, co-spon- and if it conflicts with a state law and counseling, and complex
Massachusetts, Minnesota, sored by U.S. Senator Sherrod or local ordinance, the control- employment litigation.
Nebraska, Ohio, Oregon, Pennsyl- Brown, is backed by multiple civil ling law will be the one which
vania, and Rhode Island. Members rights groups, including Color of affords the most protection to the
of the Texas Legislative Black Caucus Change, National Urban League, employee. n
EU’s “CCOO” Ruling: Back to Punching a Clock?
By Thomas De Jongh
O
On the 14th of May 2019, the Court exceptions for certain types of requires employers to measure
of Justice of the European Union workers or types of employment, working time on a daily basis. A
issued a new ruling. At issue is there is no general obligation for similar obligation has existed in
how to ensure effective compli- employers to track working time. The Netherlands since 1996. How-
ance with maximum weekly work- Employers doing business in ever, in the latter, adult workers
ing time and minimum daily and these countries are now facing a who earn at least three times the
weekly rest periods mandated by potentially significant administra- statutory minimum wage are
EU-regulations. Under the new rul- tive burden in their day-to-day exempted. Where there is an obli-
ing, EU Member States must organization, that did not exist gation to measure working time,
require employers to establish an before. Furthermore, the CCOO employers often use an atten-
objective, reliable and accessible ruling could reinforce overtime dance register or a time clock.
system for measuring the duration claims by unions or workers. Nevertheless, not all companies
of time worked each day by each Having said that, the general comply with this national legal
worker. (Case C-55/18, CCOO v. reaction in these three countries framework, especially in the Neth-
Deutsche Bank). is less drastic than the CCOO rul- erlands, although non-compliance
This landmark ruling has ing itself. Some expect the Court is punishable by significant fines.
upended the current flow in the of Justice to soften the ground in Although the CCOO ruling has
EU Member States of working future rulings or expect the EU led to all EU countries taking a
time flexibility. Consequently, it Commission to come up with new closer look at their working time
should not come as a surprise regulations. In the meantime, regulations and to pay additional whether workers would benefit
that employers across Europe employers are often advised not attention to how to deal with pos- from greater employer control
have raised concerns that the EU, to jump the gun, and at least to sible overtime claims, non-compli- over their working time, as the
through its Court of Justice, is wait for national legislation to ant EU countries advise employers court mandates. As the demand
now reintroducing the punch catch up with this CCOO ruling, if to wait for national legislation to for more flexibility in the work-
clock in the 21st century. at all. This attitude is especially catch up. In Belgium, monitoring place to reconcile work and life
Indeed, several EU countries apparent in the United Kingdom, employers on the working time responsibilities seems to have
have no current record-keeping where new legislation after Brexit issue does not seem to be on the reached an all-time high, this
requirements either for daily or could supersede previous EU social inspectorates’ priority list. question will probably be hotly
weekly rest periods, or for all employment regulations. Consequently, it seems a calcu- debated, and we will have to await
hours of work. Thus, currently, However, some EU countries lated risk not to move on the a resolution n
their national legislation does not already have a general obligation CCOO ruling, at least for now.
comply with EU law. to track working time and, there- Furthermore, although some
This is the case, for example, fore, are not directly impacted by unions support this ruling as a Thomas De Jongh is attorney at
In Belgium, the United Kingdom the CCOO ruling. One example is tool to fight the number of over- Van Olmen Wynant and specializes
and Germany. Besides a few France, where national legislation time hours, the question remains in employment law.
www.americanbar.org/laborlaw Spring 2020 Labor and Employment Law 7
Published in Labor and Employment, Volume 48, Number 3, Spring 2020. © 2020 by the American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof
may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar AssociationLawyering in Color legislature passed a resolution the ethos of this industry and the are societal factors that adversely
continued from page 1 stating the Rule “seeks to destroy spirit of the ABA Preamble’s call impact access to legal resources.
the bedrock foundations and tra- to action. Those same factors also infiltrate
to include “conduct related to the ditions of American independent As mentioned above, Rule and influence the demography of
practice of law.” Notably, “con- thought, speech, and action.” The 8.4(g) proscribes intentional the legal field and the dearth of
duct related to the practice of Texas Attorney General wrote conduct. The Rule specifically diversity among firm leadership.
law” includes “representing cli- that “candid dialogues about ille- encompasses conduct that a law- Over the last decade, the legal
ents; interacting with witnesses, gal immigration, same-sex mar- yer “knows or reasonably should industry’s demographics have con-
coworkers, court personnel, law- riage, or restrictions on bathroom know” constitutes discrimina- tinued to diversify. Despite that
yers and others while engaged in usage will likely involve discus- tion. But, what about uninten- trend, there are still stark dispari-
the practice of law; operating or sions about national origin, sex- tional conduct? The employ- ties in representation. According
managing a law firm or law prac- ual orientation, and gender iden- ment field is encountering an to the 2019 National Association
tice; and participating in bar tity. Model Rule 8.4(g) would increasing number of lawsuits for Law Placement Report on
association, business or social subject many participants in such premised upon an implicit bias Diversity in U.S. Law Firms,
activities in connection with the dialogue to discipline…” The theory. For example, in 2018, a approximately 61% of male part-
practice of law.” Texas Attorney General also St. Louis jury awarded $8.5 mil- ners are equity partners while
The ABA’s adoption of Rule 8.4 claimed the Rule would restrict lion to an African American only 47% of women partners are
(g) has met significant resistance attorneys from representing faith- female employee who claimed, equity partners. In 2018, nearly
on the state level. Only two based organizations that oppose among other things, that she 71% of all partners were White
states—Vermont and Maine— same-sex marriage. was passed over for a promo- men. In 2019, 25.44% of associates
were people of color while only
9.55% of partners are people of
color. Of that number, 3.89% of
partners identify as Asian, and
2.52% identify as Latinx. Approxi-
mately 1.22% of partners are Black
Over the last decade, the legal industry’s men. With respect to diversity
among women, the numbers are
demographics have continuedto diversify. even more troubling. National
Despite thattrend, there are still stark Association for Law Placement
(NALP) reports that 20.3% of
disparitiesin representation. equity partners are women. Inter-
sectionality, however, is critically
important when analyzing the seg-
ments of our field that are most
disproportionately impacted. In
2009, only 1.88% of partners were
women of color. In 2019, that num-
ber rose to just 3.45%. Of that num-
have adopted Rule 8.4(g), though The significance of Rule 8.4(g) tion in favor of a younger, white ber, 1.46% identify as Asian, 0.80%
Maine’s version varies from the cannot be understated. Codifying female coworker with less expe- identify as Latinx, and 0.75% iden-
ABA Rule. It does not prohibit the prohibition of discriminatory rience and education. Notably, tify as Black. The abysmal under-
discrimination based on marital behavior in not only the practice the plaintiff did not receive any representation of Black women is
or socioeconomic status, and of law, but also in the manage- direct racist comments while at particularly troubling when
does not proscribe conduct in ment of legal practices and inter- work. Instead, her case was pre- viewed over time. In 2009, 2.93% of
bar association, business, and actions with legal professionals, mised on implicit bias—the idea associates were Black women. In
social activities. American sends a clarion call to the legal that her supervisors treated 2019, that number decreased to
Samoa, the Northern Mariana industry that discrimination—an her differently through subtle 2.80%. In contrast, the number of
Islands, and the U.S. Virgin expansive term that includes an microaggressions. Asian women associates increased
Islands have also adopted Rule array of misconduct—is inconsis- Implicit bias has a long-docu- from 5.12% in 2009 to 7.17% in 2019.
8.4(g). While California did not tent with the code of ethics to mented history in our society. On Notably, Black women currently
outright adopt Rule 8.4(g), its which attorneys are bound. The its face, Rule 8.4(g) does not represent approximately 59% of
Rule 8.4.1 has very similar lan- addition of gender identity and expressly cover implicit bias. Yet Black associates, but only 38% of
guage prohibiting discrimination, marital status grants additional the workplace microaggressions Black partners. LGBT representa-
harassment, or retaliation based protections to entire populations through which implicit bias oper- tion has steadily increased over
on protected categories such as that have been historically ates are ever-present and con- the years. In 2004, 1.33% of associ-
race, gender, race, religion, sex- excluded from the reach of the tinue to destabilize the most vul- ates and 0.79% of partners identi-
ual orientation, gender identity, law. Moreover, the ABA’s backing nerable members of the legal fied as LGBT. In 2009, those num-
and physical disability, among of Rule 8.4(g) adds the necessary industry: those who are the most bers increased, with 2.29% of
others. heft to trigger realignment and, underrepresented and least pow- associates and 1.36% of partners
At least six states rejected the where applicable, eradication of erful. As the Preamble to the identifying as LGBT. A decade later
Rule. The Montana state behaviors that are antithetical to Model Rules makes clear, there in 2019, 4.14% of associates and
8 Labor and Employment Law Spring 2020 www.americanbar.org/laborlaw
Published in Labor and Employment, Volume 48, Number 3, Spring 2020. © 2020 by the American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof
may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association2.07% of partners identified as advancement of diverse lawyers considered at least 30% women, work is assigned. Dismantling
LGBT. and legal professionals; attending attorneys of color, LGBTQ+, and exclusionary work silos, along
Thus, while the movement of CLE and non-CLE programs con- lawyers with disabilities for lead- with the implementation of delib-
ensuring diversity and inclusion cerning issues of discrimination, ership and governance roles, erate and earnest investment in
in the legal profession has explicit and implicit bias, and equity partner promotions, for- career success, are prerequisites
achieved tangible results, the diversity; and active participa- mal client pitch opportunities, to undoing the microaggressions
numbers show that more needs tion in and financial support of and senior lateral positions.” The that are so often visited upon
to be done. On November 1, 2019, organizations and associations Mansfield Rule seeks to increase minority attorneys.
attorney David Douglass intro- dedicated to remedying bias and the representation of diverse law- All employers and practitio-
duced a revised Model Rule 8.5, promoting equality, diversity, yers in law firm leadership, ners in the legal field should
which provides: and inclusion in the profession. requiring participating law firms work towards creating inclusive
Though the rule has not been to broaden their candidate pool. environments whether in the
As a learned member of adopted, its underlying intent is Centering the active promotion of office, in the courtroom, or at a
society with an ethical obli- embodied in several initiatives in diverse attorneys as an organiza- happy hour. Not doing so not
gation to promote the ideal the industry. Notably, in 2016, the tional goal will help halt, if not only leads to lack of retention
of equality for all members ABA House of Delegates passed reverse, rates of attrition among and leadership from diverse
of society, every lawyer has Resolution 113, which urged “pro- minorities who often become dis- attorneys, but could also lead to
a professional duty to under- viders of legal services” to placed in large law firm settings professional repercussions for
take affirmative steps to “expand and create opportuni- due to lack of access. Finally, legal attorneys as the ABA and State
remedy de facto and de jure ties at all levels of responsibility businesses that offer mentorship Bar Associations create and
discrimination, eliminate for diverse attorneys.” The Reso- programs often experience adopt model rules that provide
bias, and promote equality, lution also implored clients to increased retention among their recourse for those subject to
diversity and inclusion in “assist in the facilitation of diverse attorneys. However, to such discrimination. n
the legal profession. Every opportunities for diverse attor- have meaningful impact, mentor-
lawyer should aspire to neys, and to direct a greater per- ship must involve sponsorship:
devote at least 20 hours per centage of the legal services they attorneys in positions of influence Shelly C. Anand is a supervising
year to efforts to eliminate purchase, both currently and in taking active roles in the careers staff attorney at the Tahirih Justice
bias and promote equality, the future, to diverse attorneys.” of minority attorneys by provid- Center where she represents
diversity and inclusion in These are the types of inten- ing them with significant, career- immigrant victims of gender-based
the legal profession. tional, purpose-driven initiatives advancing work, client-facing violence and provides support to
that will be required in order to opportunities, and critical feed- other members of the legal team
This proposed rule highlights reverse decades of routine back. Minority attorneys often as well as pro bono attorneys.
critical steps needed to eliminate underrepresentation. find themselves out-of-synch with R. Nelson Williams is a partner
bias. Examples of such efforts In addition, Diversity Lab has their peers because they have at Thompson Coburn LLP and
include, but are not limited to: implemented the Mansfield Rule been excluded from the social represents employers in various
adopting measures to promote 3.0: a certification that “measures spheres where informal relation- aspects of employment law and
the identification, hiring and whether law firms have ships develop and, consequently, litigation.
Negotiate Like A Girl treatments and freezing their contract, players also won repre- lawsuit, now that the U.S. Soccer
continued from page 4 eggs. The League will also pro- sentation on League policy Federation has Cindy Parlow Cone,
vide nutrition counselors and committees. a former National Team member
or comfort class for all game access to experts in women’s The strides achieved for the pro- herself, at the helm. One can only
travel. Prior travel saw players, health, as well as enhanced men- fessional athletes of the WNBA in hope that the WNBA/WNBPA con-
including 6 foot 4 centers, stuck tal health benefits and resources. this contract cannot be overstated tract is a harbinger of things to
in the middle seat in economy The League will also develop a and were hailed large steps in the come in professional women’s
class and on routes that had mul- domestic/intimate partner vio- right direction for women’s profes- sports. n
tiple layovers, leaving little time lence education and counseling sional sports. Many are crediting
to warm up before games. program. the new League commissioner, 1. Morgan, et. al v. United States Soccer Fed-
eration, Inc. Case No. 19-cv-01717 (W. Dist.
Addressing benefits, the con- Career development also Cathy Engelbert, with a key role in
Cal., 2019).
tract requires full pay for the became an issue with this con- the negotiations. Engelbert is a for-
period of players maternity leave. tract, as the WNBA will work with mer Deloitte CEO, but almost as
It also includes a $5,000 child care affiliated leagues, namely the importantly, a former college player
stipend as well as a guarantee of a NBA, teams and sponsors to give during her days at St. Johns. One Amanda Clark is an associate
two-bedroom apartment for play- players off-season jobs in order to has to wonder if having a former at Asher, Gittler & D’Alba, Ltd.
ers with children. New mothers plan for post-retirement careers. player at the helm for the League and practices both labor and
will be provided with proper The League will also work to insti- changed its approach in negotia- employment law. The bulk of her
nursing accommodations. Players tute diversity in a coaching initia- tions. And one has to wonder if the work is advocating for both public
will also be reimbursed up to tive for players looking to coach same change will be observed in and private sector unions, and
$60,000 for adoption fees, fertility after retirement. Under the the U.S. Women’s National Team individual employment plaintiffs.
www.americanbar.org/laborlaw Spring 2020 Labor and Employment Law 9
Published in Labor and Employment, Volume 48, Number 3, Spring 2020. © 2020 by the American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof
may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar AssociationEmployees at the UN effort to provide UN Family staff Assistance (“OSLA”), which as needed, to attempt to resolve
continued from page 5 with a meaningful way to grieve advises grievants from certain UN disputes.
workplace disputes, the UN, on Family entities as to the merits of UN Family staff seeking
pension. The Secretariat also July 1, 2009, established the “UN potential claims and, in some recourse before the UNDT can
relies on interns, temporary work- Internal Justice System” (the cases, provides representation arrange for representation by: a
ers, consultants, and up to 8,000 “System”)—a sophisticated, civil during the grievance process; (2) private attorney authorized to
volunteers each year, who are service-type schema, containing the UN Dispute Tribunal (“UNDT”), practice in a “national jurisdic-
responsible for their own costs generally pro-worker protections which, as the UN court of first tion”; a staff member or former
and living expenses. with protocols designed to be instance, conducts hearings, staff member of the UN or a spe-
As an international, intergov- “consistent with international law, issues orders and renders judg- cialized UN agency; or, for certain
ernmental organization, the UN and the principles of the rule of ments; and (3) the UN Appeals Tri- eligible employees, OSLA counsel,
enjoys privileges and immunities law, and due process.” The multi- bunal (“UNAT”), which hears if counsel agrees to take on the
from the laws, courts and tribu- faceted System attempts to appeals from judgments rendered matter. Individuals appearing
nals of its 193 Member States, and achieve those ends by interpret- by UNDT and other UN organiza- before the UNDT and UNAT must
operates outside of any govern- ing and applying internal UN legal tions, agencies and related enti- adhere to the UN “code of con-
mental system. To address that frameworks, comprised of Staff ties. Because each agency within duct for legal representatives and
vacuum, the General Assembly, Regulations and Rules, and the UN Family has its own legal litigants in person,” and advo-
on November 24, 1949, adopted administrative issuances, which framework, however, not all UN cates employed by a UN Family
Resolution 351A(IV), which estab- define management and staff Family staff have access to each of entity also must abide by their
lished the UN Administrative Tri- workplace obligations and set the System’s key components. organization’s staff conduct rules
bunal, an independent body forth robust worker rights, duties In addition, the System contains and regulations.
employing an administrative and protections. For example, both “formal” and “informal” dis- In short, the UN and its various
model, tasked with passing judg- Rule 9.6 of the Staff Regulations pute resolution tracks, which can agencies and affiliates employ
ment over employment contract and Rules of the United Nations be pursued simultaneously. A typi- skilled staff throughout the world,
disputes brought by Secretariat, curtails an employer’s ability to cal formal track case begins by in a wide range of vital roles.
UN Programmes and Funds, and terminate staff, and Rules 10.1 timely filing a request for a “Man- Because their employers are
specialized agencies staff. The through 10.4 set forth disciplinary agement Evaluation,” in which a immune from suit, these workers
Administrative Tribunal, however, protocols which provide staff grievant identifies acts or deci- must rely upon the UN’s recently
decided only 1500 cases in its first with due process procedures and sions complained of so that the UN developed, civil service-type dis-
60 years of existence, and was the right to legal counsel in disci- can evaluate and rectify improper pute resolution mechanisms to
criticized for failing to adequately plinary matters. Notably, the UN’s decisions or justify its actions to seek and obtain recourse for
resolve disputes, promote work- affiliated Funds and Programmes, the grievant. With certain excep- labor and employment breaches.
place efficiencies and accountabil- and the specialized agencies, tions, filing a Management Evalua- To successfully navigate those
ities, provide basic due process each have their own legal frame- tion is a condition precedent to unique and complex dispute reso-
as afforded under other interna- works, which differ from each pursuing relief before the UNDT. In lution mechanisms, UN Family
tional human rights instruments, other in various respects. contrast, the informal track grievants are well advised to avail
and guarantee individual rights. The System has three compo- encourages aggrieved staff to use themselves of experienced,
After much deliberation, in an nents: (1) the Office of Staff Legal an ombudsman and/or mediation, knowledgeable counsel to ensure
that their rights are protected to
the fullest. n
IN MEMORIAM
Last fall, our Section lost one of its treasures with the passing of Susan Grody Ruben, a friend and
colleague who enriched our Section with her intelligence, skills and judgment and delighted us with Robert B. Stulberg is a founding
her clever wit. partner of Broach & Stulberg,
Susan enjoyed an active mediation and arbitration practice in Cleveland, Ohio and was a member of the LLP (now Stulberg & Walsh,
National Academy of Arbitrators where she served in various leadership roles. In addition, Susan was LLP) in New York City, where he
an instructor in Employment Law Mediator Training as part of Cornell University’s Dispute Resolution represents individual employees,
Training program. classes of employees, labor
unions, employee benefit funds,
Within our Section, Susan held several leadership roles, serving on the Council as an At-Large Member,
and disability rights organizations
as ADR in Labor and Employment Law Committee Co-Chair, and Section Liaison to the Section of Dispute Resolution. As
in the private and public sectors.
Liaison, Susan always ensured that our Section’s interests were protected, and she helped our Section work cooperatively
Zachary Russell Bergman is an
and productively with the Section of Dispute Resolution.
associate at Stulberg & Walsh,
Susan was inducted as a Fellow of the College of Labor and Employment Lawyers, listed in The Best Lawyers in America, LLP where he primarily practices
in Cleveland's Best Lawyers in Alternative Dispute Resolution and named an Ohio Super Lawyer. labor, employment and civil rights
Susan was most proud and fulfilled by her family, including her twins, Daniel and his wife Deborah, and her daughter Sarah law, representing individual and
and her husband Dave, and their precious daughter Selah. Susan always had photos and an adorable story to share about institutional clients in federal and
her beloved granddaughter. She will be missed by her family and so many friends. state court, before the Merit
Systems Protection Board,
Our Section recognizes, appreciates and honors Susan’s prolific and significant contributions. She will be dearly missed by
pursuant to the United Nations’
her ABA family.
internal justice system, and in front
of federal and state agencies.
10 Labor and Employment Law Spring 2020 www.americanbar.org/laborlaw
Published in Labor and Employment, Volume 48, Number 3, Spring 2020. © 2020 by the American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof
may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar AssociationYou can also read
