Professors Susan Bisom-Rapp and Rebecca Lee attended the Seventh Annual Labor and Employment Law Colloquium in Chicago. This year’s annual event was co-hosted by Loyola University Chicago and Northwestern University Schools of Law. In 2008, Thomas Jefferson School of Law co-hosted the event in San Diego along with the University of San Diego and California Western Schools of Law.
The colloquium, held September 14 – 15, coincided with the Chicago teachers strike, which began just a few days before Professors Bisom-Rapp and Lee arrived in Chicago. The walkout resulted in thousands of striking teachers taking to picket lines and canceled classes for 350,000 students. It also provided a dramatic backdrop for the conference, attended by labor and employment law professors from around the United States, as well as from Canada, Australia, and Italy. In fact, when Professor Bisom-Rapp and her family arrived at their hotel on Thursday evening, September 13, they found a cadre of press people camped out in front. The Chicago teachers union and the Chicago School Board were holding talks inside the hotel, the Chicago Hilton and Towers on Michigan Avenue, and the press held vigil, waiting for news of progress. “As our stay in Chicago progressed,” said Professor Bisom-Rapp, “hope for a quick settlement increased. A long strike is in no one’s interest.”
At the conference, Professor Rebecca Lee presented her work in progress, On Judicial Leadership. “This work focuses on leadership in the judicial work setting,” said Professor Lee. “The concept of leadership may not automatically attach to the judicial role,” she noted, “because of the apolitical and independent nature of judging work. But judges can and do lead in a number of ways: by leading their respective chambers and the particular court on which they sit, by demonstrating leadership in how they decide cases, by representing the judicial branch, and by shaping the broader legal profession.”
Professor Lee points out that judges do not actually function alone in important aspects of their work – rather, they interact with and consult other individuals in their chambers, in the courthouse, on the bench, and in the legal system. Yet judges are not necessarily trained to take on their multiple leadership responsibilities. “Interestingly,” says Lee, “a number of prominent judges have been described as effective leaders, but the focus commonly has been on their court opinions and less commonly on how they operated within their organizations and how they related to other judges and colleagues.” The courthouse is in essence a particular kind of workplace, and judges' various roles include leading as an employer and court system manager and administrator. Professor Lee describes her paper as seeking to explore the challenges and opportunities for leadership in the context of the judicial work environment.
The colloquium also provided a venue for Professor Bisom-Rapp to present her co-authored article, Diverging Doctrine, Converging Outcomes: Evaluating Age Discrimination Law in the United Kingdom and the United States. “This article compares age discrimination law and practice in the United Kingdom and United States to tease out convergences and divergences in legal doctrine, the law’s normative underpinnings, and societal outcomes.” Despite the similarity of the challenges faced – high youth unemployment, aging workforces, historically high older worker unemployment – each country at first blush appears to pursue age discrimination protection using a distinct model. “Age bias law in Britain,” noted Bisom-Rapp, “follows what might be called the European approach. The approach in the UK, grounded in European Union law, is relatively recent, dating to October 2006.” Before that, age discrimination was perfectly legal in the UK.
One distinguishing characteristic of UK law is the possibility of employer justified compulsory retirement. In contrast to the UK, the legal prohibition of age discrimination in the US is over four decades old. The American approach prohibits compulsory retirement programs in order to combat negative, age-based stereotypes about when and how older workers should leave the labor market. “Although the law’s central concern is eliminating age bias against older workers, over time U.S. Supreme Court decisions have greatly weakened its protections,” said Bisom-Rapp, “making it difficult for plaintiffs to make out a prima facie case of age discrimination, making it easier for employers to defend against suit, and complicating the government’s enforcement efforts.” Additionally, aggressive corporate downsizing, very laxly regulated in the US, increasingly impacts older workers, leaving them without employment at a point in their lives when finding replacement work is most difficult.
“Despite what may appear as great doctrinal contrasts,” said Professor Bisom-Rapp, “the age discrimination laws of the UK and the US converge in many respects. Both systems view age stereotyping as an ill to be cured. Both countries ultimately provide for inferior legal protections against age discrimination as compared to other forms of prohibited workplace bias. Finally, both approaches to age discrimination leave workers vulnerable in their later working years even though each nation’s laws arguably arrive there by a different route.” Professor Bisom-Rapp and her co-author Malcolm Sargeant, who was unable to attend the conference, argue that the deficiencies plaguing both systems are traceable to the interference of an economic rationale on what should be a pure civil or human rights approach to the treatment of older workers. Putting age on an even footing with other forms of bias – for example, race and sex – is a necessary step if age discrimination law is to fulfill its promise.