AALS sections provide opportunities for law school faculty and staff to connect on issues of shared interest. Each section is focused on a different academic discipline, affinity group, or administrative area. For a full list of sections and information on how to join, visit www.aals.org/sections.
As part of the ongoing “Spotlight on Sections” series, AALS sat down with the leadership of the Section on Aging and the Law and the Section on Employment Discrimination Law.
By Zaena Ballon
The AALS Section on Employment Discrimination Law promotes the communication of ideas, research, scholarship and teaching related to the law of employment discrimination. The section also recommends improvements in the laws that regulate discrimination in the workplace.
Chair: David Simson, New York Law School
Past Chair: Ryan H. Nelson, South Texas College of Law Houston
Why did you get involved with the AALS Section on Employment Discrimination?
Ryan H. Nelson: I thought of it as a good opportunity to meet colleagues in my field, prepare for the inevitable tenure letters that I would need, and learn more about other folks in employment discrimination law.
David Simson: Early on in my career, I was trying to figure out, as you apply for jobs, what do you write about? What is your research agenda? For me, core areas of interest were race discrimination, and constitutional law, and employment discrimination was a great fit because it ties in closely with both. It was what I was interested in, and included the issues that I was excited to research and where I thought I could contribute to the conversation.
The first conference that I ever went to as a fellow was an employment discrimination conference called Colloquium on Scholarship in Employment and Labor Law (COSELL). At that conference, I was exposed to the incredibly welcoming and supportive folks in the employment discrimination community. I was on a panel, I didn’t know how to keep my time, and people were very gracious with that and helped me with my presentation, so I thought to myself, “This is just a great community, I want to be part of that, I want to contribute to it.”
One of the main hubs of the employment discrimination community is the AALS section. It brings everyone together once a year in person at the AALS Annual Meeting and online with the discussion list. The Section is a great vehicle for being in touch with, connecting with, collaborating with colleagues in the field and so that is how I started to get involved with it.
New York Law School
South Texas College of Law Houston
Why did you decide to join the leadership?
RHN: I wanted to drive programming at AALS. I found out that the AALS Section on Employment Discrimination can plan the programming at the AALS Annual Meeting, and that was important to me because I like being able to drive the discussions we are having.
DS: I was encouraged to join the leadership team by the existing leadership team. It was at a time when I was still a fellow, but I developed connections with some of the employment discrimination leadership team through conferences and the summer workshop. People from the leadership team reached out to me and asked, “Is this something that you want to do? You are engaged with the section, are you interested in helping to shape the section?” And I said, “Am I allowed to do that? I’m just a fellow, I don’t know if I’m even eligible.” And they said, “We’ll look into it, if you’re interested. We support you in becoming active in the leadership.” And so, I did, and I ended up being in a couple of positions and now ending up in the chair position succeeding Ryan. It is not so much that I decided to do it, but I was encouraged to do it and I am glad I was because it has continued to be a wonderful experience.
What is the section’s leadership structure?
DS: The section has an executive board. Many of its members are senior academics in the field who help guide the officers of the section with their work. The officers include the chair of the section, a chair elect, as well as the roles of secretary and treasurer that help with some of the tasks that the section works on.
What do your members research and teach?
RHN: Most of our section members teach a mix of employment discrimination, employment law, and labor law, sometimes separated into different courses, sometimes aggregated as one or more courses. We have an array of 1L classes that we teach. David’s a constitutional law scholar. I am a civil procedure scholar, and we have section members who teach contracts and torts, among other topics.
DS: That is one thing that is very cool and interesting about the section, that the subject matter has ties to so many different other subjects. It is just a fascinating group of people who think about the law in extremely comprehensive and connected ways, bringing together thoughts from otherwise isolated subjects. Another thing that is exciting about the section is its intersection with people who are still in practice as well, not just academics.
How does your section support scholarship from your members?
DS: We have a summer workshop where people across the field can workshop their research. The idea of the Employment Discrimination workshop came from Stacy Hawkins, and I volunteered to help with that a few years ago. That was a nice opportunity for me to get involved and for the last couple of years, I have been the main organizer. People can workshop ideas at all stages of development, including what we call an incubator project, where people have an idea in its early stages that they want to work on, refine, and solicit more ideas about the project. Our section has hosted the workshop a few times now, and it has been successful, not just in supporting the scholarship of the members but also in bringing people together, introducing junior and senior colleagues to each other, and establishing mentoring relationships. I think the programming at AALS also supports the section’s scholarship, such as the works in progress session, but also the main sessions that sometimes are tied to written scholarship projects that give people a nice anchor and incentive to push their work forward.
What are the best ways for interested faculty to get involved with your section?
RHN: Join the leadership team. If you are interested, come to AALS, attend our programs, come up and talk to our faculty presenters afterwards and offer to join the leadership team. It is a light lift the first year, and it is a terrific way to meet more experienced folks in the field.
DS: In addition to coming to the AALS Annual Meeting, attending subject matter-specific conferences like COSELL can also be a great opportunity for people to interact with and get to know others in the field who then might encourage you to join the leadership team of the AALS section. Another thing people could do if they are interested in being part of this section is to just email one of us. I will say this probably five more times in this interview— it’s such a friendly group that there should be no hesitation for anyone who’s interested, and whose work is even remotely tied to employment discrimination law, to reach out to any one of us with any questions, whether it’s, “I want to get into academia. How do I do this” or “I am working on a project. What do you think” or “Do you want to come present at an event that I am putting together or speak to our bar association?” I hope that one thing that we can do is encourage people to not feel an artificial barrier by thinking “I have no connection to this space of academia that seems very impenetrable.” That is not the employment discrimination section—it’s very open and inviting instead.
What are some important conversations happening right now in legal education regarding employment discrimination?
RHN: There is an ongoing debate about how our curriculum is structured. For example, at my school, we still teach labor law separately from employment law and employment discrimination. At other schools, labor law is broken into two courses, and I am open to the idea of a more generalized work law course where we can include everything together, but I know that’s not uniformly endorsed. A lot of folks believe we should get into much greater nuance, which we can only do with additional classes and additional credits. That is one area of our pedagogy we’re trying to figure out.
Second is the extent to which skills-based learning is taking a front seat in our work law courses. There are several faculty members who run simulations for a single class or even a full semester to try to exhibit some of the unique legal challenges of labor and employment law.
Lastly, there has been a trend this past year where at least three or four different members wrote about transparency in various aspects of the work relationship, ranging from things like the efficacy of employers who are forced to publicize the male and female breakdown of salaries in their workplace. Another member authored a paper about publicizing leave and accommodation policies and how it might work in theory and in practice. I feel like that has been an underappreciated trend, where our scholars are trying to address this disparity of information, where workers have little, employers have much and assessing a new wave of mandates.
DS: To add to Ryan’s answer, the bar exam is changing and focusing on integrating various kinds of skills, including practice-based skills and doctrinal analysis. This is an opportunity for workplace law, including employment discrimination law, to get more attention. Some schools have fewer courses in the field, in part because it is not directly assessed on the bar exam, but the subject provides great training in this kind of overlap. So expanding on it is an opportunity for schools to think about, not just success on the bar exam, but also success for students in their legal practice because the bar exam is trying to closely approach certain aspects of legal practice.
There has also been a lot of interest in the impact of recent attacks on DEI initiatives and programs as it relates to the workplace. DEI initiatives are trying to integrate the workplace. They are trying to make the workplace a fairer and more welcoming environment, but with attacks on affirmative action in the constitutional law space and in higher education, there have been questions about how that translates to employment law, where the applicable legal rules have been both similar, but also different. The Supreme Court has not spoken about employment law in the context of these recent rulings or how the rulings will affect employment law. The panel that we had this past AALS conference on race consciousness in the workplace gathered people who are thinking about this now for a great discussion.
There is also a decision pending right now at the Supreme Court that is asking the question of how substantial or adverse a particular employment decision must be before it can be challenged, which has some interesting connections to the other topics that we mentioned. Another topic discussed at the conference this past January is anniversaries of important cases, the development and shape of critical areas of employment discrimination law, like the McDonnell Douglas framework that has been around for 50 years, but it is changing over time and how will that play out in the future?
Employers are using AI and other automated tools in their hiring processes. There is some concern about bias inherent in some of these systems. What are some of the legal concerns that stem from the use of these tools?
RHN: First, I will take the opportunity to plug one of our colleague’s incredible books. Orly Lobel, professor at University of San Diego School of Law, just published a book on this topic called The Equality Machine, which raises a lot of nuanced issues in this space.
I think that although it is innovative technology, the tools for addressing it are tried and true — disparate treatment and disparate impact. We are seeing some fascinating scholarship about the use of these tools, but I anticipate that employment discrimination law will be incredibly nimble and able to respond to these growing trends.
DS: I would like to plug another person’s work as well; Pauline Kim at Washington University in St. Louis School of Law has also done quite a bit of work on the various dimensions of this that go way beyond my own expertise. There are people working hard trying to answer various questions like, how we even understand discrimination to begin with, how you prove it, who is the relevant actor, how should we be making employment decisions to begin with? That is an opportunity to think about things like AI tools which have both significant risks and potential rewards.
Following the COVID-19 pandemic, many companies requested their employees to return to office with a full-time or hybrid schedule. How is this affecting the conversation around employment discrimination?
RHN: It is raising lots of issues concerning accommodation in areas of disability, pregnancy, and leaves of absence. We are seeing a pretty profound change in the baseline terms and conditions of employment, or I should say we have been seeing that for at least a few years. I think empirical data has shown that the dynamics of work from home have leveled off. During that period of upheaval in the terms and conditions of employment, as with anytime you are changing terms and conditions for any workers, there can be discrimination. So, I think what we saw was a lot of workers and employers uneasy about their relationship, a lot of movement within different sectors, and I’m hopeful that that has somewhat leveled out and that we have not seen as many claims of discrimination based on those issues. Hopefully that will remain the case.
The section hosted a program about McDonnell Douglas Corp. v. Green at the AALS Annual Meeting. What themes were addressed in that session?
RHN: McDonnell Douglas was this watershed Supreme Court case from 51 years ago that gave us the structure for dealing with modern day disparate treatment claims in federal law, a structure that has been incorporated into many state and local laws, as well. McDonnell Douglas started as a means of trying to get more cases to a fact finder and not be dismissed quite so quickly at summary judgment. But for a host of reasons, including both legislative changes and judicial invention, McDonnell Douglas has today become an incredible burden on workers who are trying to prove discrimination. This session was able to dig deeply into the weeds and highlight specific nuances of any of the three steps of the McDonnell Douglas burden-shifting regime and really opened the eyes of the audience to where it is working, where it is not, and opportunities for revision.
DS: One of our colleagues, and a member of the Section executive board, Sandra Sperino, has been on the forefront of thinking about and chronicling how the McDonnell Douglas case has been operating in the courts for many, many years and she presented on a lot of the nuances that Ryan mentioned. And there was also some discussion about connecting, thinking about McDonnell Douglas in relation to other areas of the law. One of the presenters talked about its relation to challenges to jury selection, for example, to discrimination in jury selection, and connecting issues in this way made it a rich and generative program.
Last year, the Section on Employment Discrimination hosted a summer workshop program. Can you tell us more about it?
DS: We are trying to host it annually, and make it a tradition to have the Employment Discrimination Law Section Summer Workshop. The idea of the workshop was to bring people together in a way that I think this section has always wanted to, which is connecting people across the seniority spectrum and helping people work on projects across the spectrum of how far along they are in the writing process. The purpose of the workshop was to help our members make progress with their research at whichever stage it currently is at. The reason it is held during summer is because that is a great time for people to intentionally think about their research.
The purpose was to bring people together and to pair up projects people are working on with an interested audience. As mentioned earlier, the original initiative was from one of our colleagues, Stacy Hawkins, who first put forward the workshop, and then we have continued to run it as the section members felt it was productive.
Will you conduct the Employment Discrimination Law Section Summer Workshop this year? If yes, what are some topics that will be covered?
DS: We are planning to conduct the workshop this year. My colleague, Blair Bullock, who is the Section’s chair-elect this year, and I have talked about the workshop and what our plans are for the workshop this summer. Topics will depend on what people are working on, so it is not meant to be limited in terms of topics. It is meant to be open to everyone. The audience sometimes obviously shifts depending on areas of interest. Sometimes, it is more employment law-focused. Sometimes it is more on the discrimination side. We have had some constitutional law scholars present employment discrimination-adjacent projects as well, so it is not driven by us on the leadership side, but more by the member side.
RHN: I participated in the workshop two years ago and workshopped a paper that was later accepted for publication that was deep in the weeds of employment discrimination procedure. I am very thankful for the opportunity. It gave me a lot of great feedback.
What are some programs or webinars that your section plans to host this year?
DS: From the leadership standpoint, we will use conversations with the executive committee and section members around the workshop to ask if there are specific areas of interest. I think part of the challenge with workshops, especially over the summer, is that the schedule is filled with programming. Since employment discrimination is aligned with lots of different subject matters, sometimes I think it’s hard to add yet another workshop to the schedule unless there is strong interest in something.
Part of what I think we are doing is trying to gauge, are there specific programs that people want to do? Whether it is on the pending Supreme Court case that I mentioned, or any other topic, like trends in legislation that Ryan mentioned or anything else. We do not have anything specific planned beyond the workshop, but that is not to say that it will not happen.
What is your vision for the section, this year and in the future? What new initiatives, project-based or ongoing, would you like to see as part of the section?
DS: I do not know if my vision is necessarily the thing that matters the most. The group’s collective vision is something that we are after. I think that continuing to support the community and scholarship is going to be important. One of the new initiatives that we were talking about establishing is a formalized mentoring program. A mentorship program is an opportunity to connect people from practice or with an interest in the area with the professors in the section. This would be a great resource for those who participate because they will have access to our incredibly welcoming section. We are also thinking about creating a syllabus bank, to help people out when they get started on new courses, to receive guidance from other people who have already taught a course like it and have lots of experience with it.
Is there anything else you would like to add?
DS: I would like to thank AALS and its great team. As the organizer of the Employment Discrimination Law Section Summer Workshop for the last couple of summers, I have had the great privilege of interacting with AALS staff in several ways and received such incredible support and help in terms of the technological setup of the sessions, getting marketing materials put together, support with the discussion list and outreach to people. All those things are very helpful, including the friendly reminders about deadlines. It is a great privilege to collaborate with the staff at AALS. We talked a lot about what our section is doing, but there is a lot of work that AALS is doing as well, and it is certainly appreciated by our section.