Adjunct Law Prof Blog

Affirmative Action on the Ballot in Arizona and Nebraska

Petitions Are Filed for Arizona and Nebraska Referenda on Affirmative Action is an important July 3, 2008 story from the Chronical of Higher Education. This article reports that these two states, together with Colorado will have on their election ballots a question about whether affirmative action should be permissible. If enacted, these provisions would bar public colleges and other state and local agencies from granting affirmative-action preferences in employment, contracting, and decisions related to education.

These ballot proposals, if enacted, will move this country one step closer to a color blind society which is, in my view, what the constitution, equal protection and due process is all about.

Mitchell H. Rubinstein

Congress To Hold Hearings On Transgender Discrimination Issues

Bay Windows, a newspaper which largely serves the gay community, ran an interesting June 18, 2008 story about scheduled House Hearings on gender identity issues. As the article points out, earlier this year, the House passed a Bill which did NOT include transgender as a protected classification. The Employment Non-Discrimination Act (ENDA) adds sexual orientation as a protected classification.

I do not think we are at the stage where legislation protecting against this type of discrimination has any realistic hope of passing. However, as our nation gets more experience with gay marriages, I predict that such legislation will eventually pass.

Mitchell H. Rubinstein

ADA May Actually Be Amended

The June 26, 2008 New York Times in an article entitled House Votes to Expand Civil Rights for Disabled reports that the House overwhelmingly passed the ADA Restoration Act. The Senate is expected to pass this Bill and the President has expressed support with the concept, though apparently he has some concerns with the Bill. The House Bill, H.R. 3195, is available here.

In my view, the most important part of this Bill is that it will legislatively overrule the Sutton Supreme Court case which held that mitigating measures (e.g., eye glasses) must be considered when determining whether or not someone was disabled. Thus, if your disablity could be controlled by medication, your not disabled. 

The Chief Republican sponsor, Representative F. James Sensenbrenner Jr. of Wisconsin spoke about the need for this Bill in detail during a 2007 presentation at New York Law School. Available here.

Mitchell H. Rubinstein

New York Assembly Passes Transgender Non-Discrimination Bill

The New York Assembly voted 102-33 to pass a transgender non-discrimination bill. The proposed law is known as the "Gender Expression Non-Discrimination Act", or GENDA, bans discrimination against transgender people in housing, employment, credit, public accommodations, and other areas of everyday life.

Governor Patterson has indicated that he will sign the bill if it is passed by the state Senate. Additional details about this bill are available here.

Mitchell H. Rubinstein

Maternity Leave Applies To Dad's Too

Concurring Opinions Jessica Silbey reported on June 11, 2008 about a Massachusetts Commission Against Discrimination Policy (which apparently interprets  Massachusetts Maternity Leave Act ) which provides that this statute will be applied equally to men and to woman. While Ms. Silbey applauds the Commission for its actions, she also has several problems with their decision.

As Ms. Silbey states:

A Commissioner at the Massachusetts Commission Against Discrimination (the Commission) has announced that effective immediately the Massachusetts Maternity Leave Act (MMLA) will apply to new parents of either sex. This means that both mothers and fathers (or both parents in gay marriages) in Massachusetts will be entitled under state law to eight weeks of unpaid leave upon the birth or adoption of their child. (The MMLA applies to employers with six or more employees.)

This announcement by the MCAD is startling for many reasons. First, it appears that the Commission, has rewritten a statute that is clearly gender-based (“maternity” rather than “parental”) to be gender-neutral.

I have no problem with this statute being interpreted in a gender neutral fashion. That is how modern statutes should be interpreted whether the statute uses the term "maternity" or "paternity." My problem is that the statute does not account for the physical differences between men and woman. At least some of a woman's maternity leave is for medical reasons. Therefore, there are differences. Even Title VII recognizes a BFOQ exception on the prohibition against discrimination.

I see no need to interpret this statute completely equally. A more logical way to administer this statute would be to allow men to have the same amount of leave that a women would have after there is no longer a medical need for her leave. I do recognize, however, that it may be difficult to quantify this.

Mitchell H. Rubinstein

The Problem of The ADA and Misconduct

There is a tension in the ADA between protecting the disabled by requiring employer's to reasonably accommodate and permitting employers to discharge employees for misconduct. To illustrate, if an employee shows up under the influence at work and violates a work rule, is he a victim of discrimination if the employer fires him without first trying to accommodate his disablity?? The caselaw is in conflict with respect to this important issue.

Professor McCormick over at Workplace Prof Blog touches on this important issue in her posting entitled The ADA and Misconduct. She points to a recent EEOC informal discussion letter which provides in part:

The ADA generally allows employers to develop and enforce conduct standards that are job-related and consistent with business necessity, such as prohibitions on violence, threats of violence, or destruction of property, as well as requirements of timeliness and attendance. Similarly, employers may prohibit insubordination towards supervisors and managers, forbid employees from yelling, cursing, shoving, or making obscene gestures at each other in the workplace, and require employees to show respect for clients and customers. Although an employer must provide reasonable accommodations to enable an employee to perform a job or to enjoy equal benefits and privileges of employment, reasonable accommodation does not include excusing a violation of a uniformly applied conduct rule that is job-related and consistent with business necessity even if an employee’s disability causes him to violate the rule.

I am deeply troubled by this letter. Does this mean that if the employer wants to terminate the employee for showing up under the influence, that the policy must be consistent with "business necessity"? Business necessity is a term of art in employment discrimination. In this context, it appears that it means that employers must establish that they had no other reasonable alternative other than to enforce the rule in question.

I am concerned that under this standard, much employee misconduct would be deemed protected. This is because employers will not be able to meet the business necessity standard.

This issue is ripe for law review commentary.

Mitchell H. Rubinstein

Affirmative Action and Justice Thomas

Did Affirmative Action Really Hinder Clarence Thomas? is an interesting June 2, 2008 law.com article. The article questions Justice Thomas' book published last fall,  "My Grandfather's Son", where he blames affirmative action programs at Yale Law School for him not receiving many job offers. As the article states:

Shortly after he arrived at the law school, Thomas writes, he realized that "blacks who benefited from [affirmative action admissions] were being judged by a double standard." As a result, Thomas writes, his law degree was basically worthless, since it "bore the taint of racial preference."

But interviews with a dozen black lawyers who attended Yale in the same years paint a strikingly different picture. "I don't want to discredit Clarence's viewpoint. But his focus on Yale is somewhat disingenuous," says classmate David Jones (Yale Law School 1974), voicing a common theme among those interviewed. "And to make [affirmative action] out to be some kind of liberal conspiracy is certainly disingenuous."

Jones says that Yale "could have done better" administering its affirmative action program in those early years, but any suggestion that black students were treated differently is "crap." In fact, those interviewed describe the environment at Yale in largely positive -- even glowing -- terms. "It was a terrific education," says Wendy Samuel (YLS 1974). "There wasn't the heavy competition you'd expect from a school of its caliber. People were very supportive."

As for Thomas' argument that Yale's affirmative action program made his law degree worthless? "Bullshit," says Daniel Johnson, Jr., a partner at the San Francisco office of Morgan, Lewis & Bockius and a 1973 graduate of the school. "I know [African-American law students at Yale] who got job offers all over the country."

Mitchell H. Rubinstein

Colorado To Consider Ban On Affirmative Action

This November voters in Colorado will have the opportunity to consider a ban on affirmative action known as the Colorado Civil Rights Initiative which is actually a proposed amendment to the state constitution. If enacted this amendment would prohibits preferences based on race, gender, national origin, color and ethnicity in state hiring, contracting and education.

The May 20, 2008 Denever Post has an article which provides more details about this proposed amendment, available here.

Mitchell H. Rubinstein

President Bush Signs The Genetic Nondiscrimination Act of 2008 Into Law

As President Bush signed H.R. 493, the Genetic Nondiscrimination Act of 2008 into law he paid tribute to Senator Kennedy who spent a decade trying to get this type of legislation enacted.

This is a complicated piece of legislation which is lengthly. Sec. 101 amends the Employee Retirement Income Security Act of 1974 (ERISA), the Public Health Service Act (PHSA), and the Internal Revenue Code to prohibit a group health plan from adjusting premium or contribution amounts for a group on the basis of genetic information.

Of great interest to labor lawyers and labor scholars is Section 102 which prohibits, as an unlawful employment practice, an employer, employment agency, labor organization, or joint labor-management committee from discriminating against an employee, individual, or member because of genetic information, including: (1) for an employer, by failing to hire or discharging an employee or otherwise discriminating against an employee with respect to the compensation, terms, conditions, or privileges of employment; (2) for an employment agency, by failing or refusing to refer an individual for employment; (3) for a labor organization, by excluding or expelling a member from the organization; (4) for an employment agency, labor organization, or joint labor-management committee, by causing or attempting to cause an employer to discriminate against a member in violation of this Act; or (5) for an employer, labor organization, or joint labor-management committee, by discriminating against an individual in admission to, or employment in, any program established to provide apprenticeships or other training or retraining.

This new statute appears to be modeled after Title VII as it uses the same terms "unlawful employment practice" as Title VII, but this time to outlaw genetic discrimination. My question is why did it take so long for this legislation to be enacted into law??

Mitchell H. Rubinstein

Paper Money Discriminates Against The Blind!!!

The American Council of the Blind v. Paulson, ___F.3d___(D.C. Cir. May 20, 2008) is an important case. A divided D.C. Circuit holds that paper money discriminates against the blind in violation of Section 504 of the Rehabilitation Act of 1973. The majority reasoned in part:

Congress expressly intended the Rehabilitation Act to
ensure that members of the disabled community could live
independently and fully participate in society. 29 U.S.C.
§ 701(b)(1). The Secretary acknowledges that a paper currency
system designed for the sighted means that millions of visually
impaired individuals are dependent on the kindness of others,
unless they purchase expensive electronic equipment, in using
U.S. currency. Such dependence, which is amply supported by
the record, constitutes a denial of meaningful access to U.S.
currency that is not remedied by use of existing coping
mechanisms. The record further demonstrates that the Secretary
has not met his burden to show, as an affirmative defense, that
each identified accommodation that is facially reasonable,
effective, and feasible would impose an undue burden. A large
majority of other currency systems have accommodated the
visually impaired, and the Secretary does not explain why U.S.
currency should be any different. The financial costs identified
by the Secretary are not out of line with the costs associated with
other currency changes that the Secretary has made and could be
reduced were accommodations made as part of other planned
changes. Further, this lawsuit seeks neither alteration of the
system of using paper currency as such nor a specific
accommodation dictated by court order, leaving the Secretary to
choose the means of bringing U.S. currency into compliance
with section 504.

By contrast, the dissent argues that compliance would simply cost "too much." As the dissent stated:

The government put forth evidence indicating that it would cost
billions of dollars to alter private vending machines and ATMs
and that rendering current wallets and purses obsolete would
impose additional costs. A member of the plaintiff’s Advocacy
Services Committee admitted that varying the size of the
currency “really does pose an undue burden on business.”
Defendant’s Renewed Motion to Dismiss or for Summary
Judgment 29 (Aug. 31, 2005). The Rehabilitation Act is not
violated if the proposed accommodation imposes an “undue
burden,” see Barth v. Gelb, 2 F.3d 1180, 1187 (D.C. Cir. 1993),
and billions of dollars may well constitute such a burden, even
though a good portion of the amount would fall on the private
sector. See Am. Pub. Transit Ass’n v. Lewis, 655 F.2d 1272,
1278 (D.C. Cir. 1981) (holding that the Rehabilitation Act
cannot justify federal regulations that “impose extremely heavy
financial burdens on local transit authorities”).

Both sides have good arguments here. My own view is that there is an appropriate middle ground. Paper money should be distinguishable-either by size or feel. However, the relief should only be prospective only. New vending machines will have to account for differing sizes, but not older ones. This is not a perfect solution, but it seems equitable.

Mitchell H. Rubinstein   

11th Holds Cause of Action Stated For Sexual Harassment Even Though Plaintiff Was Not The Target of Language

Reeves v. C.H. Robinson, ___F.3d___(11th Cir. April 28, 2008) is an unusual hostile environment sexual harassment case. In a well reasoned opinion, the court held that a cause of action was stated for sexual harassment based largely on degrading language which was not specifically directed towards plaintiff. The court, looking to Title VII racial harassment cases reasoned:

The language in the CHRW office included the “sex specific” words “bitch,” “whore,” and “cunt” that, under Baldwin, may be more degrading to women than men. The subject matter of
the conversations and jokes that allegedly permeated the office on a daily basis
included male and female sexual anatomy, masturbation, and female pornography,
all of which was discussed in a manner that was similarly more degrading to
women than men. The radio programming that Reeves claims was also similar.
Therefore, even if such language was used indiscriminately in the office such that
men and women were equally exposed to the language, the language had a
discriminatory effect on Reeves because of its degrading nature. Accordingly, just
as the language in Walker was sufficient to support Walker’s hostile work
environment claim because it particularly offended Walker as a black man, we hold
that the evidence Reeves presented was sufficient to survive summary judgment on
the “based on” element here.

This case was an easy "no brainer" for the court. A May 5, 2008 law.com article about this case is available here.

Mitchell H. Rubinstein

UN Official Absolutely Immune From Title VII Liability For Sexual Harassment

Brzak v. The United Nations, 06 Civ. 3432,  (S.D.N.Y. April 29, 2008) is an important Title VII case. Judge Robert Sweet held that a former U.N. High Commissioner for Refugees, has absolute immunity from a lawsuit brought by two U.N. employees under Title VII, state tort theories and civil racketeering violations.
Judge Sweet made that decision after considering a statement submitted by the United States arguing the United Nations is absolutely immune from suit absent an express waiver and that top officials of the organization, including the high commissioner, enjoy all the privileges and immunities "accorded to diplomatic envoys."

This is a lengthly decision which is well written. A May 7, 2008 New York Law Journal Article (free registration required) is available here.

Mitchell H. Rubinstein

2nd Circuit Issues Another Decision Clarifying What An Adverse Employment Action Is

Beyer v. County of Nassau, ___F.3d___ (2d Cir. April 23, 2008), demonstrates the importance of understanding what an adverse employment action is under Title VII. The court held that an employee has established an "adverse employment action" necessary to make out a prima facie case when she has proffered evidence from which a reasonable trier of fact could conclude that a transfer sought and denied would have involved an objective and significant improvement in the terms, conditions, or privileges of her employment.  The court described the law in this area as follows:

Employment actions that we have “deemed sufficiently disadvantageous to constitute an
adverse employment action include ‘a termination of employment, a demotion evidenced by a
decrease in wage or salary, a less distinguished title, a material loss of benefits, significantly
diminished material responsibilities, or other indices . . . unique to a particular situation.’”
Williams, 368 F.3d at 128 (quoting Galabya v. N.Y. City Bd. of Educ., 202 F.3d 636, 640 (2d Cir.
2000)). A denial of a transfer may also constitute an adverse employment action, but we require
a plaintiff to proffer objective indicia of material disadvantage; “subjective, personal
disappointment[]” is not enough. Id.

Mitchell H. Rubinstein

Courts Do Not Sit As Super Personnel Departments

Hinds v. Sprint/United Management Co., ___F.3d___(10th Cir. April 22, 2008) reminds us that courts do not sit as "super personnel departments." Therefore, without more, an employer's failure to follow its own policies is not evidence of discrimination.  As the court explained, the employer's failure to follow a written manual may simply be do to employee error.

Another important aspect of this case was that the employer had spread sheet with hidden cells indicating employee ages. The decision makers did not have access to this information and therefore, it could not be inferred that Sprint took the action in question for discriminatory reasons. The Human Rescource Department had created this spread sheet "to avoid problems."

Though this case involved a RIF at Sprint, the case appears to have nothing to do with the Supreme Court's recent decision in Sprint/United Management Co. v. Mendelsohn, 128 S.Ct. 1140 (2008) which dealt with a RIF 2 years earlier. In fact, the 10th Circuit did not even cite to the Supreme Court's decision.

Mitchell H. Rubinstein                                              

Preemptive Employment Discrimination Lawsuit

Firm Strikes First in Suing Its Employee is an important April 25, 2008 New York Law Journal article. A law firm partner who was threatened with a 9 million dollar sexual harassment and rape law suit drew first blood by preemptively suing the former legal secretary who made this threat.

Though employment discrimination law suits by plaintiffs are quite common, these types of suits are relatively rare and are usually filed by high profile putative defendants. By filing such a suit, a putative defendant runs the risk that there actions will be deemed to be retaliatory. A variety of tort claims have been asserted by the law firm.

However, pardon the pun, but the law partner may not have exactly been operating with clean hands here in that some of the complaints stem from a lap dance that the secretary performed for the partner at his desk.

This article makes an interesting read.

Change in Professor's Class Schedule Not An Adverse Employment Action

Recio v. Creighton University, ___F.3d___(8th Cir. April 10, 2008), is an interesting Title VII case. The court holds that a university's alleged action of requiring a Spanish professor to teach on Mondays, Wednesdays, and Fridays, despite her stated preference for teaching on Tuesdays and Thursdays because it would best fit her work habits, if proven, was not materially adverse. Thus, it could not be the basis for a Title VII retaliation claim. Nor was the alleged ostracism of the professor, including "the silent treatment" from other faculty and being excluded from a picture of Spanish faculty posted on a website, materially adverse. The court reasoned in part:

We next address whether any of Recio’s remaining allegations satisfy the
materially adverse element. This element is objective such that we must determine
whether any of the actions challenged here “might have dissuaded a reasonable
worker from making or supporting a charge of discrimination.” Burlington N. &
Santa Fe Ry. Co. v. White, 548 U.S. 53, 126 S. Ct. 2405, 2415 (2006) (quotation
omitted). Most of the allegations, a two-month delay between the time Recio was
notified of a vacancy in the Spanish faculty compared with the rest of the faculty,
keeping the temperature in her office too cold, requiring her to acknowledge her
probation in her employment contract, and denying her the opportunity to participate
in a study program in Spain, “are akin to the sort of trivial harms that do not rise to the
level of retaliation,” Weger v. City of Ladue, 500 F.3d 710, 728 (8th Cir. 2007), and
even fall short of those which this court has previously found lacking. See Clegg v.
Ark. Dept. of Corr., 496 F.3d 922, 929-30 (8th Cir. 2007) (lower performance
evaluation; employer’s failure to provide Clegg with employment tools, notice of new
department policies, and not immediately having her attend certain meetings;
temporary remedial training done in order to help her improve on her next evaluation;
and denial of permission to attend one training session insufficient)

Mitchell H. Rubinstein

8th Holds That Eliminating The Job Requirement To Dispense Medicine and Increasing Hours Of Work Were Not An Adverse Employment Action

Buboltz v. Residential Advantages, Inc., ___F.3d___(8th Cir. April 18, 2008) is another case which discusses the requirement to establish an adverse employment action to state a cause of action under the Americans with Disabilities Act. Specifically, the plaintiff worked in a residence home providing supportive type services to disabled individuals. The court rejected the argument that the decision to remove plaintiff's duty to administer medicine was an adverse employment action as it "comprised little of her time and did not likely hamper her future employment. . ."

Additionally, the employer's new requirement-that plaintiff work every other weekend was not an adverse employment action as well. This was because the change in schedule was a result of a change in policy that effected all employees.

The court may have errd with respect to the additional weekend hours. What I believe the court meant was that there could be no discrimination based upon this change in hours because all employees were being treated equally. In other words, there was not disparate treatment. However, I believe weekend work could be a adverse employment action. Therefore, at most, this is a harmless error.

Mitchell H. Rubinstein 

The Importance of Local Laws Against Discrimination

Under Title VII and the New York State Human Rights law supervisors are generally not liable for employment discrimination. However, under a New York City Local Law supervisors can be held personally liable. Therefore, it is always important to check Local Law.  Sanabria v. M. Fabrikant & Sonns Inc., 113378/2002, NYLJ April 21, 2008 (N.Y. Co. March 21, 2008) (registration required) illustrates this point:

A corporate employee who has a title as an officer, manger or supervisor of a corporate division, is not individually subject to suit with respect to discrimination based on sex under New York State Human Rights Law (Executive Law Art 15). (Patrowich v. Chemical Bank, 63 NY2d 541 [1984]). However, even though Defendant Brown may not be held liable under New York State Law, he can be held individually liable under the New York City Human Rights Law.

The Local Civil Rights Restoration Act (LCRRA) of 2005 was enacted on October 3, 2005 and states that the purpose of the Act is to clarify the scope of the City's Human Rights Law. The Act states that the Human Right's Law has been construed too narrowly. Through this local law the Council sought to underscore that the provisions of New York City's Human Rights Law are to be construed independently from similar or identical provision of the New York State or Federal statutes. (Section 1 of the Local Civil Rights Restoration Act of 2005; Sorrento v. City of New York, 17 misc.3d 1102(A) [Sup Ct. NY County 2007]; Farrugia v. North Shore university Hospital, 13 Misc.3d 740 [Sup Ct. NY Court 2006]). Federal and State Civil Rights Law are a floor below which the City's Human Rights law cannot fall, rather than a ceiling above which the local law cannot rise. (Section 1 of the Local Civil Rights Restoration Act of 2005; Sorrento v. City of New York, 17 misc.3d 1102(A) [Sup Ct. NY County 2007]; Farrugia v. North Shore university Hospital, 13 Misc.3d 740 [Sup Ct. NY Court 2006]).

Mitchell H. Rubinstein

Michigan Federal Court Issues Important Reverse Affirmative Action Decison Upholding State Constitutional Amendment Banning Affirmative Action

Coalition to Defend Affirmative Action v. Regents of Univ. of Michigan, ___F.Supp. 2d ___(E.D. Mich. 2008), is an important affirmative action decision. In a sense it is a reverse affirmative action case. The court holds that a state constitutional amendment banning affirmative action in the operation of public employment, public education or public contracting does not violate the equal protection clause of the U.S. Constitution. The claim was that this constitutional amendment placed an undue political burden on minority groups by requiring them to alter policy through the state wide ballot process rather than by petitioning the university.

While I am sure that the plaintiffs will appeal, look for the circuit to uphold this decision.

Mitchell H. Rubinstein

The Continuing Problem of Pregnancy Discrimination

Hofstra Law School Professor Joanna Grossman and Find Law Reporter wrote an interesting April 15, 2008 story entitled A Marked Increase in Pregnancy Discrimination Claims and Other Key Developments Illustrate the Continuing Struggle of Pregnant Workers - Including Pregnant Attorneys:
Part Two in a Two-Part Series of Columns

In this article Professor Grossman outlines some of the challenges facing pregnant women at work. As the article states:

Consider the Seventh Circuit's ruling in Troupe v. May Department Stores. There, a pregnant sales clerk was fired just one day before she was scheduled to take maternity leave, after a series of warnings about excessive tardiness. Was she fired because she was often late to work, or as punishment for being pregnant and planning a maternity leave? The court ruled that she had failed to prove that the employer made the decision because of her pregnancy, as opposed to because of her frequent lateness.

Troupe illustrates some of the limits of the PDA. First, even if a pregnant woman performs up to the employer's standard, she still bears the burden of proving that any adverse decision was made because of her pregnancy. And this can prove difficult. In a typical (non-pregnancy) employment discrimination case, the plaintiff may be able to find a counterpart of a different race or gender who performed similarly, yet was treated differently. Yet the likelihood that a plaintiff will find the "hypothetical Mr. Troupe" suggested by the Seventh Circuit - a man who was not fired for being chronically late due to a medical condition for which he will soon commence an extended leave - is low. So is the chance that the employee with happen to find direct evidence of the employer's animosity towards pregnant workers.

Second, to the extent that the plaintiff's pregnancy actually made her unable to perform up to the employer's standards, the PDA provides no absolute protection against adverse action. If morning sickness in fact made her late, then the employer could legally have fired her for tardiness (even though it was tardiness caused by pregnancy), as long as there is no reason to believe it would have treated a comparably tardy male employee differently.

Mitchell H. Rubinstein

Prof. Secunda Posts On SSRN A Response To My Article About Sprint/United v. Mendelsohn, The Celebrated "Me Too" Decision

On April 26, 2008, Professor Paul M. Secunda posted a marvelous essay in response to my Essay About the Sprint case entitled The Many Mendelsohn "Me Too" Missteops: An Alliterative Response To Professor Rubinstein, 102 Nw. U. L. Rev. Colloquy ___(forthcoming 2008) where he responds to my Essay Sprint/United Management Co. V. Mendelsohn: The Supreme Court Appears To Have Punted On The Admssibility Of "Me Too" Evidence Of Discrimination. But Did It?, 102 Nw. U. L. Rev. Colloquy 264 (2008), by offering his views about the case and about some of the "missteps" that may have been made. As the Abstract provides:

Although one might have the misimpression that the missteps referred to in the title of this paper indicate a criticism of the U.S. Supreme Court's ADEA decision of Mendelsohn v. Sprint/United Management Co., it does not. I believe the unanimous Court opinion is correct: 'Me too' evidence should be admissible in certain instances based on evidentiary principles and based on the overriding importance of context in such cases, as further discussed in Professor Mitchell Rubinstein's Colloquy Essay, 'Mendelsohn v. Sprint/United Management; The Supreme Court Appears to Punt Whether 'Me Too' Evidence of Discrimination is Admissible or Does It?'

Rather, the missteps I have in mind are three and include: (1) my own misstep for writing in a previous Workplace Prof Blog post, before the decision, that a per se rule against this type of evidence would be adopted by the usual conservative Supreme Court Justice suspects; (2) the misstep made by the Supreme Court for granting certiorari in the first place in this rather mundane (legally speaking) employment discrimination case; and (3) the misstep of Professor Rubinstein in suggesting that the decision in Mendelsohn will provide 'important medicine' for employment discrimination plaintiffs and in concluding that this 'me too' evidentiary issue may again raise its narcissistic head before the Court.

Professor David Gregory has also written a wonderful Essay in Response to my Essay entitled Sprint/United Management Company v. Mendelsohn: The "Me Too" Relative of the "He Said, She Said" Extended Family, 102 Nw. U. L. Rev. Colloquy __(forthcoming 2008) that will also be published as part of this Colloquy. Additionally, I will be publishing a Reply to Professors Secunda and Gregory which I hope to have posted on SSRN in a few days.

Scholars and attorneys interested in employment discrimination may find our Colloquy important to review.

Mitchell H. Rubinstein

Senate Passes Genetic NonDiscrimination Act

The April 25, 2008 U.S. News has an excellent article entitled New 'GINA' Law Would Stop Genetic Discrimination which summarizes the Genetic NonDiscrimination Act which was just passed by the U.S. Senate. Remarkably, this Bill has been around for 13 years and still has not been enacted into law. If enacted, this law would provide that anyone who gets genetic screening tests will be protected from having that information shared with health insurers or employers. As the article states:

In the works for 13 years, GINA got stalled along the way by a few obstinate lawmakers, as my colleague Dr. Bernadine Healy, U.S. News health editor, pointed out in this column. So consumer health advocates are greeting yesterday's news with a huge sigh of relief. "It's an extraordinary step forward and essential if we ever want to see the potential of genetic research," says Debra Ness, president of the National Partnership for Women & Families, a nonprofit advocacy group that has been lobbying for GINA's passage. "There are people afraid to enter research studies or get genetic testing, and we hope this legislation will alleviate those fears."

The law will: (a) prohibit the use of genetic information to deny employment or insurance coverage; (b) ensure that genetic test results are kept private; and (c) prevent an insurer from basing eligibility or premiums on genetic information. Specifically, it will prevent genetic discrimination cases . . .

Mitchell H. Rubinstein

8th Issues Primer on Disability Discrimination

Buboltz v. Residential Advantages, ___F.3d___ (8th Cir. April 18, 2008) is brought to your attention because it is relatively short and provides a nice primer of ADA and Rehab Act standards. The also discusses contructive discharge and what an adverse action is under Title VII. As the court states:

An adverse employment action is a tangible change in working conditions that
produces a material employment disadvantage. Thomas v. Corwin, 483 F.3d 516, 528
(8th Cir. 2007). Termination, cuts in pay or benefits, and changes that affect an
employee's future career prospects are significant enough to meet this standard, as are
circumstances amounting to a constructive discharge. Higgins v. Gonzales, 481 F.3d
578, 584 (8th Cir. 2007). Changes in intangible employment conditions may also
constitute an adverse employment action. See Meyers v. Neb. Health & Human
Servs., 324 F.3d 655, 660 (8th Cir. 2003). Nevertheless, "not everything that makes
an employee unhappy is an actionable adverse action." Montandon v. Farmland
Indus., Inc., 116 F.3d 355, 359 (8th Cir. 1997) (internal quotations omitted)
(discussing an unlawful retaliation claim in the context of Title VII). For example, a
job reassignment involving no corresponding reduction in salary, benefits, or prestige
is insufficient to establish an adverse employment action. Id. Additionally, minor
changes in duties or working conditions, even unpalatable or unwelcome ones, which
cause no materially significant disadvantage do not satisfy this prong. Higgins, 481
F.3d at 584; see also Harlston v. McDonnell Douglas Corp., 37 F.3d 379, 382 (8th
Cir. 1994) (holding job changes that amount to nothing more disruptive than a mere
inconvenience or an alteration of job responsibilities are not adverse actions).
Buboltz' first contention, that RAI's decision to remove two of her essential
functions constituted an adverse action, fails. RAI's decision to remove Buboltz' duty
of administering medicine did not have a material disadvantage to Buboltz . . .

Mitchell H. Rubinstein

Congress May Pass A Law Outlawing Genetic Test Bias Discrimination

An April 23, 2008 New York Times article entitled "Congress Near Deal on Genetic Test Bias Bill" indicates that Congress may pass a Bill outlawing genetic test result bias which would apply in employment matters.  President Bush has indicated that he supports such a Bill. As the article states:

Congress is close to an agreement that would clear the way for a bill that would prohibit discrimination by employers and health insurers on the basis of genetic tests.

Senator Tom Coburn, an Oklahoma Republican who had been almost single-handedly holding up action on the bill, said in an interview Tuesday that most of his concerns had been resolved and predicted that the bill would pass soon.

Proponents say the new law, more than a dozen years in the making, would help usher in an age of genetic medicine, in which DNA tests might help predict if a person is at risk of a disease, in hopes of taking action to prevent it.

Some of the tests already exist, like one for breast cancer risk, and new ones are being introduced almost every month. But backers of the legislation say many people are afraid of taking such tests because they fear the results would be used to deny them employment or health insurance.

Mitchell H. Rubinstein

EEOC Issues Proposed Rules on Disparate Impact

On March 31, 2008, the EEOC issued a Proposed Rules with respect to disparate impact claims. They were issued just about 3 years after the Supreme Court's decision in Smith v. City of Jackson, 544 U.S. 228 (2005). These rules appear to largely implement this decision. However, they also codify the EEOC's position with respect to the burden of proof and that issue is presently before the Supreme Court. As Workplace Horizons states:

The amendments to Section 1625.7(d) are based on exact language extracted from the Smith v. Jackson decision and thus, merely align the EEOC’s regulations with that decision.  However, the EEOC’ proposed rule also reiterates the Agency’s longstanding position that the ADEA’s reasonable factor other than age provision creates an affirmative defense that the employer must establish.  As a result, the Agency amended Section 1625.7(e), which sets forth this position, to apply both to disparate treatment and disparate impact cases.  The burden of proof of the “reasonable factor other than age” element was not discussed in Smith v. Jackson.  There is a split among the circuits as to whether it is an affirmative defense to which the employer bears the burden of proof or whether the employee bears the burden of establishing that no reasonable factor other than age exists. 

However, the EEOC’s amendment to Section 1625.7(e) may be premature.  On January 18, 2008, the Supreme Court granted certiorari in Meacham v. Knolls Atomic Power Laboratory to decide whether the employee alleging disparate impact bears the burden of persuasion regarding the reasonable factor other than age.  Oral arguments are scheduled for April 23, 2008.

Mitchell H. Rubinstein

Hat Tip: Workplace Horizons

My Law Review Essay On Sprint/United v. Mendelsohn Is Published

I am delighted to announce that my law review essay entitled Sprint/United Management Co. V. Mendelsohn: The Supreme Court Appears To Have Punted On The Admissibility of "Me Too" Evidence Of Discrimination. But Did it?, 102 Northwestern L. Rev. Colloquy 264 (2008) was just published. It can be downloaded for free. The Abstract provides:

This Essay discusses the use of "me too" evidence where parties, usually plaintiff's, seek to buttress their case by pointing to other employees who assert that they were infected by the same disease of discrimination as well as the U.S. Supreme Court's first decision discussing this critically important issue, Sprint/United Management Co. v. Mendelsohn.

The use of "me too" evidence has proven to be controversial. Indeed, employment discrimination cases often turn on whether a plaintiff has been able to come up with an appropriate "comparator" who was treated differently than he or she was.

Though scholars who have had the opportunity to opine about the Sprint case have charactered the U.S. Supreme Court decision as a "judicial punt" because of its remand on procedural grounds, this Essay asserts that this decision is going to turn out to be significant to the developing jurisprudence involving employment discrimination. This is principally because of dicta in Justice Thomas' unanimous per curiam opinion which implicitly approves of the use of such evidence. While it may be difficult to precisely define the line between admissible and inadmissible "me too" evidence, it is clear that the Court rejected any type of rule which would flatly prohibit the introduction of such "me too" evidence simply because the putative witnesses did not share the same supervisor as the plaintiff.

To my knowlege, this is the first scholarly article published which discusses Sprint United Management Co. v. Mendelsohn, 128 S.Ct. 1140 (2008). This Essay was actually published less than 7 weeks after the Supreme Court's decision. This demonstrates the importance of online law review companion publications. In many respects, these online law reviews which many law schools now have and in alot of ways much more valuable than traditional law review articles that can take over a year to get published.

Mitchell H. Rubinstein

8th Refuses To Strike Affadavit For Failing To Comply With FRCP 56

Brannon v. Luco Mop Co., ___F.3d___(8th Cir. April 3, 2008),Download 071434p1.pdf is an important case involving procedure and litigation that arose in the context of employment. The 8th refused to strike an affadavit for failing to comply with FRCP. As the court stated:

First we address Brannon’s claim that the district court abused its discretion in
refusing to (1) strike Luco Mop’s Statement of Uncontroverted Material Facts for
failure to comply with local rules and the Federal Rules of Civil Procedure, and (2)
either strike or ignore John Shalhoub’s affidavit because it was filed in bad faith and
did not comply with the Federal Rules of Civil Procedure. See Davis v. U.S. Bancorp,
383 F.3d 761, 765 (8th Cir. 2004) (abuse of discretion standard of review). Luco
Mop’s Statement of Uncontroverted Material Facts cited to specific pages of the
deposition testimony it relied upon, but not to specific lines of the pages. Brannon
claims that this violates Local Rule 4.01(E) (providing that a statement of
uncontroverted material facts must be attached to a summary judgment motion and
that each numbered fact must “indicate[] whether each fact is established by the
record, and, if so, the appropriate citations” to the record). Brannon states that she
was subjected to “an undue burden and hardship . . . to sift through ‘appropriate
citations’” because Luco Mop’s Statement of Uncontroverted Material Facts included
98 citations to deposition testimony. Considering that the predominant reason for a
citation rule such as this one is “to prevent a district court from engaging in the
proverbial search for a needle in the haystack,” and the district court did not indicate
that it was burdened by the form of the citations provided by Luco Mop, see
Northwest Bank & Trust Co. v. First Ill. Nat’l Bank, 354 F.3d 721, 725 (8th Cir.
2003) (noting that “concision and specificity required by [local rule] seek to aid the
district court in passing upon a motion for summary judgment”), we do not find that
the district court abused its discretion in denying Brannon’s motion to strike the
statement. We agree with the district court that nothing in the rule required Luco
Mop’s citations to be line-specific, and we decline to reverse based on local rule over
which the district court retains considerable discretion. See Drake v. Scott, 812 F.2d
395, 401 (8th Cir. 1987) (“It is normally for the district court to enforce compliance
with its local rules.”).
Brannon also argues that the district court should have struck John Shalhoub’s
affidavit because it violated Federal Rule of Civil Procedure 56(e) (affidavit must be
made on personal knowledge, provide facts that would be admissible in evidence, and
show that the affiant is competent to testify on matters stated) and 56(g) (if district
court determines that an affidavit is submitted in bad faith or solely for delay, then the
court must order the submitting party to pay reasonable expenses incurred by the other
party as a result). Specifically, Brannon claims that the affidavit contradicted
Shalhoub’s earlier deposition testimony and was not based on admissible evidence
because Shalhoub stated, in the affidavit, his “beliefs” as to why terminating Brannon
was the proper decision. The purported inconsistencies, which appear to clarify and
not contradict, are not determinative of the decision on Luco Mop’s motion for
summary judgment, and thus are not genuine issues of material fact. See, e.g., Herring
v. Canada Life Assur. Co., 207 F.3d 1026, 1030-31 (8th Cir. 2000) (stating that a
party may not create a “sham” issue of fact by submitting an affidavit that contradicts
earlier deposition testimony, however, district court need not be concerned with
contradiction if it does not relate to a genuine issue and no reasonable jury could
return a verdict in the non-moving party’s favor). Further, Shalhoub certainly
possessed “personal knowledge” of his reasons for terminating Brannon. See Aucutt
v. Six Flags Over Mid-Am., Inc., 85 F.3d 1311, 1317 (8th Cir. 1996) (district court
properly considered affidavit from supervisor “because it was based on [the
supervisor’s] personal knowledge of the reasons underlying the challenged
employment decision”). Thus, we find that the district court did not abuse its
discretion in denying Brannon’s motion to strike the affidavit.

While this case  was not dismissed, it does demonstrate the importance of complying with the FRCP.

Mitchell H. Rubinstein

Teacher Who Refused To Partake In Libations Ceremony States A Cause Of Action For Religious Discrimination

Wilkerson v. New Media, ___F.3d___(3rd Cir. April 9, 2008), presents an excellent review of religious discrimination principles in employment. A religious teacher alleged that she was terminated after she refused to partake in a "libations ceremony." The lower court did not define what this exactly was, but in a footnote, the court explained that it had to do with drinking which offended this teacher's Christian beliefs. In finding a cause of action, the court reasoned:

Wilkerson’s amended complaint alleges that her
employment was terminated due to her “Christian religious
beliefs,” “her refusal to engage in the ‘libations’ ceremony,” and
her “complaints related to the ceremony.” App. at 66. Although
those allegations might be insufficient to give defendants the
required notice of what the libations ceremony is or why it is
religious in nature, Wilkerson also pled that “[t]he ‘libations’
ceremony violated [her] Christian beliefs as it required
participants to engage in what [she] perceived as religious
worship of their ancestors rather than the Christian God.” App.
at 65. In ruling on a motion to dismiss, the court is not free to
question whether there was in fact ancestor worship at a public
school banquet in a school that ostensibly focuses on digital
multimedia and project based learning, see About Us, New
Media Technology Charter School,
http://www.newmediatech.net/flashSite/about.php (last visited
Feb. 12, 2008). Wilkerson’s complaints following the ceremony
were based on her religious beliefs, and therefore, as we noted
earlier, could be read to allege that her termination was based on
her religious beliefs, a violation of Title VII.
It appears that Wilkerson’s retaliation claim is based on
her complaints that she was required to attend the banquet at
which there was allegedly ancestor worship in violation of her
Christian beliefs. Protected activity under Title VII includes
opposition to unlawful discrimination under Title VII. Moore,
461 F .3d at 340. The employee must have an “objectively
reasonable” belief that the activity s/he opposes constitutes
unlawful discrimination under Title VII. Id. To put it
differently, if no reasonable person could have believed that the
underlying incident complained about constituted unlawful
discrimination, then the complaint is not protected. Our
concurring colleague believes that Wilkerson cannot have an
objectively reasonable belief that New Media committed an
unlawful employment practice. Although we have held above
that Wilkerson’s failure to accommodate theory fails as a matter
of law because she never requested an accommodation, her
retaliation claim is not necessarily foreclosed. The difficulty in
ruling on Wilkerson’s allegations is that they blend into each
other. Frankly, we are skeptical as to the reasonableness of
Wilkerson’s belief that New Media committed an unlawful
practice, but because we have only her complaint before us we
are not prepared to hold at this preliminary stage that it is
implausible that Wilkerson has a good faith belief that it did.
Details of the nature of the libations ceremony and the decision
not to renew Wilkerson’s employment could be more readily
forthcoming in discovery.

Mitchell H. Rubinstein

Employer Vicarious Liability For Sexual Harassment

The Affirmative Defense To A Vicarious Liability Sexual Harassment Claim (registration required) is an interesting April 7, 2008 New Jersery Law Journal article by Heather R. Boshak and my former student Robert A. Epstein. In this article the authors review the Supreme Court case law developments since the Supreme Court decisions in Faragher v. City of Boca Raton, 524 U.S. 775 (1998) and Burlington Industries v. Ellerth, 524 U.S. 742 (1998). As some of the readers of this blog may know, in 2004 I had the opportunity to moderate a Panel at Hofstra Law School about the 40th Anniversary of Title VII which included Beth Faragher who was the life guard plaintiff and who later became a lawyer and a municipal judge.

The article is well written presents a primer about basic employment discrimination jurisprudence. The Faragher/Ellerth affirmative defenses are important and if any lawyer or researcher needs to brush up on this area of law, this article is an excellent place to start.

Mitchell H. Rubinstein

Sprint v. Mendelson "Me Too" Case Interpreted Broadly

In Sprint v. Mendelsohn, __U.S.__, 2008 WL 495370 (Feb. 28, 2008), the Supreme Court held that evidence by other employees about how they were treated (so called "me too evidence") was neither per se admissible or inadmissible. Thus, the Court left the door open for a broad interpretation that would allow the introduction of such evidence even if the plaintiff and the witness did not share the same supervisor.

That is exactly what happened in Elion v. Jackson, 2008 U.S. Dist. Lexis 27520 (D. D.C. April 7, 2008)Download elion.doc.pdf in that the record was unclear if the "me too" witness was also the plaintiff's supervisor. Significantly, however, it was the EMPLOYER that sought to introduce this evidence. Specifically, the employer was  permitted to introduce evidence about how a female employee who was  separately supervised was treated fairly. The "me too" witness' entire connection to plaintiff was as follows:

Ms. Hobbs [the witness], like Ms. Elion [plaintiff] is a woman. She was promoted within the same time period (March 2003 to April 2004) in which Ms. Elion alleges defendant engaged in various discriminatory and retalitatory acts against her. Ms. Hobbs was also given additional responsibility at roughly the same time that Ms. Elion's former division was disbanded. Thus, under the circmstances of this case, Ms. Hobbs' testimony may have some probative value with respect to whether defendant harbored discriminatory intent towards Ms. Elion on the basis of her gender.

This case demonstrates a central thesis I am arguing in my law review article that will be out on Monday in Northwest Law Review's Online Colloquy. Sprint has broadened the scope of admissible evidence and we are likely to see more "me too" evidence being introduced. We are also likely to see longer trials and broader discovery requests. 

Mitchell H. Rubinstein   

Hat Tip: Evidence Prof Blog 

Liberal Treatment of Pro Se Plaintiffs In Employment Discrimination Cases

Correa v. White, ___F.3d___(7th Cir. March 4, 2008), is a short but important 7th Circuit decision that demonstrates how courts bend over backwards not to dismiss cases involving pro se litigants. As the court reasoned:

Ms. Correa’s brief does not comply with this court’s
rules. However, it appears that this noncompliance is
due more to her status as a pro se litigant than to any
willful or reckless disregard of her obligations as a litigant
in this court. In addition, this appeal has been pending
for only two months, and allowing Ms. Correa another
opportunity to file a brief that complies with the rules is
not likely to result in an unreasonable delay in this appeal’s
resolution. On the other hand, we must ensure
that the defendants have a reasonable opportunity to
respond to her arguments and that this court has an
adequate brief to guide its analysis and decision in this
case. In determining whether compliance with these rules
can be deemed “substantial,” we take into account the
reason for the noncompliance and the impact of that
noncompliance on the other parties to the litigation and
to the court’s own adjudicatory processes.

Mitchell H. Rubinstein

The Blind Still Have Difficulty Finding Jobs Despite The ADA

With the seating of Gov. David Patterson, the nation's first legally blind Governor, the issue of discrimination against blind people has come to the forefront of national attention. The March 16, 2008, AP ran a story entitled  "Employer Bias Thwarts Many Blind Workers" which discusses the discrimination that is still prevalent.

The most recent available statistics suggest that only about 30 percent of working-age blind people have jobs. That figure was calculated more than 10 years ago, but the major groups lobbying on behalf of blind Americans believe it remains accurate despite numerous technological advances. . . .

Unfortunately we're still living in an age of misperceptions of what blind people can do," said Carl Augusto, president of the American Foundation for the Blind. "We're hoping