Saturday, January 3, 2015
A federal district court ruled that a female professor threatened with dismissal on what she alleges are discriminatory grounds is not entitled to a preliminary injunction maintaining the status quo of her employment. In Bagley v. Yale University (Dec. 29, 2014), the Connecticut district court ruled that the professor could not show "irreparable harm" necessary to qualify for the injunction because the possibility of reinstatement and/or damages after a full trial on the merits negated any claim to irreparable harm. She alleged irreparable harm from loss of academic reputation and loss of ability to care for her 16-year old son for whom she is the sole parent, This decision seems to fly in the face of standard Remedies-law doctrine that considers irreparable harm a rather innocous standard, and which Professor Doug Laycock asserts is a dead rule. And the decision seems to reach broadly, eliminating PIs in virtually any employment case under this reasoning.
The complaint detailing Professor Bagley's allegations is here. As a "professor of practice" in a business school, she is in a situation so similar to many women in academia working in legal writing and clinics and other fields under long-term contracts.
Last Friday, a federal jury awarded a former teacher in the Diocese of Fort Wayne-South Bend almost $2 million for what she claims was sex discrimination, the bulk of which was not for medical bills or lost wages, but for $1.75 million in “emotional and physical damages” she allegedly suffered.
And while the case looks narrow—was this female teacher fired when immoral male teachers were allowed to retain their jobs?—it involves a much bigger question: when can federal courts scrutinize the religious decisions of churches?
In 2008, Emily Herx, a junior high school language arts teacher at St. Vincent de Paul School in Fort Wayne, began IVF treatment. She notified her school principal about additional IVF treatment in 2010, and in April 2011 the church pastor met with Herx to inform her that IVF was morally wrong.
IVF is a multi-step procedure that usually involves stimulating a woman’s ovaries to cause multiple ovulation, collecting the eggs and fertilizing them with donor sperm in a petri dish (in vitro meaning “in glass”), developing embryos, selecting a few and implanting them back in the woman. Leftover embryos are usually frozen or destroyed. According to Catholic moral teaching, this process is objectionable in many different ways.
Because of her IVF treatment, Herx’s contract as a teacher was not renewed, and she sued the Diocese citing alleged violation of various federal laws. Some of her claims were dismissed by the court, but her sex discrimination claim went to a jury, which rendered a verdict last Friday finding the Diocese of Fort Wayne-South Bend liable under Title VII of the 1964 Civil Rights Act, a federal law prohibiting discrimination in employment on the basis of sex. Herx had argued that, although she was terminated for undergoing IVF treatments, the Diocese allegedly continues to employ male teachers who had received vasectomies and other treatments that interfere with natural reproduction.
Friday, January 2, 2015
What is afoot in Britain might provide lessons for the States:
Labour has called for widespread pay transparency across Britain, proposing legislation that would make it compulsory for big companies to publish the average difference between the pay of their male and female employees.
Sarah Champion, Labour MP for Rotherham, tabled a 10-minute rule bill to enact section 78 of the Equality Act (2010), which was introduced by Labour but abandoned by the coalition when it entered government. The section requires companies that employ more than 250 people to publish their gender pay gap figures.
The bill was backed by 258 MPs, with eight voting against, but it is unlikely to progress further before the general election without government backing. It isLiberal Democrat policy to enact section 78 of the Equality Act and Lib Dem MPs were given a free vote on the issue.
Tuesday, December 23, 2014
The Ninth Circuit, sitting en banc, this week affirmed a lower court's $300,000 puntive damage verdict in a Title VII sexual harassment case in which the court awarded no compensatory damages and just $1 in nominal damages.
The ruling distinguishes BMW v. Gore, the 1996 case in which the Supreme Court ruled that excessive punitives could violate due process. Gore involved a common law tort claim with no statutory cap on punitive damages. This case, State of Arizona v. ASARCO LLC, in contrast, involved a Title VII claim with a statutory cap on both compensatories and punitives. That difference, the statutory cap, drove the result.
The case arose out of a sexual harassment complaint by an employee at ASARCO's Mission Mine complex in Sahuarita, Arizona. The plaintiff alleged that during her time at ASARCO she was subjected to sexual harassment, retaliation, intentional infliction of emotional distress, and was constructively discharged.
Saturday, December 6, 2014
Feminist Study of Irish Discrimination Reform Shows Law Reinforces Gendered Assumptions about Work and Family
From Robert Lekey, at Jotwell, The Careless Ideal Worker, reviewing Olivia Smith, Litigating Discrimination on Grounds of Family Status, 22 Fem. Legal Stud 175 (2014).
It will not surprise readers alive to anti-discrimination law’s limited capacity to transform systems that Ireland’s reform to protect workers in certain care relationships from discrimination based on their family status has reinforced gendered assumptions about care and workforce participation. However much its findings line up with our pessimistic hunches, Olivia Smith’s study is worth reading because it exemplifies an admirable kind of feminist scholarship: quantitatively and qualitatively empirical; theoretically grounded; alert to the intersection of gender with other grounds of disadvantage, such as class; and self-conscious of its limits.
Smith offers a “contextualized assessment” of a dozen years’ tribunal litigation under the “family status” discrimination ground. Prior to this ground’s adoption in the Employment Equality Acts 1998-2011, women had challenged discrimination associated with their care obligations under the ground of gender. As Smith notes, that tack had confirmed the gendered view of care as women’s work. Yet while the gender-neutral ground of “family status” might signal that care obligations bear on men as well as on women, the litigation record shows it to have reinforced the gendered dynamics of Irish work and family life.
Saturday, November 29, 2014
Different and arguably greater obligations on businesses are imposed under the Illinois law than under federal laws, such as the Pregnancy Discrimination Act (“PDA”) and the Americans with Disabilities Act (“ADA”), even after passage of the ADA Amendments Act (“ADAAA”).
The new law requires employers to provide reasonable accommodations to employees (and job applicants) for any medical or common condition related to pregnancy or childbirth and makes it unlawful to fail to hire or otherwise retaliate against an employee or applicant for requesting such accommodations.
If an employer demonstrates the accommodation would impose an undue hardship on the “ordinary operation of the business of the employer,” however, the employer need not provide the requested accommodation. “Undue hardship” is an action that is “prohibitively expensive or disruptive.”
Friday, November 28, 2014
This is a deeply gendered issue, and not just because low-wage retail workers are disproportionately female. Holidays are a time when the domestic demands put on women escalate. While some families are more progressive, the fact remains that, in most families, women are expected to do almost all the cooking, cleaning, present-wrapping, decorating, and planning. ***
State Rep. Mike Foley is trying to attack this problem by pushing a bill in Ohio that would triple the minimum wage on Thanksgiving Day. It's a brilliant idea, and not just because it increases the compensation for people who are dragged into work that day. Since there's no increased profitability for being open on Thanksgiving, if employers have to pay more to make no more money, they might reconsider this ridiculous trend of forcing retail workers to work on what is supposed to be a national holiday.
Saturday, November 1, 2014
Roger W. Reinsch (Minnesota-Duluth) and Sonia Goltz (Michigan Tech), You Can't Get There From Here: Implications of the Wal-mart Dukes Case for Addressing Second Generation Discrimination, 9 Northwestern J. Law & Social Policy 264 (2014). From the abstract:
In Wal-Mart v. Dukes, the Supreme Court determined the plaintiffs had not shown, based on the evidence, that there were questions of law or fact common to the class. The allegedly discriminatory decisions had been made by individual supervisors at different stores who had been given discretion by Wal-Mart to make pay and promotion decisions. The Court stated the problem was that there was no specific evidence that all the discretionary decisions were made in a manner that reflected gender bias. This case not only reversed decades of court acceptance of social framework evidence in employment litigation but also insulates businesses from class action suits by imposing a huge barrier to class certification.
This Article first reviews the Wal-Mart v. Dukes decision with respect to how it adversely affects the viability of class action suits that have historically provided recourse for individuals who are less able to pursue individual claims of discrimination. This Article then examines implications of Dukes and other decisions for the court’s ability to address the problem of second-generation discrimination. In particular, we focus on the difficulties created by requiring the application of a clearly defined policy and practice to all cases involved. Finally, this Article suggests that given that policy and practice continue to be a requirement for class certification, one could meet this requirement by reframing classes using a theory analogous to the “fraud on the market” doctrine employed in securities cases. In other words, organizations that have a policy of nondiscrimination but allow individual managers to make employment decisions any way the managers please could be viewed as perpetuating a type of “fraud-on-the-employment market” in which plaintiffs have relied on a material misstatement of fact when accepting their positions.
Thursday, October 30, 2014
She The People, WaPo, With Supreme Court Case Pending, UPS Reverses Policy on Pregnant Workers
This week United Parcel Service sent a memo to employees announcing a change in policy for pregnant workers: starting January 1, the company will offer temporary light duty positions not just to workers injured on the job, which is current policy, but to pregnant workers who need it as well.
“UPS takes pride in attaining and maintaining best practices in the area of equal opportunity and employment, and has elected to change our approach to pregnancy accommodations,” a memo sent to workers reads.
Hang on a minute. Isn’t this is the very stance that UPS is arguing against in the upcoming, high-profile Supreme Court case, Young v UPS?
Indeed it is.
UPS’ change of policy was not only announced to its workers on Monday, it was announced to the world in the brief they filed at the Supreme Court just days ago.
The change of policy, UPS attorneys argue in the brief, doesn’t mean they were wrong when they denied temporary light duty to one-time UPS driver Peggy Young, of Landover, Md., when she became pregnant and her doctor recommended she take a hiatus from lifting heavy boxes until after giving birth.
In the brief, UPS attorneys explain it this way: “While UPS’s denial of [Young’s] accommodation request was lawful at the time it was made (and thus cannot give rise to a claim for damages), pregnant UPS employees will prospectively be eligible for light-duty assignments.”
The UPS move came as a surprise to many workers’ rights advocates and to Young’s attorneys.
“UPS is highlighting the injustice of its own position,” said Sam Bagenstos, one of Young’s attorneys. “In the future, they want to give people like her fair treatment. But they’re still denying her recompense for the unfair treatment that they gave her.”
The move, he said, “shows that what Peggy Young has been asking for all along is common sense.”
Tuesday, October 28, 2014
Joseph Seiner (South Carolina), Title VII and Tort Law: A New Perspective at Jotwell reviews Martha Chammallas (Ohio State), Two Very Different Stories: Vicarious Liability under Tort and Title VII Law.
In her paper, which is a working draft and part of the Ohio State Law Journal symposium, Torts and Civil Rights Law: Migration and Conflict, Professor Chamallas takes on the daunting task of analyzing how the Supreme Court’s use of agency principles have helped develop employment discrimination doctrine. Professor Chamallas does a superb job of explaining how the Court has used common-law tort principles to help create the theory of vicarious liability in workplace cases. She explains how the use of agency principles has diminished the scope of liability under Title VII, and she further analyzes how this erosion has played out in the case law. Most importantly, however, her paper “challenges the logic and the wisdom of borrowing tort and agency law to craft liability rules for Title VII” and calls on Congress to act swiftly to correct the situation. The paper thus does an excellent job of not only identifying the problem of integrating tort law into employment cases—it provides a workable remedy for resolving the issue.
Tuesday, October 21, 2014
[B]efore she started her job each day, Worrell had to step on the scale to prove she weighed between 105 and 118 pounds, undergo an inspection to make sure the seams in her stockings were straight and submit to a girdle check.
"It was just the way it was back then," says Worrell, 66, who started as a "stewardess" with United Airlines in 1968. "I didn't think it was the least bit odd. If they told me to stand on my head in the corner, I probably would have done it."
But during her 34-year career as a flight attendant, Worrell and other young women who started as stewardesses helped change the way the airlines and all employers dealt with women in the wake of the groundbreaking Civil Rights Act of 1964 and its Title VII, which prohibits employment discrimination based on race, color, religion, sex and national origin.
"The flight attendants played an astonishing role in the development of Title VII," says professor Mary Rose Strubbe, assistant director of the Institute for Law and the Workplace at IIT Chicago-Kent College of Law. Strubbe, 66, who started her law career with a Chicago firm representing many of those flight attendants in discrimination cases, will be one of the presenters Thursday at the institute's conference on the role of flight attendants in fighting sex discrimination.
More on the conference
Title: "The Civil Rights Act @ 50: The Pioneering Role of Flight Attendants in Fighting Sex Discrimination"
What: A multimedia exploration of the critical role flight attendants played in the enforcement of Title VII's prohibition against sex discrimination in the workplace
When: 9:30 a.m. to noon Thursday, Oct. 23
Where: IIT Chicago-Kent College of Law's Governor Richard B. Ogilvie Auditorium, 565 W. Adams St., Chicago
Sponsors: IIT Chicago-Kent's Institute for Law and the Workplace, the U.S. Equal Employment Opportunity Commission and the Equal Employment Opportunity Committee of the ABA Section of Labor and Employment Law
Thursday, October 9, 2014
The National Women's Law Center has this preview, Supreme Court Preview: 2014-2015
This term, the Supreme Court will decide at least one case—and possibly multiple cases—with critical implications for both women’s health and women’s economic security. The Court’s consideration of these cases comes in the immediate wake of the 2013-2014 term, when the Supreme Court’s decisions in McCullen v. Coakley, Burwell v. Hobby Lobby, and Harris v. Quinn—threatened real harm to both. In addition, this term the Court will consider two other potentially important employment discrimination cases and a significant housing discrimination case, and may again take up the issue of marriage equality; the legal issues in all these cases are important for women.
Tuesday, October 7, 2014
Workplace Law Prof Blog, Supreme Court Grants Cert in EEOC v. Abercrombie & Fitch
The Supreme Court granted cert in a number of cases today as a result of its long conference, including EEOC v. Abercrombie & Fitch. The cert question is this:
Whether an employer can be liable under Title VII of the Civil Rights Act of 1964 for refusing to hire an applicant or discharging an employee based on a “religious observance and practice” only if the employer has actual knowledge that a religious accommodation was required and the employer's actual knowledge resulted from direct, explicit notice from the applicant or employee.
The district court had denied A & F's motion for summary judgment and granted the EEOC's, holding that, as a matter of law, A & F had failed to reasonably accommodate the religious practices of an applicant for employment. The Tenth Circuit reversed, remanding and ordering the district court to enter summary judgment for A & F. The applicant, a young Muslim woman, wore a hijab, a head covering, and although the store manager recommended she be hired, a district manager decided that because she wore the hijab, she should not. He determined that the hijab would not comply with the company's "Look Policy."
The Tenth Circuit held that summary judgment for A & F was proper because the applicant "never informed Abercrombie prior to its hiring decision that she wore her headscarf or 'hijab' for religious reasons and that she needed an accommodation for that practice, due to a conflict between the practice and Abercrombie’s clothing policy." Interestingly, the store manager assumed that the applicant wore her hijab for religious reasons and never raised the issue during the interview. She also did not suggest that there might be a conflict between that practice and the "Look Policy," which the applicant otherwise could easily comply with.
A "look policy"? For details of the policy and past sex discrimination claims, see Abercrombie & Fitch's Absurd Dress code is Going All the Way to the Supreme Court
Thursday, October 2, 2014
Lynn Zehrt (Belmont) has posted Twenty Years of Compromise: How the Caps on Damages in the Civil Rights Act of 1991 Codified Sex Discrimination, 25 Yale J. L. & Feminism249 (2014).
This article takes a novel approach and reexamines the legislative history surrounding the enactment of the Civil Rights Act of 1991 with a central focus on exploring the issue of capped damages. Part I begins by briefly contrasting and summarizing the diverging remedies available under 42 U.S.C. § 1981 and Title VII. The article then shifts in Part II to an examination of the political climate and legislative history that forged the enactment of the 1991 Act, paying particular attention to the debate surrounding damages. This history reveals that many members of Congress had a discriminatory motive in capping damages for victims of sex discrimination under Title VII, and therefore, that these capped damages represent a codified version of injustice. Although prior scholarship documents the legislative history of the 1991 Civil Rights Act, it fails to adequately address the issue of capped damages. Thus, this legislative history is a substantial contribution to contemporary Title VII scholarship, as it provides necessary context for the current debate about whether to abolish the existing Title VII damage regime.
Tuesday, September 30, 2014
Yesterday, the EEOC initiated litigation against two separate employers: two lawsuits alleging sex discrimination "in violation of federal law by firing an employee because she is transgender, because she was transitioning from male to female, and/or because she did not conform to the employer's gender-based expectations, preferences, or stereotypes."
In one lawsuit, the EEOC claims that a funeral home fired an employee who had been with the company for several years, but two weeks after she wrote a letter to the company explaining that she was "undergoing a gender transition from male to female, and would soon start to present (e.g., dress) in appropriate business attire at work, consistent with her gender identity as a woman."
In the other lawsuit, the EEOC alleges that the employee was fired only after she began to present as a woman and informed her employer that she was transgender.
Sunday, September 14, 2014
A former New York Mets senior vice president, who was fired last month by the club, sued the organization on Wednesday alleging that she was discriminated against on the basis of her sex, and ultimately fired for becoming pregnant while unmarried. Leigh Castergine, who joined the Mets organization in 2010, was the head of ticket sales when, the suit says, she was fired by team COO Jeff Wilpon because he was “morally opposed” to Castergine having a child out of wedlock.
Tuesday, September 9, 2014
The two Raiderette cheerleaders who revolted against the team this year—suing the Oakland Raiders for paying them less than minimum wage, withholding paychecks until the end of the season, and never reimbursing them for business expenses—have declared victory. Lacy T. and Sarah G., who filed a class-action suit on behalf of their fellow Raiderettes this spring, have reached a settlement with the NFL franchise. The team will pay out a total of $1.25 million to 90 women who cheered between 2010 and 2013. That translates to an average $6,000 payout per cheerleader per season for the first three seasons covered by the suit, and an average of $2,500 each for the final season. (Right before Lacy’s lawsuit hit, the Raiders unexpectedly padded the 2013 cheerleaders’ checks with additional cash). According to Sharon Vinick, lawyer for the Raiderettes, future Raider cheerleaders will be paid minimum wage for all hours worked, receive checks every two weeks, and be reimbursed for business expenses they incur in the course of the job.
“We are excited that the Raiders have decided to pay their current cheerleaders in accordance with the law,” Sarah G. said in a statement through her attorney. “This was our goal and I am pleased to say I was a part of an organization whose management decided to make these changes. Now we can just go back to dancing, being respected and taking down the Niners when they try to step onto our field!”
Is the settlement fair? $1.25 million sure sounds like a big number, and for many current and former Raiderettes, the split ain’t bad: The women who cheered for all four seasons covered by the suit could stand to receive checks for more than $20,000. (As for the naysaying cheerleaders who complained that Lacy T. and Sarah G. were making them look bad by speaking up: If they fail to cash their checks, the money will be donated to Girls Inc., an Alameda County nonprofit that provides enrichment activities for local girls.)
Thursday, September 4, 2014
The Domino's Pizza chain isn't responsible for the alleged sexual harassment of a 16-year-old female employee of one of its stores because the franchise agreement left all personnel decisions up to the now-bankrupt store owner, says a closely divided California Supreme Court.
A lawyer for Domino's hailed Thursday's 4-3 ruling as "a great victory for the franchise industry" - which, according to a 2007 Census Bureau study quoted by the court, accounted for nearly $1.3 trillion in annual sales nationwide.
The ruling comes a month after the general counsel of the National Labor Relations Board reached a much different conclusion in another franchise case, saying McDonald's can be held jointly liable under federal law for wage violations at its restaurants.
The court case comes from Thousand Oaks (Ventura County), where the teenager, Taylor Patterson, said the assistant store manager groped her and made lewd comments soon after she started work in November 2008.
Tuesday, August 19, 2014
Tracy had posted about three female professors at Northeastern who had been denied tenure recently. On a related note, there is an article in Inside Higher Ed which takes note that more men than women have gained and are likely to gain tenure. The question, of course, is why.
In discussions about the gender gap among tenured professors at research universities, there is little dispute that there are far more men than women with tenure in most disciplines. But why? Many have speculated that men are outperforming women in research, which is particularly valued over teaching and service at research universities. With women (of those with children) shouldering a disproportionate share of child care, the theory goes, they may not be able to keep up with publishing and research to the same extent as their male counterparts.
Not only are men more likely than women to earn tenure, but in computer science and sociology, they are significantly more likely to earn tenure than are women who have the same research productivity. In English men are slightly (but not in a statistically significant way) more likely than women to earn tenure.
“It’s not that we need to make women more productive. It’s that we need to change the processes," said Kate Weisshaar, a graduate student at Stanford University who did the study.
Check out IHE article for Weisshaar's study.