December 8, 2007
Top-5 International Employment & Labor Law SSRN Downloads
- Katherine V.W. Stone, In the Shadow of Globalization: Changing Firm-Level Employment Practices and Shifting Employment Risks in the United States (65).
- Maria Linda Ontiveros, Immigrant Workers and the Thirteenth Amendment (42).
- Jennifer Dillard, A Slaughterhouse Nightmare: Psychological Harm Suffered by Slaughterhouse Employees and the Possibility of Redress Through Legal Reform (38).
- Michael C. Duff, Days without Immigrants: Analysis and Implications of the Treatment of Immigration Rallies under the National Labor Relations Act (29).
- Sanford M. Jacoby (photo above), Labor and Finance: Perspectives on Risk, Inequality, and Democracy (27).
Top-5 Benefits/Compensation/Pension SSRN Downloads
- William F. Sharpe, Jason S. Scott, & John G. Watson, Efficient Retirement Financial Strategies (251).
- James A. Wooten, A Legislative and Political History of ERISA Preemption, Part 1 (135).
- James A. Wooten, A Legislative and Political History of ERISA Preemption, Part 2 (123).
- Katherine V.W. Stone (photo above), In the Shadow of Globalization: Changing Firm-Level Employment Practices and Shifting Employment Risks in the United States (65).
- Brian Kanner, Reservists Are Like Pregnant Women: A Fertile Battleground for a Reinterpretation of USERRA (60).
December 7, 2007
Disability Rights Coming to the Supreme Court
Update: More about the Huber case from the Wall Street Journal, including this interesting tidbit:
Justice Stephen Breyer, who reported holding Wal-Mart stock in his most recent financial disclosure, recused himself from the case, opening the appeal up to a possible 4-4 tie. (Huber v. Wal-Mart Stores)
I think it is more likely 5-3 in favor of Wal-Mart now.
And here is our previous post on the case from last May.
As mentioned earlier this morning, the Supreme Court was considering a number of employment law cases today. Well, the Court has decided to grant cert. in Huber v. Wal-Mart, at least the first question presented (via SCOTUSBlog):
The Court also agreed to hear cases on the rights of disabled workers to be assigned to open jobs ahead of other workers (Huber v. Wal-Mart, 07-480).
SCOTUSBlog predicts that these cases are likely to come up for oral argument in March, which probably means a June decision.
The issue in Huber is central to a continuing debate about the Americans with Disabilities Act (ADA) of whether it is an equal opportunity statute or preference statute. The dispute over whether qualified disabled individuals must be given preference in reassignment to vacant positions has been a hot issue since 1999 and the Midland Brake case from the 10th Circuit.
I am happy to see this case being argued, but with the rightward tilt of the court, I can already see a pro-employer ruling on the horizon which will limit the ADA further and merely allow a disabled person to be considered with others for reassignment to a vacant position as a reasonable accommodation.
Here's more documents:
Wal-Mart and "Low Prices"
U.C. Berkeley’s Labor Center came out with two Wal-Mart-related studies this week: one shows that Wal-Mart could raise employee wages without significantly raising prices. The other study shows that new Wal-Mart stores lower median wages and benefits in local communities. Both studies are available on our blog:
Wal-Mart uses “low prices” as a panacea for a lot of things, unfair pay and poor benefits in particular. If these studies are correct, there’s no reason Wal-Mart couldn’t pay its employees more, and help its communities while it’s at it.
Amen to that. Interesting studies. Check them out.
Potential Supreme Court Labor & Employment Cases
The Alan Morrison Supreme Court Assistant Project of Public Citizen Litigation points out that the Supreme Court will consider today whether to grant review in a number of interesting labor and employment law cases.
07-159, Newport News, Va. v. Sciolino, on whether a government employer has "publicized" for due process purposes an allegedly false reason for an employee's termination by placing it in a personnel file, from where it could be disclosed to potential future employers, thus triggering the employee's due process right to a name-clearing hearing
07-480, Huber v. Wal-Mart Stores, a disability rights case on whether employers' duty to reasonably accommodate disabled employees requires them to reassign a disabled employee to a vacant, equivalent position for which they are qualified, or whether employers must merely allow disabled employees to compete with other applicants for the position
I'll update this post once we know whether these cases will proceed on to oral argument. I am particularly interested in the court taking the disability rights case, as the issue involved there has been splitting the circuit courts for nearly a decade.
NLRB Operations Report
NLRB General Counsel Meisburg has just released the Board's Summary of Operations for Fiscal Year 2007 (thanks to Mitch Rubinstein of the Adjunct Prof Blog for tracking down the document, which isn't properly linked on the NLRB's website yet). A few of the reported numbers, as quoted in part from the report:
- The agency came within less than one percentage point of reaching all three of its overarching goals, closing 78.83% of all representation cases within 100 days (target 79%), 66.14% of all unfair labor practice cases within 120 days (target 67%), and 73.4% of all meritorious unfair labor practice cases within 365 days (target 74%).
- Initial elections in union representation elections were conducted in a median of 39 days from the filing of the petition, and 93% of all initial elections were conducted with in 56 days of the filing of the petition.
- The median time to issue ULP complaints was 98 days in FY 2007, compared to the median of 94 days in FY 2006. The median number of days from issuance of complaint to opening of the unfair labor practice hearing was 88 days in FY 2007, the same as the median in FY 2006.
- In FY 2007, the median time to proceed to an election from the filing of a petition was 39 days, unchanged from FY 2006 and 93.9% of all initial representation elections were conducted within
56 days of the filing of the petition in FY 2007, compared to 94.1% in FY 2006.
Obviously, it's good to see the Board stress and achieve quicker processing of some cases. However, that success has to be considered in context, which includes a significant decrease in the number of cases brought to the Board:
- In FY 2007 the Regional Offices issued 1,182 ULP complaints as compared to 1,329 in FY 2006 [this is an 11% decrease].
- The Regions conducted 2,080 initial representation elections in FY 2007 compared to 2,430 initial elections for FY 2006 [this is over a 14% decrease].
I find the drop in elections to be the most interesting aspect of the report, as this decrease continues a longer trend. Lower union density numbers are clearly part of the equation, but as I've discussed in an article looking at the use of the Internet in organizing campaigns, I think unions' growing hostility to the NLRB-run election process is a factor as well.
Meet the Bloggers
Paul and I will be available at the AALS Open Blogger Meetup Thursday, January 3, 11:00-12:00, at the CALI booth in the Exhibit Hall. Gene Koo explains this as a "casual meeting space where [bloggers] can meet up with readers to share ideas. Chairs, sofas, and cool vibe included." Thanks to CALI and the Berkman Center for hosting us, and to Gene for organizing it. Hope to see you there!
Retirement Plan Blog explains why you should not borrow from your 401(k) to finance your Christmas shopping.
Bird on Shiftwork Maladaption Syndrome
Readers may recall Paul's post last week on a study linking working a graveyard shift to an increased risk of cancer, and Robert Bird's (U. Conn. - Marketing) subsequent comment mentioning empirical evidence linking the graveyard shift to many long-term health problems. Robert has just posted on SSRN his new article (forthcoming Midwest L.J.) A Shift Too Far: The Failure to Recognize Shiftwork Maladaption Syndrome as an Injury Under Workers' Compensation Law. Here's the abstract:
Shiftwork is a dangerous and unhealthy practice. Shiftworkers are more likely to suffer from a variety of medical ailments such as gastrointestinal disorders, cardiovascular disorders, weight gain, depression, low birth weight, and spontaneous abortion. Shiftworkers also suffer from greater workplace accidents than their daytime counterparts. Yet, little legal protection exists for employees who work these arduous schedules not because of personal choice but because their employers demand it.
This brief article examines the state of the law towards shiftwork maladaptation syndrome in the United States and Canada and its treatment under the Americans with Disabilites Act. Part I of this article explains shiftwork and the current state of shiftwork law today. Part II discusses shiftwork maladaptive syndrome and the syndrome's treatment under American law and Canadian law. Part III presents normative suggestions for further recognition of this widespread disorder.
December 6, 2007
Sick and Tired of Sick Employees Coming to Work
This is the topic on the mind of CNN.com as influenza season descends on this country:
Most of us know that dragging ourselves to work when we're sick is a really bad move. Unfortunately, not all of our co-workers have gotten the memo during this cold and flu season . . . .
According to a 2005 survey conducted by OfficeTeam, an administrative staffing firm, 80 percent of people go to work while sick. That translates to millions of cold- and flu-ridden Americans sneezing and coughing their way through the workday, spreading germs in their wake.
With so many people forcing themselves to go to work when they're sick, what are companies doing to keep their work forces healthy -- and how can you protect yourself from getting ill? . . . .
A study published in the "British Medical Journal" in November found that hand washing may be more effective than vaccines at preventing the spread of illnesses such as the flu.
ACHOOO! Sorry, got to run and wash my hands.
Conference on Fair Trade, Corporate Accountability and Beyond: Experiments in 'Globalising Justice'
The “Fair Trade, Corporate Accountability and Beyond: Experiments in ‘Globalising Justice’” workshop will be held on the 19th-20th December 2007 at the University of Melbourne.
An exciting range of international and local experts on Fair Trade and Corporate Social Responsibility, including keynote speaker Peter Utting, Deputy Director, United Nations Research Institute for Social Development, will be sharing their diverse views and experience. The programme can be downloaded from:
Further details regarding the event, including links to details on speakers, are available here: http://www.fairtrade.com.au/dec07workshop.htm
The organizers of the conference also write:
We still have a number of places available for the Fair Trade and Corporate Accountability Workshop. Please feel free to circulate the notice copied in below amongst your friends and colleagues who share an interest in the topic of the workshop. Please note, though, that we wish to keep numbers small in order to facilitate open discussion amongst participants, so registrations may be closed if numbers become unwieldy.
Japan Looking To Cash Balance Plans for Pensions
PlanSponsor.com's NewsDash has an interesting story about how Japanese plan sponsors are looking towards cash balance plans to protect against market volatility for workers' pensions:
Because Japanese plan sponsors have largely restored their pension funding ratios to healthy levels, they now focus on lowering volatility and exploring hybrid structures such as cash balance plans, according to Greenwich Associates. Researchers said the funding change represents a dramatic turnaround since the current mean funding ratio of 103% is up from 62% four years ago. Nearly two-thirds of Japanese funds now have a 90% funded status. In terms of plan designs, 21% of corporate sponsors report that they have closed their defined benefit plans to new employees, up from 12% two years ago, but only 3% say they anticipate shuttering their plans in the next two or three years, the report said. Japanese pensions' allocations to domestic equities declined to 19% of total assets in 2007 from 21% in 2006, while allocations to international equities dropped to 12% from 14% — the latter decline coming entirely from cuts made by public pension funds. Meanwhile, allocations to domestic bonds grew to 55% among all pensions in 2007 from 47% in 2006.
If Japanese plan sponsors decide to go the route of cash balance plans and interest credits, let's hope they learn from their American counterparts and avoid questions of age discrimination when undertaking a cash balance plan conversion.
However, because age discrimination is legal in Japan (there is "a recent law [that] encourages employers not to discriminate against older workers in hiring. Under the 2001 Employment Measures Law, 'employers must endeavor to relax age restrictions when recruiting and hiring.'”), perhaps there will be less problems on the cash balance front.
Wellness Programs Require Unhealthy Employees to Pay More
In an effort to motivate workers to kick unhealthy habits, U.S. companies are hitting them where it hurts: in their wallets. Employers who provide health insurance often use financial incentives, such as contributions toward premiums, to encourage workers to participate in wellness programs like smoking-cessation courses.
Now some employers are wielding a stick as well as a carrot. Employees at some companies who are overweight, smoke, or have high cholesterol, for instance, and who don't participate in supplementary wellness programs, will pay more for health insurance. In extreme cases, employees' insurance deductibles could rise by $2,000.
There are two potential legal problems with requiring unhealthy employees to pay more. First, it may violate the Americans with Disabilities Act -- and the EEOC has this on its radar screen. Second, ERISA requires that all employees covered under the same plan must pay the same premium regardless of health, though there are exceptions for some wellness programs.
Outraged? I'm not. While I don't believe employees should pay more for health conditions that are beyond their control (the purpose of insurance, after all, is to spread the risk of events that we can't control), I have no problem at all with imposing higher premiums on employees who choose to engage in behaviors that detrimentally affect their health. A non-smoking employee who exercises 10 hours a week and regularly eats vegetables instead of fast food will cost much less to insure -- and probably will be far more productive on the job -- than the typical American couch potato. Why shouldn't an employer be permitted to reward healthy behavior?
Part of the rub, of course, is that it can be difficult to determine causation: is a given person's high blood pressure caused by genetics, or by physical inactivity and poor diet? That's why the wellness programs can be a good compromise -- it would be unfair to penalize someone merely because she has high blood pressure, but it seems to me entirely appropriate to penalize someone who has high blood pressure and refuses to do anything about it. That's a lifestyle choice -- but with choice comes consequences.
Comments are welcome.
December 5, 2007
Masinter on Gulino Disparate Impact Testing Case
Earlier this week, we wrote about the U.S. Supreme Court asking for the views of the Solicitor General in the case of New York City Board of Education v. Gulino, et al. (07-0270). Gulino involves important issues revolving around state licensing requirements that cause a disparate impact on protected groups under Title VII.
Below Michael Masinter (Nova Southeastern), who is well versed in this area of the law, provides an in-depth analysis of the issues involved in this important Title VII case:
Any number of cases hold that state licensing bodies are not employers, and that therefore Title VII does not govern the licensing requirements they impose, whether in the form of paper and pencil tests (e.g. the bar exam) or other standards (e.g. no felony conviction) even when they cause adverse impact. Accordingly an aggrieved individual can challenge the state's imposition of licensing requirements only on constitutional grounds; absent a forbidden discriminatory purpose, such requirements need only pass rational basis review. An employer who only considers for employment an individual licensed to work under state law (e.g. a law firm that only hires individuals who are licensed to practice law) classifies potential applicants in a way that replicates the adverse racial impact of the state's bar exam, but the business necessity defense would only require the firm to prove that having a license to practice law is a business necessity for the lawyers it employs, not that the underlying requirements for that license imposed by the state are job related and consistent with business necessity. In short, because the employer doesn't impose the test, the employer doesn't have to validate it, and because the state doesn't hire the licensees, neither does it.
Gulino is illustrative -- the NY Legislature enacted a statute requiring public school teachers throughout the state to pass uniform licensing requirements, and the State Education Department (SED) helped create and adopted LAST, a test of liberal arts and science knowledge, as a pass fail certification test. LAST produced adverse impact against minority candidates for teaching positions with the New York City Board of Education (BOE); plaintiffs brought Title VII disparate impact claims against SED and BOE. Judge Constance Baker Motley held both defendants were potentially liable, and since the test caused adverse impact, held a trial to determine the business necessity defense. Although Judge Motley found the evidence insufficient to establish the formal validity of the test, she reasoned it was still job related under the seemingly relaxed standards elaborated in Watson v. Fort Worth Bank & Trust and entered judgment for defendants. The plaintiffs appealed, and the court of appeals summarized the defense arguments for why neither defendant was obliged to prove the test's validity:
SED argued that Title VII does not apply because it is not plaintiffs' "employer" for the purposes of Title VII. BOE maintained, on the other hand, that it is not liable because it is merely complying with a state law that requires it to de-certify teachers who failed to pass either the Core Battery or the LAST.
The Court of Appeals agreed that Title VII did not apply to SED; it was not an employer but a sovereign exercising a core police power as a licensing body. But BOE was an employer, and consequently, the court of appeals held that Title VII obliged the BOE to prove the validity of the test; it also held that Judge Motley misapplied disparate impact law in deriving a weaker job relatedness standard for employment tests from Watson and made significant factual errors in her findings; it therefore remanded for a new trial on validity, a burden made difficult for BOE by the SED's failure to preserve evidence of its original validity study.
The City sought certiorari; here is its Question Presented:
Where the Courts have heretofore been unanimous in holding that licensing activity conducted outside the scope of an employer/employee relationship does not incur liability under Title VII, and where the Petitioner school district complies with State law by honoring state licensing examination requirements that Petitioner neither devises, implements, nor administers, and as to which Petitioner has no discretion, and where the challenged licensing test does not measure attributes appropriate to hiring decisions, did the Second Circuit err and create a split with other Circuits by holding that because Petitioner otherwise functions as the employer of New York City public school teachers, its compliance with challenged State licensing requirements subject it to liability under Title VII?
EEOC Hails Judge's Decision Limiting Discovery on Plaintiffs' Medical and Psychological Records
Thanks to John Sargent for directing me to this interesting discovery dispute decision in a class race discrimination action brought by the EEOC (via Kansas City InfoZine):
Area Erectors had sought discovery of the claimants' medical and psychological records for the past five years. According to the court's opinion, the company "insist[ed] that claimants' past five years of medical and psychological records are discoverable because Plaintiff has made a claim for compensatory damages rooted in the emotional distress of the claimants." Magistrate Mahoney rejected Area Erectors' sweeping view (Memorandum Opinion and Order, N.D. Illinois, Western Div. No. 07 C 023339, M.J. Mahoney, entered 11/27/2007).
Instead, the court held that the claimants did not open the door to Area Erectors' discovering their medical and psychological records simply by claiming emotional-distress damages as a result of the racial discrimination they experienced. Rather, the court held that the claimants' medical and psychological records only had to be produced for those claimants for whom the EEOC will present evidence that they experienced medical or psychological symptoms or conditions or sought medical or psychological treatment because of discrimination at Area Erectors. The EEOC does not have to produce medical and psychological records for claimants who experienced "garden-variety" emotional distress because of the discrimination, such as feeling angry, frustrated, or humiliated.
Clearly, the EEOC thinks this is an important decision for them because, as John points out, they have highlighted this decision on their own web page.
Personally, I think the judge is right to be reluctant to expose the lives of the plaintiffs to public view without a showing that it is necessary for the claims being brought in the case. It seems that if this broad discovery had been permitted, these and future plaintiffs would be unnecessarily intimidated from bringing these types of claims in the first place.
The Impact on Employers and Employees of Taxation on Domestic Partner Benefits
The Williams Institute at the UCLA Law School and the Center for American Progress have published a new study on the impact of taxation of domestic partner benefits on both employees and employers.
Here are some highlights:
The Williams Institute and the Center for American Progress released a new study that analyzes tax inequalities on domestic partner benefits. (To read the full report, click here).
Employer-provided health insurance is the backbone of health coverage for American families. Most people who have health insurance get it through their own employer or a family member’s employer. Public policy encourages employers to provide health insurance by exempting that form of compensation from taxation. As a result, married workers who get family health insurance benefits get a double benefit—they get health insurance coverage for their spouses and children and are not taxed on the value of that coverage.
In sharp contrast, workers who have an unmarried domestic partner are doubly burdened: Their employers typically do not provide coverage for domestic partners; and even when partners are covered, the partner’s coverage is taxed as income to the employee. Employers who cover domestic partners are also penalized under current law, since employer payroll tax responsibilities increase along with employees’ income and Social Security taxes.
The lack of recognition for same-sex marriages is not only in violation of basic principles of equal protection, but it also leads to these absurd consequences for companies and citizens of this country in which "the taxation of domestic partner health care benefits sets up a two-tiered tax policy that costs many American families and their employers millions of dollars each year." The study above estimates that this system costs employers some $57 million per year in additional payroll taxes and costs unmarried couples some $178 million dollars in additional taxes per year.
Something needs to be done about this inequitable state of affairs and short of recognizing same-sex marriages (which this Congress and Supreme Court do not appear ready to do), Congress should pass a tax law equalizing the burden on these equal benefits.
December 4, 2007
McGinley on Masculinities and Sexual Harassment
Ann McGinley (UNLV) has just posted on SSRN her article (forthcoming Colorado L. Rev.) Creating Masculine Identities: Harassment and Bullying 'Because of Sex.' Here's the abstract:
This article focuses on four fact patterns that confuse courts, scholars and employment lawyers in hostile work environment law. It employs masculinities theory and new research on the gendered nature of bullying to explain why the harassment in these fact patterns occurs because of sex. In the first scenario, men harass women in traditionally male jobs, but the harassment is not directed specifically at the women. In the second, men harass other men who apparently do not conform to socially-accepted gender norms of masculinity. In the third, men harass other men, apparently hazing newcomers or engaging in "horseplay" with established workers. In the fourth, men harass women using means that are not sexual or gendered.
Workplaces are sites of construction of male gender identity. While there may be nothing wrong with constructing gender identity at work, masculinities research and the new bullying research demonstrate that men’s proving of masculinity in the workplace can be destructive to many men and to women. Title VII’s hostile work environment law provides a vehicle that, when interpreted properly, permits courts to conclude that severe or repeated harassing or bullying behavior, especially when performed by groups in sex segregated workplaces, discriminates against the target because of sex. Only if this behavior is eliminated from work will Title VII reach its promise of affording equal employment opportunity to both men and women.
This is a fantastic article -- a must-read.
Another Example of the Grand Irony of ERISA
Update: More from Roy Harmon at Health Plan Law on this case.
Thanks to Steve Rosenberg at the Boston ERISA and Insurance Litigation Blog for bringing to my attention another recent example where ERISA falls horribly short in providing meaningful remedies to plan participants.
Steve explains the case of Mitchell v. Emeritus Management from the United States District Court for the District of Maine. Here are the facts of the case from the court:
The plaintiff employee says that she purchased a life insurance policy on her husband through her employer's group coverage. When her husband was dying, she resigned her employment to care for him. She asked her employer for the proper forms to convert the group life insurance coverage to individual coverage, as she was entitled to do. Her employer refused or failed to provide the forms despite several in-person and telephone requests. In the meantime, the time for conversion (31 days) expired, her husband died, and now the life insurance company has denied her any benefits.
Steve describes the holding thusly:
[T]he fact pattern does not support a cause of action under any of ERISA’s remedial rights - for breach of fiduciary duty, for denied benefits and for equitable relief - available to a plan participant, a situation the court found “very troubling.” The court found that: (1) the participant could not recover the insurance benefits by means of an action for equitable relief because it was truly a claim for payment of the benefits at issue, rather than for equitable relief; and (2) the participant could not recover the proceeds on a claim seeking benefits because, under the facts at issue, there was no right to life insurance proceeds under the actual plan terms since there was no timely conversion, and therefore the administrator did not act arbitrarily and capriciously in denying the claim.
Unlike Steve, I don't think this right without remedy situation arises because of a compromise entered into between employers and participants involving limited remedial rights in return for the creation of a statute that would encourage the adoption of employee benefit plans. That is of course the line of strict constructions Justices, like Scalia, Thomas, and Kennedy, but I think they and Steve (I'm sure he is humbled by being included in such great company!) wrongly place secondary justifications for ERISA in front of its primary justification: to protect the benefit of employees.
If the remedialist approach, championed by Justice Steves, Breyer, Souter, and Ginsburg, were followed by following Congress' intent to incorporate most of the common law of trusts into ERISA, it would not be construed in such an employer-friendly matter, and general notions of equity would supply a remedy for the plaintiff in this case.
So, in short, this is not about litigation tactics or what a proper interpretation of ERISA inevitably leads to, but what a cramped reading based on the absurd "time of the divided bench" approach leads to.
This is certainly a grand irony given ERISA's primary justification for being enacted in 1974.
"The Embodiment of Academic Freedom": A Tribute to Bill Murphy
One of the great figures of labor law, Bill Murphy of UNC Law, died this past September at the age of 87. Although Bill was a well-known arbitrator and former president of the National Academy of Arbitrators, he was also known for being a thorn in the side to Mississippi segregationists in the 50's and 60's.
In this week's Chronicle of Higher Education, Eric Muller, also of UNC Law, pays tribute to this great man. Here are some highlights:
Bill Murphy, my colleague on the faculty of the University of North Carolina School of Law and my friend, died on September 29 in Chapel Hill at the age of 87. His life and his work could serve as an example of many of our highest aspirations: erudition, passion, civility, and engagement in both the worlds of ideas and action. But in the days since he died, I've been thinking most about how Bill's life and work exemplify the value of academic freedom . . . .
Yes, powerful men in Mississippi went after Bill Murphy while he was at Ole Miss in the 1950s because he was a member of the ACLU. But that masked their real reason: Bill Murphy was a professor of constitutional law who refused to teach budding Mississippi lawyers that Brown v. Board of Education was an illegitimate ruling that should be resisted. That was their real gripe . . . .
Up until the very end, Bill remained keenly interested in goings-on in the worlds of law and politics. One of my sweetest memories of Bill is of him at a luncheon table, a seat away from Supreme Court Justice Clarence Thomas. Thomas had come to UNC to deliver a talk at the law school. Some of my colleagues chose to stay away in protest — a position I certainly understood — but that was not Bill's style. In my memory, Bill is leaning intently toward Justice Thomas, pressing the jurist to defend his cramped understanding of federal power and his expansive vision of states' rights. Bill is questioning Justice Thomas with the gracious style of a southern gentleman and the intensity of a prosecutor on cross-examination. Justice Thomas is rocking slightly back in his chair, a strained smile on his face. Bill Murphy, forced out of Ole Miss at the point of a stick bearing the paired labels of "white supremacy" and "state sovereignty," could not quite get his mind around an African-American justice's eager endorsement of the power of the states.
Like Eric, I believe that the academy and the labor law community has lost a prince of a man. And like Eric, "[i]f life ever deals me a chance to show the courage of my convictions, as it twice did Bill, I hope I will do it with [Bill]'s silent guidance and blessing."
December 3, 2007
Oral Argument Analysis in Mendelsohn "Me Too" ADEA Case
I have just had the chance to review the oral argument transcript in the important employment discrimination evidence case of Sprint/United Management Co. v. Mendelsohn. As this guest post points out over at the ACS Blog, a lot is at stake in this ADEA case, including whether certain circumstantial evidence is admissible in a pattern and practice case.
To the transcript to read the tea leaves:
1. Sprint's attorney relies on the concept of foundation to explain why "other supervisor" and "cultural/atmosphere" evidence should not be admitted into evidence. To the point, only decisionmaker bias is relevant and therefore, evidence of bias by others in the organization is not probative of the legal issue at stake. Indeed, it should be presumptively irrelevant, although not completely barred. Justice Breyer points out, however, that the way the case was specifically handled here, there appears to be an absolute bar for these types of evidence.
2. Justice Scalia makes a good point that the district court's granting of the motion in limine did not mention whether it relied upon Federal Rule of Evidence 401 (relevancy) or 403 (balancing probative value vs. prejudicial effect), but Sprint's lawyer believes the judge relied on both in keeping the evidence out. There seems to be a lot of confusion among many of the Justices exactly what the district court held. The district court's order is somewhat cryptic on why the evidence was excluded. Justice Scalia does not think this is crucial either because this type of evidence should be absolutely banned under 401, or the Court should rule that it would have been an abuse of discretion for the trial court to have allowed this type of evidence in under 403. Justice Alito appears to concur in this point.
3. From the start, Justice Souter's questioning suggests that he thinks "other supervisor" evidence is highly probative of a pattern and practice of discrimination: "Well, if you have three supervisors, and one is discriminating and another is discriminating, isn't that some evidence that you're in an industrial situation in which discrimination goes on, and therefore doesn't it have the tendency that amounts to relevance under 401?" Justice Souter seems put off by Sprint's counsel's non-responsiveness to his questions.
4. No surprise here given Justice Ginsburg's background in employment discrimination law, but she is not buying the petitioner's "foundation" or "nexus" theory, that there has to be a connection between the decisionmaker and another biased official in the sense that they conferred or directions were given. Thus: "more importantly, the other supervisors were persons that were not shown to have any connection with the decisionmaker with respect to this plaintiff."
5. Justice Scalia seems to suggest that this case should be about the appropriate standard of review for the appellate court: "If there's any basis on which the district court's decision would have been correct, the district court's decision is upheld." Justice Alito follows this line later: "[If comes down to 403 question and] find that it would not have been abuse of discretion, then how could we affirm the Tenth Circuit [and find this evidence admissible]?"
6. Scalia also seems unhappy with petitioner's argument and lends him a hand: "I don't see that one can tell from the district court's order whether the district court was relying on 401 or 403. And certainly, you just don't want to defend 403. I think you're digging a hole for yourself."
7. Aligning himself with his normal allies on the court, Stevens seems to be on the side of respondent: "I am somewhat puzzled. How many bad actors does there have to be before you can draw an inference that someone superior to the bad actors had a motivating part in the whole situation?" I don't think it is ever good for a Supreme Court oralist to hear from Justice Stevens that he is puzzled.
8. But importantly, and perhaps decisively, Justice Kennedy seems to believe in the nexus or foundation theory: "The inference they are trying to prove is there was somebody upstairs that told everybody what to do." With lack of that type of evidence, there should not be admission of other supervisor or culture evidence.
8. Rule 404 comes up and Justice Kennedy asks if this real evidence about the character of the corporation, but Justice Stevens points out that Rule 404 has never been applied to corporate character evidence before. Apparently, neither parties briefed the 404 character issue.
9. The United States, supporting Sprint, takes the position that although this evidence is not always non-admissible, it was properly not admitted in this case. Although marginally relevant under 401, the government attacks the case under 403. Justice Scalia clearly wants this to be an open and shut 401 case, not dependent on 403: "[Referring to the fact of this case]: It is hard to see what wouldn't be marginally relevant if you think that's marginally relevant." Again, Justice Kennedy appears to agree with Justice Scalia here in his own questioning of the government.
10. Chief Justice Roberts keeps saying in his question that evidence is relevant only if it turns out to be true. I think the government quite right to correct him: "In the Furnco case, the Court said that -- that the evidence doesn't have to conclusively demonstrate the fact. It simply has to be relevant. We put relevant evidence before juries, we instruct them on the consideration of that evidence, permit the defendants to put that evidence into context, and then we ask juries to draw a conclusion."
11. Mendlesohn's counsel has his worked cut out for him given the way the argument seems to be proceeding - either to a defer to the district court standard or to limit probative evidence of other supervisors to instances where there is a nexus between the various supervisors. Nevertheless, he is game and he argues that the 10th Circuit below suggested that the district court applied an absolute ban on other supervisor evidence and that this is inconsistent with the relatively low threshold of Rule 401. He goes on to point out: "So it depends. In rule 401, there is no categorical bar. In Article IV, if there are areas where there are problems, we list them. 407, 411 -- no mention of liability insurance. 410."
12. Chief Justice Roberts does not apparently see this as a pattern and practice case with a common discriminatory environment: "Well, but doesn't that beg the question? We don't know. This isn't a pattern and practice case. You don't have evidence of a company-wide policy of discrimination." Roberts also does not seem to buy Mendlesohn's culture of discrimination argument.
13. Mendlesohn also believes that plaintiffs should be given leeway in these cases: "We have many intermediary facts to which the evidence relates. They are facts of consequence, and the evidence had a tendency to show these facts of consequence. Justice Souter encourages Respondent in this argument as much as Scalia encouraged the other side.
14. Both Justice Breyer and Souter are concerned that allowing "me too" evidence might lead to mini-trials on whether the other statements were actually said and this will lead to confusion of the issue, such that the evidence will be inadmissible anyway under Rule 403. Roberts seems to agree. The otherwise Mendlesohn-supportive justices appear to believe that Scalia's best point is that we should defer to the trial court absent an abuse of discretion.
15. One more interesting point: the Court asks about whether there is evidence of statistics here and the answer seems to be that the only statistics concerns the other supervisor/culture evidence. I don't know if the Court will address it, but it is an interesting question of whether there can be a pattern and practice case without statistics and merely supported by anecdotal evidence.
I see this case coming out 5-4 in favor of Sprint. A majority opinion by Justice Scalia (joined by Kennedy, Alito, Thomas, and Roberts) saying that the district court should be deferred to in admitting evidence absent an abuse of discretion. Look for the court to also point out that allowing this evidence in would lead to mini-trials on other supervisor statements and so in most cases, this evidence is appropriately excludable under Rule 403. Justice Scalia may also try to get in that he thinks this case rises and falls on Rule 401, but I don't think he has a majority on that point.
Justices Souter might agree in dissent that the trial court must be deferred to, but that since the case was not clearly decide on 401 or 403 grounds, the case should be remanded for a balancing under 403. I think they might also stress that there is not an absolute ban on "me too" evidence under 401, instead a proper balancing must be done on a case-by-case under 403. Finally, Justice Ginsburg may file a separate dissent, joined by Justice Stevens, finding that the "other supervisor" evidence and "culture evidence" is probative on the ultimate issue of age discrimination without being substantially outweigh by prejudicial effect in most cases like this one.
In the end, however, I don't think this case will really accomplish that much, though it will be haled an employer victory. Employment discrimination defendants will continue to file motions in limine to exclude other supervisor evidence and culture evidence, plaintiffs will make offers of proof on other supervisor and culture evidence, and the court will use the 403 balancing to determine admissibility. My sense is that most of these balancings are currently coming out in favor of employment discrimination defendants anyway.
To put a positive spin on this, plaintiff attorneys may be happy if the case just establishes that there isn't an absolute bar to this type of evidence under 401.