February 23, 2007
EEOC Call for EXCEL Presenters
The EEOC is soliciting presenters for its Tenth Annual EXCEL Conference. The EXCEL Conference is a training program for EEO managers, supervisors and specialists, attorneys, union representatives, mediators, Alternative Dispute Resolution coordinators and human resources professionals. This year’s conference will be held in Denver August 13-16, 2007. For more information, see the EEOC's Excel page.
February 22, 2007
Do Supreme Court Decisions End Up Having Little To Do With The Parties?
Interesting article in the Washington Post a few days back about the pending Supreme Court case of Ledbetter v. Goodyear Tire & Rubber Co. (discussed in previous posts here and here), a pay discrimination case involving the proper statutory period for considering pay discriminatory acts under Title VII. The case could be decided any day.
But according to the article, Ms. Ledbetter feels that she has been left out from the case. Some Justices (both conservative and progressive) apparently agree that that is exactly how Supreme Court adjudication should be.
Some excerpts from the article:
Lilly M. Ledbetter says she almost stopped breathing when she heard her name called that day, her eight-year battle over alleged pay discrimination finally reaching the ultimate legal forum, the U.S. Supreme Court.
"We'll hear argument next in Ledbetter versus Goodyear Tire and Rubber Company," Chief Justice John G. Roberts Jr. announced.
The odds are akin to being struck by lightning, having your case plucked from the thousands of others who have vowed, like you, to take the fight all the way to the Supreme Court. And then you find it's not so much about you anymore.
It was the only time that November morning that any of the nine justices spoke Lilly Ledbetter's name.
At a forum late last year, Justices Antonin Scalia and Stephen G. Breyer, usually the court's yin and yang on matters of constitutional interpretation, agreed that that is how it should be. They were asked whether their duty was to provide justice for those who came before the court or simply to interpret the law.
"The point of the law is to satisfy a human desire for justice," Breyer explained, but he added: "You don't necessarily get to that end by simply trying to look for what is the intuitively nicer result in each case."
Scalia was blunter. "By the time you get up to an appellate court -- and lawyers ought to learn this -- I don't much care about your particular case," he said. "I am not about to produce a better result in your case at the expense of creating terrible results in a hundred other cases."
For what it's worth, I tend to disagree with Justices Breyer and Scalia on this one. A case, no matter at what level of the judiciary, should always be about interpreting the law in a way that provides the appropriate justice to the parties. If that principle is followed, I think that like cases decided under that precedent will also lead to just results.
I am reminded of Justice Blackmun's stirring opinion in Deshaney, involving the severe physical abuse of a child caused at least in part by the neglect of the states' child protection agency, that started: "Poor Joshua!" Thinking of cases like that I can't help but feel that judicial decisions at any level should never lose sight of the parties in the case and their particular plights in the name of achieving some abstract principle of law that may or may not lead to just results in future cases.
New Supreme Court Filings in BCI Cat's Paw Case
Thanks to SCOTUSblog for brining to our attention the fact that a brief has been filed with the United States Supreme Court for the upcoming cat's paw case of BCI Coca-Cola Bottling v. EEOC, which is scheduled for oral argument on April 18, 2007.
The brief in question is the petitioners' merits brief in the case (filed by co-counsel Akin Gump and a Nashville counsel of record). The question presented in the case is:
Under what circumstances is an employer liable under federal anti-discrimination laws based on a subordinate's discriminatory animus, where the person(s) who actually made the adverse employment decision undisputedly harbored no discriminatory motive toward the affected employee?
For an informative analysis previously posted about this case, see Ross Runkel's Employment Law Blog.
Shout Out to New Civil Procedure Prof Blog
It is with great pleasure that we welcome two Baylor Law professors, W. Jeremy Counsellor and Rory Ryan, to the blogosphere (and our network) with their Civil Procedure Prof Blog. This is not only a blog that labor and employment law types should keep track of because of the myriad civil procedure issues that constantly come up in all sorts of employment litigation, but also because many of you, like myself, teach civil procedure.
Here is the opening welcome post from the blog editors:
Welcome to the Civil Procedure Prof Blog. Our hope is that this blog will become a sort of Civil Procedure “town square” for those with a passion for this area of the Law—a place where we can discover and discuss the latest developments in our field, share teaching advice, and bounce scholarship/research ideas off one another. While we do want to provide a forum to discuss major developments, we have no plans to create a daily digest for all cases CivPro. We’ll start the conversation but hope you’ll continue it via the comments section for each post. We also invite you to steer the conversation. If you think there’s something that needs our attention—such as a recent opinion or an interesting new article (even if it‘s your own)—e-mail us, and we’ll make it the subject of a post. We hope you’ll add a quick visit to the Civil Procedure Prof Blog to your daily routine. Let the conversation begin.
Check it out and don't be shy joining the conversation. We look forward to discussing such things as whether the famous Pennoyer case is the best place to start a civil procedure class.
Best of luck Jeremy and Rory!
Mississippi Same-Sex Harassment Plaintiffs' Verdict
Straight out of Oxford, Mississippi (home of the University of Mississippi, the Northern District of Mississippi, and this humble blogger) comes word of a plaintiffs' verdict in a male same-sex sexual harassment case. Needless to say, not an every day occurrence in my next of the woods.
Here are some of the details from HR.BLR.com:
A federal jury in Oxford, Mississippi, has awarded $225,000 to three men who alleged they were subjected to sexual harassment from another man [,who made sexually offensive comments and made unwanted physical contact,] at Hill Brothers Construction Company and Engineering Company, Inc.
The U.S. Equal Employment Opportunity Commission (EEOC) alleged in its lawsuit that Hill Brothers discriminated against Scott Beasley, Joel Graves, and Douglas Smith by subjecting them to a sexually hostile work environment.
After a week-long trial, the jury awarded $75,000 each to Beasley, Graves, and Smith as punitive damages in the case, which was presided over by U.S. District Judge Michael P. Mills.
Interestingly, only punitive damages were awarded meaning that the plaintiff's satisfied the Kolstad standard, but were unable to show entitlement to back pay or compensatory damages, somewhat unusual in these type of cases. Nevertheless, the EEOC plans to ask for reconsideration by the court on these damages issues and also seek an injunction.
Interestingly, only punitive damages were awarded meaning that the plaintiff's satisfied the Kolstad standard, but were unable to show entitlement to back pay or compensatory damages, somewhat unusual in these type of cases. Nevertheless, the EEOC plans to ask for reconsideration by the court on these damages issues and also seek an injunction.As a side note, and interestingly, the portion of sexual harassment complaints filed by men hit a record high last year with an increase from 9.1 percent of cases in 1992 to 15.4 percent of cases in 2006. This increase probably stems in part from the recognition of same-sex harassment claim under Title VII as a result of the Supreme Court's Oncale decision in 1998.
A Stale Danish or Your Job?
The Montana Supreme Court has just held that an employee could challenge his termination for eating a stale danish without paying for it. In Johnson v. Costco Wholesale, the employee violated Costco's "no grazing" policy, which prohibited the eating of merchandise, even a baked good that is about to be thrown out or donated.
Apparently, the grazing policy had not been regularly enforced, until a new manager arrived and stated that the policy would be strictly followed and violations could result in termination. Sure enough, after the employee tasted a danish from an old box that was about to be thrown out or donated, he was fired. The danish wasn't even any good--the employee ended up throwing out the box because of the danish's "poor quality."
As many readers of this blog know, Montana is unique in that it has a just cause law: the Wrongful Discharge from Employment Act (WDEA). The employee lost his WDEA claim before the trial court under a motion for judgment as a matter of law, but the supreme court reversed, holding that Costco's enforcement of the grazing policy may have been "false, arbitrary, or capricious." In particular, good cause may have been lacking because Costco had repeatedly tolerated violations in the past, even after the new manager announced that the policy would be strictly enforced.
This case is a prime example, seen in many labor and employment contexts, of employers getting into trouble for failing to consistently enforce their policies. It would also be a non-issue in any state other than Montana. I'm pretty sure that the ability to eat a stale danish without getting fired wasn't a major concern in the passage of WDEA, but the case does highlight the importance of act's protection of employees from employers' arbitrary actions.
Equal Pay at Wimbledon
Game, set, and match for equal pay at Wimbledon (via Yahoo! News and AP):
After years of holding out against equal prize money, Wimbledon bowed to public pressure Thursday and agreed to pay women players as much as the men at the world's most prestigious tennis tournament.
The All England Club announced at a news conference that it had decided to fall into line with other Grand Slam events and offer equal pay through all rounds at this year's tournament.
"Tennis is one of the few sports in which women and men compete in the same event at the same time," club chairman Tim Phillips said. "We believe our decision to offer equal prize money provides a boost for the game as a whole and recognizes the enormous contribution that women players make to the game and to Wimbledon.
The unequal pay policy goes back 123 years. When the women started playing at Wimbledon in 1884, the female champion received a silver flower basket worth 20 guineas, while the men's winner got a gold prize worth 30 guineas.
Bravo All England Club for getting this right! And so long silver flower basket.
And although this tennis pay example may just involve compensation for highly-compensated independent contractors, hopefully this high profile instance of equal pay will spur others in the employment world to break down existing glass ceilings once and for all.
Bird on Companies Using Employment Law Principles to Get Ahead
Although business scholars express significant interest in the sources of firm competitive advantage, little research exists on the use of law as a value capturing resource. This is surprising given that legal issues demand a significant percentage of available time for managers. This manuscript proposes a model showing how a firm can use its legal environment to create sustainable competitive advantages over rivals.
In the article, Bird provides several examples of companies using employment law principles to leap ahead of competitors. Examples include Home Depot, which went beyond antidiscrimination law by creating a cultute change attuned to the advancement of women; and Lincoln Electric, which implemented a no-layoff policy and thereby reaped considerable benefits from enhanced employee loyalty.
February 21, 2007
Supreme Court to Consider Granting Cert. in ERISA Remedies Case
Thanks to SCOTUSblog for its chart on cases that the United States Supreme Court will consider for cert. during the next two conferences and have a reasonable chance of being granted. Particularly interesting to me is the case of LaRue v. DeWolff, Boberg, and Assoc., 06-856 (Cert. Petition Nov. 2006), which concerns an ERISA breach of fiduciary claim under Section 502(a)(2).
The specific question presented is whether Section 502(a)(2) permits a participant to bring an action to recover losses attributable to his account in a defined contribution plan that were caused by fiduciary breach. At issue is what is the definition of "any losses to the plan" under Section 409 and does a breach of fiduciary duty that leads to the reduction in value of a participant's individual account plan qualify as a loss to the plan, or as the Fourth Circuit held below, is that only a loss to the individual.
I'm with the petitioners on this one and agree with the well written amicus brief by seven law professors who argue persuasively that, "that the diminution in value of the interest of an individual account holder in a defined contribution plan is, by definition, a loss to the plan and, therefore, remediable under 502(a)(2)."
BTW, kudos to Colleen Medill (Nebraska) for having her law review article arguments cited throughout the amicus brief.
Free Drug Program Coming to Your Employer?
The New York Times has a story in today's paper about how there is a trend among some employers to offer their employees a free drug program. That's right, employees under these plans can get their prescriptions filled for free.
Altruism, you ask? Nah, it's still all about the bottom line. Companies are concerned that employees are foregoing preventative medications and becoming more sick (read: requiring more expensive health care) because co-pays for prescription drugs have become too high:
Employers are reacting to a disturbing trend. As most employer-sponsored health plans have raised co-payments sharply for drugs in recent years, employer drug spending has slowed. But total health care spending by employers has nonetheless continued to rise: 7.7 percent last year, or more than double the general inflation rate, according to the Kaiser Family Foundation. The free drug programs are being adopted in hopes of countering the rising costs, taking their place alongside other steps by some employers that have included opening or expanding health clinics in their factories and offices, and offering checkups and medicines at no cost or for a modest co-payment.
Interesting idea and clearly great for employees who have the benefit of these programs, but it still seems like just another band-aid for this country's spiraling out-of-control health care crisis.
More Bad News for Proponents of Same Sex Benefits
Here's a blurb from yesterday's PlanSponsor.com NewsDash:
The Kentucky state Senate has passed a bill (27-8-1) that would outlaw health insurance for same-sex couples and unmarried opposite-sex couples in all state agencies. The University of Kentucky (UK) has been considering offering the benefits, and last month a committee commissioned by President Lee Todd to investigate the feasibility of the benefits recommended that UK implement them. The bill, which will now go before the House of Representatives for approval, was prompted by University of Louisville's move to add the benefits starting January 1.
There is little doubt in my mind that such laws should be considered as invidious discrimination in violation of equal protection, but I'm sure that someone will be able to peg such intolerance to some legitimate state reason.
Indeed, laws like this one make all the more clear that homosexuals should have the benefit of being a suspect classification with increased scrutiny applied to laws that harm them given the continued bias practiced against them.
February 20, 2007
Consulting Opportunity Available
A large international company has approached me with a consulting opportunity, but I don't think I'm in a position to take it. The company is looking for a labor law scholar to help it articulate the positive role that elections play in union organizing campaigns. The company is not looking for a union-basher; the company already has pledged not to wage a nasty anti-union campaign. If you think you might be interested, please contact Rick Bales.
Estlund to Speak on Workplace Self-Governance
Cynthia Estlund will speak February 28 at Case Western School of Law on the issue: Is workplace self-governance a New Deal idea whose time has passed, or is it a solution to pressing contemporary problems? Her talk will focus on the relationship between the workplace and democracy. As union representation and collective bargaining have declined, employment regulations, rights and litigation have proliferated, and employees must assert themselves to make sure their rights are protected, says Estlund. "In response, firms have put in place internal compliance and dispute resolution systems that aim to, and sometimes do, deflect regulation and litigation. If employees continue to be shut out of these self-regulatory systems, the result may be a disguised form of deregulation. But if employees can gain an effective voice in these systems, the result could be improved regulation and a revival of workplace self-governance."
Judging and Romance Just Don't Mix
Not that husband and wife teams can't coexist well in the same workplace (I've seen it work up close and personal in my own workplace), but here is one instance in the judicial context where things went mighty awry (facts below garnered from a Supreme Court of Wyoming Order of Public Censure by Mike Frisch at the Legal Profession Blog):
The judge had hired an employee to work with him when he was in the county attorney's office. Romance ensued. He married the employee and made her his chief clerk after taking the bench. The judge treated staff and litigants with dignity and respect; his wife did not.
The allegations against [the wife] included mistreatment of staff and litigants, letting a dog run loose in court, letting the telephone ring in open court without answering and working a swimming pool job that cut into her court work . . . . The judge referred to her as "she who is to be feared."
Well, the judge ended up retiring after his wife resigned in a huff, and all the judge has to show for it is a public censure for judicial misconduct and a nearly $12,000 bill for the fees and costs of the censure proceeding.
Who let the dogs out, indeed.
February 19, 2007
The Dangers of Consensual Co-Worker Flirtations
There is a truly peculiar column that appeared in the New York Times this past Sunday on how to respond to consensual flirting by others in the workplace. It provides much in the way of self-evident truisms, unhelpful generalities, and needless overstatement (and a funky Q&A format to boot), but not much in the way of how such situations should actually be considered and handled by employers under applicable hostile work environment law.
Here are some examples from the column:
"Scott Kudia, president of the Kudia Company, a relationship consulting firm in San Diego, said that joking about sexual intimacy and soliciting after-hours dates could be considered overkill. Mr. Kudia added that employees who engage in some public displays of affection, like massaging, hugging, groping and kissing, have gone too far."
In response to a mock question about how co-workers will react when you ask them to stop flirting with one another: "That depends on your workplace and your relationship with the pair. If you are close friends with both, and they were not aware that their flirting was irksome, they may be grateful that you brought the issue to their attention. If you are not too friendly with them, they may respond scornfully." And: "Some may applaud the strength of your convictions; others may label you as a tattletale or a prude."
A lawyer quoted in the column suggests that, "companies in some states might be required to start a sexual-harassment investigation the moment an employee complains about the situation [of co-workers flirting] to a boss or to human resources[,]" and "[g]enerally . . . the [sexual harassment] investigation process ends in some form of discipline for the offending party or parties."
The same lawyer concludes: "When employees consider what’s at stake, one would hope that it makes them think twice about flirting at all."
If the intent of this column was to mislead workers about
what they can and cannot do at work as far as interacting with their co-workers
and generally scare the bejesus out of them, mission accomplished.
The truth of the matter, however, is that consensual
flirting at work is present in most workplaces, generally it not so pervasive
as to interfere with the working environment of others, and most of it will not
lead to disciplinary repercussions even if it annoys the heck out of others.
Only in cases where is it is severe or pervasive and leads to an objectively
hostile or intimidating work environment for third parties should employers be
concerned that it might lead to a finding of liability against them.
One would think that such instances would be quite rare and in fact, my own practice experience in this area of the law lends support to this conclusion.
Hat Tip: Dana Nguyen
Arizona Contemplates Fining Professors for Academic Expression
Unfortunately, this is not a sick joke or an Orwellian vision, but an actual bill, inspired by the ghost of Joe McCarthy himself [pictured left], has passed a committee of the Arizona State Senate that would fine professors $500 for engaging in partisan speech in class.
[A] Senate committee on Thursday approved a bill that would go much further than the Academic Bill of Rights, and which has infuriated faculty and student leaders. The bill, whose chief sponsor is the Republican majority leader in the Senate, would ban professors at public colleges and universities, while working, from[, among other things,] [a]dvocating 'one side of a social, political, or cultural issue that is a matter of partisan controversy.'
Punishments could come in two forms. The governing boards’ guidelines would need to develop procedures, including suspensions and terminations in some cases, according to the bill. In addition, the state attorney general and county prosecutors could sue violators, and state courts could impose fines of up to $500. The legislation would bar colleges or their insurance policies from paying the fines — money would need to be paid directly by the professors found guilty.
It is unclear whether this abhorrent law has the backing of enough legislators to pass the Arizona Senate and become law, but the mere fact that four members of a state Senate committee would be willing to endorse such a plan of intellectual McCarythism is just unbelievable. And to think that the sponsor of the bill is the Republican majority leader of the Senate!
Hopefully, such an affront to academic freedom will spur others to take a strong stand against pernicious legislation such as this and the Inside Higher Ed article suggests that many are indeed up in arms.
How bad is this bill: "Even David Horowitz [creator of the Academic Bill of Rights] is opposed, saying that the bill goes too far. He wrote in a statement that he has never advocated legislative limits on what college faculty members may say in class."
- Joseph A. Seiner, Disentangling Disparate Impact and Disparate Treatment: Adapting the Canadian Approach, 25 Yale L. & Pol'y Rev. 95 (2006).
- Susan Lorde Martin, Executive Compensation: Reining in Runaway Abuses -- Again, 41 U. San Francisco L. Rev. 147 (2006).
- Joan C. Williams (left) & Stephanie Bornstein (right), Caregivers in the Courtroom: The Growing Trend of Family Responsibilities Discrimination, 41 U. San Francisco L. Rev. 171 (2006).
- Joanna Wade (right), Indirect Sex Discrimination -- A View from Across the Pond, 41 U. San Francisco L. Rev. 191 (2006).
- Mark L. Adams, The Quest for Tenure: Job Security and Academic Freedom, 56 Catholic U. L. Rev. 67 (2006).
Comments & Notes
- Allison T. Steinle, Appearance and Grooming Standards as Sex Discrimination in the Workplace, 56 Catholic U. L. Rev. 261 (2006).
February 18, 2007
Top-5 Employment SSRN Downloads
- Samuel R. Bagenstos, US Airways v. Barnett and the Limits of Disability Accommodation (102).
- Oliver Hart & John Moore, Contracts as Reference Points (83).
- Christopher J. Kippley (photo above) & Richard A. Bales, Extending OWBPA Notice and Consent Protections to Arbitration Agreements Involving Employees and Consumers (76).
- Diane Avery & Marion G. Crain, Branded: Corporate Image, Sexual Stereotyping, and the New Face of Capitalism (76).
- Albert Feuer, How Employment Agreements and Settlements of Employment Disputes May Affect Pension Benefits (71).
Top-5 Labor SSRN Downloads
- Jeffrey M. Hirsch (photo above), The Silicon Bullet: Will the Internet Kill the NLRA? (193).
- Dianne Avery & Marion G. Crain, Branded: Corporate Image, Sexual Stereotyping, and the New Face of Capitalism (76).
- Richard T. Karcher, Solving Problems in the Player Representation Business: Unions Should Be the Exclusive Representatives of the Players (74).
- Cass R. Sunstein, Cost-Benefit Analysis Without Analyzing Costs of Benefits: Reasonable Accommodation, Balancing, and Stigmatic Harms (45).
- David G. Blanchflower, Alex Bryson, & John Forth, Workplace Industrial Relations in Britain, 1980-2004 (30).
Top-5 Benefits/Compensation/Pension SSRN Downloads
- Lucian Arye Bebchuk, Yaniv Grinstein, & Urs Peyer, Lucky Directors (485).
- Lucian Arye Bebchuk, Martijn Cramers, & Urs Peyer, Pay Distribution in the Top Executive Team (170).
- Annamaria Lusardi (left) & Olivia S. Mitchell (right), Financial Literacy and Retirement Preparedness: Evidence and Implications for Financial Education Programs (108).
- Albert Feuer, How Employment Agreements and Settlements of Employment Disputes May Affect Pension Benefits (71).
- Dorothy A. Brown, Pensions and Risk Aversion: The Influence of Race, Ethnicity, and Class on Investor Behavior (67).