August 2, 2008
Wal-Mart Worried About Election
This doesn't exactly come as a surprise, but Wal-Mart is apparently very concerned about the prospect of a Democratic Congress and White House. So much so that they're already engaging in efforts to sway opinion, particularly that of its employees, about the possibility of EFCA being enacted (see here for the Chamber of Commerce's actions in the same vein). The Wall Street Journal has the story:
Wal-Mart Stores Inc. is mobilizing its store managers and department supervisors around the country to warn that if Democrats win power in November, they'll likely change federal law to make it easier for workers to unionize companies -- including Wal-Mart. In recent weeks, thousands of Wal-Mart store managers and department heads have been summoned to mandatory meetings at which the retailer stresses the downside for workers if stores were to be unionized.
According to about a dozen Wal-Mart employees who attended such meetings in seven states, Wal-Mart executives claim that employees at unionized stores would have to pay hefty union dues while getting nothing in return, and may have to go on strike without compensation. Also, unionization could mean fewer jobs as labor costs rise. . . .
The Wal-Mart human-resources managers who run the meetings don't specifically tell attendees how to vote in November's election, but make it clear that voting for Democratic presidential hopeful Sen. Barack Obama would be tantamount to inviting unions in, according to Wal-Mart employees who attended gatherings in Maryland, Missouri and other states. . . .
Wal-Mart's worries center on a piece of legislation known as the Employee Free Choice Act, which companies say would enable unions to quickly add millions of new members. "We believe EFCA is a bad bill and we have been on record as opposing it for some time," Mr. Tovar said. "We feel educating our associates about the bill is the right thing to do."
Other companies and groups are also making a case against the legislation to workers. Laundry company Cintas Corp., which has been fighting a multiyear organizing campaign by Unite Here, relaunched a Web site July 14 called CintasVotes. The site instructs visitors to take action by telling members of Congress to oppose the legislation. . . .
Business-backed organizations are also running ads aimed at building opposition to the bill, including the Coalition for a Democratic Workplace, which counts several hundred industry associations as members. Another group, the Employee Freedom Action Committee, is run by former tobacco lobbyist Rick Berman. The groups, which aren't affiliated with each other, say they have a total of $50 million in funding. Neither will disclose which companies or individuals have provided funding.
The article also gives more background on Wal-Mart's labor practices and EFCA, which will be familiar to many readers. The use of political captive audience speeches also ties into the recent NLRB General Counsel's memo on Section 7 protection for political activity, as well as Paul's recent work on captive audience speeches.
Hat Tip: Dennis Walsh
Top-5 Recent SSRN Employment Law Papers
- Theodore Eisenberg & Charlotte Lanvers, Summary Judgment Rates Over Time, Across Case Categories, and Across Districts: An Empirical Study of Three Large Federal Districts (124).
- Michelle A. Travis, Looking Back at the ADA Backlash: How the Americans with Disabilities Act Benefits Americans without Disabilities (78).
- Kevin M. Clermont (left) & Stewart J. Schwab (right), Employment Discrimination Plaintiffs in Federal Court: From Bad to Worse? (69).
- Meredith R. Miller, Contracting Out of Process, Contracting Out of Corporate Accountability: An Argument Against Enforcement of Pre-Dispute Limits on Process (61).
- Nicole B. Porter, The Perfect Compromise: Bridging the Gap Between At-Will Employment and Just Cause (49).
Top-5 Recent SSRN Labor Law Papers
- Anne Marie Lofaso, September Massacre: The Latest Battle in the War on Workers' Rights Under the National Labor Relations Act (153).
- Thomas J. Miles (left) & Cass R. Sunstein (right), Depoliticizing Administrative Law (93).
- Arlen Specter & Eric S. Nguyen, Representation Without Intimidation: Securing Workers' Right to Choose Under the National Labor Relations Act (92).
- Benjamin I. Sachs, Employment Law as Labor Law (80).
- Jennifer Gordon & R.A. Lenhardt, Rethinking Work and Citizenship (80).
Top-5 Recent SSRN International Labor & Employment Law Papers
- Jeffrey M. Hirsch, Employee Collective Action in a Global Economy (63).
- Jonathan Zittrain (left), Ubiquitous Human Computing (49).
- Eleanor Marie Brown, Taking the Guess Work Out of Guest Work: The Promise of Cross-National Cooperation and Ex Ante Screening in Improving Immigration Compliance (43).
- Tommaso Reggiani, Survey on Child Labor Statistics (37).
- David Weil (right), A Strategic Approach to Labor Inspection (33).
August 1, 2008
SEALS: Title VII Retaliation
In the final labor/employment panel at SEALS this year, Rebecca White (second, Georgia) moderated a panel on The Impact of Retaliation in the Workplace After Burlington Northern v. White. Henry Chambers (left, Richmond) spoke on "What is the nature of Title VII claims?", providing an overview of recent Supreme Court cases and suggesting some possible ways those cases might be reconciled. Michael Green (right, Texas Wesleyan) discussed retaliatory aspects of compelling arbitration of employment discrimination claims. Rhonda Reaves (center, Florida A&M) spoke on retaliatory harassment: the intersection of sexual harassment and retaliation law.
Michael Zimmer (fourth, Loyola Chicago) attempted to reconcile recent Supreme Court cases by suggesting precedent and the unitary-executive theory as a method of explaining the seemingly inconsistent opinions of some of the Justices.
SEALS: Tackling Workplace Disputes
Continuing the live blogging from SEALS, William Corbett (second) moderated a panel on Tackling Workplace Disputes: A Spectrum of Approaches. Rachel Arnow-Richman (left, Denver) spoke on dispute avoidance, discussing the "silent successes" of the Americans with Disabilities Act and how the accommodation requirement of the ADA incentivizes employers to create interactive dispute resolution processes. Melissa Hart (right, Colorado) discussed using social framework theory evidence to help prove workplace stereotyping and bias in litigated employment discrimination cases. Paul Secunda (third, Marquette) spoke about the myriad associational rights that can arise in the nonunion workplace, and proposed a federal freedom of association in the workplace act.
Harkin-Hatch introduce new ADA Amendments Act in Senate
Via Thompson Publishing's HR alerts (see here),
New ADA Amendments Act Introduced in Senate
A new version of the ADA Amendments Act was introduced in the Senate today. Sen. Tom Harkin, D-Iowa, and Sen. Orrin Hatch, R-Utah, introduced S. 3406 which, while similar to the House's version, makes two significant changes.
First, the bill does not define the term "substantially limits," which the House originally defined as "materially restricts." Representatives from the business community voiced concern about the definition at a recent hearing, so the Senate bill now advises courts to consider a substantial limitation as an impairment that prevents or severely restricts an individual from doing activities that are of central importance to most people's daily lives.
The bill also includes a provision requested by the education community. It specifies that reasonable modifications to policies -- including academic requirements in postsecondary education -- are not required if they would fundamentally alter the program.
View the bill at: http://www.thompson.com/images/thompson/pdfs/adaaa_bill_text.pdf
For more information on the bill, see the next issue of the ADA Compliance Guide newsletter.
House Passes Paycheck Fairness Act
The National Women's Law Center reports
In a hard-earned victory, the House of Representatives passed the Paycheck Fairness Act on July 31 with a vote of 247 to 178. This bill marks a critical step toward closing the wage gap between men and women. It updates and strengthens the Equal Pay Act of 1963, closing loopholes and improving the law’s effectiveness.
There's a link on the site to see how your rep. voted if you're interested. And for more on the text of the bill, etc. see here.
SEALS: Teaching Labor and Employment Law
Steven Kaminshine (Georgia State) moderated a panel on innovative teaching methods in labor and employment courses. Yours truly spoke about using full-course simulations in labor and employment courses. I described the technique, developed by Roberto Corrada (Denver) and Ken Dau-Schmidt (Indiana-Bloomington), of goading students (employees) into organizing a union and negotiating a collective bargaining agreement (syllabus), and also about the sexual harassment litigation simulation I've developed for my employment discrimination and civil procedure courses. Rachel Arnow-Richman (Denver) followed this up by describing her transactional approach to teaching employment law. Jeff Hirsch (Tennessee) spoke of the need to teach students to read full original source materials (such as unedited cases), to teach administrative law as part of labor/employment law, and the importance of integrating international issues into labor/employment courses as labor markets become increasingly global. Finally, Cynthia Nance (Arkansas - Fayetteville) described how she uses the film Live Nude Women Unite in her labor law course to enhance student understanding of a wide variety of labor/employment issues as well as issues related to class, gender, and stereotyping.
More News on the Employment Front
The New York Times has a couple of articles on the jobs front, including a story discussing the cutting of employees' hours that I've raised previously. But first, the July unemployment numbers are out. Although not as bad as many had predicted, 51,000 jobs were eliminated--raising the national unemployment rate to 5.7% (from 5.5% in June). Wages continue to stagnate as well, with average non-managerial salaries up 2.8% from last year, yet inflation growing at 5% during the same time period. Second, the Times has an article (written a day before the July numbers were released) on the effects of employers' forcing employees to work part-time:
The number of Americans who have seen their full-time jobs chopped to part time because of weak business has swelled to more than 3.7 million — the largest figure since the government began tracking such data more than half a century ago. The loss of pay has become a primary source of pain for millions of American families, reinforcing the downturn gripping the economy. Paychecks are shrinking just as home prices plunge and gas prices soar, furthering the austerity across the nation. . . .
On the surface, the job market is weak but hardly desperate. Layoffs remain less frequent than in many economic downturns, and the unemployment rate is a relatively modest 5.5 percent. But that figure masks the strains of those who are losing hours or working part time because they cannot find full-time work — a stealth force that is eroding American spending power.
All told, people the government classifies as working part time involuntarily — predominantly those who have lost hours or cannot find full-time work — swelled to 5.3 million last month, a jump of greater than 1 million over the last year. These workers now amount to 3.7 percent of all those employed, up from 3 percent a year ago, and the highest level since 1995. “This increase is startling,” said Steve Hipple, an economist at the Labor Department.
The loss of hours has been affecting men in particular — and Hispanic men more so. Among those who were forced into part-time work from the spring of 2007 to the spring of 2008, 73 percent were men and 35 percent were Hispanic. Some 28 percent of the jobs affected were in construction, 14 percent in retail and 13 percent in professional and business services, according an analysis by Mr. Hipple. . . .
Many experts see the swift cutback in hours as a precursor of a more painful chapter to come: broader layoffs. Some struggling companies are holding on to workers and cutting shifts while hoping to ride out hard times. If business does not improve, more extreme measures could follow.
This perfectly illustrates how a single variable can't capture the entire picture of the labor market. As many workers could tell you, the fact that unemployment is still low historically doesn't mean that things are hunky dory.
SEALS: The Federal Arbitration Act in 2008
Continuing the live-blogging from SEALS, Ediberto Roman (Florida Int'l) is moderating a discussion of the FAA and of proposals to amend the FAA to ban mandatory arbitration clauses, especially in employment and consumer contracts. Margaret Moses (Loyola-Chicago) points out that Congress essentially found such clauses predatory in the context of a recent statute prohibiting the clauses in payday loans to service men and women. Jean Sternlight (UNLV) argues that companies imposing no-class-action provisions in arbitration agreements are motivated not by a desire for arbitral class actions, but by a desire to avoid class actions entirely. Richard Reuben (Missouri) is discussing the provision in the pending legislation to reverse the Supreme Court's separability doctrine. Steve Ware (Kansas) is discussing the difficulty of getting good empirical evidence comparing arbitral and litigated outcomes. All agree that although there is little chance of the FAA being amended this year, chances may go up substantially after the November elections.
SEALS: New Scholars Workshop
I'm blogging live at "Labor and Employment Day" at SEALS. Susan Kuo (South Carolina) is moderating the panel. First up is April Dawson (left, North Carolina Central), speaking on Taylor v. Progress Energy, Inc. and the Waiver of FMLA Rights: How the Fourth Circuit Got it Right. She argues that the anti-waiver provision of the FMLA should be interpreted to bar not only prospective waivers, but also post-dispute waivers. Joe Seiner (right, South Carolina) is speaking on The Demise of Punitive Damages in Employment Discrimination Cases. He proposes that the punitive damages provision in Title VII be replaced by a double-damages provision up to an enhanced statutory damage cap. Kerri Stone (center, Florida Int'l) is speaking on From Queen Bees and Wanna-Bees to Worker-Bees: How the Law of Workplace Bullying Is Informed by Social Dynamics. She argues that workplace bullying/harassment, even when directed equally at men and women, can have a disparate impact on women because of the different ways that men and women respond, socially and psychologically, to bullying/harassment.
Bravo to all three presenters. All three presentations were substantively solid and very articulately presented.
Obama Conference at Denver
We invite you to attend "Obama Phenomena: Facets of a Historic Campaign," a one-day symposium at the University of Denver Sturm College of Law on Friday, August 29, 2008, the day after the Democratic National Convention. Randall Kennedy, the Michael R. Klein Professor of Law at Harvard Law School, will deliver the Luncheon Keynote Address.
Barack Obama and his campaign would be worthy of study if he were merely the first African American major-party presidential nominee. Yet Obama is more than a history-making candidate; he and his campaign are a cultural phenomenon on many levels. This conference brings together a diverse, inter-generational group of scholars who will examine the meaning of Obama's candidacy on aspects ranging from race, gender, religion and difference in contemporary politics, to the changing nature of campaign organizing, to Obama's potential impact on affirmative action law, election law, and U.S. foreign policy.
For additional information, please visit the following link: http://www.law.du.edu/index.php/obama-phenomena or contact Frank Rudy Cooper at email@example.com and 617 573-8530 or Catherine Smith at firstname.lastname@example.org and 303-871-6180.
July 30, 2008
District Court Rejects NLRB's 10(j) Motion
The NLRB has often been criticized for not seeking 10(j) injunctions enough (these are the discretionary injunctions that the NLRB can seek while a case is pending with the Board), but you can see why. In Timmins v. Narricot Industries, Judge Rebecca Beach Smith of the E.D.V.A. denied a 10(j) motion--despite finding reasonable cause that the employer committed ULPs. From BNA's Daily Labor Report (subscription required):
A federal court in Virginia July 24 denied a National Labor Relations Board regional director's request for a preliminary injunction against a manufacturer that withdrew recognition from a union, finding that even if Narricot Industries LP violated the National Labor Relations Act by improperly supporting an effort to decertify the union, issuing an injunction under Section 10(j) of the NLRA would not be "just and proper" [The Judge] said that an NLRB administrative law judge already has concluded that the company unlawfully solicited employee signatures to oust Carpenters and Joiners of America Local No. 2316, but the court made its own findings that there was a "substantial, employee-led effort to remove the Union" that was free from unlawful influence by the employer. . . .
Smith said that the appropriate standard of legal review in a Section 10(j) proceeding "is in somewhat of a state of flux in the federal courts." The "conventional approach," she said was for the court to determine whether the NLRB had shown reasonable cause to believe that an NLRA violation occurred and whether the issuance of an injunction was just and proper. Several courts have modified the standard, Smith said, but the U.S. Court of Appeals for the Fourth Circuit, in whose jurisdiction Narricot was located, "has yet to revisit the reasonable cause/just cause standard." Smith said that she would consider the NLRB petition under the traditional standard.
The court said that there was ample evidence to show reasonable cause that Narricot violated the NLRA. The company's human resource director, Kris Potter, assisted employees in preparing their decertification and supplied a Narricot intern, Anja Baumann, with an employee list used to contact employees during working hours. . . .
The court said, however, that even if Narricot violated the federal labor law, the injunctive relief requested by the NLRB was not appropriate. First, Smith said, "there was a substantial, employee-led effort to remove the Union which was separate and apart from any unlawful conduct by Narricot." The court said that the board's ALJ heard testimony that at least five employees other than Baumann circulated the petition to decertify Local 2316. "This effort was free from any significant involvement by Potter or Narricot," the court found.
Narricot did "impermissibly interject itself into the employee-led effort," the court said, but the question presented by the NLRB's Section 10(j) petition was whether an interim bargaining order was appropriate. The court said that the NLRB claimed that injunctive relief was needed to preserve the integrity of the collective bargaining process, but the employees opposed to representation by the Carpenters local "will suffer irreparable harm if this court orders reinstatement of a Union which a majority of Narricot's employees do not wish to represent them." . . .
The court said that the NLRB does not consider that a decline in membership shows a lack of majority support for a union. However, Smith said, "the amount of support for the Union, including support expressed through Union membership, is relevant to this court's determination of the status quo which existed prior to Narricot's unlawful conduct, because preservation or restoration of the status quo is the purpose of a §10(j) injunction."
There are a lot of issues with this case, including the Fourth Circuit's 10(j) standard. But what gets me the most is that the court independently found that the "status quo" was a situation in which an employer that unlawfully assisted a decert drive was in a position to unilaterally withdraw recognition. Obviously this blog's readership (see here for our recent discussion on Levitz and the unilateral withdrawal rule) doesn't include the judges on the rocket docket.
N.M. District Court Dismisses Claim of Associational Retaliation
Via Paul and the BNA comes a report on this
United States District Court decision EEOC
v. Wal-Mart Stores, Inc., in which Wal-Mart allegedly refused to hire two
children of a woman who had filed a charge of discrimination with the EEOC
because she had filed that charge.
The District Court for the District of New Mexico dismissed the claims of the two children who had not personally participated in the filing of their mother's charge and who had not engaged in protected opposition to discrimination in connection with their mother's claim. There may be a split in the circuits on the issue, revolving around competing methods of statutory interpretation. The issue comes down to whether the language of Title VII should be strictly construed or whether the meaning of the language should be tempered by the clear purpose of the retaliation provision.
Title VII § 2000e-3(a) provides:
It shall be an unlawful employment practice for an employer to discriminate against any . . . employees or applicants for employment . . . because [they have] opposed any practice made an unlawful employment practice by this title, or because [they have] made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this title.
And the Supreme Court in Burlington Northern and Santa Fe Railway Co. v. White, 548 U.S. 53, 68 (2006) held that the type of conduct that would be considered retaliation included any actions that “. . . might have dissuaded a reasonable worker from making or supporting a charge of discrimination.”
Several circuits (the 8th, 3d (ADA and ADEA), and 5th (ADEA)) have held that third parties who had not participated directly or opposed discrimination directly are not themselves protected by this provision because of the plain language of the statute which talks only about the persons who engage in these actions.
The 6th Circuit, on the other hand, very recently held that third parties closely associated with the person who did directly participate in proceedings or oppose discrimination are protected:
“[i]t is a well-established canon of statutory construction that a court should go beyond the literal language of a statute if reliance on that language would defeat the plain purpose of the statute[.]” . . . . Further, “it is well settled that, in interpreting a statute, the court will not look merely to a particular clause in which general words may be used, but will take in connection with it the whole statute . . . and the objects and policy of the law. . . .”
The EEOC's Compliance Manual (Vol. 2, §§ 8(B), (C)) supports this interpretation, as well, providing that Title VII prohibits retaliation not only against the person who engaged in the protected activity, but also against “someone so closely related to or associated with the person exercising his or her statutory rights that it would discourage that person from pursuing those rights.” And in this case (Wal-Mart), the EEOC argued that "barring such claims would undermine the overall purpose of Title VII to eradicate employment discrimination and to encourage protected activity."
The district court rejected the 6th Circuit and EEOC interpretations, agreeing with the 3d, 5th, and 8th Circuits that the plain language did not support those interpretations. Thus, the court dismissed the claims of the children. At the same time, recognizing the broad definition of retaliation, the court refused to dismiss the claim of the mother, the one who had filed the charge, that refusing to hire her children was retaliation against her.
Associational rights cases are very difficult, and we've blogged about them in lots of places (here, here, here, and here, for example). They also come in very different types, which may account for some of the different treatment of them by the circuits. The line drawn by the circuits that rely on a narrow reading of the language of Title VII, the ADA, and the ADEA is certainly a bright one for these kinds of cases. I agree with the 6th Circuit, though, that this leaves a lot of room for employers to discourage protected employee activity. Perhaps retaining the mother's claim is enough to deter this kind of conduct, though.
1000 Voices on Work and Family
I use a lot of video in my employment law class in large part because the class covers so many topics at such a superficial level that video can make a subject's complexity resonate more effectively in a much shorter period of time. So we watch a bit of North Country in discussing sexual harassment, and excerpts from Frontline documentaries on low wage workers and retirement for discussing the FLSA and ERISA. Last year I added a documentary on undocumented workers in Texas to try to show how complex the issues of immigration and low wage work are.
So I was pleased when this link to a series by 1000 Voices was e-mailed to me today by Ardi Kuhn (1000 voices) and Sangita Nayak (9 to 5, Nat'l Ass'n of Working Women). The issue they were highlighting was paid sick leave, but there are additional issues in the archive as well. And it's really a collection of personal stories by average people who put a human face on an issue.
And just for background on the larger project, "[t]he 1000 Voices Archive is being produced by Creative Counsel, a media and communications team that has been working with advocates nationally on the paid sick days issue, making sure that their stories are recorded truthfully and effectively." There are a number of other series, too, so if you're like me and use some video (or want to), it's worth checking out.
Goldberg on Union Democracy
Michael Goldberg (Widener) has just posted on SSRN his article (forthcoming Suffolk U. L. Rev.) In the Cause of Union Democracy. Here's an excerpt from the abstract:
[The] article makes two broad points. First, it argues that the cause of union democracy is of critical importance both for the sake of a stronger labor movement and, perhaps more significantly, as a key ingredient in a revitalized movement for progressive change and social justice. Second, it makes the case for greater involvement on the part of public intellectuals in support of union democracy, highlighting the vulnerable and isolated positions many union reformers all too often find themselves in, at the mercy of not just entrenched incumbents within their unions but also hostile employers, an indifferent Department of Labor (under both political parties), and in some industries, ruthless racketeers and mobsters.
July 29, 2008
Law Students Workers' Rights Conference
The Tenth Annual National Law Students Workers' Rights Conference, sponsored by The Peggy Browning Fund, will be held October 17 & 18, 2008, at the National Labor College in Silver Spring, Maryland. Registration is due by August 28 for students applying for airfare assistance; October 3 for all others.
Blogging from SEALS
I’m live-blogging from the Southeastern Association of Law Schools (SEALS) conference in Palm Beach. Right now, I’m at the New Scholars Workshop on Religion and the Law. Keith Blair (Baltimore) just spoke on Praying for a Job: Why Employees Need More Protection from Religious Discrimination. He argued that the definition of undue hardship in TWA v. Hardison provides insufficient protection to employees, and that Title VII’s religious protection should be expanded. Bruce Cameron (Regent) is speaking now on E.I., E.I. Oh What An Employee: The Biblical Basis for Teaching Emotional Intelligence in the Workplace. He argued that understanding Biblical-based concepts of emotional intelligence can help lawyers predict the outcome of employment discrimination litigation.
July 28, 2008
DOJ Finds That Its Hiring Was Unlawful
We've posted before about some of the problems with politics infecting hiring at the Department of Justice. Now the DOJ's own internal investigation has found that some of the hiring throughout the DOJ was unlawfully based on politics (the text of the report is here). According to the New York Times:
Senior aides to former Attorney General Alberto Gonzales broke the law by using politics to guide their hiring decisions for a wide range of important department positions, slowing the hiring process at critical times and damaging the department’s credibility and independence, an internal report concluded Monday. The report, prepared by the Justice Department’s inspector general and its internal ethics office, singles out for particular criticism Monica Goodling, a young lawyer from the Republican National Committee who rose quickly through the ranks of the department to become a top aide to Mr. Gonzales. . . .
The inspector general’s investigation found that Ms. Goodling and a handful of other senior aides to Mr. Gonzales developed a system of using in-person interviews and Internet searches to screen out candidates who might be too liberal and to identify candidates seen as pro-Republican and supportive of President Bush. . . . In her position as White House liaison for the Justice Department, Ms. Goodling was involved in hiring lawyers for both political appointments and non-political, career positions. Regardless of the type of position, the report said, Ms. Goodling would run through the same batch of questions, asking candidates about their political philosophies, why they wanted to serve President Bush, and who, aside from Mr. Bush, they admired as public servants. Sometimes, Ms. Goodling would ask: “Why are you a Republican?” . . .
In one case, for instance, Ms. Goodling slowed the hiring of a prosecutor in the United States attorney’s office in Washington, D.C., for a vacancy because she said she was concerned that he was a “liberal Democrat.” After the United States attorney, Jeffrey Taylor, complained to her supervisors, he was allowed to hire the candidate anyway.
And in another case, colleagues said that Ms. Goodling refused to extend the appointment of a female prosecutor because she believed the lawyer was involved in a lesbian relationship with her supervisor, according to the report.
And in another case cited by the inspector general, Ms. Goodling blocked the hiring of an experienced prosecutor for a senior counter-terrorism position because his wife was active in Democratic politics. The candidate was regarded as “head and shoulders above the other candidates” in the view of officials in the executive office of United States attorneys, but they were forced to take a candidate with much less experience because he was deemed acceptable to Ms. Goodling.
In forwarding a résumé in 2006 from a lawyer who was working for the Federalist Society, Ms. Goodling sent an e-mail message to the head of the Office of Legal Counsel, Steven Bradbury, saying: “Am attaching a résumé for a young, conservative female lawyer.” Ms. Goodling interviewed the woman herself for possible positions and wrote in her notes such phrases as “pro-God in public life,” and “pro-marriage, anti-civil union.” She was eventually hired as a career prosecutor.
Ms. Goodling also conducted extensive searches on the Internet to glean the political or ideological leanings of candidates for career positions, the report found. She and other Justice Department supervisors would look for key phrases like “abortion,” “homosexual,” “guns,” or “Florida re-count” to get information on a candidate’s political leanings.