Saturday, November 1, 2008

Boeing Strike To End

Boeing The eight-week Boeing strike is coming to an end (see here for a past post).  Machinists members ratified a proposed CBA with Boeing by almost 75% and, as a result, are expected to go back to work on Sunday.  According to the Washington Post/AP:

The union has said the contract protects more than 5,000 factory jobs, prevents the outsourcing of certain positions and preserves health care benefits. It also promises pay increases over four years rather than three, as outlined in earlier offers. The union members, including electricians, painters, mechanics and other production workers, have lost an average of about $7,000 in base pay since the strike began. They had rejected earlier proposals by the company, headquartered in Chicago. . . .

Boeing officials have said the contract allows them flexibility to manage their business and remain competitive. The work stoppage was costing the company an estimated $100 million per day in deferred revenue and postponing delivery of its long-awaited 787 jetliner, which has already been delayed three times, and other commercial planes. . . .

I haven't seen any more details on the CBA, so it's hard to get a good read on what was going on.  My initial read is that the Machinists got a slight win.  Definitely not all they wanted, but it sounds like they got Boeing to move on some points.  If anyone has more (and better) info, please let us know.

-JH

November 1, 2008 in Labor Law | Permalink | Comments (0) | TrackBack (0)

Friday, October 31, 2008

Important Study on Affirmative Action and Stigma

Angelaonwuachiwilligphp Mecampbell Houh150 Angela Onwuachi-Willig (Iowa, left), Mary Campbell (Iowa, center), and Emily Houh (Cincinnati) have recently completed an important study on affirmative action in higher education that has implications for the workplace as well. Opponents of affirmative action argue, among other things, that it backfires by stigmatizing members of the group who benefit. The argument goes that members of the dominant group perceive members of groups affirmative action policies are geared towards as less qualified or capable, and that members of the groups the policies are intended to benefit also feel they are less qualified or capable. The logic goes that those people would not be where they are without the benefit of the policy, whether that's true or not and regardless of whether any sort of affirmative action policy helped them. As a result, the anti-affirmative action argument goes, those that affirmative action seeks to benefit are actually labeled less capable and are stigmatized, injuring them, and reinforcing negative stereotypes of the dominant group.

The three researchers surveyed about 600 students of all races to gauge their attitudes toward affirmative action at seven public law schools, and results indicate that minority students at schools with affirmative action policies feel just as good about their qualifications and about how others treat them as do minorities at schools without affirmative action policies.

The press release further explains

Another key finding was overwhelming support for diversity in education, a sentiment that did not vary by school type. In fact, students at schools without affirmative action were more likely to agree that "Racial diversity is important; it enhances my education," and in the comment section of the survey, several described the lack of racial diversity in their schools as a deficiency.

The study will be published in the California Law Review. I can't wait to read the article.

Update: the article can be downloaded from SSRN here.

MM

October 31, 2008 in Scholarship | Permalink | Comments (0) | TrackBack (0)

UAW/Foxwoods Settlement

Fxwd1 As we reported earlier, the UAW and Foxwoods Casino had been discussing a possible settlement.  Apparently those discussions went well, because they've reached a settlement.  Dan Schwartz at Connecticut Employment Law Blog has the breaking news and this joint press release from the parties:

In resolutions passed Tuesday, the Mashantucket Pequot Tribal Council certified the UAW as the exclusive representative of a unit of table games, poker and dual-rate dealers and addressed other concerns raised by the union.

Both parties recognize the historic significance of this agreement and appreciate the fact that it could not have been accomplished without mutual respect for the legitimate concerns of all affected parties.

While today’s agreement is not a collective bargaining agreement, it permits the negotiations to start. Both parties are optimistic that it will result in a constructive dialogue leading to successful negotiations.

If the parties are unable to reach an agreement within five months, either of the parties has the right to have unresolved issues submitted to binding arbitration under the tribal system which provides for a final decision by a neutral party agreed to by the employer and the union.

As Dan notes, there's a victory for both sides here.  The casino keeps it under tribal law, which was a big issue for them.  The union looks like they're going to get a CBA, which is obviously huge for them, especially without a big delay.

-JH

October 31, 2008 in Labor Law | Permalink | Comments (3) | TrackBack (0)

Cherry Elected to ALI

Cherry Congratulations to Miriam Cherry (Pacific McGeorge), who has been elected to membership in the American Law Institute.  Miriam’s areas of specialization include labor & employment law, business associations, and contracts.  She recently completed a book with Prof. Sam Estreicher entitled Global Issues in Employment Law.  Currently, she is engaged in writing a series of articles addressing the ways in which technology impacts traditional labor and employment law doctrines.  She is also completing a treatise on mergers and acquisitions law with her colleague Prof. Franklin Gevurtz.

Congrats, Miriam!!!

rb

October 31, 2008 in Faculty News | Permalink | Comments (0) | TrackBack (0)

Hutchison on Labor Preemption and Free Speech Rights

Hutchison Harry Hutchison (George Mason) has just posted on SSRN his article (forthcoming Seton Hall L. Rev.) Liberty, Liberalism, and Neutrality: Labor Preemption and First Amendment Values.  Here's an excerpt from the abstract:

With the advent of postmodern discourse and the possibility that courts have become captive to progressive rhetoric that is not found within the Constitution, I argue that the Supreme Court should reconsider its reliance on the NLRA and preemption doctrine as the primary vehicle to vindicate employers' rights and should instead return to the Constitution itself as a basis for its defense of what has become increasingly difficult to defend: the free speech rights of employers and employees within a labor-management context. This approach is exemplified by recapturing the Supreme Court's understanding of Virginia Electric as an independent ground for relief. This case, decided before the Wagner Act was amended adding explicit protection of employers' speech, stands for the proposition that employer and labor union "attempts to persuade to action with respect to joining or not joining unions are within the First Amendment's guaranty."

This excerpt does not begin to do justice to Harry's wide-ranging article.  Check it out.

rb

October 31, 2008 in Commentary, Labor Law, Scholarship | Permalink | Comments (0) | TrackBack (0)

Norton Criticizes Garcetti

Norton Helen Norton (Colorado) has just posted on SSRN her essay (forthcoming First Amendment L. Rev.) Government Workers and Government Speech.  Here's an excerpt from the abstract:

[I]n suggesting that any speech pursuant to a public employee's official duties constitutes government speech, the [Garcetti] Court ignored the fact that government speech merits insulation from First Amendment scrutiny only because of its instrumental value in enabling the public to identify and evaluate its government's priorities - and to hold the government politically accountable for those choices. Indeed, the government's political accountability to the electorate for its effectiveness is undercut by the carte blanche Garcetti now gives government to discipline workers who truthfully report irregularities and improprieties pursuant to their official duties. Rather than identifying a theoretically principled approach for capturing the value of empowering government to control its own speech, the Garcetti Court instead formalistically imposed a bright-line rule to avoid the often challenging but entirely commonplace task of balancing constitutional interests.

rb

October 31, 2008 in Public Employment Law, Scholarship | Permalink | Comments (0) | TrackBack (0)

Thursday, October 30, 2008

Law Prof Blog Rankings

Blog Paul Caron at Tax Prof Blog has the latest rankings of law professor blogs.  Not to toot our own horn (heck, let's be honest, that's exactly what we're doing), but this blog did quite well.  We had over 400,000 visits during the past year, ending on September 30.  Given that we've had just under a million (!) visits since 2004, that's quite a strong year. 

This year's traffic makes us #16 out of all the ranked sites.  We're also fourth out of 17 ranked subject-specific sites (fifth out of 18 if you classify Leiter Report as a philosophy site, but it's usually much more general than that).  Not bad for an area of law that's on almost no bar exams.

Most important, thanks to all of you for your support.  We would be nothing without our readers and this is yet another reminder of how lucky we are on that score.  So keep reading, writing comments, and forwarding news (even if we don't have time to post them all--sorry about that).

Thanks!

-JH and the rest of the crew

October 30, 2008 in About This Blog | Permalink | Comments (2) | TrackBack (0)

More Employers Politicking?

Behindbars
Wow. It looks like the big retailers are pulling out all stops to stop the Obama steamroller with captive audience meetings with their employees to engage in none-too-subtle office politicking (which JH has written about before). 

From the Wall Street Journal:

Retailers are meeting with store managers to warn how a strong showing for Democrats in the Nov. 4 election could cause what they fear would be more economic pain for their companies, in particular by potentially making it easier for unions to organize stores.

The companies are worried about presidential candidate Sen. Barack Obama's stated support for the Employee Free Choice Act, which would do away with secret balloting and allow unions to form if a majority of employees sign cards favoring unionization. The legislation, retailers fear, would have improved chances of becoming law under a Democratic administration . . . .

Home Depot Inc. in recent weeks has held meetings between its employee-relations managers and all the company's salaried employees, including district managers and store managers, on how the Free Choice legislation would change the union-organizing process.

"We think the most basic element of any democracy is the vote by secret ballot, and this bill effectively eliminates that right," said Home Depot spokesman Ron DeFeo. He said individual candidates' stances on the bill weren't discussed at the meetings.

This summer, several labor unions filed a complaint, which is still pending, with the Federal Election Commission, alleging Wal-Mart Stores Inc. essentially encouraged its managers and salaried supervisors to vote against Sen. Obama and other Democratic candidates because of their support for the Free Choice legislation. Wal-Mart said the purpose of the meetings was to educate workers about the bill and the downside of a unionized workplace.

While the Wal-Mart human-resources managers running the meetings didn't specifically tell attendees how to vote, they made it clear that voting for Sen. Obama would be tantamount to inviting in unions.

I and my co-authors, Melissa Hart and Marcia McCormick, made real clear how we feel about this office politicking in a column in The Legal Times.  This is just the addition of more employer intimidation in the workplace.

But the other things that struck me about this "balanced" piece from the WSJ is that unionism is equated with economic pain in the first paragraph. 

If economic pain means less executive compensation for company executives and more pay for the average job in better conditions, than I think they got it right.

PS

October 30, 2008 in Agenda 2009 | Permalink | Comments (1) | TrackBack (0)

Wednesday, October 29, 2008

NLRB General Counsel Issues Report on FY 2008 Operations

Nlrb I haven't reviewed it yet, but here it is.

rb

October 29, 2008 in Government Reports | Permalink | Comments (0) | TrackBack (0)

Charney Fakes an Arbitration

Charney OnPoint Legal News reports that the arbitration of a sexual harassment claim filed against fashion mogul Dov Charney, CEO of American Apparel, was a complete fabrication.

The claimant, Mary Nelson, alleged in her suit that Charney conducted a "reign of sexual terror", parading around the office in his underwear and showing up for one meeting in his home wearing a "sock" where a sock shouldn't be.

Shortly before the case was to be tried, the parties publicly announced that they had agreed that the case would be decided in arbitration.  In actuality, they had settled: Charney would pay Nelson $1.3 million, and Nelson would agree to let Charney unilaterally pick an arbitrator who would rule in Charney's favor.  Charney would then publicly proclaim that he had won the case.  It all unraveled and went back to court; California's Second District Court of Appeals now has ordered the case to be arbitrated, this time presumably for real.

The case is Nelson v. American Apparel, Inc.

Hat tip: Dana Nguyen.

rb


October 29, 2008 in Arbitration | Permalink | Comments (3) | TrackBack (0)

SOX Claims Arbitrable, 2d Circuit Says

Aetna In Guyden v. Aetna, the Second Circuit held that a predispute arbitration agreement is enforceable against an employee suing her employer under Sarbanes-Oxley allegedly for firing her in retaliation for her attempt to bring attention to accounting irregularities. 

The court also rejected the employee's claims that the arbitration agreement should not be enforceable because it (1) contained a confidentiality clause, (2) provided that the arbitrator's award would consist only of a "brief summary" of the arbitrator's opinion, and (3) limited discovery.

rb

October 29, 2008 in Arbitration | Permalink | Comments (0) | TrackBack (0)

Obama Discusses ERISA Reform

ObamaWell, he didn't exactly say "ERISA", but he did have a vignette about companies raiding pension plans, and the need to protect those plans.  At least it's on his radar screen.  Maybe on Wednesday he'll give Paul a phone call and ask Paul how ERISA might be strengthened a bit.

rb

October 29, 2008 in Pension and Benefits | Permalink | Comments (0) | TrackBack (0)

Kennedy ERISA Participants to Brief Plan Document Issue for Supreme Court

4united_states_supreme_court_112904 This is not wholly unpredictable, but the Supreme Court in the ERISA case of Kennedy v. DuPont Savings Plan told the parties to brief an issue that pretty much dominated oral argument.

From SCOTUSBlog:

The Supreme Court on Tuesday ordered lawyers to file new briefs by Nov. 10 on a new issue in a pending case testing a divorced spouse’s right to the other spouse’s pension benefits.  The question was posed in Kennedy v. DuPont Savings Plan Administrator (07-636) — a case heard by the Justices on Oct. 7.  The new question tests the application to the case of a part of federal benefit law that requires benefit plan administrators to operate the plan as dictated by plan documents — an issue that the Court appeared previously to have declined to hear . . . .

The Court granted review only of that specific issue on the proper way to waive benefit entitlement.  The appeal had raised three other questions, one of which tested whether the plan documents of an ERISA pension plan governed distributions.  Even so, both sides discussed the plan documents section of ERISA in their briefs, and the U.S. Solicitor General, joining in the case as an amicus taking a seemingly neutral stance, said that “consideration of the plan documents is critical in evaluating whether the court of appeals reached the correct result in this case.”  The Solicitor General argued further: “ERISA requires a plan administrator to distribute benefits to the beneficiary designated by the participant under the terms of the plan.  A waiver that is not given effect consistent with the provisions of the plan documents cannot trump the terms of the plan.  Thus, the appropriate mechanism for eliminating the beneficiary interest of an ex-spouse is for the participant to change the beneficiary designation in accordance with plan terms.  That process is generally not difficult.  But in all events, the entry of a divorce decree purporting to waive the non-participant spouse’s interest is neither necessary nor sufficient to accomplish that end.”

On Tuesday, the Court posed this new question: “Whether 29 U.S.C. 1104(a)(1)(D), mandating administration of a plan in accordance with plan documents, required that the distribution in question be made to Liv Kennedy, even on the assumption that a waiver of her interest was not otherwise subject to statutory bar.”

So, this is turned into a breach of fiduciary issue under Section 404(a)(1)(D) and failure to follow the terms of the plan.   As I argued in my previous analysis of this case, the shift toward the plan document seems to go against petitioner as "there were means for participants and beneficiaries to make a change, and they weren't followed here."

So I see this as a good sign for the retirement plan, but we shall see.

PS

October 29, 2008 in Pension and Benefits | Permalink | Comments (0) | TrackBack (0)

Tuesday, October 28, 2008

NLRB Productivity

Nlrb The NLRB has just release a report on its case productivity from FY 2008.  Not surprisingly, it's lower than normal--although maybe not as low as you might expect with only two members.  Some of the highlights:




  • The National Labor Relations Board issued 328 decisions in contested cases (255 by the two-member Board).
  • Of this total, 241 were unfair labor practice (C) cases, and 87 were representation (R) cases.
  • At the end of Fiscal Year 2008, the Board’s inventory of pending cases stood at 171, down from 207 at the beginning of the fiscal year.
  • The Board--mostly as the result of vacancies--could not meet its internal goals pursuant to the Government Performance Results Act (GPRA): namely to dispose of 90% of R cases pending as of October 1, 2007, and to dispose of 90% of C cases pending as of May 31, 2007.
  • The two-member Board succeeded in significantly reducing the number of pending GPRA cases: from 106 to 49 C cases (a 54% reduction); and from 58 to 16 R cases (a 72% drop).

Part of the issue is a short-staffed Board, and the remaining two members deserve credit for getting out all the cases that they can (questions about their authority to do so notwithstanding).  Another, more troubling, aspect of the decline is a drop int he number of cases filed with the Board over the last few years. 

If Obama wins the election and the Democrats have significant pick-ups in the Senate, we could be looking at the first substantive amendments of the NLRA is almost four decades.  Indeed, looking at Obama's plans for the NLRA (e.g., EFCA, reversing Mackay Radio), we could possibly witness the biggest changes in the act since Taft-Hartley.  If that happens, one issue that will have to be addressed is the extent that these changes will affect the NLRB's workload and whether it will be given more resources to deal with the increase.  We may be in very interesting times for labor law, which among other things would also mean that I have to answer the question "why should we care about labor law" less often.

Hat Tip:  Dennis Walsh

-JH

October 28, 2008 in Government Reports | Permalink | Comments (4) | TrackBack (0)

Smithfield and UFCW Settle RICO Suit

Smithfield I'll admit it:  I didn't see this one coming.  Only days after Smithfield achieves a significant win by getting a trial on its claims that the UFCW violated RICO, the parties settle.  According to reports, the parties agreed to drop the lawsuit.  Moreover, they agreed to a "fair election" process at one Smithfield facility, although the details have yet to be released.

It's hard to tell exactly what is going on, but it's likely that the union was scared of the possibility of massive damages.  We'll have a better idea after more details of the election process are released.  Also, Smithfield may feel that it's got a better chance of beating a union campaign now--whether for reasons on the ground or because of possible legislative changes (e.g., EFCA) should Obama be elected.  Either way, this will be an interesting one to follow.

Hat Tip:  Dennis Nolan & Dennis Walsh (much easier not to confuse them when they both send me the same thing).

-JH

October 28, 2008 in Labor Law | Permalink | Comments (0) | TrackBack (0)

LeRoy on Judicial Review of Arbitration

Leroym Michael LeRoy (Illinois) has just posted on SSRN his article (forthcoming Journal of Dispute Resolution) Crowning the New King: The Statutory Arbitrator the Demise of Judicial Review.  Here's an excerpt from the abstract:

Judicial review of arbitration awards is highly deferential- but when does it become rubber stamping? Using original data, I find that federal courts vacated only 4.3 percent of 162 disputed awards. Nearly the same result was observed for a sub-sample of 44 employment discrimination awards under Title VII. By comparison, federal appeals courts in 2006 reversed 12.9 percent of 5,917 rulings made by civil court judges on the merits of legal claims.

My textual research shows that the FAA's reviewing standards descended from William III's 1698 Arbitration Act. I suggest that our law crowns today's statutory arbitrator with the king's mantle of infallibility. But this deference is too extreme for awards that rule on statutory claims. In Gilmer v. Johnson/Interstate Lane Corp., the Supreme Court ignored the commercial history of arbitration when it broadly approved a theory of forum substitution. Gilmer said that arbitrators may decide statutory claims, even if one disputant objects to the forum and wishes, instead, to be heard by a court. The result is that the ruling of the arbitrator is subject to a narrower standard for review than an Article III judge's order. Epitomizing this regal deference, a contemporary court said: "The arbiter was chosen to be the Judge. That Judge has spoken. There it ends." In textual and empirical analysis, I show that statutory arbitrations enjoy a presumption of royal infallibility. I conclude with two solutions for aligning the review of rulings by statutory arbitrators and Article III judges.

rb

October 28, 2008 in Arbitration, Scholarship | Permalink | Comments (0) | TrackBack (0)

Monday, October 27, 2008

Bloch is Out as Special Counsel

Bloch File under "what took so long?"  Scott Bloch is finally out as Special Counsel.  As we've detailed before, Bloch's tenure as Special Counsel has been marred by numerous allegations of misconduct, which culminated in a FBI raid of his office.  Although he was initially allowed to announce that he would fill out his term, apparently the White House finally decided to force him out.  As reported by the Washington Post:

Bloch had refused persistent demands from lawmakers and his own employees to leave before the end of the Bush administration, writing to the president on Monday that he would fulfill his five-year term and exit in January. Citing the Greek playwright Sophocles and defending his tenure at the office designed to protect whistleblowers, Bloch wrote that "doing the right thing can result in much criticism and controversy from every side."

Employees learned of Bloch's removal at a hastily called 4 p.m. meeting when they were instructed not to accept his phone calls and told that he no longer had access to the office. The interim chief will be William E. Reukauf, a career employee, according to a White House news release.  In recent weeks several of Bloch's top deputies have left the office, blaming untenable workplace conditions and distractions that stemmed from the criminal investigation.

It's unbelievable that it took this long, but I guess better late than never.

-JH

October 27, 2008 in Labor and Employment News | Permalink | Comments (0) | TrackBack (0)

TriMas Arbitration Decision

Nolan We posted earlier on the Seventh Circuit's decision ordering arbitration in the TriMas dispute.  Now the arbitration decision is out, from arbitrator Dennis Nolan (South Carolina and frequent commentator to this blog).  See here for the full text, from BNA's Daily Labor Report (subscription required; their description of the case is here). 

In his decision, Nolan rejects the employer's argument that the parties had limited the scope of their neutrality agreement (which included voluntary card check recognition) via a union plan to organize a limited number of plants at first.  As Nolan found however, no union official actual signed an agreement related to this "sequencing" strategy; rather, the strategy was merely discussed by the parties and the original neutrality agreement was not modified.  That's a problem because that agreement stated that it could only be modified in writing.

According to Nolan, the neutrality agreement stated that it "includes 'any business enterprise' in which [the employer] owns 50% of the common stock, controls more than 50% of the voting power, or otherwise has power to direct [plus two exceptions note relevant to the case]."  Moreover, the agreement stated that "[t]his [agreement is] a total expression of the parties' intent and can be modified only in writing."  In rejecting the employer's argument, Nolan described this agreement as being "as precise and unambiguous as any business agreement can be."

My reaction to the Seventh Circuit's decision to require arbitration applied equally to the decision here:  makes sense to me.

-JH

October 27, 2008 in Labor Law | Permalink | Comments (1) | TrackBack (0)

The Unemployment Rate is Worse Than You Think

Graph_down I have been telling students in my employment law class for year that the reported unemployment rate that so many in this country depend upon is a farce and does not nearly illustrate the number of the people without jobs or underemployed in the United States.

Daniel Gross of Slate does a nice job explaining this latest form of voodoo economics:

It's hard to overstate the poor numbers coming out of Wall Street in recent months. But could it be that we're overstating the gravity of the situation? As job losses have mounted and consumer confidence has plunged, policymakers, news organizations, econo-pundits, and even some of my Slate colleagues have noted that the unemployment rate, which rose to 6.1 percent in September, seems to be at a nonrecessionary, noncatastrophic, low level. The unemployment rate is still below where it was in 2003; and between September 1982 and May 1983, the last very deep recession, it topped 10 percent . . . .

But maybe the employment data are much worse than they seem. In the past year, the two key measures of employment—the unemployment rate and the payroll jobs figure—have been poor but not awful. The unemployment rate has risen from 4.5 percent a year ago to 6.1 percent. And in the first nine months, 760,000 payroll jobs were lost. This is unwelcome but not catastrophic. So why do things feel so bad? It's not because, as Phil Gramm suggested, we're a nation of whiners. And it's not a matter of columnists and spin doctors shading the numbers to make things look worse . . . .

Rather, these two figures are undermeasuring the weakness in the labor market. By some measures, in fact, the job situation is worse than it has been at any time since 1994.

Here's why. Back in the 1990s, the Bureau of Labor Statistics recognized that in a changing economy, in which outsourcing, self-employment, and contracting were becoming more commonplace, the traditional methods of measuring unemployment and job growth might not accurately portray the economic situation. And it knew its methodology had some quirks—the unemployment rate doesn't account for people who have given up looking for jobs, or who have taken themselves out of the work force. So since 1994, the BLS has been compiling alternative measures of labor underutilization. There are many different varieties of labor underutilization. There are marginally attached workers: "persons who currently are neither working nor looking for work but indicate that they want and are available for a job and have looked for work sometime in the recent past." There are discouraged workers, a subset of the marginally attached crowd, who have "given a job-market related reason for not looking currently for a job." There are people who work part-time because they can't find—or their employer can't provide—full-time work. There are people who have left the work force entirely. Neither the unemployment rate nor the payroll jobs figure captures the plight of many of these folks.

And the alternative labor underutilization measures show a lot of stress. The data on people not in the work force show the number of people not looking for work because they're discouraged about finding jobs has risen from 276,000 in September 2007 to 467,000 in September 2008—up 70 percent. The percentage of people unemployed for more than 15 weeks stood at 2.3 percent in September 2008, up from 1.6 percent in September 2007, a rise of nearly 45 percent.

You can thank me for all this wonderful news later, but for some reason our government has a hard time leveling with us exactly how bad our economy has become.  Consider this a public service announcement from yours truly.

Hat Tip: Dana Nguyen

PS

October 27, 2008 in Labor and Employment News | Permalink | Comments (1) | TrackBack (0)

The Sutton Sisters and the Meaning of the ADA Amendments Act of 2008

Disabilities_act_copy3 We have had one of the better threads in recent memory on the empdiscr listserv last week concerning the intent and meaning of certain sections of the newly-enacted ADA Amendments Act of 2008 (ADAAA).

The discussion begun with a question by George Rutherglen (Virginia) about what happens to the myopic Sutton sisters in the Sutton v. United Airlines case in light of the new provisions in ADAAA.  Chai Feldblum (Georgetown) who was one of the negotiators of the language was gracious enough to allow me to reprint her response here:

Btw, my plan is to post on www.archiveADA.org a number of the original materials from the negotiation that I consider to be “public” documents because they were circulated to about 100 folks (disability and business) during the course of the negotiations.  There were three deals that were made between April 2008 and May 2008, two of which fell apart (one because of rejection primarily by the business community and one because of rejection primarily from the grassroots disability community) and then the final third one which stuck — and which is essentially the law that you have before you today (albeit with a few modifications made in the Senate.)

But first — to the issue under discussion:

Within the second month of the negotiation (the negotiations started in February 2008), we had come to an agreement with the business community on the following three points with regard to overturning the Sutton decision:

1) They agreed that the Supreme Court  had gone too far in ruling that mitigating measures should not be taken into account in determining whether an impairment [substantially] limited a [major] life activity.   For example, in March, we were playing with language along the following lines:

MITIGATING MEASURES NOT CONSIDERED -- In determining whether an individual has a disability, as defined in (2)(A), such determination shall be made without regard to the ameliorative effect of mitigating measures such as medication, use of medical supplies, equipment or appliances, auxiliary aids and services, [prosthetic devices], [reasonable accommodations], learned behavioral modifications, or the body’s own systems.

(I put “substantially” and “major” in quotation marks because we left to a later stage in the negotiation what we were going to do with the level of severity required for prong one.)

2) In order for this type of provision to even be considered by the business negotiators, however, they had to have the assurance that eyeglasses and contact lenses would be considered mitigating measures — so they could tell the folks they represented that “people with eyeglasses would not be covered under the ADA.”

3)  We (the disability negotiators) did not particularly feel, as a policy matter, that people with eyeglasses needed protection under the ADA.  We did feel, however, that employers should not be permitted to do what United did — i.e., have an exclusionary qualification standard that they were never required to justify.  The business negotiators, from their end, agreed with us that employers should be required to justify a qualification standard that required uncorrected vision.  (And they agreed to this primarily because most employers don’t have such qualification standards.)

With these three principles agreed to, we developed the language that you have before you.
We wrote a provision stating that mitigating measures were not to be taken into account; a second provision that said ordinary eyeglasses and contact lenses were to be taken into account (and actually, spent a bunch of hours on the definition of ordinary eyeglasses with the NFB and AFB lawyers); and finally, a third provision that created the obligation on employers to justify any exclusionary qualification standard based on uncorrected vision.

Jennifer Mathis from the Bazelon Center and I spent a bit of time worrying about whether someone would have standing to require the justification of such an exclusionary standard (since they were not otherwise a person with a disability) -- but decided at the end that they would given how we had phrased the provision.  (I’m happy to hear reaction to that! . . .) (Btw, Jennifer and I were the lead disability negotiators; Kevin Barry, the Teaching Fellow at my Clinic at the time, was our awesome young lawyer researcher, together with our students; and we checked in with seasoned lawyers such as Sam Bagenstos on a regular basis . . .)

We did not even consider whether such a person might also be covered under the “regarded as” prong — since we were nowhere near negotiating that provision yet, so we didn’t even know what it would look like yet.  I suppose one could argue that a person with eyeglasses is covered under the “regarded as” prong since myopia is not transitory and minor.  But I can’t imagine why one would want to use that provision -- given that we have the clear qualification provision written specifically for that purpose — unless there really is a standing problem.

(Btw, we also struggled with whether it was ok to limit the qualification standard provision just to Title I.  The reason it is not also applicable to Title III is a creature of the particular dynamics of the negotiation on that particular day.  Ultimately Jennifer and I decided there wasn’t enough of a potential problem for people with eyeglasses under Title III to upset the particular dynamic that had arisen.)

On some of the other comments so far:

Obviously, much of impairment is socially constructed.  Nevertheless, we operated consistently on the assumption that the EEOC’s and DOJ’s current definition of impairment in the regulations would remain the definition of impairment.  Hence, both severe and mild myopia would be an impairment — as would any number of other physical conditions that adversely affect a bodily system.

However, for a person to get a reasonable accommodation or a modification of policies— such an impairment must substantially limit a major bodily function or some other major life activity.  For any other basic non-discrimination protection, one simply needs to demonstrate causation (i.e., the adverse action happened because of the impairment) and the impairment cannot be both transitory and minor.

The overriding goal of these amendments is to (hopefully!) move the focus away from whether a person has a “severe enough” impairment in most of the cases — and onto the question of causation (as it is in gender and race) and, if applicable, the question of qualification.

And, in cases that turn on reasonable accommodations, the goal is to make it much easier for a person to prove coverage as a person with a disability (primarily with the addition of “major bodily functions” as a major life activity; by making it clear that mitigating measures are not to be taken into account; and by making clear that episodic condition are to be considered in their active state) -- and then to move the focus of the litigation to whether the person is qualified and whether the accommodation was required.

Two quick thoughts: (1) it is fascinating to get an insight into what considerations at any time might be dispositive in hammering out eventual statutory language; and (2) it will be interesting to see whether the first courts to interprets ADAAA will do so consistent with the intent Chai relates above.

PS

October 27, 2008 in Disability | Permalink | Comments (0) | TrackBack (1)