March 1, 2008
Top-5 International Employment & Labor Law SSRN Downloads
- Kevin Kolben, Wal-Mart Is Coming, But It's Not All Bad: Wal-Mart and Labor Rights in Its International Subsidiaries (69).
- Leilani O. Baumanis & Robert W. McGee, The Economic, Cultural, and Ethical Effects of International Outsourcing (60).
- Shae McCrystal, Smothering the Right to Strike: Work Choices and Industrial Action (29).
- Heike Schweitzer (photo above), Competition Law and Public Policy: Reconsidering an Uneasy Relationship: The Example of Art. Section 1 (19).
- Shae McCrystal, Collective Bargaining and the TRAde Practices Act: The Trade Practices Legislation Amendment Act (No. 1) 2006 (Cth) (13).
Top-5 Benefits/Compensation/Pension SSRN Downloads
- Susan Liemer & Hollee Temple, Did Your Legal Writing Professor Go to Harvard?: The Credentials of Legal Writing Faculty at Hiring Time (226).
- Richard L. Kaplan (photo above), Top Ten Myths of Social Security (192).
- Zvi Bodie, Doriana Ruffino, & Jonathan Treussard, Contingent Claims Analysis and Life-Cycle Finance (157).
- Edward A. Zelinsky, Golden Gate Restaurant Association: Employer Mandates and ERISA Preemption in the Ninth Circuit (111).
- A.G. (Tassos) Malliaris & Mary Malliaris, Investment Principles for Individual Retirement Accounts (83).
February 29, 2008
EEOC Issues Guidance re: Disabled Veterans
The first, a Guide for Employers, explains how protections for veterans with service-connected disabilities differ under the Americans with Disabilities Act (ADA) and the Uniformed Services Employment and Reemployment Rights Act (USERRA). The document further describes how the ADA in particular applies to recruiting, hiring, and accommodating veterans with service-connected disabilities. The EEOC enforces Title I of the ADA, which prohibits employment discrimination against people with disabilities in the private sector and state and local governments. The U.S. Department of Labor enforces USERRA, which applies to the reemployment of veterans with and without service-connected disabilities.
The second publication, a Guide for Veterans, answers questions that veterans with service-connected disabilities may have about the protections they are entitled to when they seek to return to their former jobs or look to find their first, or new, civilian jobs. The document also explains changes or adjustments that veterans may need, because of their injuries, to apply for, or perform, a job, or to enjoy equal access to the workplace.
Kotkin on Diversity and Discrimination
Minna Kotkin (Brooklyn) has just posted on SSRN her article Diversity and Discrimination: A Look at Complex Bias. Here's the abstract:
Multiple claims are a fixture of employment discrimination litigation today. It is common if not ubiquitous for opinions to begin with a version of the following litany: plaintiff brings this action under Title VII and the ADEA for race, age and gender discrimination. EEOC statistics show the exponential growth of multiple claims, in part because its intake procedures lead claimants to describe their multiple identities, at a time when they have little basis upon which to parse a specific category of bias. But increased diversity in workplace demographics suggests that frequently, disparate treatment in fact may be rooted in intersectional or "complex" bias: while stereotypes for "women" have somewhat dissipated, those for "older African-American women" still hold sway. Complex bias provides a counter-narrative to the currently in vogue characterization of workplace discrimination as "subtle" or "unconscious."
Despite the common sense notion that the more "different" a worker is, the most likely she will encounter bias, empirical evidence shows that multiple claims - which may account for more than 50% of federal court discrimination actions - have even less chance of success than single claims. A sample of summary judgment decisions on multiple claims reveals that employers prevail at a rate of 96%, as compared to 73% for employment discrimination claims generally.
Multiple claims suffer from the failure of courts and "intersectional" legal scholars to confront the difficulties inherent in proving discrimination using narrowly circumscribed pretext analysis. Applying "sex-plus" concepts does not address the underlying paradox inherent in the proof of these cases: the more complex the claimant's identity, the wider the evidentiary net must be cast to find relevant comparative, statistical and anecdotal evidence. Overcoming the courts' reluctance to follow this direction requires the development and introduction of social science research that delineates the nuanced stereotypes faced by complex claimants.
When I Talk, West Virginia Listens
In any event, according to our friends at the Union-Free Employer Blog:
The State Journal (WV) reports that the West Virginia state House has passed H.B. 4132 -- a law that would outlaw any mandatory employer communication to employees regarding politics, religion and/or labor. The issue will now be addressed by the state Senate.
This passed legislation concerns Worker Freedom Act legislation on which I just have published a piece. My mom and the other two or three friends who have read my analysis know that I am happy with this result. Because I don't know West Virginia politics (are you out there Marion Crain or Ann Marie Lofaso?), I have no earthly idea what chance this legislation has of becoming law.
I can tell you that if it is enacted, it will be the very first one (there is a non-labor version in New Jersey) and it will be interesting to study the impact of the law on union organizing efforts.
It will also be interesting to see how the law would fare against NLRA preemption and First Amendment challenges.
We're ranked #17 on a recent list of the top 50 most influential law professor blogs.
February 28, 2008
7th Cir.: Is Association Discrimination Disability Discrimination or Expense Discrimination?
My good friend Howard Bashman, of How Appealing fame, brings to my attention an interesting 7th Circuit case involving association discrimination under the ADA and a controversial concurrence by Judge Posner (pictured left).
Unlike other employment discrimination laws, the Americans with Disabilities Act (ADA) permits workers to sue not only for being discriminated against for their own qualified disability, but also if they can prove they were discriminated against because of the disability of a family member or another associate. Because we are not dealing with the worker's disability, tricky issues come up in this area, none more so than whether such claims properly fit under the "ubiquitous" McDonnell Douglas pretext framework.
Dewitt v. Proctor Hospital, 07-1957 (7th Cir. Feb. 27, 2008) involves a former, well-regarded nursing supervisor at a hospital who alleges she was fired because (among other reasons) of the expense associated with treating her husband's prostate cancer. Her husand's health care costs "were $71,684 [in 2003]. In 2004, the figure jumped to $177,826. In the first eight months of 2005, the expenses were $67,281.50." The hospital challenged the nurse's medical care expenses as unusually high, and even suggested that her husband consider a less-expensive hospice option (sensitive employer of the week, anybody?). Another factor that seemed to suggest that her husband's medical condition motivated her firing was that the nurse was terminated for non-performance reasons, but was labeled as "ineligible for rehire."
Turning to the "infrequently litigated" association discrimination claim, Judge Evans, writing for the majority, found that usually the McDonnell Douglas framework applies even thought it was "a bit like a mean stepsister trying to push her big foot into one of Cinderella’s tiny glass slippers." Neverthless, Judge Evans concluded that there was enough "direct evidence" that the hospital fired her because of her husband's condition such that it was not necessary to apply the framework and that her claim could go forward.
Writing a provocative concurrence (does he write any other kind?), Judge Posner agreed with most of Judge Evan's reasoning and his result, but on the association discrimination claim wrote to raise three questions that did not need be necessarily decided in this case (advisory opinion anyone?):
[(1) T]he alternative ways of establishing a prima facie case of discrimination[, (2)] their suitability to the discrimination charged in this case[,] and [(3)] the difference between discrimination on grounds of expense and discrimination on grounds forbidden by federal law.
First, "it was a mistake for the parties in this case to think that the way to litigate it was to address the two methods of establishing a prima facie case [,direct and indirect,] as if each were in its own sealed compartment." OK, so I have no beef with Posner's first point about there not being tightly compartmentalized proof schemes under direct proof and McDonnell cases. These two types of cases have the tendency to run into one another.
Second, "So far I have assumed that McDonnell Douglas provides an appropriate method of establishing a prima facie case under the rarely litigated “association” provision of the Americans with Disabilities Act, . . . . Yet the inference from these scanty facts that the association had induced the employer’s action would be too weak to justify forcing the defendant to produce evidence that he had taken the action for a different, an innocent reason." Not sure I agree with this point, because after all only the burden of production, not persuasion, is shifting to the employer to articulate a non-discriminatory, legitimate reason in the pretext framework. Is it so hard for the employer to say that we treat people with similar expense medical treatments the same? And then, of course, the ultimate burden is on the plaintiff to show pretext and the real reason was unlawful disability discrimination.
And then third, and most controversially (so I quote this in some length):
But if the disability plays no role in the employer’s decision—if he would discriminate against any employee whose spouse or dependent ran up a big medical bill—then there is no disability discrimination. It’s as if the defendant had simply placed a cap on the medical expenses, for whatever cause incurred, that it would reimburse an employee for. This appears to be such a case . . . . All the evidence recited in the majority opinion concerns costs (“cutting costs,” “high cost of Anthony’s medical treatment,” “financial albatross,” etc.) that a person who had a nondisabling medical condition could equally incur. . . .
If cost was indeed, as appears to be the case, the defendant’s only motive for the action complained of, the defendant was not guilty of disability discrimination . . . . But it has never made this argument, and so reversal is proper . . . . [Neverthless,] the defendant will be able to argue the cost point on remand unless the district judge finds that it has been forfeited by being withheld for so long.
Here, I couldn't disagree more with Judge Posner's rigid formalism. Disability discrimination is not just based on prejudice against one's disability for let's say distaste or distraction on the one hand, and the cost associated with the disability on the other. It is usually a combination of such factors. Indeed, it is not too far-fetched to believe that much of the bias against individuals with disabilities (and those that support them) is caused to a considerable degree because of the vast expense sometimes associated with having a disability and the consequent belief of others that those with disabilities and their associations are getting an unfair advantage. In other words, I just don't see expense discrimination being a category, separate and apart, from disability discrimination at all.
An even more crucial point for this case: cost is not a bfoq justification in the direct proof scheme and this is apparently a direct proof case. So is Posner suggesting that we adopt Justice Scalia's dissent in Johnson Controls and now find that a bfoq can be found based on a cost-based justifications? Isn't Posner ignoring the relevant precedent here? And wouldn't such reasoning permit sex, religious, and national origin discrimination based on cost in more situations as well (e.g., we are not building a separate bathroom for women not because you are a woman, but because it is too expensive - Scalia's boat hypothetical from Johnson Controls).
Unfortunately, and I think inappropriately, Posner has suggested a litigation roadmap to defendant in this case. I hope that the appropriate direct proof framework will be applied and this case gets decided on that basis.
Truitt Financial Disclosure and American Axle
I always love when something I've recently taught in class dovetails nicely into a current event being discussed in the popular press. Case in point: yesterday in Labor Law class, we discussed the duty to bargain in good faith under Section 8(d) of the NLRA and the per se violation of Section 8(a)(5) that occurs when a company says it has a present inability to pay a union's bargaining demand and then refuses to substantiate those claims by giving information to the union. Under Truitt and Detroit Edison, such information is due to the union so it can carry out its role as bargaining representative of employees.
So yesterday after class, my trusty research assistant Brent Klein wrote: "the UAW went on strike at American Axle in an attempt to gain access to company financial documents. The union claims these documents are needed to justify the across the board wage and benefit cuts that American Axle is requiring to move labor contract negotiations forward. The fact that distinguishes this situation from that of the Big Three (which recently negotiated their own contracts and accepted similar cuts) is American Axle turned a $37 million profit last year, a far cry from the 38.7 billion loss suffered by General Motors last year."
Ah, the continuing relevancy of labor law.
Smith on Public Discourse and the Economy of Racialization in the Workplace
Terry Smith (Fordham) has posted on SSRN his forthcoming piece in the American University Law Review entitied: "Speaking Against Norms: Public Discourse and the Economy of Racialization in the Workplace."
Here's the abstract:
Free speech controversies erupt from reactions to outlier voices, and these voices are often those of subordinated citizens such as racial minorities. Employing the tools of narrative, interviews with litigants and subjects, and interdisciplinary analysis of case law, Professor Terry Smith probes whether the social inequality of government employees of color affects the rigor of the First Amendment protection afforded their speech.
Professor Smith argues that all public sector employees lack sufficient protection because their speech typically does not receive the highest constitutional scrutiny and because of the Supreme Court's recent decision in Garcetti v. Ceballos, which stripped public sector employees of much constitutional recourse when their speech is made pursuant to their official duties. Yet when this already porous protection is applied in cases involving workers of color who may speak from the vantage point of their social inequality, the interaction of subordinate status and outsider speech distorts the proper application of extant-albeit still inadequate-First Amendment doctrine. Rather than repair to advocating a change in the level of constitutional scrutiny accorded public employee speech, Professor Smith draws on the Supreme Court's recent decision in Burlington Northern & Santa Fe Ry. Co. v. White, involving retaliation under Title VII, to demonstrate how First Amendment public employee plaintiffs, including employees of color, can fortify the First Amendment's protections within the framework of existing law.
Like Terry, I am no fan of Garcetti (understatement of the day). And I have seen how Garcetti has had an even more drastic impact on federal employees. So I look forward to reading Terry's paper both for its focus on minority public employees and for its use of Burlington Northern to find a better way to protect all public employee free speech rights.
van Heerden to Speak at Yale on Protecting Workers' Rights
Auret van Heerden, president and CEO of the Fair Labor Association, will speak Tuesday, March 4, at Yale Law School. His talk, sponsored by the Orville H. Schell, Jr. Center for International Human Rights, is titled Can Voluntary Private Initiatives Save Labor Law Enforcement? Multinational Enterprises’ Role in Protecting Workers’ Rights. It begins at 6:10 p.m. in Room 121 and is free and open to the public.
Yale Law School professor Jim Silk ’89, the executive director of the Schell Center, said, “As a founding board member of the Fair Labor Association, I believe it is an innovative approach to improving respect for workers’ rights around the world. I think of it as an increasingly successful experiment, and its increasing effectiveness has been due in large part to Auret’s experience, vision, determination, gift for working with people with divergent backgrounds and interests, and, in particular, ability to improve the organization’s approach in light of learning. Given students’ long interest in combating sweatshops, this will be an important talk at Yale.”
February 27, 2008
Attorney Prosecuted After Clients Walk Off Job
Just when you think you've seen it all, along comes a case like this. The facts and intrigue behind what may be going on seems quite complicated, but the bottom-line is that an attorney and his clients are facing criminal charges after they walked off their nursing job at a facility that had several ill children. The story is from law.com (courtesy of the New York Law Journal)--I'm only giving the basics, but it's definitely worth reading the entire article:
A lawyer who advised 10 nurses that they were free to quit their jobs at a Long Island nursing facility now faces 13 criminal charges as a result of the nurses' walkout -- a prosecution his supporters say could have a chilling effect on attorneys who represent workers in labor disputes. [T]he Suffolk County district attorney's office claims that the nurses endangered five chronically ill children and one terminally ill man when they left their posts without giving sufficient notice to administrators to find replacements. Assistant District Attorney Leonard Lato said in an interview that [Felix Q.] Vinluan was indicted along with his clients because he did more than just advise his clients of their rights.
The nurses, who had been in the country since 2005, complained to Vinluan about substandard pay, shabby living conditions, changes in work assignments and other violations of their three-year contracts. "I advised them they could resign if they wanted to as their contracts were already breached," said Vinluan. "I told them 'you are at-will employees and you can be terminated at any time, [so] in the same way you can terminate your employment.'" "He adamantly denies telling them to resign," said Oscar Michelen, a partner at Sandback, Birnbaum & Michelen in Mineola, N.Y., who is representing Vinluan. "He told them they could resign." Three of the nurses named in the indictment -- Harriet Avila, Claudine Gamiao and Juliet Anilao -- also denied in an interview that Vinluan encouraged them to quit.
According to the district attorney's office, on April 6, Vinluan filed a discrimination complaint on behalf of the nurses against Avalon Park and SentosaCare at the U.S. Department of Justice in Washington, D.C. Late in the afternoon of April 7, the nurses who had met with Vinluan submitted their resignations. In September 2006, the state Education Department, after two hearings, rejected SentosaCare's complaints that the nurses had abandoned patients. According to The New York Times, a Health Department review concluded in January that shifts had been covered. Nevertheless, on March 22, 2007, a grand jury indicted Vinluan for participating in a conspiracy to obtain "alternative employment" for his clients and a release from their three-year commitment "without incurring a financial penalty of $25,000" provided in their contracts for breaching the agreement.
Vinluan and the nurses each were charged with a single count of conspiracy in the sixth degree, five counts of endangering the welfare of a child, and six counts of endangering the welfare of a physically disabled person. In addition, Vinluan was charged with solicitation in the fifth degree. That offense is aimed at defendants who, with intent that another person commit a crime, "solicits, requests, commands, importunes or other attempts" to cause that person to commit the crime.
A telling sign is the prosecutor's explanation for why he ultimately brought the case before the grand jury. He stated that he initially did not think that an indictment was warranted because after interviewing the nurses "they seemed like hardworking, good people." But "when I went into the nursing facility and I saw the children -- I'd never seen children on ventilators -- my feelings changed about the case." The grand jury indicted them and a judge, rejecting arguments for dismissal by the defendants, has set a trial date.
So, when do you think that the DA's office is going to prosecute an employer who terminates without notice an employee with a severely ill child?
Hat Tip: Jason Walta
Supreme Court Affirms Holowecki EEOC "Charge" Case For Plaintiffs
Update: Paul Mollica has this additional analysis. I agree with him when he writes:
It seems to me that the Court reached a just solution (and, in full disclosure, I authored an amicus brief for a coalition of public interest groups in support of Holowecki). It recognizes that most charges are filed by uncounselled lay folk. "The system must be accessible to individuals who have no detailed knowledge of the relevant statutory mechanisms and agency processes. It thus is consistent with the purposes of the Act that a charge can be a form, easy to complete, or an informal document, easy to draft." (And had the opinion come out the reverse way, imagine the headline on that story: "Supreme Court Says Age Bias Claim Loses Because Employee Files Wrong Form.") It is also a smashing vindication of deference to the EEOC's administrative authority, very useful for plaintiffs in future cases.
Have to admit that I was a little nervous when I first read that the opinion in Federal Express v. Holowecki, the case concerning the meaning of a "charge" under Title VII (previous coverage here), that came down from the Supreme Court today was written by Justice Kennedy. My mind was relieved, however, when I saw that he was joined by Ginsburg and the other progressive justices and there was a dissent by Scalia and Thomas. 7-2 for plaintiff, actually about what I predicted (though I though there be something about equitable tolling).
Here's the highlights to the syllabus of the case:
The Age Discrimination in Employment Act of 1967 (ADEA) requires that "[n]o civil action ... be commenced ... until 60 days after a charge alleging unlawful discrimination has been filed with the Equal Employment Opportunity Commission" (EEOC), 29 U. S. C. sec. 626(d), but does not define the term "charge." After petitioner delivery service (FedEx) initiated programs tying its couriers' compensation and continued employment to certain performance benchmarks, respondent Kennedy (hereinafter respondent), a FedEx courier over age 40, filed with the EEOC, in December 2001, a Form 283 "Intake Questionnaire" and a detailed affidavit supporting her contention that the FedEx programs discriminated against older couriers in violation of the ADEA. In April 2002, respondent and others filed this ADEA suit claiming, inter alia, that the programs were veiled attempts to force out, harass, and discriminate against older couriers. FedEx moved to dismiss respondent's action, contending she had not filed the "charge" required by sec. 626(d). Respondent countered that her Form 283 and affidavit constituted a valid charge, but the District Court disagreed and granted FedEx's motion. The Second Circuit reversed.
1. In addition to the information required by the implementing regulations, i.e., an allegation of age discrimination and the name of the charged party, if a filing is to be deemed a "charge" under the ADEA it must be reasonably construed as a request for the agency to take remedial action to protect the employee's rights or otherwise settle a dispute between the employer and the employee. Pp. 3-13.
(a) There is little dispute that the EEOC's regulations--so far as they go--are reasonable constructions of the statutory term "charge" and are therefore entitled to deference under Chevron U. S. A. Inc. v. Natural Resources Defense Council, Inc., 467 U. S. 837 . However, while the regulations give some content to the term charge, they fall short of a comprehensive definition. Thus, the issue is the guidance the regulations give. Title 29 CFR sec. 1626.3 says: "charge shall mean a statement filed with the [EEOC] which alleges that the named prospective defendant has engaged in or is about to engage in acts in violation of the Act." . . . .
(b) Just as this Court defers to reasonable statutory interpretations, an agency is entitled to deference when it adopts a reasonable interpretation of its regulations, unless its position is "'plainly erroneous or inconsistent with the regulation,'" Auer v. Robbins, 519 U. S. 452 .
(c) That does not resolve this case because the regulations do not state what additional elements are required in a charge. The EEOC submits, in accordance with a position it has adopted in internal directives over the years, that the proper test is whether a filing, taken as a whole, should be construed as a request by the employee for the EEOC to take whatever action is necessary to vindicate her rights. Pp. 6-8.
(d) The EEOC acted within its authority in formulating its request-to-act requirement . . . . Assuming these interpretive statements are not entitled to full Chevron deference, they nevertheless are entitled to a "measure of respect" under the less deferential standard of Skidmore v. Swift & Co., 323 U. S. 134 , see Alaska Dept. of Environmental Conservation v. EPA, 540 U. S. 461 , whereby the Court considers whether the agency has consistently applied its position, e.g., United States v. Mead Corp., 533 U. S. 218 . Here, the relevant interpretive statement has been binding on EEOC staff for at least five years . . . .
(e) FedEx's view that because the EEOC must act "[u]pon receiving ... a charge," 29 U. S. C. sec.626(d), its failure to do so means the filing is not a charge, is rejected as too artificial a reading of the ADEA. The statute requires the aggrieved individual to file a charge before filing a lawsuit; it does not condition the individual's right to sue upon the agency taking any action. Cf. Edelman v. Lynchburg College, 535 U. S. 106 . . . .
2. The agency's determination that respondent's December 2001 filing was a charge is a reasonable exercise of its authority to apply its own regulations and procedures in the course of the routine administration of the statute it enforces. Pp. 13-17 . . . .
The fact that respondent filed a formal charge with the EEOC after she filed her District Court complaint is irrelevant because postfiling conduct does not nullify an earlier, proper charge. Pp. 13-15.
(b) Because the EEOC failed to treat respondent's filing as a charge in the first instance, both sides lost the benefits of the ADEA's informal dispute resolution process. The court that hears the merits can attempt to remedy this deficiency by staying the proceedings to allow an opportunity for conciliation and settlement. While that remedy is imperfect, it is unavoidable in this case. However, the ultimate responsibility for establishing a clearer, more consistent process lies with the EEOC, which should determine, in the first instance, what revisions to its forms and processes are necessary or appropriate to reduce the risk of future misunderstandings by those who seek its assistance. Pp. 16-17.
After the Mendlesohn punt yesterday, it is nice to see the Court roll up its sleeves and get analytically dirty with the procedural aspects of employment discrimination law (technically, this is an ADEA case, but it will apply to other claims under Title VII, ADA, etc. too).
The opinion has a little bit for everyone and may be the first time in a while that I can remember the Court deferring to the EEOC under any standard, Chevron, Skidmore, whatever. At the same time, the Court takes a shot across the EEOC's bow (sorry for all the lame metaphors) and tells them to clean ship (couldn't resist).
The case's outcome is good on two levels for employment discrimination plaintiffs. First, it allows these Fed Ex plaintiffs to get to the substance of their complaint and second, it will force the EEOC to come out with clear regulations on what counts as a "charge" in the future so the parties are able to structure their future conduct accordingly and not be prejudiced by a shifting rules.
And finally, I have to say that this well-reasoned majority opinion restores my faith somewhat that this court is not completely in the bag for employer interests. Not completely.
Stein & Waterstone on Disability Harassment
Michael Stein (William & Mary) and Michael Waterstone (Loyola Los Angeles) have again collaborated, this time to review Mark Weber's book Disability Harassment. Stein & Watersone's review, Disabling Prejudice (forthcoming Northwestern U. L. Rev.), has just been posted on SSRN. Here's the abstract:
This is a review of Mark C. Weber's book Disability Harassment. Weber's work provides powerful evidence of an important but often unacknowledged form of intentional discrimination against people with disabilities. It also provides a doctrinal formulation by which to address this issue, as well as normative arguments for why we should. Weber's work draws insight from social science research suggesting that discomfort and anxiety relating to disability can lead non-disabled people to deliberately stigmatize people with disabilities. Yet a growing body of legal and social science research suggests that the discomfort generated by minorities, women, and people with disabilities in the workplace also leads to less acknowledged, even unconscious forms of discrimination. Like the blunt disability harassment Weber discusses, courts and legislatures have found that this less blatantly recognized variant of discrimination is difficult to confront and address
We therefore address invidious unconscious discrimination in this Review Essay by making the case for why people with psycho-social (also called, mental) disabilities, who are largely considered to be among the most stigmatized individuals, should and can be integrated into the workplace. In doing so, our assertions go beyond legal protections to argue that occupationally integrating individuals with mental disabilities is also beneficial for their co-workers without disabilities.
Part I of this Review Essay sets forth Weber's thesis, arguments, and conclusions regarding disability-based harassment. Part II briefly overviews the influence of deeply embedded unconscious discrimination, especially as it affects occupational participation by minority groups, including people with disabilities. Next, Part III provides an initial treatment of why people with mental disabilities normatively should and practically can be incorporated into the workforce. In doing so, we highlight some of the less currently appreciated benefits of integrating these workers. We conclude with a few thoughts on how incorporating individuals with psycho-social disabilities may be seen as part of the overall dynamic of increasing flexibility in the evolving workplace, including some advantages that redound to their non-disabled peers.
February 26, 2008
"Me Too" ADEA Evidence Decision Unanimously Reversed and Remanded on Deference Grounds
Here are the relevant parts of the syllabus of the unanimous Supreme Court ADEA opinion written by Justice Thomas in Sprint/United Management v. Mendelsohn, 552 U.S. x (2008):
In respondent Mendelsohn's age discrimination case, petitioner Sprint moved in limine to exclude the testimony of former employees alleging discrimination by supervisors who had no role in the employment decision Mendelsohn challenged, on the ground that such evidence was irrelevant to the case's central issue, see Fed. Rules Evid. 401, 402, and unduly prejudicial, see Rule 403. Granting the motion, the District Court excluded evidence of discrimination against those not "similarly situated" to Mendelsohn. The Tenth Circuit treated that order as applying a per se rule that evidence from employees of other supervisors is irrelevant in age discrimination cases, concluded that the District Court abused its discretion by relying on the Circuit's Aramburu case, determined that the evidence was relevant and not unduly prejudicial, and remanded for a new trial.
Held: The Tenth Circuit erred in concluding that the District Court applied a per se rule and thus improperly engaged in its own analysis of the relevant factors under Rules 401 and 403, rather than remanding the case for the District Court to clarify its ruling.
(a) In deference to a district court's familiarity with a case's details and its greater experience in evidentiary matters, courts of appeals uphold Rule 403 rulings unless the district court has abused its discretion. Here, the Tenth Circuit did not accord due deference to the District Court . . . .
(b) Because of the Tenth Circuit's error, it went on to assess the relevance of the evidence itself and conduct its own balancing of probative value and potential prejudicial effect when it should have allowed the District Court to make these determinations in the first instance, explicitly and on the record.
So the Supreme Court seems has punted somewhat on the more difficult evidentiary issues discussed here and decided this case on the easiest possible basis: a lack of proper deferral by the 10th Circuit to the district court's ambiguous conclusion. As a result, the Supreme Court did not have to weigh in on the relevancy of "me too" in an ADEA discrimination case, especially one involving a reduction-in-force.
However, in what might be important dicta down the road in employment discrimination cases everywhere, Justice Thomas wrote:
We note that, had the District Court applied a per se rule excluding the evidence, the Court of Appeals would have been correct to conclude that it had abused its discretion. Relevance and prejudice under Rules 401 and 403 are determined in the context of the facts and arguments in a particular case, and thus are generally not amenable to broad per se rules. See Advisory Committee’s Notes on Fed. Rule Evid. 401, 28 U. S. C. App., p. 864 (“Relevancy is not an inherent characteristic of any item of evidence but exists only as a relation between an item of evidence and a matter properly provable in the case”). But, as we havediscussed, there is no basis in the record for concluding that the District Court applied a blanket rule.
Expect to see that language cited often by employment discrimination plaintiffs. Indeed, given the current rightward-bent of this Court and its tendency to support employer interests, this decision has to be deemed a moral victory for ADEA plaintiffs, although I doubt the remand/clarification of this issue will be decided in Mendlesohn's favor.
And FWIW, my 5-4 prediction for Sprint based on substantive issues completely missed the boat. Imagine that!
Recently Published Scholarship: The Captive Audience
Comparative Labor Law & Policy Journal
Volume 29, Number 2, Winter 2008
- The Captive Audience, p. 67.
- Argentina: Jorgelina Alimenti, Captive Audience Speech: Argentina, p. 71.
- Canada: David J. Doorey, The Medium and the ‘Anti-Union’ Message: ‘Forced Listening’ and Captive Audience Meetings in Canadian Labor Law, p. 79.
- Germany: Christoph Gyo, Legitimacy of Captive Audiences in Germany, p. 119.
- Japan: Hisashi Okuno, Captive Audience Speeches in Japan: Freedom of Speech of Employers v. Workers’ Rights and Freedoms, p. 129.
- New Zealand: Paul Roth, Captive Audience Speech Under New Zealand Law, p. 147.
- Spain: Núria Pumar Beltrán, Captive Audience Speech: Spanish Report, p. 177.
- Turkey: Nurhan Süral, Captive Audience Speeches in the Labor-Management Setting in Turkey, p. 191.
- United States: Paul M. Secunda, Toward the Viability of State-Based Legislation to Address Workplace Captive Audience Meetings in the United States, p. 209.
First LaborProf Gely Off to Missouri
As Brian Leiter brought to everyone's attention this morning, this blog's founding father, Rafael Gely who is currently at Cincinnati Law School is heading to an endowed chair at the University of Missouri next year. Quite a coup for those Tigers!
Rafael joined the law faculty at the University of Cincinnati in 2000. He regularly publishes on labor law and labor relations and has served on the editorial board of the Journal of Legal Studies Education and Employee Rights and Employment Policy Journal. Recent publications (there are a veritable multitude as Rafael is one of the most prolific labor and employment law scholars out there) include:
Card Check Recognition: New House Rules for Union Organizing, 35 Fordham Urb. L.J. ___ (2008) (with Timothy Chandler)
Fishing in Different Ponds: An Industry Level Analysis of Organizing Activity, 10 WorkingUSA: J. Lab. & Soc'y 209 (2007) (with Timothy Chandler).
Social Isolation and American Workers: Employee Blogging and Legal Reform, 20 Harv. J.L. & Tech. 287 (2007) (with Leonard Bierman).
The Law and Economics of Identity, 14 Duke J. Gender Law & Pol'y 229 (2007).
Workplace Blogs and Workers' Privacy, 66 La. L. Rev. 1079 (2006) (symposium) (with Leonard Bierman).
Congratulations, Rafael, and good luck with your move!
Union Busting, UK Style
[There] appears to be a steadily growing trend for UK companies to hire aggressive, US-style "union busters" to persuade their employees not to join a trade union.
The threat is serious enough for Brendan Barber, the TUC general secretary, and Stewart Acuff, director of organising at the TUC's American equivalent, the American Federation of Labour and Congress of Industrial Organisations (AFL-CIO), to have announced this month that the two organisations were joining forces to "thwart employer efforts on both sides of the Atlantic to demonise trade unions and scare employees from joining up".
Some of the firms are home-grown, but an increasing number of companies in the U.K. are hiring American union busters. The tactics will sound familiar [list compiled by WRBN]:
- Taking a £80 donation to a Cuba Solidarity Campaign, a reputable organisation, equates to "Your subscription bankrolls one-party communist states."
- Employees repeatedly told that the arrival of a union will inevitably result in conflict, confrontation and strike action, with a consequent loss of earnings, and that collective bargaining can in any case often lead to lower pay.
- Plying workers with bumper stickers with a huge red tick to the no box, lollipops on a stick printed with the refrain "Unions suck", bags of "Union free" popcorn, and sponges that say "Don't get soaked for union dues - vote no!"
- Videos depicting a long and lurid history of evil union ways, and cartoon postcards showing a drawing of a big fat cat, a lighted cigar in its mouth and its paw pointing directly out at you. "This is your union," reads the caption.
For more, see Jon Henley & Ed Pilkington, Divide and Rule.
New NLRA Consent Election Rule
BNA's Daily Labor Report (subscription required) is reporting that the NLRB is scheduled to published a proposed rule creating a new consent election procedure. An employer and union would be able to jointly file a new "RJ" petition, after which a Board-run election would occur at a agreed-upon date no more than 28 days later. According to the DLR:
Under the proposal, no showing of interest among employees would be required. . . . Within three days of the docketing of the joint petition, the regional director would notify the parties of his or her approval of the election petition and send the employer official NLRB notices to be posted in the workplace informing employees that a joint petition has been filed and specifying the date, place, and hours of the election. The employer also must post the official NLRB notice of election for at least three working days prior to the day of the election. Motions to intervene could be filed within 14 days of the docketing of the joint petition.
All election and postelection issues would be resolved by the regional director, with no appeal to the board. The filing of unfair labor practice charges would not block the election or cause the ballots to be impounded.
The big change here is the elimination of the requirement that at least 30% of the proposed unit employees express their interest in an election, as is required under current consent election rules (readers with more election experience than me should feel free to add their thoughts on additional effects, such as a quicker election). I don't know how many employers would be willing to sign such a petition, or how many unions would be willing to have an election set before they get 30% interest, although the prospect of a quicker election would be attractive to unions. In short, I like the increased flexibility for election procedures but, if the rule is promulgated, will take a wait and see approach as to its practical effect.
The proposed rule is scheduled to be published in the Federal Register on February 26 and comments will be accepted for 30 days after that date.
February 25, 2008
Pay Inequity Persists
Carol Hymowitz writes in today's Wall Street Journal that "progress for women and minorities in terms of both pay and power has stalled or regressed at many of the nation's biggest companies." She continues:
More than 40 years after job discrimination was outlawed, the wage gap between white men and just about everyone else persists . . . . Black men . . . earned 74% of the wages of white males; Hispanic men earned 58%. Full-time female employees earned 77% of all men's median wages. Breaking it down in terms of race, Asian-American women earned 78% of the median annual pay of white men; white women earned 73%; black women, 63%; and Hispanic women, 52%.
Moreover, these disparities cannot be explained by level of education. Young women, for example, are significantly more likely than men to have college degrees, but nonetheless lag in pay.
For more, see On Diversity, America Isn't Putting Its Money Where Its Mouth Is (subscription required).
Pornography and Public Employment: Further Implications of Garcetti
Having just returned from speaking at a great conference hosted by the First Amendment Law Review at UNC on all things Garcetti, it is interesting to see many of the various issues discussed there come to the fore in a recent case, Davis v. McKinney, No. 07-20184 (5th Cir. Feb. 21, 2008), decided by the Fifth Circuit this past Thursday. For the uninitiated, Garcetti v. Ceballos (U.S. 2006) is the watershed public employment free speech case that drastically cut down on public employees First Amendment expression rights while such employees are working pursuant to their official duties.
In Davis, here are the interesting background facts:
Davis filed this suit against the above named defendants and the several arms of the University of Texas (“UT”) System. Prior to December 2003, Davis was the IS Audit Manager at the UT Health Science Center in Houston, Texas (“UTHSC-H”). As IS Audit Manager, Davis’ job duties included overseeing computer-related audits and creating audit summaries and reports. Defendant McKinney is the Senior Executive Vice-President and Chief Operating officer of UTHSC-H. Defendant Chaffin is the UT System’s Director of Audits and System-wide Compliance Officer . . . .
[After applying for a promotion, Davis was involved in an audit investigation of physicians' computers.] Davis engaged IT Security and Information Service departments for assistance in confiscating computers from UT personnel. Eleven computers were identified that were believed to have intentionally accessed pornography. After further investigation, evidence in ten of the eleven computers strongly indicated that pornography had been intentionally accessed, including some material that Davis believed to be child pornography . . . .
Davis asked Corum [her direct supervisor] to be taken off the investigation because she felt it created a hostile work environment and the requirement that she review repugnant pornographic material denigrated her as a woman. Davis felt that she was receiving “heat” from other employees and that management was unresponsive to the findings of the inquiry.
Thereafter, Davis was given mundane tasks and she faced continuing harassment from those employees and supervisors who did not want her to continue with her investigation. She therefore sent an internal complaint letter regarding the "unethical and illegal" activity directed at her and alleged, "that upper management had a pattern of sweeping pornography investigations under the rug and not terminating or disciplining offending employees." In this same letter, Davis wrote that, "because she was no longer confident that the UT System could investigate itself, she had contacted the Federal Bureau of Investigation concerning possible child pornography on eight computers and the EEOC about discriminatory practices." This last action to go whistle blower would turn out to be crucial.
The UT System eventually decided not to fill the job that Davis sought promotion into and she also claimed retaliation. Davis later quit, alleging that she had been constructively discharged and now suffered from depression.
What makes a case like this so fascinating (at least to employment law geeks like myself) is that without the public employment angle, this would be a fairly (sorry to say), run-of-the-mill Title VII discrimination and retaliation case. But because these events transpired in the public workplace, Davis alleged that her employer violated her First Amendment free speech rights by retaliating against her for speaking out on matters of public concern.
And this is where Garcetti changes everything. Rather than starting with whether what Davis complained about was a private personnel matter or a matter of public concern (which was the threshold question under Connick v. Myers (U.S. 1983), Garcetti now requires at the threshold that it be determined whether the employee was acting pursuant to her professional duties or merely speaking as a citizen. This inquiry is not merely about the job title one has, but what functions one actually carries out. There is also much controversy in these case where the employee is an investigator of some sort and the question is whether she is merely performing her job or going beyond her normal job functions by reporting misconduct by others in the organization (for those of you familiar with SOX whistle blowing cases, all this might ring a bell).
Even if you are lucky enough to get by summary judgment on the liability issues in a public employee case like Davis did (few employees do: in 2007, employees lost 21 out of 26 of these cases on the appellate level and many more on the district level), there are still complicated issues of qualified immunity since this is a civil rights case brought under Section 1983 (at least for state and local employees; federal employees go through an even more arcane and more difficult framework).
In Davis, not only did the appellate court review the very unusual pro-employee findings that the employee spoke as a citizen, not as an employee it making her complaint, but as an interlocutory appeal, also examined the issue of whether the individual defendants should be granted qualified immunity. The standard is whether the officials' conduct was "objectively reasonable in light of clearly established law at the time of the incident."
The problem for public employee plaintiffs here is that nothing under Garcetti is really "clearly established." To the court's credit and as about twelve different speakers agreed at the First Amendment Law Review Symposium this past week, "Garcetti changed this [public employee free speech] analysis in ways not yet fully determined." Nevertheless, the court was able to point to an emerging principle that,
Cases from other circuits are consistent in holding that when a public employee raises complaints or concerns up the chain of command at his workplace about his job duties, that speech is undertaken in the course of performing his job . . . .
If however a public employee takes his job concerns to persons outside the work place in addition to raising them up the chain of command at his workplace, then those external communications are ordinarily not made as an employee, but as a citizen.
In other words, it appears that the Garcetti question is beginning to turn on whether one is an internal or external whistle blower (which incidentally is how some states define the scope of their own whistle blowing statutes). In any event, under this analysis, Davis was considered an external whistle blower for some of her statements because she also complained to the FBI and the EEOC. But Davis still has a very long road ahead of her if she is ultimately to prevail: on remand, she must be still show she was speaking on matters of public concern, that her First Amendment interests outweighed her employer's efficiency interests (the Pickering balancing test), that her employer would not have made the same decision absent this protected conduct (Mt. Healthy test), and that it was not objectively reasonable for the defendant officials to take the actions they did given what were then the clearly established constitutional rights. Phew! It is amazing any one even bothers to bring this type of complaint.
The lingering question is whether this development in the law of public employee constitutional rights is a good one. I think not. Employees are being given an incentive to air the dirty laundry of their public employers for all to see in order to gain constitutional protection. This makes no sense and is counter to other areas of employment law (see sexual harassment law cases like Faragher) in which employees are required to first exhaust internal procedures with their employer before filing an external complaint. Yet, in the Garcetti situation, there is no exhaustion requirement (the court recognizes in footnote 3 that, "it is not dispositive that a public employee’s statements are made internally."), so one might as well just go directly outside of one's employer to gain additional protection. This state of affairs leads to a waste of judicial resources on unnecessary litigation that might have been nipped in the bud if the employee just simply complained internally.
None of this is surely an enviable position for any plaintiff who is not merely seeking to vindicate a private interest in getting their job back, but is also seeking to vindicate a public interest in holding public employers accountable to the citizens they are supposed to be serving.
Hat Tip: Elaine Mittleman