Workplace Prof Blog

Harris Confirmed

On Thursday, the Senate confirmed Seth Harris (formerly NYLS) as Deputy Secretary of the Department of Labor (see here for bio).

Congratulations, Seth!

-JH

Bronfenbrenner's New Analysis of Employer Behavior During Union Elections

Kate Bronfenbrenner has recently released "No Holds Barred:  The Intensification of Employer Opposition to Organizing" (published by American Rights at Work Education Fund and the Economic Policy Institute), which takes an updated look at employer attempts to resist organizing.  Studying NLRB documents over a four-year period from 1999 to 2004, Bronfenbrenner finds an increase in employer opposition to union organizing over her previous studies.  According to the EPI press release (you can also check out a fact sheet on her findings):

Bronfenbrenner’s study documents the increased use by employers of more punitive tactics such as plant closing threats and actual plant closings, discharges, harassment, disciplinary actions, surveillance, and alteration of benefits and working conditions. At the same time, employers are less likely to offer “carrots,” such as unscheduled raises, positive personnel changes, bribes, special favors, social events, promises of improvement, and employee involvement programs.

Private sector campaigns differ markedly from public sector ones, where 37 percent of workers belong to unions. Survey data from the public sector describe an atmosphere in which workers may organize relatively free from the kind of coercion, intimidation, and retaliation that so taints the election process in the private sector. Most of the states in the public sector sample have laws allowing workers to choose a union through the majority sign-up process.

* * *
According to Bronfenbrenner, in NLRB election campaigns, it is standard practice for workers to be subjected by corporations to threats, interrogation, harassment, surveillance, and retaliation for union activity. From the 1999-2003 data:

-63% interrogate workers in one-on-one meetings with their supervisors about support for the union
-54% threaten workers in such meetings
-57% threaten to close the worksite
-47% threaten to cut wages and benefits
-34% fire workers

Even when workers succeed at forming a union, 52 percent are still without a contract a year after they win the election, and 37 percent remain without a contract two years after the election.

No matter how you feel about EFCA, this report does a good job of showing why unions feel like they need card-check certification.  It's always worth remembering some other debates about terminations during organizing campaigns.

Hat Tip:  Dennis Walsh

-JH

California Supreme Court to Issue Prop 8 Decision Tuesday

  The California Supreme Court's website announces:

The California Supreme Court has announced that it will issue an opinion in three cases challenging the constitutionality of Proposition 8 at 10 a.m. on Tuesday, May 26, 2009. (Strauss v. Horton, S168047; Tyler v. State of California, S168066; City and County of San Francisco v. Horton, S168078.) Tuesday at 10 a.m., the opinion will be available on the California Courts Web site at this link: http://www.courtinfo.ca.gov/opinions/.

I predict server overload at 10:00:02 PDT.

MM

Workplace Prof Moves for 2009-2010

It's time for this year's edition of Workplace Prof Faculty moves (2009-2010) (see here for last year's).  Please let us know via the comment section or email (jhirsch@utk.edu) what we missed.

Entry Level Hires

• Ariana Levinson (visiting Louisville) to Louisville
• Jayesh Rathod (practitioner-in-residence at American) to American
• Deborah Widiss (visiting Brooklyn) to Indiana-Bloomington
• Marcy Karin (supervising attorney/teaching fellow at Georgetown) to Arizona State

Promotions and Tenures

• Miriam Cherry (McGeorge) to Associate Professor of Law with Tenure
• Alex Long (Tennessee) to Associate Professor of Law with Tenure
• Michael Duff (Wyoming) to Associate Professor of Law without Tenure
• Noah Zatz (UCLA) to Professor of Law with Tenure
• Russell Robinson (UCLA) to Professor of Law with Tenure

Lateral Moves

• Sam Bagenstos (Washington University) to Michigan
• Marcia McCormick (Cumberland/Samford) to St. Louis University
• Amy Monahan (Missouri) to Minnesota
• David Oppenheimer (Golden Gate) to UC-Berkeley
• Terry Smith (Fordham) to Depaul

Visits

• Miriam Cherry  (McGeorge) to Georgia (Fall 2009)
• Tristin Green (Seton Hall) to San Francisco
• Jeff Hirsch (Tennessee) to Vanderbilt (Spring 2010)
• Marty Malin (Chicago-Kent) to Michigan (Winter 2010)
• Steve Willborn (Nebraska) to Seton Hall (Spring 2010)

Retirements

• Robert Belton (Vanderbilt)

-JH

Program on Free Speech in the Workplace

On June 3, Albany Law School will host, along with the local LERA chapter, a program entitled "How Free is Workplace Speech."  Information on the program, including registration, may be found here.  According to the announcement:

The program will include presentations on the scope of such protections under the First Amendment, the National Labor Relations Act, the Taylor Law and various federal and state whistleblower laws. A panel discussion will also include the practical application of these laws to a hypothetical situation involving public and private sector employees.

Participants include:

• Beth Bourossa, Partner, Whiteman Osterman & Hanna LLP;
• Barney Horowitz, Resident Officer, Albany Office, National Labor Relations Board; and
• William A. Herbert, Deputy Chair and Counsel, New York State Public Employment Relations Board.
• Rosemary Queenan, Assistant Lawyering Professor, Albany Law School, will moderate the panel discussion.

-JH

UAW Reaches a Deal With Treasury on GM Contract

CNN Money is reporting that the UAW agreed to a deal on the contract with GM that might keep GM out of bankruptcy. Although there are no details yet, it is expected that the deal is similar to deals made with Ford and Chrysler, which would accept stock rather than cash to fund future retiree health care costs.

From the article,

The deal still needs to be ratified by rank and file union members at GM before it can take effect. And even if it is approved by UAW members, that will not be enough to keep the nation's largest automaker out of bankruptcy court.

The biggest hurdle for GM will be to get creditors holding $27 billion of its bonds to accept a debt-for-stock swap that would leave them with only 10% of the company. GM has until May 26 to reach an agreement with bondholders and a government-imposed deadline of June 1 to issue a new restructuring plan.

MM

No En Banc Review of Northeasten Land Services

Yesterday, the First Circuit denied the employer's motion for rehearing and rehearing en banc in Northeastern Land Services, the case in which the court (with little discussion) upheld the validity of the NLRB's two-member decisions.  Given the circuit split on this issue and the Board's decision to continue to issue two-member decisions, this could set up the first opportunity for Supreme Court review. 

Stay tuned for a possible cert. petition.

-JH

Fisk and Malamud on the NLRB as a Policymaker

Catherine Fisk (Irvine) and Deborah Malamud (NYU) have just put on SSRN their article, "The NLRB in Administrative Law Exile: Problems with its Structure and Function and Suggestions for Reform," forthcoming in the Duke Law Journal.  The abstract:

This article, which is part of the Duke Law Journal Administrative Law Symposium on the administrative law of the Bush Administration, examines both the recent and longer-term history of the National Labor Relations Board (NLRB) from the perspective of contemporary debates about administrative law. The NLRB during the Bush Administration made a number of significant and controversial policy changes, both in substantive law and in its enforcement process. This Article addresses those changes with the goal of increasing the coherence and legitimacy (legal and political) of NLRB policymaking. After examining how unresolved tensions between the Wagner Act and the Taft-Hartley Act are implicated in controversial decisions of the Bush Board and the structural obstacles the Board faces in attempting to make policy through adjudication, we argue that the policy conundrums cannot be resolved without recourse to the administrative law tools - including the use of social science expertise - the agency lacks. The Article concludes with suggestions for reform that do not depend on new legislation, including that (1) the NLRB be more holistic in its regulatory approach and rely on social science expertise and Department of Labor data in both adjudication and rulemaking; (2) the executive consider across-the-board reform of agencies that rely on adjudication; (3) Congress enhance its own policy analysis in the labor field; and (4) courts of appeals and the Supreme Court assimilate review of NLRB action into the way they review all agency action and be more coherent and consistent in deferring to agency action and in drawing the line between law, fact, and policy.

This is definitely worth a read.  Fisk and Malamud present a really interesting analysis of the NLRB's failings as a policymaking agency (I particularly enjoyed their historical perspective) and make some thought-provoking suggestions for reform.

-JH

Thoughts on AT&T v. Hulteen

I've had two days now to think about the Supreme Court's decision in AT&T v. Hulteen, which Jeff posted the syllabus to here, but I'm not sure that those two days have helped my understanding very much. I will admit that I was very surprised, not so much by the outcome, as by Justice Souter's and Justice Stevens' positions. Justice Souter wrote the majority's opinion for himself, the Chief Justice, and Justices Alito, Kennedy, Scalia, and Thomas. Justice Stevens concurred, despite his agreement with most of the points made by Justice Ginsburg in her dissent, and Justice Breyer was the only other Justice to sign onto the dissent.

The majority's decision boils down to two main points. The first point is that before the effective date of the Pregnancy Discrimination Act, discrimination on the basis of pregnancy was not discrimination on the basis of sex under Title VII. The second main point in the majority's reasoning was that the seniority rules applied to the plaintiffs at the time that the leave was taken rather than when they retired (and for this reason, the Ledbetter Act also provides no help). Because of these two conclusions together, the rules governing service credit before the PDA went into affect did not violate any law, and any continuing effect felt by them is insulated from liability by Title VII's rules on bona fide seniority systems, which provides that "it shall not be an unlawful employment practice for an employer to apply different standards of compensation or different . . . privileges of employment pusuant to a bona fide seniority system . . . provided that such differences are not the result of an intention to discriminate because of . . . sex . . . ." 42 U.S.C. § 2000e-2(h).

Justice Ginsburg takes issue with both conclusions, but it is the discussion of the effect of the PDA that has the potential to be far reaching. The majority may be only explicitly interpreting Title VII and following the Court's 1976 decision in General Electric Co. v. Gilbert, but it implicitly concludes that Congress did not define sex discrimination in the PDA, but simply added an additional classification. In other words, the Court adopts a default rule that discrimination on the basis of pregnancy is not automatically discrimination on the basis of sex, and that Congress has chosen to add a prohibition of pregnancy discrimination to Title VII.

To understand the significance of this, let me compare this with the law on sexual harassment. In Meritor Savings Bank v. Vinson, the Court held that Title VII prohibited sexual harassment because sexual harassment was a kind of sex discrimination. It was not its own category of prohibited conduct. So anywhere discrimination on the basis of sex is prohibited (including in the Constitution), sexual harassment will be also. The Court had rejected that reasoning for pregnancy in Gilbert, holding that discrimination on the basis of pregnancy was not sex discrimination. So, it seems that the Court is now confirming that core principle, that pregnancy discrimination is not a kind of sex discrimination, which is the only way it can say that treating pregnancy differently from any other disability is "not the result of an intention to discriminate because of . . . sex . . . ."

So here is why that is so disturbing and potentially far reaching. If pregnancy discrimination is not by definition sex discrimination (a point I disagree with and that Justice Ginsburg counters in her dissent), then discrimination on the basis of pregnancy will only get rational basis review in a constitutional analysis, which means that classifications on the basis of pregnancy by government will often be upheld, which, in turn also means that the PDA is less likely to be within Congress' Fourteenth Amendment powers, and damages actions against state employers cannot be maintained for violations of the PDA.

It's possible that this is not what the majority did--that it did not reaffirm that core principle, but instead validated employer reliance on what the Supreme Court had said that Title VII meant prior to 1979. That is the ground on which Justice Stevens essentially concurred. Justice Ginsburg also disagreed with this reasoning, pointing out that the plaintiffs aren't asking for damages, but simply the service credit for the periods of their leaves--equal current benefits--which will result in such small changes that their demands can be met without disturbing the settled expectations of other workers. Their increased seniority doesn't give them priority over any other employee, as could be the case in a different application of a seniority system, for promotion, for example. Instead, it just determines the dollar amount of their pension benefits. She also disagreed that Gilbert remained good law because all of the circuits prior to it that had considered the issue found that pregnancy discrimination was sex discrimination, and Congress in the PDA made clear that pregnancy discrimination was a type of sex discrimination--it made clear what the definition was all along--even though it did not allow for damages for that discrimination prior to the new effective date of the Act.

I'm not optimistic that this will remain a fact-bound decision. Given the Court's conclusion in Iqbal, issued the same day, that the FBI  had a "nondiscriminatory intent to detain aliens who were illegally present in the United States and who had potential connections to those who committed terrorist acts," by virtue of the apparently sole fact that those aliens were Arab Muslims, a majority of the justices seem very keen on making fine distinctions about motive. There's just a lot of room for argument now under the reasoning in Gilbert.

MM

The Curse of Youth?

Yesterday, the Wall Street Journal had an article on the difficulties that younger workers are facing in the current economic environment.  According to the article, employers are wary of letting go of more senior employees because of age-discrimination suits and have increasingly used a "last in, first out" rule for layoffs.

I don't doubt the observations of cited attorneys who have observed this trend, but I do wonder whether it's really a big change.  Seniority-based layoffs are certainly not unusual--what's different now is that there's a lot more layoffs. So, what may be going on may be simply more layoffs, which always tend to hurt younger workers more.  Indeed, statistics used to support the notion that younger workers are bearing a disproportionate burden of layoffs doesn't seem to show much of an extra burden.  According to the article, "The unemployment rate for those between the ages of 25 and 34 was 9.6% in April 2009, up from 4.9% a year earlier. For those ages 55 and older, the unemployment rate was 6.2% in April 2009, compared with 3.3% a year earlier."  Basically, both groups saw slightly less than a doubling of their unemployment rate, which doesn't indicate to me an extra burden on younger workers.

Hat Tip:  Suja Thomas

-JH

Best Federal Agencies To Work For Rankings

The Washington Post is reporting on the Partnership for Public Service's 2009 rankings of the best places to work in the federal government.  The study was based on a federal survey of employees, who expressed the view that good leadership and communication from their superiors was more important to workplace satisfaction than pay and benefits.  The federal government as a whole saw slight increases in overall satisfaction, but still lags behind the public sector.

According to the rankings, the top large agencies were:  Nuclear Regulatory Commission, Government Accountability Office, NASA, the intelligence community, and the State Department.  Agencies at the bottom include:  Transportation Department, the National Archives and Records Administration, the Homeland Security Department and the Education Department.

Among the labor and employment agencies, the Department of Labor was ranked 18 out of 30 ranked large agencies; the Equal Employment Opportunity Commission was ranked 25 out of 30 ranked large agencies; the Merit System Protection Board was 11 out of 32 ranked small agencies; the National Labor Relations Board was 26 out of 32 ranked small agencies;and the Federal Labor Relations Authority was 32 out of 32 ranked small agencies (ouch!  But no surprise).

-JH

ALI Tentatively Adopts Restatement of Employment Law

Earlier today, the American Law Institute tentatively adopted the (Third) Restatement of Employment Law.  In so doing, the ALI rejected motions by the Labor Law Group to, among other things, study the project further. 

Click the link for the most recent draft of the Restatement.

-JH

Solictor General Invited To Comment on Lewis Cert. Petition

The Supreme Court yesterday invited the Solicitor General to comment on the cert. petition in Lewis v. Chicago (No. 08-974).  At issue is when a disparate impact claim is timely filed.  In the case, more than 300 days had passed since the results of the challenged test were announced, but less than 300 days since the employer actually used the test results to make employment actions.  The Seventh Circuit held that the statute of limitations began running on the date the results were announced.

Perhaps a sign of a new employment discrimination case for the Supreme Court.

-JH

Pleading an Employment Discrimination Case After Ashcroft v. Iqbal

The Civil Procedure listserv has been aflutter ever since the Supreme Court yesterday released Ashcroft v. Iqbal.  In that case, the Court upheld the 12(b) dismissal of a Bivens action against high-level executive officials by a 9/11 detainee. The Court held that the complaint was insufficient under Rule 8(a)(2) and Twombly. The Court split 5-4, with Kennedy writing for the majority and Souter and Breyer dissenting.

Here's the key language in the majority opinion:

We next consider the factual allegations in respondent’s complaint to determine if they plausibly suggest an entitlement to relief. The complaint alleges that “the [FBI], under the direction of Defendant MUELLER, arrested and detained thousands of Arab Muslim men … as part of its investigation of the events of September 11.” Complaint ¶47, App. to Pet. for Cert. 164a. It further claims that “[t]he policy of holding post-September-11th detainees in highly restrictive conditions of confinement until they were ‘cleared’ by the FBI was approved by Defendants ASHCROFT and MUELLER in discussions in the weeks after September 11, 2001.” Id., ¶69, at 168a. Taken as true, these allegations are consistent with petitioners’ purposefully designating detainees “of high interest” because of their race, religion, or national origin. But given more likely explanations, they do not plausibly establish this purpose.

The September 11 attacks were perpetrated by 19 Arab Muslim hijackers who counted themselves members in good standing of al Qaeda, an Islamic fundamentalist group. Al Qaeda was headed by another Arab Muslim-Osama bin Laden-and composed in large part of his Arab Muslim disciples. It should come as no surprise that a legitimate policy directing law enforcement to arrest and detain individuals because of their suspected link to the attacks would produce a disparate, incidental impact on Arab Muslims, even though the purpose of the policy was to target neither Arabs nor Muslims. On the facts respondent alleges the arrests Mueller oversaw were likely lawful and justified by his nondiscriminatory intent to detain aliens who were illegally present in the United States and who had potential connections to those who committed terrorist acts. As between that “obvious alternative explanation” for the arrests, Twombly, supra, at 567, and the purposeful, invidious discrimination respondent asks us to infer, discrimination is not a plausible conclusion.

The Court seems to have reversed the "liberal pleading requirements" of the Federal Rules of Civil Procedure, and instead has invited federal trial courts to dismiss discrimination claims when the pleadings are conclusory and "common sense" suggests that no discrimination occurred.  This is bad policy, and completely at odds with the Swierkiewicz decision released only a few years ago.

Here's a sample of the running commentary.  From Tobias Wolff (Penn):

On the pleadings, the Court employs its "common sense" and "judicial experience" to conclude, in the face of unequivocal and specific allegations to the contrary, that a policy with an admittedly disparate impact based on race, national origin and religion was "likely lawful and justified by [a] nondiscriminatory intent" and that any more invidious explanation is too implausible to warrant even targeted investigation through discovery -- or even the requirement that the defendants admit or deny the allegations of wrongdoing in an answer.

I fear that the shock waves that Twombly sent through the lower courts will be as nothing compared to the impact of Iqbal.  The Court has just transformed the litigation process and given lower courts a license to dismiss factually specific complaints when their "common sense" tells them that the allegations have "obvious alternative explanations."

Lumen Mulligan (MSU) suggests that the new decision bodes very badly for Title VII plaintiffs:

If this "common sense" approach is to be generally applicable law, can any claim survive in which the plaintiff asserts a motivation for defendant's actions that appear contrary to the judge's experience?  I worry not.  Take any garden variety Title VII claim that relies upon claiming racial animus, for example.

Jonathan Siegel (GWU) discusses the obvious inconsistency between Iqbal and Swierkiewicz:

Iqbal also seems notably inconsistent with Swierkiewicz v. Sorema (2002).  That case approved a complaint that alleged that the plaintiff was fired because of his age and national origin.  The Court specifically rejected the argument that it should not allow "lawsuits based on conclusory allegations of discrimination."  Apparently an allegation that the plaintiff was fired because of national origin is OK, but an allegation that the plaintiff was subjected to unconstitutional conditions because of national origin is a "bare assertion" that a court need not accept as true on a motion to dismiss.

Beth Thornburg (SMU) writes:

I think that in both Twombly and Iqbal the way the Court plays fast and loose with the ephemeral law/fact line is fascinating.  And although I hope I’m wrong, it seems that the majority has gone back to the old code pleading “conclusions don’t count” kind of analysis.

Joe Seiner (S. Carolina), who has an article proposing a unified pleading standard in employment discrimination cases, comments:

My overall take on the Iqbal decision is that it will create a lot of confusion over what must be alleged by all civil rights plaintiffs in their complaints.  Iqbal will also likely lead to increased litigation on this issue, and potentially more district courts throwing out employment claims prior to summary judgment.

So -- what's left of Swierkiewicz?  Is it effectively overrruled by Twombley and Iqbal?  Or does the pleading standard under the Federal Rules vary by cause of action -- a liberal pleading rule for Title VII cases (Swierkiewicz) but a heightened standard for antitrust (Twombley) and Bivens (Iqbal) claims?  It seems to me that politics here may have taken a front seat to a consistent interpretation of the Federal Rules.  If so, this bodes very poorly for the Court's credibility.

rb

Vandervelde on the "Free Labor" Vision of the Thirteenth Amendment

Lea Vandervelde (Iowa) has just posted on SSRN her article (forthcoming U. Pa. L. Rev.) The Labor Vision of the Thirteenth Amendment.  Here's the abstract:

The conventional understanding of the Thirteenth amendment is that it abolished the particular antebellum southern institution that subjugated black persons as slaves. Yet, the congressional debates reveal a much more expansive vision of labor reform. This theme has largely been lost in modern interpretation. Historical events rarely result from a single cause, and a single idea rarely drives legislative action. Nonetheless, beside the more religious abolitionist arguments, one finds numerous speakers who focused on labor conditions. Consequently, this Article aims to recapture the strong pro-labor theme that runs consistently through the debates.

As a whole, the Reconstruction debates reflect a desire to improve all workers' status by recognizing the dignity of labor, guaranteeing workers a wide range of opportunities for advancement, and raising the floor of legal rights accorded all working men . . . .

The pattern of discourse in the debates reveal a structure formed by three types of statements. The first addresses the historical need to rid employment relations of the master's patriarchal dominion over all laborers in his household and to accord the employee a realm of family and personal privacy free from employer control. The second describes the core concept of autonomy for laborers in their social and economic relations with employers. The final group targets certain specific labor practices as inconsistent with the spirit of labor autonomy. This three part configuration is useful in exploring the amendment's reach in restructuring baseline rights in the modem employment relation. The Reconstruction debates constitute an important resource because they record the original attempt to mandate constitutionally a minimum level of worker protection.

The debates follow an interesting dialectical pattern. In order to respond to the criticisms of slavery's advocates, the Radical Republicans had to create both a positive vision as well as the negative condemnation of slavery. The free labor ideal provided its affirmative side. The free labor ideal grew out of the Republican Party's origins in the Free Soil, Free Labor Movement as well as the self-interest of the northern white working class. Together, they present a powerful argument for constitutionally grounding the protection of working people from overreaching subjugation and abuses at the hands of employers.

The evidence suggests that the thirteenth amendment was animated by a conception of labor reform broader than the elimination of racial servitude which was its catalyst. From this perspective, race slavery was objectionable not only for its pernicious racism, but also as the most obvious and brutal violation of the free labor principle. Senator Henry Wilson’s remarks typify this perspective when he explained the party’s motivation as concern for the condition of the "worst off working man," rather than merely his formal legal reclassification.

This free labor vision has potentially far-reaching implications for constitutional interpretation of the thirteenth amendment and for many aspects of the modern employment relation.

rb

Bagenstos Publishes Book on Disability Law

Congratulations to Sam Bagenstos (Wash U.) on the publication of his book Law and the Contradictions of the Disability Rights Movement (Yale University Press).  Here's the author's description:

The basic argument of the book is that the American disability rights movement, rather than having a single, agreed-upon set of goals, has various projects -- projects that often come into tension with one another -- and that the successes and failures of the movement's signature legislation, the Americans with Disabilities Act, reflect those tensions at least as much as they reflect a backlash against the movement.  I think it's a timely book and one that offers a somewhat distinctive perspective on the controversies in disability rights law.  It's got some social movement stuff, some antidiscrimination theory, some policy analysis, and some crunching of legal doctrine -- so it contains all four of the basic food groups.  It's also a pretty quick read, I think.

rb

NLRB's Reponse to Circuit Split on Two-Member Decisions

As further proof that my predictions are often wrong, the NLRB has just released its official response to the recent circuit split over the validity of its two-member decisions.  Although I predicted that they would not use their non-acquiescence policy and would instead accept the D.C. Circuit's holding that the two-member panels are invalid, the Board went the other way.  I'll quote the Board's statement in full:

After very careful consideration, we have determined that, as a quorum of the National Labor Relations Board, we will continue to issue decisions and orders in unfair labor practice and representation cases. While a recent panel decision of the United States Court of Appeals for the District of Columbia Circuit held that we lack the authority to do so, two appellate courts have upheld our authority, and the issue is pending before seven other Circuits. Our original determination to act as a two-member Board was supported by a legal opinion that the Board earlier had sought from the Department of Justice’s Office of Legal Counsel.

We believe that the Board has an important public duty to keep functioning, and to avoid an indefinite shutdown in its decision-making, where (as here) there is a reasonable legal basis for concluding that the Board can act. We remain convinced, as the First Circuit and Seventh Circuits have held, that such a basis for action exists under our statute. And we believe that by continuing to act on cases, we will be able to finally resolve a substantial number of those disputes. The parties in many cases that have been decided by the Board have accepted the Board’s decisions. In other cases, while the merits of the Board’s decision have been challenged, the authority of the Board, as now constituted, to act has not been attacked.

With great respect for the District of Columbia Circuit Court and the panel that decided Laurel Baye Healthcare, we believe that the panel decision was incorrect. Accordingly, we intend, by the end of May, to petition the panel, and the full Court, to revisit the panel’s ruling.

Our decision not to adhere to the District of Columbia Circuit’s ruling is consistent with the traditional policy of the Board. Historically, the Board, in selected cases, has chosen to adhere to its view of the law, where it respectfully disagrees with an appellate court’s adverse decision. This step enables the Board’s position to be presented to other Circuits and, where appropriate, to the Supreme Court.

Although I've favored the D.C. Circuit's take on the law on this issue, I give kudos to the Board here.  They've written a respectful and well-reasoned explanation of why they're going to attempt to preserve hundreds of cases from being remanded.  And, of course, the forthcoming petition for rehearing and rehearing en banc could set up a Supreme Court cert., which would be quite interesting.

Stay tuned.

Hat Tip:  Patrick Kavanaugh

-JH

The Supreme Court Decision in Hulteen

The Supreme Court just announced its decision in AT&T v. Hulteen (see here for Marcia's great oral argument recap), which involved service credit for pregnancy leave and its effect on retirement benefits.  The Court, in a 7-2 decision (Ginsburg and Breyer, dissenting), held that the employer did not violate Title VII by giving less credit for pregnancy leave, based on a pre-Pregnancy Discrimination Act rule.  I haven't had a chance to read the decision yet, and Marcia is likely to have much more informed thoughts on it, so I'll just leave it at the syllabus:

Petitioner companies (collectively, AT&T) long based pension calculations on a seniority system that relied on years of service minus un-credited leave time, giving less retirement credit for pregnancy absences than for medical leave generally. In response to the ruling in General Elec. Co. v. Gilbert, 429 U. S. 125, that such differential treatment of pregnancy leave was not sex-based discrimination prohibited by Title VII of the Civil Rights Act of 1964, Congress added the Pregnancy Discrimination Act (PDA) to Title VII in 1978 to make it “clear that it is discriminatory to treat pregnancy-related conditions less favorably than other medical conditions,” Newport News Shipbuilding & Dry Dock Co. v. EEOC, 462 U. S. 669, 684. On the PDA’s effective date, AT&T replaced its old plan with the Anticipated Disability Plan, which provided the same service credit for pregnancy leave as for other disabilities prospectively, but did not make any retroactive adjustments for the pre-PDA personnel policies. Each of the individual respondents therefore received less service credit for her pre-PDA pregnancy leave than she would have for general disability leave, resulting in a reduction in her total employment term and, consequently, smaller AT&T pensions. They, along with their union, also a respondent, filed Equal Employment Opportunity Commission charges alleging discrimination based on sex and pregnancy in violation of Title VII. The EEOC issued each respondent (collectively, Hulteen) a determination letter finding reasonable cause to believe AT&T had discriminated and a right-to-sue letter. Hulteen filed suit in the District Court, which held itself bound by a Ninth Circuit precedent finding a Title VII violation where post-PDA retirement eligibility calculations incorporated pre-PDA accrual rules that differentiated based on pregnancy. The Circuit affirmed.

Held: An employer does not necessarily violate the PDA when it pays pension benefits calculated in part under an accrual rule, applied only pre-PDA, that gave less retirement credit for pregnancy than for medical leave generally. Because AT&T’s pension payments accord with a bona fide seniority system’s terms, they are insulated from challenge under Title VII §703(h). Pp. 4–14.

(a) AT&T’s benefit calculation rule is protected by §703(h), which provides: “[I]t shall not be an unlawful employment practice for an employer to apply different standards of compensation . . . pursuant to a bona fide seniority . . . system . . . provided that such differences are not the result of an intention to discriminate because of . . . sex.” In Teamsters v. United States, 431 U. S. 324, 356, the Court held that a pre-Title VII seniority system that disproportionately advantaged white, as against minority, employees nevertheless exemplified a bona fide system without any discriminatory terms under §703(h),where the discrimination resulted from the employer’s hiring practices and job assignments. Because AT&T’s system must also be viewed as bona fide, i.e., as a system having no discriminatory terms, §703(h) controls the result here, just as it did in Teamsters. This Court held in Gilbert that an accrual rule limiting the seniority credit for time taken for pregnancy leave did not unlawfully discriminate onthe basis of sex. As a matter of law, at that time, “an exclusion of pregnancy from a disability-benefits plan providing general coverage [was] not a gender-based discrimination at all.” 429 U. S., at 136. The only way to conclude that §703(h) does not protect AT&T’s system would be to read the PDA as applying retroactively to recharac-terize AT&T’s acts as having been illegal when done. This is not a serious possibility. Generally, there is “a presumption against retroactivity [unless] Congress itself has affirmatively considered the potential unfairness of retroactive application and determined that it is an acceptable price to pay for the countervailing benefits.” Landgraf v. USI Film Products, 511 U. S. 244, 272–273. There is no such clear intent here. Section 706(e)(2)—which details when “an unlawful employment practice occurs, with respect to a seniority system that has been adopted for an intentionally discriminatory purpose”—has no application because Gilbert unquestionably held that the feature of AT&T’s seniority system at issue here was not discriminatory when adopted, let alone intentionally so. Nor can it be argued that because AT&T could have chosen to give post-PDA credit to pre-PDA preg-nancy leave when Hulteen retired, its failure to do so was facially discriminatory at that time. If a choice to rely on a favorable statute turned every past differentiation into contemporary discrimination, §703(h) would never apply. Finally, Bazemore v. Friday, 478 U. S. 385—in which a pre-Title VII compensation plan giving black employees less pay than whites was held to violate Title VII on its effective date—is inapplicable because the Bazemore plan did not involve a seniority system subject to §703(h) and the employer there failed to eliminate the discriminatory practice when Title VII became law. Pp. 4–13.

(b) A recent §706(e) amendment making it “an unlawful employment practice . . . when an individual is affected by application of a discriminatory compensation decision or other practice, including each time . . . benefits [are] paid, resulting . . . from such a decision,” §3(A), 123 Stat. 6, does not help Hulteen. AT&T’s pre-PDA decision not to award Hulteen service credit for pregnancy leave was not discriminatory, with the consequence that Hulteen has not been “affected by application of a discriminatory compensation decision or other practice.” Pp. 13–14.

-JH

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