October 16, 2009
401(k)s in 2008
The folks at EBRI have just released a study on 401(k) Plan Asset Allocation, Account Balances, and Loan Activity in 2008. Here's a summary:
Looking at consistent participants in the EBRI/ICI 401(k) database over the five-year period from 2003 to 2008 (which included one of the worst bear markets for stocks since the Great Depression), the study found: After rising in 2003 and for the next four consecutive years, the average 401(k) retirement account fell 24.3 percent in 2008; the average 401(k) account balance moved up and down with stock market performance, but over the entire five-year time period increased at an average annual growth rate of 7.2 percent, attaining $86,513 at year-end 2008; the median (mid-point) 401(k) account balance increased at an average annual growth rate of 11.4 percent over the 2003-2008 period to $43,700 at year-end 2008. The study also found: The bulk of 401(k) assets continued to be invested in stocks; three-quarters of 401(k) plans included lifecycle funds in their investment lineup at year-end 2008; new employees continued to use balanced funds, including lifecycle funds; 401(k) participants continued to seek diversification of their investments; and participants’ 401(k) loan activity was stable.
October 15, 2009
Somebody Needs To Boost Their Labor Practice
Above The Law has been posting a long series of comments by disgruntled associates at WilmerHale. So disturbing, apparently, that the firm ordered all of its associates to refrain from sending info to ATL or face termination. A lot of the comments seem to implicate collective action, so the firm's threats raise the possibility of a NLRA Sec. 8(a)(1) violation. Of course, the NLRA's applicability in the non-union context is such an afterthought that it may go unnoticed even by lawyers.
Hat Tip: Jason Walta
Firefighter Disparate Impact Suit Filed against New Haven
Part of the fallout from the Supreme Court's decision this summer in Ricci v. DeStefano was what would happen with the African American and Latino firefighters--whether any would file the disparate impact suit that the city was worried about. Today, David Rosen filed the first one: Briscoe v. New Haven.
From the complaint:
The 2003 New Haven fire lieutenant examination had two parts: a multiple-choice written test and an oral exam. Ranking on the eligibility list depended on how the City chose to weight the scores on the two components. The oral exam was a better way to assess candidates' skills and abilities than the written test and had less disparate impact on African-Americans. Yet the City chose to weight the written test 60 percent and the oral exam 40 percent. This weighting reduced the validity of the overall selection process; it was arbitrarily chosen, without any pretense that it was job related; it was contrary to standard practice among similar public safety agencies, where the norm is to weight the oral component 70 percent; it had a disparate impact on African-American candidates; and it will prevent the plaintiff from being promoted to the rank of lieutenant, even though he is one of the most highly qualified candidates.
In fact, if the test were weighted in this way, the plaintiff would have ranked first. Here is a copy of the full complaint for anyone interested: Download 09.10.15 complaint
Focusing on the weighting seems the right tack to me. The complaint does not anticipate any defenses or motions to dismiss the city will file, and so it's hard to fully assess the impact of the Supreme Court's mysterious caution that this action would not be tenable (discussed here recently). We'll have to stay tuned! Thanks to David for sending the complaint along and giving us permission to post it.
EEOC Settles Sex Harassment Case with Private Prison
In addition to labor and employment, much of my career and teaching has been in the area of civil rights, and it was in that context that I first encountered the concept of the private prison. Essentially a product of outsourcing, private prisons are hired by states to house those convicted of crimes and sentenced to incarceration. It seems like a terrible idea to me for a number of reasons, and this case has added another one.
Earlier this week, the EEOC announced that it had settled a sexual harassment and retaliation case on behalf of 21 female workers against a private prison in Colorado for $1.3 million. From the press release:
In its lawsuit (EEOC v. Dominion Correctional Services, LLC and Corrections Corporation Of America, Civ. No. 1:06-cv-01956-KVH), filed in U.S. District Court for the District of Colorado, the EEOC charged that female employees at the prison were subjected to unwelcome sexual harassment that included male managers forcing them to perform sex acts in order to keep their jobs. Two chiefs of security, who reported directly to the warden and to whom all security personnel at the prison reported, were allowed to resign after numerous complaints of sexual harassment and rape, according to the EEOC. In the settlement, the defendants did not admit liability.
“We at the EEOC see an unfortunately high number of sexual harassment cases, but what allegedly happened here was shocking,” said EEOC Acting Chairman Stuart J. Ishimaru. “No working woman should ever have to endure harassment and requests for sexual favors by managers in order to earn a paycheck – or suffer retaliation for complaining about the illegal harassment.”
Among the allegations in the court record are the following: A female officer made a complaint of sexual harassment against a male coworker, and was then placed in an isolated location, where she was raped by the man about whom she had complained. The Chief of Security forced a female corrections officer to have intercourse with him, which she did in order to keep her job. After that Chief of Security resigned, his replacement was the subject of numerous written complaints of sexual harassment, including complaints that he regularly commented on female employee’s bodies, and touched female officers inappropriately.
Other male managers similarly expected their female subordinates to provide sexual favors, the EEOC says in the suit. For example, a female corrections officer was coerced first into performing oral sex, and later intercourse, with a male captain, for fear of losing her job. Another female officer testified that a male lieutenant regularly made comments to her about how she looked and commented that he could do a lot better than her husband. He then allegedly told her that if she wanted to keep her job she needed to sleep with him. She resigned.
In addition to these allegations, the female employees testified that the male employees openly viewed pornography in the workplace on a regular basis, made demeaning sexual comments about the female employees, and regularly told sexual jokes.
The lawsuit further alleges that female employees who complained about the sexually hostile workplace were retaliated against. The retaliation included ostracizing the women after their complaints were publicized, scrutinizing their work, accusing them of misconduct, and assigning them to the worst and most dangerous work assignments at the prison.
EEOC Regional Attorney Mary Jo O’Neill of the Phoenix District, which includes Colorado, said, “The conduct alleged here is reprehensible. In a profession already fraught with the danger of dealing with prison inmates, it is inexcusable that another layer of fear was imposed by the men to whom these women reported and with whom they worked. The EEOC treats this type of violation with the utmost urgency and will act vigorously to uphold the laws prohibiting sexual harassment and retaliation.”
EEOC Acting District Director Rayford Irvin of the Phoenix District Office, added, “This case illustrates the continuing struggle women face in jobs traditionally held by men. The misuse of management power is especially troubling and will not be tolerated by the EEOC.”
Personally, I don't think $1.3 million is enough and hope that those men whose conduct was criminal get to see their own facility from the inside.
Brown on Understanding Labor and Employment Law in China
Ron Brown (Hawaii) has a new book by Cambridge coming out this month entitled: Understanding Labor and Employment Law in China.
A description from Ron:
Many would agree that one of the more significant areas of legal growth and social need in recent times in China is labor and employment law. Foreign investors and Chinese alike are discovering they must now, more than ever, pay attention to the new legal requirements. The government seeks to balance economic growth and social needs, while maintaining its competitive advantage; and, now at the same time it must deal with the global economic downturn. The laws themselves have now reached a critical mass. This permits a relatively stable point in time in which the labor and employment laws can be described and explained, even though as we all know there continues to be issues of enforcement in some areas of the country.
Bisom-Rapp on OSHA & NIOSH
Susan Bisom-Rapp has just posted on SSRN her article (forthcoming Wayne L. rev.) What We Learn in Troubled Times: Deregulation and Safe Work in the New Economy. Here's the abstract:
Reviews of how federal agencies functioned during George W. Bush’s presidency reveal many instances of regulatory capture by industry. One prototypical example is the Occupational Safety and Health Administration (OSHA), the agency responsible for occupational safety and health (OSH) standard setting and enforcement. In contrast, a broad array of stakeholders during the Bush years gave good marks to an entirely separate agency, the National Institute for Occupational Safety and Health (NIOSH), which conducts research and develops recommendations to prevent workplace injury and illness.
By reviewing the disparate performance of OSHA and NIOSH during the Bush administration, this article sheds light on the OSH challenges facing employees in the new economy, highlights better ways of protecting workplace safety and health, and identifies sustainable practices worth preserving and strengthening. To those ends, the academic debates surrounding new governance scholarship and responsive regulatory techniques provide a backdrop. Situating the safety agencies' recent records within those debates reveals the pitfalls of traditional and new approaches to regulation and the synergies between them. To improve the safety and health of America’s increasingly vulnerable workers, both approaches are required but must be linked. Yet the necessary links between them may be more diffuse than many scholars assume. In other words, it is not necessary or advisable for all cooperative, reflexive, and participatory programs to be housed in traditional regulatory agencies. During periods when, as in the last administration, deregulation is ascendant, agencies that lack enforcement powers may be better positioned to obtain substantive results than are their regulatory counterparts.
October 14, 2009
The ADEA's Pattern or Practice Problem After Gross
First, I would like to thank Professors Rick Bales, Marcia McCormick, Jeffrey Hirsch, and Paul Secunda for inviting me to participate as a guest blogger. I am grateful for the opportunity to contribute and for the support they have offered me in connection with my scholarly work.
For my first series of blog posts, I plan to focus on an area of employment discrimination law that is the subject of my current research: “pattern or practice” claims of discrimination. I find this area of employment law particularly fascinating because it involves the statistical proof of employment discrimination – and therefore implicates many of the same controversial issues that arise in disparate impact cases like Ricci v. DeStefano – but seems to be receiving far less attention. This lack of attention is somewhat surprising, at least to me, because the EEOC has placed a renewed emphasis on litigating systemic discrimination cases, including pattern or practice claims. As a result, a number of doctrinal issues have surfaced recently in pattern or practice law, but the Supreme Court has not yet had the opportunity or the inclination to address them. In this series of posts, I plan to highlight a few of the problem areas and offer my preliminary thoughts on how a consistent and cohesive approach to pattern or practice law can be formulated.
Let me begin by providing a brief background on the pattern or practice doctrine. Title VII provides the EEOC with authority to bring a civil action for appropriate relief when it has reasonable cause to believe that an employer is engaged in a “pattern or practice” of intentional (disparate treatment) discrimination. The EEOC will bring a pattern or practice case where it identifies an employer that it believes to be engaged in systematic discrimination against a group, rather than just isolated instances of discrimination. The EEOC has declared that addressing systemic discrimination is a top priority for the Commission. (See EEOC Fiscal Year 2008 Performance and Accountability Report). Private plaintiffs may also bring a pattern or practice claim, although most courts require them to obtain class certification before pursuing a pattern or practice claim.
Courts distinguish pattern or practice discrimination cases from individual discrimination cases, and have developed a completely separate analytical framework for handling pattern or practice cases. In individual cases, courts typically apply either the traditional McDonnell-Douglas burden-shifting framework or the mixed motives burden-shifting test codified by the 1991 Amendments to the Civil Rights Act, at 42 U.S.C. § 2000e-2(m). In pattern or practice cases, however, courts apply a different, two-phased burden-shifting framework as set out in International Brotherhood of Teamsters v. United States, 431 U.S. 324 (1977).
Under Teamsters, pattern or practice cases are divided into two phases. In Phase I, the plaintiff bears the burden of proving that the employer was engaged in a pattern or practice of discrimination. This is generally accomplished through the use of statistical evidence. For example, in Teamsters, the government compared the rates of minorities hired by the employer into desirable positions with the minority population rates in the city. The Teamsters Court noted that statistical imbalances are often the “telltale sign of purposeful discrimination,” that can justify a burden shift. Thus, if the plaintiff successfully meets its burden in Phase I, it will create a rebuttable presumption that all individual employment decisions made during the period of the pattern or practice were discriminatory. The employer then bears the burden, in Phase II, of rebutting this presumption as to any individual claimant by proving that the individual employment decision affecting that claimant was not the product of the discrimination.
One frequently recurring question in pattern or practice law is: Under what circumstances, and under which antidiscrimination statutes, can this Teamsters method of proof be used by plaintiffs? In this first post, I want to briefly raise that question in the context of the ADEA, and to consider whether the Supreme Court’s recent opinion in Gross v. FBL Financial Services, 129 S.Ct. 2343 (2009), may have changed the answer.
Prior to Gross, there seemed to be little question that an ADEA plaintiff could pursue a pattern or practice claim and use the Teamsters burden-shifting framework. At least six circuit courts of appeals had held, borrowing from the Title VII context, that an ADEA plaintiff could pursue the pattern or practice theory. This was consistent with courts’ general willingness to borrow analytical proof frameworks (like the McDonnell-Douglas framework and the mixed motives burden-shifting test in individual cases) from the Title VII context and apply them to cases decided under other antidiscrimination statutes.
After Gross, there is a now a real question whether the Supreme Court would agree. Unlike Title VII, the words “pattern or practice” do not appear anywhere in the text of the ADEA. In Gross, the Supreme Court held that the mixed motives test, as codified by the 1991 Amendments to Title VII, did not apply to ADEA cases because Congress did not add similar mixed motives language to the ADEA. The Court instructed: “When conducting statutory interpretation, we ‘must be careful not to apply rules applicable under one statute to a different statute without careful and critical examination.’” Thus, despite a line of cases applying some form of mixed motives analysis in ADEA cases, the Supreme Court held in Gross that an ADEA plaintiff cannot rely on mixed motives proof, but rather must show that age was the “but for” cause of the adverse employment action.
If the Court approached the pattern or practice question in the same way, it might conclude that ADEA plaintiffs cannot pursue a pattern or practice claim or invoke the Teamsters method of proof because, unlike Title VII, the statute does not explicitly authorize a “pattern or practice” claim. Precisely this argument was presented to the Tenth Circuit by the defendant in Thompson v. Weyerhaeuser Co., 2009 WL 2902069 (10th Cir. Aug. 26, 2009), decided just two months after Gross. The Tenth Circuit rejected the employer’s argument, and permitted the ADEA plaintiff to pursue a pattern or practice claim, despite the Supreme Court’s ruling in Gross. The Tenth Circuit acknowledged that the words “pattern or practice” are found in Title VII but not in the ADEA. Nonetheless, the court reasoned, the mixed motive burden-shifting framework at issue in Gross was of a different kind and was founded on the text of the 1991 Amendments to Title VII. The pattern or practice burden-shifting framework, by contrast, is “mentioned in neither statute” (at least as an explicit burden-shifting framework) and “has been established by the courts.” It remains to be seen whether other courts will agree with the Tenth Circuit’s distinction and continue to allow pattern or practice claims under the ADEA, or whether they will interpret Gross to prohibit the borrowing of the pattern or practice analytical framework where the statutory text does not expressly authorize such borrowing.
Congressional Democrats are now planning to introduce a bill to amend the ADEA to override Gross. The proposed bill would make it clear that once an ADEA plaintiff establishes that age was a motivating factor, the burden shifts to the defendant to establish that it would have taken the adverse action regardless of plaintiff’s age. This narrow proposed bill would resolve the mixed-motive question at issue in Gross, but it would not resolve the pattern or practice issue raised by the defendant in Thompson.
Some scholars and observers have called for Congress to take a broader approach and completely overhaul disparate treatment discrimination law. There are a number of textual differences and inconsistencies amongst the antidiscrimination statutes – some of which may reflect intended differences in how certain discrimination cases are handled, and some of which may not. A narrow bill would resolve the particular issue that the Supreme Court identified in Gross, but the Court may in the future use the same textualist reasoning to draw other (possibly unintended) distinctions amongst the statutes. If Congress does take comprehensive action to overhaul disparate treatment law, it would be wise to clear up the many unresolved issues in pattern or practice law, including whether pattern or practice claims are available under the ADEA.
In future posts, I will revisit this ADEA pattern or practice problem, and will also turn my attention to other problem areas in pattern or practice law. My goal in this project is to begin developing some principles for determining when the application of the Teamsters pattern or practice analytical framework is justified and when it is not.
Second Edition of Bales and Stone's Arbitration Law
Congratulations to our own Rick Bales and to Katherine van Wezel Stone (UCLA) whose second edition of Arbitration Law comes out at the beginning of November. From Foundation Press' page,
This casebook presents a comprehensive treatment of the legal issues involved in arbitration. The first four chapters address issues that arise in private arbitration, that is, arbitration that is the product of an agreement between two contracting parties. The last chapter addresses issues that arise in court-ordered arbitration. Together they will give the student a thorough and up-to-date understanding of arbitration law and provide a foundation for legal practice, whether in alternative dispute resolution or in the civil justice system. Extensive notes following each case provide supplementary materials and introduce topics for discussion.
It's a great book, so get it while it's hot!
Using Film Clips in Labor Law
Can anyone recommend film clips for use in a Labor Law course? I'm not so much looking for full-length films (Hazard County, Erin Brockovich), but rather short, 5-15 minute clips from such films and other sources that help to illustrate various aspects of labor law. Suggestions in the form of comments would be much appreciated.
Introducing Guest Blogger Jason Bent
We are proud to introduce Jason Bent as Workplace Prof Blog's Inaugural Distinguished Guest Blogger. He'll be blogging with us over the next month or so.
Jason's practice includes complex commercial and employment litigation in federal and state courts, at both the federal and state level.
Jason's employment litigation experience includes defending an employer against a novel class action brought by the United States EEOC alleging a "pattern or practice" of sexual harassment in the workplace. Jason has represented a number of employers against discrimination claims before the EEOC and the Illinois Department of Human Rights. Jason has also represented an employer in connection with a Department of Labor audit of the employer's wage and overtime payment practices under the Fair Labor Standards Act.
Prior to forming Smith & Bent, Jason was an associate at Foley & Lardner, LLP. Before entering private practice, Jason clerked for Judge Cornelia Kennedy of the Sixth Circuit, and for Judge Joan Gottschall in the U.S. District Court for the Northern District of Illinois.
Jason received his J.D., magna cum laude, from the University of Michigan Law School (2000), where he was elected to the Order of the Coif. He also served as Notes Editor of the Michigan Law Review. He earned his B.A. in Economics (1997) from Grinnell College.
Jason is the author of Systemic Harassment (forthcoming Tennessee L. Rev. 2009) and What the Lilly Ledbetter Act Doesn’t Do: “Discrete Acts” and the Future of Pattern or Practice Litigation (Rutgers Law Record 2009). He serves on the Editorial Board of The Labor Lawyer.
October 13, 2009
Colorado Minimum Wage To Decline
Another chapter in the law of unintended consequences: Colorado's decision to tie its minimum wage to inflation will result in a decrease in that rate in 2010. Targeting the minimum wage to inflation was spurred by concerns that minimum wage workers frequently watch their real wage rate decline as the minimum wage remains fixed during years of inflation. But the reverse, even if not contemplated, can happen too. Because the consumer price index in Colorado has declined, so too will the state's minimum wage rate.
The drop is small, however--from $7.28/hour to $7.24/hour (really $7.25/hour because of the federal minimum). Moreover, in the long run, minimum wage workers are still likely to benefit. Deflation will probably not last long in the state, so when prices start rising again, the state minimum wage will as well.
Supreme Court Grants Cert in Federal Employee Health Benefits Case
I have always claimed to be a generalist in labor and employment law. I like traditional labor law, as much as employment discrimination law, as much as employee benefits law. But my benefits law expertise is mostly on the labor law side of ERISA (which governs only private-sector employee benefit plans).
So imagine my surprise when I learned that the U.S. Supreme Court had granted cert. today in an employee benefits preemption case and it did not involve ERISA. But here you are, as reported by the SCOTUS blog:
Title: Health Care Service v. Pollitt
Issue: Whether the Federal Employees Health Benefits Act, 5 U.S.C. § 8902(m)(1), preempts a state court lawsuit filed against a government contractor administering such benefits.
Don't know much about the FEHBA, but it is a preemption case and this conservative Court has shown a great love for broad preemption doctrines, including complete preemption. It will be interesting to see if the Court applies lessons from ERISA preemption cases to decide this one.
One more thing: for civil procedure geeks, there is an interesting question of subject matter jurisdiction which is based on whether the Department of Labor directed the health care insurer to deny coverage to the federal employee. If so, there would be a basis for removal jurisdiction and perhaps dismissal based on preemption. Sounds like a factual issue to be decided under a 12(b)(1) scenario, but what do I know, I just teach Civ Pro once a year?
One thing I know for sure, subject matter jurisdiction cannot be waived and so the issue is very much live.
California Appeals Court Overturns "Objectionable" Employment Discrimination Decision
As reported by California Case Law (via a tip by friend of the blog, Jack Sargent), the imponderable case of Nazir v. United Airlines, Inc., No. A121651 (Cal. App. Ct. October 8, 2009):
In plaintiff's race, employment discrimination lawsuit against United Airlines, trial court's grant of summary judgment in favor of defendants is reversed as to eight causes of actions as they must be decided by the jury. Furthermore, the trial court's order sustaining 763 of 764 of defendant's objections was a manifest abuse of discretion.
I can only do this case justice by stating precisely some of the court's decision. This is all takes place in the context of a rather ordinary race discrimination in employment claim:
At the same time, the summary judgment procedure has become the target of criticism on a number of fronts. Some particular criticism is directed to the procedure in employment litigation, including that it is being abused, especially by deep pocket defendants to overwhelm less well‑funded litigants. More significantly, it has been said that courts are sometimes making determinations properly reserved for the factfinder, sometimes drawing inferences in the employer’s favor, sometimes requiring the employees to essentially prove their case at the summary judgment stage. Here we confront the poster child for such criticism, in a case involving what may well be the most oppressive motion ever presented to a superior court . . . .
Defendants filed a motion for summary judgment/summary adjudication, seeking adjudication of 44 issues, most of which were not proper subjects of adjudication. Defendants’ separate statement was 196 pages long, setting forth hundreds of facts, many of them not material—as defendants’ own papers conceded. And the moving papers concluded with a request for judicial notice of 174 pages. All told, defendants’ moving papers were 1056 pages.
Plaintiff’s opposition was almost three times as long, including an 1894-page separate statement, papers the trial court would later disparage as “mostly verbiage,” a description with which, as will be seen, we disagree. Curiously, no such criticism was leveled at defendants’ papers, not even those in reply, papers that defy description.
Defendants’ reply included, and properly, their response to plaintiff’s additional disputed facts. Defendants’ reply also included, not so properly, a 297-page “Reply Separate Statement” and 153 pages of “Exhibits and Evidence in Support of Defendants’ Reply.” And the reply culminated with 324 pages of evidentiary objections, consisting of 764 specific objections, 325 of which were directed to portions of plaintiff’s declaration, many of which objections were frivolous. In all, defendants filed 1150 pages of reply.
Five thousand, four hundred, fifteen pages of material were before the trial court which, following argument, issued its order granting summary judgment, the substance of which order began as follows:
“Upon due consideration . . . and having taken the matter under submission, [¶] The Court finds as follows: [¶] Despite its girth, Plaintiff’s opposition to the separate statement of material facts is mostly verbiage, and utterly lacking in the identification and presentation of evidence demonstrating a disputed issue of fact.” There followed several pages of discussion which did not consider the evidence favorably to plaintiff, as the law requires. Then, after granting summary judgment, the order ends with these two one‑sentence rulings:“2. Plaintiff’s 47 evidentiary objections are OVERRULED.
“3. Defendants’ evidentiary objection No. 27 is OVERRULED, and the remainder of the Defendants’ evidentiary objections are SUSTAINED.” . . . .
We have referred to the misleading picture painted by the mass of paper before the trial court, and to the error that resulted. And the two are undoubtedly related, as what apparently happened is that the trial court did not read all the papers, shown, for example, by the facts that it sustained “objections” to evidence where no objection was set forth and saw a “physical assault” of Avellan despite all the evidence of “arm wrestling.” While not reading the papers cannot be condoned, it can perhaps be understood, as we hesitate to speculate how long it would take a trial court to meaningfully digest over 2200 pages of separate statements, analyze and rule on 764 objections set out in 325 pages, review it all in light of the applicable law, and then write a proper order.
The incredible volume of material here simply has no place in a system where overburdened trial courts labor long and hard. Thus, we conclude with some guidance in the event a trial court is ever again confronted with anything remotely close to that here.
Needless to say, the appellate courts rips the lawyers and the trial court another you-know-what. This case is an evidence/employment discrimination law professor dream and why people like Walter Olson rightly believe in some cases that litigation is just plain overlawyered.
I can't imagine being the lawyers involved in this case and the shame that will inevitably come with being associated with a name that is just too closely related to the word, "nadir," as in the nadir of all litigation.
Really, read the whole opinion.
American Univ. Law Program on Ricci v. DeStefano: The Future of Title VII Disparate Impact Litigation
From Susan Carle of American University Law School comes news that their Program on Law and Government, under the direction of Richard Ugelow, Distinguished Practitioner in Residence,will host a program on Ricci v. DeStefano: The Future of Title VII Disparate Impact Litigation.
It is scheduled for October 28, 2009, from 12:00 pm – 2:00 pm, at American University Washington College of Law, Room 603, located at 4801 Massachusetts Avenue, NW, Washington D.C.
Stuart Ishimaru, the Acting Chair of the Equal Employment Opportunity Commission, will introduce the panel discussion. The panel will consist of leading employment discrimination attorneys who represent plaintiffs and defendants, and experts in selection procedures. The distinguished members of this panel are: Jocelyn Samuels, Civil Rights Division, U.S. Department of Justice; Joseph Sellers, Cohen and Milstein; Grace Speights, Morgan Lewis; Keith Pyburn, Fischer and Phillips; and Irv Goldstein, Ph.D., Industrial Organization Psychologist, University of Maryland.
Here's a description of the panel:
The American University Washington College of Law will host a panel discussion on the effect of the Supreme Court’s recent decision in Ricci v DeStefano, which curtailed the ability of employers to take voluntary steps to comply with the disparate impact standard of Title VII of the Civil Rights Act of 1964. Disparate impact litigation has been the principal vehicle for opening opportunity for minorities and women in our police and fire departments over the past 40 years. By broadening the talent pool, ensuring that selection methods pick the best people for the jobs, and producing departments that look more like the communities they serve, disparate impact litigation has contributed enormously to the public safety and fairness of our society. Ricci may have stymied that process in an opinion with potentially broad implications for racial and gender fairness. The Court held that an employer cannot take voluntary steps to avoid a disparate racial impact absent a “strong basis in evidence” that a selection procedure is not job-related and required by business necessity. The new standard imposes new challenges on employers in making employment decisions. Likewise, Ricci may affect the ability of incumbent employees and applicants for employment to challenge discriminatory selection procedures. This panel will explore the impact of Ricci on employers and employees, as well as its broader implications for race-conscious decision making.
If you are in town, Susan asks that you consider stopping by, as it promises to be a very interesting discussion. General registration is free, but required. Please register by clicking here.
October 12, 2009
Feuer on Other Effects of Kennedy Decision
Albert Feuer, expert on all things Kennedy, has just posted on SSRN his latest article, "Did a Unanimous Supreme Court Misread ERISA, Misread the Court's Precedents, Undermine Basic ERISA Principles, and Encourage Benefits Litigation?," which will appear in Tax Management Compensation Planning Journal. The abstract:
In Kennedy v. Plan Administrator of the DuPont Savings and Investment Plan (the “Kennedy Decision”), a unanimous Supreme Court appeared to proclaim a “bright-line rule” that plan documents determine benefit distribution rights. However, by misreading ERISA and its own precedents, the Supreme Court needlessly undermined basic ERISA principles with respect to the determination and the protection of ERISA benefit entitlements, the coverage of the prohibition on the alienation of pension benefits (the “Alienation Prohibition”) and the rules pertaining to QDROs.
The Court thereby laid the groundwork for considerable benefit litigation, much of which could have been avoided, focusing on issues such as
• the effectiveness of benefit waivers (including, but not limited to, disclaimers) that are not QDROs for the many ERISA plans that have no disclaimer provisions;
• the effect on benefit entitlements of various disclaimer provisions in the governing documents of ERISA plans;
• the requirements for a domestic relations order (“DRO”) to be a QDRO;
• the effect on benefit entitlements of ERISA plans not subject to the Alienation Prohibition, such as a life insurance plan or a top-hat plan, of a DRO that “satisfies” the QDRO requirements;
• the effects of revocation upon divorce provisions for pension plans subject to the Alienation Prohibition; and
• the effect of ERISA on the determination and protection of entitlements to distributed ERISA benefits.
Much of this litigation would be tamped down if the Treasury Department amended the Treasury Regulations to clarify (1) the significance of the Alienation Prohibition, such as its applicability to disclaimers, waivers and levies, and (2) the significance of the QDRO requirements. The article proposes draft regulatory language to achieve those goals.
Fourth Annual Seton Hall Employment & Labor Law Scholars' Forum
Our friends at Seton Hall have just announced information on this year's Employment & Labor Law Scholars' Forum. It's a great opportunity for more junior scholars (modeled on the Stanford/Yale young scholars event), so definitely look into it if you qualify. The forum will be held at Seton Hall on January 22-23, 2010 and the deadline for paper proposals is November 10, 2009:
Building on the successes of the last three years, the Seton Hall Employment & Labor Law Scholars’ Forum will continue to provide junior scholars with commentary and critique by their more senior colleagues in the legal academy while offering more senior scholars an opportunity to understand and appreciate new scholarly currents. (This forum should not be confused with the recent Colloquium on Current Scholarship in Labor & Employment Law, which was also hosted by Seton Hall Law School this year.)
For the Scholars’ Forum, four relatively junior scholars (untenured, newly tenured, or prospective professors) will be selected to present papers from among the proposals submitted. Selections will reflect a wide spectrum of sub-disciplines within the field of Employment and Labor Law.The event will be held at Seton Hall Law School, January 22-23, 2010 (we moved it to the spring semester this year to accommodate the Colloquium in the fall). As is our tradition, leading senior scholars from the legal academy will provide commentary on each of the featured papers in an intimate and collegial atmosphere. Seton Hall will pay all transportation and accommodation expenses, and will host a dinner on Friday evening.
Junior scholars are invited to submit paper proposals, 3-5 pages in length, by November 10, 2009.
Proposals should be submitted to:
Professor Charles Sullivan, Seton Hall Law School, One Newark Center, Newark, NJ 07102 or email@example.com.
Electronic submissions are preferred. Papers will be selected to ensure a range of topics. Selected presenters must have a distribution draft available for circulation to other forum participants by January 8, 2010.
For further information, including past participants, visit our Forum website.
Senate to Hold Hearings on Gender Equality in Health Care Premiums
In the ongoing debate over health care reform, the Senate's Committee on Health, Education, Labor & Pensions will be holding hearings Thursday on "What Women Want: Equal Health Care for Equal Premiums." The proceedings and testimony will be linked here, so check in later to see what happened.
Animated Map: The Geography of Jobs
This animated map , created by TIP Strategies (business and economic development consultants), provides a striking visual of employment trends over the last business cycle using net change in jobs from the U.S. Bureau of Labor Statistics on a rolling 12-month basis. This approach provides the smoothest possible visual depiction of ongoing employment dynamics at the Metropolitan Statistical Area level. By animating the data, the map highlights a number of concurrent trends leading up to the nation’s present economic crisis. The graphic highlights the 100 largest metropolitan areas so that regional trends can be more easily identified.
Hat tip: Carol Furnish.
Interested in Guest Blogging?
Workplace Prof Blog is looking to help bridge the gap between traditional scholarship and blogging by hosting periodic guest bloggers. The guest bloggers would be welcome to contribute short pieces and links about new developments, but their primary focus will be to contribute longer, perhaps multi-part posts on their current scholarship. This would be an especially good forum for junior scholars working on labor/employment topics that are currently in the news -- labor law reform, healthcare/pension reform, disability law, the evolving test for employment discrimination, etc.
The commitment is short-term (perhaps a month or so), and the guest blogging will benefit bloggers and readers alike. If you think you might be interested, email Rick. If you're swamped now but would be interested in guest blogging in the future, let me know.
Or, consider commenting to this post to nominate someone.
Recently Published Scholarship
- Helen Norton, Constraining Public Employee Speech: Government's Control of Its Workers' Speech to Protect Its Own Expression, 59 Duke L.J. 1 (2009).