December 23, 2009
3rd Cir: Gross ADEA Decision Does Not Eliminate McDonnell Douglas Framework
In line with an increasing consensus among the appellate courts, the Third Circuit found in Smith v. City of Allentown (3rd Cir 12/22/2009), that the Supreme Court's controversial Gross decision does not eliminate the McDonnell Douglas framework in Age Discrimination in Employment Act (ADEA) cases.
Ross Runkel has more:
Smith sued the employer for age discrimination in violation of the Age Discrimination in Employment Act (ADEA) and for violation of his First Amendment political affiliation rights. The trial court granted the employer's motion for summary judgment. The 3rd Circuit affirmed.
The court recognized that Gross v. FBL Financial Services, 129 SCt 2343 (2009), expressed significant doubt about any burden-shifting under the ADEA. The court concluded that the but-for causation standard required by Gross did not conflict with the court's continued application of the McDonnell Douglas paradigm in age discrimination cases. (In accord: 2nd and 6th Circuits). The court evaluated Smith's age discrimination claim under the but-for causation standard pursuant to McDonnell Douglas to see whether he produced sufficient evidence to establish that the employer's proffered rationale of inadequate job performance for his discharge was a pretext for age-based discrimination. The court concluded Smith failed to carry that burden.
Sounds right to me under current law, but I am still hoping that Congress sends the Gross decision the way of Ledbetter, Wards Cove, etc.
State Dept. Argues for Continuation of Mandatory Retirement Age for Foreign Service
This is disappointing. As reported by the Blog of the Legal Times:
The State Department filed its motion to dismiss a case challenging the U.S. Foreign Service's mandatory retirement policy, arguing the age cutoff was a valid piece of Congressional decision making.
Elizabeth Colton, a 64-year-old Foreign Services officer, sued the State Department in September alleging she had been denied an overseas assignment because of her age. Her suit, filed at the U.S. District Court for the District of Columbia, claimed the Foreign Service's requirement that officers retire at 65 violated the Constitution's equal protection clause. Colton also alleged the government violated the Age Discrimination in Employment Act by denying her career opportunities before she turned 65.
The government shot back yesterday, arguing that Colton was trying to upend long-settled law. The U.S. Court of Appeals for the D.C. Circuit has already found that the retirement policy at issue, which is contained in the Foreign Services Act, was was exempt from the ADEA, the government said. It added that the Supreme Court has also ruled that the age cutoff does not violate equal protection.
"Congress viewed the mandatory retirement provision as critical to maintaining the highest level of performance by 'the corps of public servants who hold positions critical to our foreign relations,'" the government's filing states.
Of course, you could make the generalization about older people losing ability in any job after 65, I know many robust and energetic 70-somethings and many 50-somethings who are no longer capable of the "highest levels of performance." Isn't the ADEA suppose to cut against these types of stereotypes, Congress?
December 22, 2009
Another Decision Supporting Two-Member NLRB Decisions
The score is now 5-1 in favor of the NLRB's authority to issue two-member decisions. Although not a lock by any means, those numbers are certainly helpful to the Board when the issue goes before the Supreme Court. In the latest case, Teamster Local 525 v. NLRB, the Tenth Circuit held that the NLRA gives the Board authority to issue two-member decisions. It's reasoning was similar to the Second Circuit's, in that both relied on Chevron deference to reach their decision.
As I've noted, whether Chevron applies to the NLRB's interpretation of Sec. 3(b) a giving authority to to-member decisions is far from clear. However, this does give the NLRB another argument to defend its decisions. But, I'd bet that the Supreme Court doesn't use this argument; it's worked hard for a long time to avoid spelling out whether Chevron applies to less formal agency actions, especially those that go to procedural or jurisdictional matters as opposed to those at the heart of the agency's power: here, the NLRB's interpretation of the NLRA's substantive provisions like Secs. 8 & 9).
Hat Tip: Patrick Kavanagh
Increase In Temp Hiring
More good news (or less bad news perhaps) on the jobs front. Following last months dip in unemployment, the Department of Labor's Bureau of Labor Statistics has released data showing that the hiring of temp workers increased last month by 52,000. That's better than any other category of workers. It's also likely a good sign for future unemployment rates, as companies will often hire temp workers when business initially picks up and then, if business stays good, ultimately hire permanent workers. Watch for future months to see if the temp hiring stays strong (and numbers of hours worked by all employees)--if they do, expect good news on the unemployment front to follow.
Garcetti in Higher Education? Not So Fast
Update (12/23): Inside Higher Ed reports on another Garcetti and higher ed case. This time, the court alarmingly applies Garcetti. This decision is in line with the AAUP recent warning that judges are eroding faculty rights at public colleges.
Thanks to friend of the blog, Dennis Nolan (South Carolina) for bringing to my attention this decision from California discussing whether the Garcetti First Amendment free speech case applies in the higher education context. Garcetti held that public employees speaking pursuant to their job duties have no First Amendment free speech protection.
[I]t is heartening to report that a federal court in California has rejected a community college district's attempt to apply Garcetti to strip a professor of First Amendment protection for her classroom speech. In Sheldon v. Dhillon, No. C-08-03438 RMW (N.D. Cal. Nov. 25, 2009), the federal district court ruled, contrary to the college district's argument, that the professor, June Sheldon, did not lose her First Amendment rights merely because her speech took place during classroom instruction. Sheldon lost her adjunct science teaching position at San Jose City College as well as the opportunity to teach courses the next semester following remarks she made to her class about the "nature versus nurture" debate with regard to why some people are homosexuals. Though her comments were part of a class discussion about the topic, some students complained that the way she embraced the "nurture" side of the argument was offensive, leading the college to take the adverse employment actions against her. (FIRE took up Sheldon's case in 2008.)
In Sheldon's subsequent suit under 42 U.S.C. 1983 (a federal statute providing a cause of action for the vindication of federal constitutional and statutory rights), the federal court rejected the college's argument, based on Garcetti, in favor of dismissing Sheldon's First Amendment claims altogether. Crucially, the court observed that "Garcetti by its express terms does not address the context squarely presented here: the First Amendment's application to teaching-related speech. For that reason, defendants' heavy reliance on Garcetti is misplaced." The court opined that the "precise contours" of the First Amendment's reach in this context are "ill-defined and are not easily determined at the motion to dismiss stage."
I think both from a precedential standpoint and a policy standpoint this decision is on the way to the right result. First, Garcetti expressly chose not to rule on whether its ruling applied in the academic context. Second, Supreme Court cases as far back as the 1950s have emphasized the need for academic freedom, including the right to freely say what one thinks in the classroom environment.
To be sure, this decision just gets the case by a motion to dismiss, but I agree that it is heartening that the court might treat academic public employment different from other forms of public employment suffering under the holding of Garcetti.
December 21, 2009
Taubman on Care Work and the Economy
Phoebe Taubman, a fellow at Equal Justice Works with A Better Balance: The Work and Family Legal Center has written an issue brief for the American Constitution Society, entitled Free Riding on Families: Why the American Workplace Needs to Change and How to Do It.
From the press release:
Today’s fast-paced economy relies on many different resources, including electricity, fuel, technology, and the labor of our workers, among many others. Ms. Taubman argues, though, that there is one critical resource whose value we do not fully recognize, and without which our economy would founder: the unpaid work of caring for our families. Whether it is the education and care of the next generation or the comfort and care of the elderly, this work produces extensive benefits for society and we could not go on without it. Ms. Taubman, employing a variety of statistics, discusses the staggering costs imposed on unpaid caregivers, most of whom are women, and on their families, companies, and society as a whole. She contends that, “[f]or a country whose politicians tout family values, the United States has done little to confront these costs and support the critical work that families provide.”
In her issue brief, Ms. Taubman compares current U.S. policies with those of other countries around the world, and she argues that the comparison is not flattering with regard to our policies on paid maternity leave, paid paternity leave, paid sick leave, and the treatment of part-time workers. She provides empirical data to demonstrate how our workforce has changed since our current policies were implemented, and contends that “[o]ur workplace norms and laws were developed over 50 years ago when a different workforce model and a different family model prevailed [and] . . . [i]t is time to adapt our laws to reflect and support the way Americans live and work today.” She then discusses several potential changes to our law or policies, some of which “are already being considered and/or implemented in a variety of U.S. cities and states, as well as overseas, and all of [which] . . . would provide meaningful, immediate support to families who are struggling to provide and care for their loved ones, and would set us on a path toward a more family-friendly workplace culture for the future.”
I don't want to spoil the ending for you, but Taubman describes how paid leave, discrimination protection for caregivers, workplace flexibility, and workplace equity would bring our policies up to date with our needs. There's a lot of interesting data here.