Friday, January 15, 2010
The Seventh Circuit issued a decision today in a mixed -motives ADA case. In Serwatka v. Rockwell Automation Inc., No. 08-4010, the court overturned its own prior precedent and held that a plaintiff in an ADA case alleging that she was discriminated against by an employer who regarded her as disabled had to demonstrate that the perceived disability was the but-for cause of the adverse employment action taken against her. The court held that the Supreme Court in Gross v. FBL Fin. Servs., had essentially held that
the importance that the court attached to the express incorporation of the mixed-motive framework into Title VII suggests that when another anti-discrimination statute lacks comparable language, a mixed-motive claim will not be viable under that statute. . . .“Gross . . . holds that, unless a statute . . . provides otherwise, demonstrating but-for causation is part of the plaintiff’s burden in all suits under federal law."
And while the ADA explicitly incorporates the remedies in Title VII available for disparate impact cases, it did not expressly incorporate the codification of mixed motives liability in 42 U.S.C. § 2000e-2(m). Because the plaintiff did not demonstrate that the plaintiff's perceived disability was the but-for cause of her termination, the district court's decision that the defendant was liable for discrimination had to be reversed.
While not surprising, the extension of Gross to the ADA was not entirely a foregone conclusion given the more extensive cross-referencing the ADA does to Title VII. It's also possible that the ADA amendments may change this going forward. They changed the "because of language to "on the basis of." The Seventh Circuit offered no opinion on whether the new language also means but-for, so maybe it won't.
Hat Tip: Paul Secunda
Thanks to Daniel Mitchell, Professor-Emeritus at the UCLA Anderson Graduate School of Management, who brought to my attention this article by Steve Kolowich entitled: A Historic Union? (January 15, 2010, Inside Higher Ed).
Here's a taste:
A month after completing its first foray into online higher education by acquiring the distance education provider Penn Foster, the Princeton Review has set its next goal: to help create the largest online college ever. And it thinks it can do it in five years.
The company announced yesterday that it is entering into a joint venture with the National Labor College -- an accredited institution that offers blended-learning programs to 200 students, most of whom are adults -- to establish what would be called the College for Working Families. The college would offer courses tailored to the needs of union members and their families, beginning this fall.The curriculum would be broadened from the National Labor College’s current offerings, which are largely made up of courses in labor studies . . . . The new institution would start off awarding associate degrees, with aspirations to running bachelor's and master's programs down the line. Tuition would be similar to that at most community colleges.
Now independent, the National Labor College was originally established as a training center for the AFL-CIO, with which it still retains a close relationship. That’s where the growth potential comes from; the AFL-CIO has 11.5 million members.
I think the article is right that from the union perspective, they could have never hoped to build such a potentially massive re-training operation on their own. I also think that with the need to retrain workers for the new realities of our economy, the timing could not be better.
Feuer on Who is Entitled to Life Insurance Benefits and Top-Hat Benefits from an ERISA Plan Following a Divorce or a Marital Separation?
Albert Feuer (Law Office of Albert Feuer) has posted on SSRN his piece in the NYSBA Family Law Review Newsletter: Who is Entitled to Life Insurance Benefits and Top-Hat Benefits from an ERISA Plan Following a Divorce or a Marital Separation?
Here is the abstract:
The extent, if any, to which a participant’s spouse or former spouse is entitled to the participant’s employee benefits is often an important issue in divorces and marital separations. State courts thus frequently issue domestic relations orders (“DROs”) pertaining to such benefits. Benefit entitlements of ERISA plans, i.e., pension plans and welfare plans (which include life insurance plans), are determined by the terms of those plans. See generally Kennedy v. Plan Administrator of the DuPont Savings and Investment Plan, 555 U.S. (2009), 129 S. Ct. 865, 2009 U.S. LEXIS 869 (January 26, 2009).ERISA plans generally need not follow state-court orders. On the other hand, ERISA plans must follow the designation terms of those DROs which are qualified domestic relations orders (“QDROs”). Questions have been raised about whether life insurance plans and top-hat plans (which are pension plans maintained primarily for the purpose of providing deferred compensation for a select group of management or highly compensated employees), must follow the designation terms of a DRO that “satisfies the QDRO requirements,” but contradicts a designation made pursuant to the plan terms.
Many courts, including quite recently a federal district court in Rhode Island and one in New Hampshire recently and incorrectly disregarded the QDRO requirement that the plan be subject to the ERISA Alienation Prohibition. See Metropolitan Life v. Drainville, 2009 U.S. Dist. LEXIS 63613 (D.C. R.I. July 23, 2009) and Metropolitan Life v. Hanson, 2009 U.S. Dist. LEXIS 92044 (D. N.H. Oct. 1, 2009), respectively. The Alienation Prohibition does not apply to life insurance plans or to top-hat plans. Thus, the QDRO requirement that ERISA plans follow the designations of such orders s are not applicable to such plans. Therefore, the court should have directed the Metropolitan Life plan to disregard the DRO at issue in Drainville and Hanson, and should have held that the participant’s designee pursuant to the plan terms, his second wife and third wife, respectively, was entitled to receive and keep the proceeds.
As always, Albert is timely, relevant, and correct on an important area of employee benefit law administration.
In an article discussing the stalemate over new NLRB nominees and the pending New Process Supreme Court case on the validity of the two-member NLRB (issues that readers will be well-familiar with), Steven Greenhouse cites Administration officials as saying that Craig Becker will be renominated for the NLRB next week (see here for our post on the hold on his nomination).
This at least looks to guarantee that no one will be able to make a mootness argument in New Process.
Hat Tip: Barry Hirsch
Thursday, January 14, 2010
The Washington Post is reporting that the White House has struck a tentative deal with labor unions on taxing "Cadillac" health care policies. According to the Post, union health plans would be temporarily exempted from the tax in order to allow time for unions to negotiate new collective-bargaining agreements:
The so-called Cadillac tax is a key source of financing for a proposal to dramatically expand health coverage to the uninsured. But it is also an important tool for reining in skyrocketing health care costs, and President Obama has insisted that it be included in the package.
Labor leaders, nonetheless, had threatened to campaign against any health care bill that included the tax. By one analysis, as many as one in four union members could have been affected by the version of the tax approved by the Senate. Under that proposal, family plans that cost more than $23,000 and individual policies that cost more than $8,500 would be subject to a 40 percent surtax. The tax would be imposed on the insurance company, but economists believe it would be passed on to workers. For years, many unions have negotiated more generous health benefits in lieu of higher wages.
Last year, the average family policy in America cost $13,375, according to a survey by the Kaiser Family Foundation.
.If true, this may clear the path for health care reform to pass. It also seems like a reasonable compromise given current political realities. If employers and union have really been trading health care for wages, then this allows for some reordering. It'll be interesting to see what the data says about this over the next few years.
Congrats to Marcia for being cited in Newsweek in a recent article on male on male sexual harassment. Here's a taste:
The Cheesecake Factory is known for its oversize portions, delectable desserts, and family-friendly atmosphere. The restaurant is also accused of creating nothing but disturbing memories for a few of its employees. In 2008 the Equal Employment Opportunity Commission (EEOC) filed suit after six Cheesecake Factory staffers claimed they were subjected to repeated sexual harassment at the chain's Chandler Mall location in Phoenix, including allegations of sexual fondling, simulated rape, and even being physically dragged into the restaurant's refrigerator. The Cheesecake Factory denies the charges; in November the company settled the dispute by paying $340,000 to the victims.
Surprisingly, it wasn't a group of female workers who were compensated by the popular eatery: it was a group of male employees who claim they were sexually harassed by other men in the workplace. And, as new EEOC filings show, this situation is not unusual . . . .
By exposing the men to taunts about their genitalia, sexually suggestive simulations, and lewd comments, the men perpetrating the harassment are seeking to embarrass and target the male victims—not sexually stimulate or "flirt" with them. "Sexual harassment is about using power in a way to hurt somebody," says Marcia McCormick, associate professor at Saint Louis University School of Law, who specializes in employment law and gender issues. In the Cheesecake Factory suit there were no allegations that supervisors were attracted to the other men—the sexual harassment was a form of intimidation, McCormick says . . . .
"It's really hard to say what motivates someone to harass except a desire to humiliate the person being harassed," McCormick says.
Ain't that the truth. And Marcia is right on. There is too much confusion, even among law students, that sexual harassment is all about sexual desire. Hardly. Intimidation and animosity play a large role too.
Read the whole article.
This week, NPR has been running an interesting series on issues related to diversity in the workplace. Topics so far include:
- Should "The Office" Be Used in HR Training?
- 'Mad Men' Haven't Changed Much Since The 1960s
- Gay In The Office: The Last Frontier Of Workplace Equality
- Defining Diversity: Beyond Race And Gender
- In-House Resource Groups Can Help And Harm
- Introspection After Allegations Of Discrimination
- Diversity Efforts Uneven In U.S. Companies
- The Promise Of Diversity Is Yet To Be Fulfilled
I like NPR's programming generally because I think the producers take their time to explore an issue from more angles than many other news organizations, and this series has been no exception.
The Justice Department announced today the release of a new video (available here) aimed at educating employers about worker rights and employer responsibilities under the anti-discrimination provision of the Immigration and Nationality Act. The anti-discrimination provision forbids citizenship status and national origin discrimination in the workplace.The half-hour video, available online and in DVD format, describes the types of discrimination prohibited and how employers can avoid discriminatory practices. The Office of Special Counsel for Immigration Related Unfair Employment Practices (OSC) of the Justice Department’s Civil Rights Division is distributing the DVD. OSC enforces the anti-discrimination provision. It also staffs telephone hotlines to help employers and workers quickly resolve immigration-related workplace problems.
"We want to ensure that workers know their rights and that employers know their responsibilities under our nation’s civil rights laws, which protect documented workers against employment discrimination because of their citizenship status, their accent, their appearance or their national origin," said Thomas E. Perez, Assistant Attorney General for Civil Rights.
"While OSC vigorously pursues violators of this law, it also conducts an extensive public education program to train employers about fair employment practices and how to avoid discrimination against authorized workers," adds Perez.
Hat tip: Carol Furnish.
Wednesday, January 13, 2010
A federal judge ruled on Wednesday that New York City intentionally discriminated against black applicants to the Fire Department by continuing to use an exam that it had been told put them at a disadvantage. It was not a “one-time mistake or the product of benign neglect,” wrote the judge, Nicholas G. Garaufis of Federal District Court in Brooklyn. “It was a part of a pattern, practice and policy of intentional discrimination against black applicants that has deep historical antecedents and uniquely disabling effects.” A remedy will be decided on later. . . .
Legal experts, as well as lawyers for the plaintiffs and city officials, said the decision was the first in recent memory in which a court had found that the city had intentionally discriminated against a large group of people — racial minorities or women, for instance — in the workplace. “I can’t recall there ever being a finding of intentional racial discrimination in a pattern-and-practice case against the city,” said Elise C. Boddie, a professor of constitutional law at New York Law School who formerly litigated employment discrimination cases. “I would say this is pretty big.” . . .
In his ruling on Wednesday, the judge found that the city intentionally discriminated against blacks in using those tests and in ignoring calls over the years to change the testing procedure. The suit was brought by three people who took the test and by the Vulcan Society, a fraternal organization of black city firefighters.
At the heart of the case is the Fire Department’s persistent underrepresentation of minorities and the continued use, between 1999 and 2007, of the entrance exams. In 2007, there were 303 black firefighters, accounting for 3.4 percent of the department’s ranks; black residents make up 25.6 percent of the city’s population. The judge noted that while the city’s other uniformed services “have made rapid progress integrating black members into their ranks, the Fire Department has stagnated and at times retrogressed.”
The City says it will appeal, so the story's not over yet. But the judge at least believed that the evidence was overwhelming that intentional discrimination was present. Stay tuned.
I've posted occasionally to Workplace Prof Blog before, but I must admit to some hesitation about committing to doing it regularly. Nevertheless, Rick et al. are pretty persuasive, so you'll hear from me at least once a month over the next year. More if you're unlucky.
I'm going to start with a two-fer by reprising my remarks at the AALS Employment Discrimination session last week, where I was on a panel with Robin Runge and Sandra Sperino, moderated by Scott Moss. Robin and Sandra provided some real information.
My role was to talk about the "big picture,"
As I see it, the landscape at the 30,000-foot level is this: Democratic Congresses pass laws over Republican resistance; Republicans (Richard Epstein to the contrary notwithstanding) don't try to repeal these laws when they get into power. Rather, they have successfully captured the courts, which obligingly give the laws the narrowest possible interpretation.
OK, I know this isn't totally accurate, but, recall, we're still at 30,000 feet.
The courts have two big advantages in this tug of war (beyond the fact that they're the last word in any event). One is the ambiguities of traditional legislation -- either unintentional or intentional. As for unintentional ones, think about “age” (General Dynamics v. Cline) and “sex” (General Electric v. Gilbert). As for intentional vagueness, the legislative process by its very nature often eschews clarity in order to effect enactment. The perfect is the enemy of the possible.
The second advantage for the courts stems from the rise of textualism. While some suspect that the current vogue for this method of interpretation is its hamstringing of Congress, the question is less intent than effect – the undeniable result of an exclusively textual focus is to deprive Congress of the power to provide interpretive guidance through, say, committee reports.
A good example is Ledbetter, about which I've written elsewhere. The Ledbetter case was the culmination of a line of authority interpreting one word in Title VII -- "occur." Congress overrode one aspect of this (for seniority systems) in 1991, and in the Lilly Ledbetter Fair Pay Act of last year, overrode yet another aspect. But the jury is still out on the reach of FPA, and it would not be shocking to find the courts narrowly reading the language of the statute ("discriminatory compensation decision or other practice") so that it did not reach every practice affecting compensation -- such as a denial of promotion -- but rather only practices that are "compensation practices" (whatever those might be). The legislative history suggests a much broader view, but, hey, textualists don't look to legislative history. (If you want to know more detail on this, check out my Raising the Dead?: The Lilly Ledbetter Fair Pay Act, 84 Tul. L. Rev. 499 (2010).
All of this suggests that any transformative change will require not just more of the same but actually alterning the rules of the game. I proposed three possibilities for discussion:
First, statutes that try to achieve more sweeping changes. For example, amending the Dictionary Act to define "employee" for all antidiscrimination statutes would, at one fell swoop, change much of the debate around those statutes. DOMA used this technique to amend the entire US Code at one stroke by defining “marriage” in the Dictionary Act. Maybe Democratic-controlled Congresses could use this approach for progressive purposes.
Second, enact rules of construction mandating particular approaches to particular statutes. The ADAAA started down this road, and it will be interesting to see if such rules of construction have any bite.
Third, reassert Congress's power to guide courts through legislative history, at least committee reports. Provide in the statute (maybe even generally for all statutes) that courts shall consult legislative history in interpreting statutes.
The latter two approaches will, I know, raise some eyebrows about whether Congress is encroaching on the judicial power. I think not, at least at the 30,000-foot level. A good starting point in thinking about these issues is Nicholas Quinn Rosenkranz,Federal Rules of Statutory Interpretation, 115 Harv. L. Rev. 2085 (2002).
David E. Bernstein (GMU Law) (left) and Thomas C. (Tim) Leonard (Princeton Dept Economics) (right) have just posted on SSRN their article Excluding Unfit Workers: Social Control Versus Social Justice in the Age of Economic Reform. Here's the abstract:
Contrary to their modern reputation as egalitarian liberals, many of the original progressive architects of American labor reform were partisans of human inequality. The labor legislation they pioneered was, in important respects, designed to exclude immigrants, women, and African Americans from some or all of the labor market.
The first part of this article discusses the origins and development of a progressive economic ideology that favored, indeed demanded, the exclusion of various so-called “defective” groups from the American labor market. Xenophobia, race prejudice, and sexism certainly were not new to the United States in the Progressive Era. What was new was, first, the idea that protecting deserving workers required the social control of undeserving workers, enough so that labor-legislation advocates defended the exclusion of purportedly unfit minority workers not as an ostensibly necessary evil, but as a positive social benefit. Second, the exclusion of undesirables acquired a new scientific legitimacy: the Progressive Era marked not only the advent of the welfare state but also an extraordinary vogue for race thinking and for eugenics, the social control of human breeding. The new science of eugenics turned “undesirables” into the “hereditarily unfit” and elevated exclusion to a matter of national and racial health. And the new sciences of society, especially economics, showed how unfit workers wrongly lowered the wages and employment of racially superior groups.
Tuesday, January 12, 2010
Caroline Mala Corbin (Miami) has posted on SSRN her forthcoming article in the UCLA Law Review: Ceremonial Deism and the Reasonable Religious Outside.
Here is the abstract:
State invocations of God are common in the United States; indeed, the national motto is “In God We Trust.” Yet the Establishment Clause forbids the state from favoring some religions over others. Nonetheless, courts have found the national motto and other examples of what is termed ceremonial deism constitutional on the ground that the practices are longstanding, have de minimis and nonsectarian religious content, and achieve a secular goal. Therefore, they conclude, a reasonable person would not think that the state was endorsing religion.
But would all reasonable people reach this conclusion? This Article examines the “reasonable person” at the heart of the Establishment Clause’s endorsement analysis. The starting point is the feminist critique of early sexual harassment decisions, which often held that a reasonable person would not find that the alleged harassment created a hostile work environment. Feminists argued that the supposedly objective reasonable person was actually a reasonable man, that men and women often have different perspectives on what amounts to sexual harassment due to structural inequalities, and that reliance on this unstated norm perpetuates male privilege rather than remedies it. The Article argues that the same insights apply to the reasonable person used to evaluate ceremonial deism. The supposedly objective reasonable person too often equates to a reasonable Christian. Furthermore, just as men might find harmless comments that women would find offensive, certain invocations of God may seem acceptable to Christians that non-Christians would find alienating because of their status as religious outsiders. Finally, reliance on this norm perpetuates Christian privilege rather than ensures religious liberty and equality for all. Consequently, the constitutionally of ceremonial deism should evaluated from perspective of a reasonable religious outsider.
I must say that I love an article that can work in both sexual harassment theory and the Establishment Clause! But more seriously, and as Caroline explained to me, this article does apply a feminist analysis of the reasonable person in sexual harassment law to the reasonable person used in establishment clause law. I am a big fan of Caroline's previous work and expect this article will also be a wonderful read.
Mike Zimmer (Loyola-Chicago) writes to tell us about a new listserv for labor and employment law professors in the Midwest part of the country:
To subscribe to the new listserv, go to http://lists.luc.edu/listinfo/midwest-worklaw-profs.
Once you have subscribed, please post to the listserv at firstname.lastname@example.org.
You have the chance to get in at the beginning. I am not sure how much this will be utilized but I thought it would be a good way to have an easily available network for when one of us has something of interest for us. For example, post notice of new papers, meetings and conferences at your school that might be of interest to people in the area, questions, comments on emerging events, etc.
Please sign up if this is of interest to you and I guarantee you the definition of who qualifies as midwestern is quite flexible.
Charlie Sullivan (Seton Hall) will be guest blogging here at Workplace Prof Blog for awhile. He has frequently contributed essays to this blog, particularly on hot topics such as the scope of the Lilly Ledbetter Act, waiving nonwaivable rights, and the parol evidence rule in employment cases.
Charlie received his B.A. from Siena College, his LL.B. from Harvard University and his LL.M. from New York University. He has practiced privately in New York and has taught at the University of South Carolina and the University of Arkansas. Charlie has published in the areas of employment discrimination, antitrust and contracts. He is co-author of Employment Discrimination: Law & Practice (3d ed. 2002; 2d ed, 1988; and 1st ed., 1980), Cases and Materials on Employment Discrimination (6th ed. 2003, 5th ed. 2000; 4th ed. 1997; 3d ed. 1994; 2d ed. 1988; 1st ed. 1982), and Cases and Materials on Employment Law (1993). He is currently co-authoring a casebook Employment Law: Private Ordering and Its Limitations, to be published by Aspen. Charlie has written a number of law review articles, mostly recently having published in the Georgetown Law Journal, the Northwestern Law Review, and the William & Mary Law Review. An elected member of the American Law Institute, he joined the Seton Hall Law faculty in 1978. He served as Associate Dean at Seton Hall from 1995 until 2001 and now, of all things, is directing the Law Library.
Jean Gross, who advises the English government on children's speech, thinks so, and is arguing that employment opportunities are limited for applicants with 800-word vocabularies. This Hllo hw r u? Wld u lke2mt l8tr for T. Cun u txt me ur hme no. Ta Lol. apparently does not cut it in the contemporary workplace. See PJH Law.
Suja Thomas (Illinois) has been writing for a good while now on how federal courts are using Rule 56 to dismiss loads of employment discrimination cases. Her new article (which I saw her present at AALS last week) argues that recent Supreme Court cases have made it possible for Rule 12(b)(6) to be used the same way, even earlier in litigation. Her article is The New Summary Judgment Motion: The Motion to Dismiss Under Iqbal and Twombly. Here's her abstract:
Civil procedure scholars have extensively discussed the new 12(b)(6) standard articulated by the Supreme Court in Ashcroft v. Iqbal and Bell Atlantic Corp. v. Twombly. In this discourse, however, an interesting development has not been explored. The standard for the motion to dismiss has evolved in such a way as to make the motion to dismiss the new summary judgment motion. Despite different words in Federal Rules of Civil Procedure 12(b)(6) and 56 and no discovery before dismissal under 12(b)(6), the new 12(b)(6) dismissal standard now tracks the standard for summary judgment. Moreover, the motion to dismiss under the new summary judgment-like standard may have effects similar to those experienced under summary judgment, including a significant use of the procedure by courts, a related increased role for judges in litigation and a corresponding increased dismissal of employment discrimination cases. This essay describes the similarities between the motion to dismiss and the motion for summary judgment, and also explains how, as a result of these similarities, Swierkiewicz v. Sorema may no longer be good law. This essay further proposes that differences between the motions, including discovery, cost and the role of the courts, call into question the propriety of the changes under Iqbal and Twombly.
Monday, January 11, 2010
Bill Herbert (NY PERB, writing independently) has posted on SSRN his new piece: Workplace Consequences of Electronic Exhibitionism and Voyeurism. Bill prepared the pieced for the 2010 IEEE International Symposium on Technology and Society, which is scheduled for June 2010 in New South Wales, Australia.Here is the abstract:
The popularity of email, blogging and social networking raises important issues for employers, employees and labor unions. This article will explore contemporary workplace issues resulting from employee use of these technologies to communicate with friends, colleagues (and strangers). It will begin with a discussion of the international social phenomenon of individuals electronically distributing their personal thoughts, opinions and activities to a potential worldwide audience while at the same time retaining a subjective sense of privacy. The article will then turn to the legal implications of employers engaging in surveillance of employee workplace computer use and employee off-duty blogs and social network pages. It will also examine the legal issues associated with employers conducting internet searches for information about job applicants. In the conclusion, the article will propose legal, policy and architectural changes aimed at responding to the related social phenomena of electronic exhibitionism and voyeurism.
Of course, on the one hand, the explosion of social networking site the past couple of years make this a very timely and important article. On the other hand, the U.S. Supreme Court will examine public employee privacy rights this year in the case of Quon v. Arch Wireless. In all, this is an important article during this time in the development of employee privacy law doctrine in this country.