July 16, 2010
The Limits of Tenure?
The Chronicle of Education has a story on a dispute between the University of Alabama, Birmingham and one of its tenured professors, Glenn Feldman. The very short version of Feldman's allegations is that his new Dean was pro-business and did not like Feldman's more pro-union stances. In response, according to Feldman, the Dean had Feldman's center eliminated and tried to have him move to a new department that was a less appropriate fit (and might also be on the chopping block).
A few interesting things about this story. First, it notes that several Gulf Coast schools have moved or terminated tenured professors, citing economic hardships following Katrina. I don't have stats on this, but I know that I've personally been contacted on behalf of a few such professors, which leads me to believe that it's not an insignificant issue. Second, when economics is truly the issue, there may not be a lot the professor can do, as most tenure agreements allow for genuine economic dismissals. Whether that's the true cause is obviously the issue many times, as in the Feldman case. And third, does simply changing the job implicate tenure protection? I'm guessing not in most cases, including Feldman's, but I can't be sure without seeing exactly what the tenure policies are and what happened. A good reminder that although having tenure is a lot better than not having it, it's not bullet-proof.
Novartis Sex Discrimination Class Action Ends in $175 Million Settlement
Female sales representatives at Novartis have agreed to accept $175 Million to settle their sex discrimination class action in the case of Velez v. Novartis Pharmaceuticals Corp., No. 04-9194 (S.D.N.Y. July 14, 2010).
The district judge granted preliminary approval of the settlement, involving a nationwide class of female current and former sales employees to settle claims of systemic sex bias in pay, promotions, and pregnancy leave.
The break down involves the company paying up to $152.5 million in back pay and compensatory damages and an additional $22.5 million in nonmonetary relief for companywide equal employment opportunity improvements, training, and enhanced bias complaint processes for its sales staff.
You may recall that a May 19th jury verdict how awarding the class some $250 million dollars in punitive damages. This settlement would replace that verdict and compensate as many as 5,600 current and former female sales employees who worked for the company between July 15, 2002, and July 14, 2010.
Not surprisingly, Novartis has denied all wrongdoing according to the settlement agreement.
My thoughts go to Dukes v. Walmart and whether the experience of Novartis will give impetus to Walmart to consider settling their much larger class action, with approximately two million employees involved.
Ministerial Exception Given Expansive Reading by 10th Circuit
A recent article by Tresa Baldas in the National Law Journal discusses an opinion by the 10th Circuit, Skrzypczak v. Roman Catholic Diocese of Tulsa Inc., which found a church immune from employment suit under the ministerial doctrine.According to the article:
An Oklahoma woman who alleged a Catholic bishop subjected her to "severe and pervasive" discrimination at work because she was a woman is not entitled to protection by federal employment laws, a federal appeals court has ruled.
The U.S. Court of Appeals for the 10th Circuit on July 13 upheld the use of the "ministerial exception" by the Roman Catholic Diocese of Tulsa in a case alleging gender and age discrimination. The 10th Circuit concluded that the plaintiff's duties in this case were not just administrative but also spiritual, therefore granting the church immunity from her suit.
The plaintiff, Monica Skryzypczak, a 50-year-old director of the Department of Religious Formation for the Roman Catholic Diocese of Tulsa, sued the diocese in 2008 for alleged gender and age discrimination.
According to her complaint, she was fired in 2007 with no explanation and replaced by younger men. She claimed that during her tenure, she was paid less than men in similar positions with similar duties — and less than the men she supervised. She also alleged that the bishop made discriminatory comments about women, and that his attitude toward her in particular created a hostile work environment.
I understand the impetus behind the ministerial exception - to avoid commingling of church and state issues - but at least at this basic level of description, I don't see how the woman's spiritual mission had much to do with her being subject to an allegedly hostile work environment or being paid less than similar similarly situated younger men. I worry that the ministerial exception has been expanded beyond what was ever contemplated when it was first judicially developed.
Hat Tip: Randy Enochs
July 15, 2010
Brown on Chinese Labor Law Reforms
Ron Brown (Hawaii) has a fascinating commentary entitled, Reform for the Benefit of Workers, in the July 14, 2010 edition of the China Daily.
Here's a taste:
It appears the All-China Federation of Trade Unions (ACFTU) is unable or unwilling to reform itself to better represent workers' rights and interests in the absence of a clear political decision by higher authorities to do so. Though I believe there has been measurable improvement in the ACFTU's representation of workers, it tends to be regional and inconsistent.
Deng Xiaoping led the country to economic success by adhering to the theory of "economic reform first, political reform second". Because of China's economic success, it is clear to many that if labor laws are to be improved the time for political reform is now.
The time has come to start the process of completing the promise of Deng. Most at the conference believed the ACFTU cannot reform itself. In fact, it needs to become a true social organization or else China should expect many more "Honda-style strikes". The repercussions for China will be economic and political.
The key to political reform in labor laws and labor relations is to allow the ACFTU to more freely represent and secure the interests of the workers in contractual and statutory protections and benefits. Perhaps a clarification and adjustment of primary functions would be in order. Let the governments look after the overall welfare of its citizens through political policies at the macro-level, the employers look after economic advancement, the ACFTU look after the interests of the workers, and the administration protect society through good management and regulation of the dynamics of those functions.
A possible way for China to implement that reform may be to adopt Deng's approach of "crossing a river by feeling the stones", that is, to modify the labor laws and their enforcement on a trial basis in a particular city, region or industry. This "interim experiment" could allow the ACFTU to engage more actively in worker advocacy and collective bargaining, and even initiate strikes as an economic weapon to achieve the goals.
I believe Ron is one of the most insightful of American legal academics on Chinese labor laws. Read this whole commentary to read his insightful analysis.
Whistleblower Law Blog on Dodd-Frank Bill's Robust Whistleblower Protections
Thanks to Jason Zuckerman at the Whistleblower Law Blog for heads up on this informative post: Dodd-Frank Bill Provides Robust Whistleblower Protections.
Here's a taste:
Recognizing that robust whistleblower protection is critical to preventing another financial crisis, Congress included in the Dodd-Frank financial services reform bill (H.R. 4173) numerous provisions designed to encourage whistleblowing and to provide robust protection from retaliation. These provisions create monetary awards for whistleblowers who provide original information to the SEC or CFTC, strengthen the whistleblower protection provisions of the Sarbanes-Oxley Act and the False Claims Act, and create additional whistleblower retaliation causes of action.
For instance, new Section 922 provides rewards for whistleblowing to the SEC and protection against retaliation:
Under Section 922, the SEC will be required to pay a reward to individuals who provide original information to the SEC which results in monetary sanctions exceeding $1 million. The award will range from 10 to 30 percent of the amount recouped and the amount of the award shall be at the discretion of the SEC. Factors to be considered in determining the amount of the award include the significance of the information provided by the whistleblower, the degree of assistance provided by the whistleblower, the programmatic interest of the SEC in deterring violations of the securities laws by making awards to whistleblowers, and other factors that the SEC may establish by rule or regulation. If the amount awarded is less than 10 percent or more than 30 percent of the amount recouped, a whistleblower may appeal the SEC’s determination by filing an appeal in the appropriate federal court of appeals within 30 days of the determination.
Read the whole post about all the new provisions.
A copy of the whistleblower provisions of the bill is available for download here.
July 14, 2010
Fifth Annual Seton Hall Employment & Labor Law Scholars' Forum
This year’s Forum will feature five presenters:
Paradoxes of Perception
Wendy Greene, Cumberland School of Law
The Garcetti Virus
Nancy Modesitt, University of Baltimore School of Law
Why Employment Discrimination Scholars Should Care About Genetic Information
Jessica L. Roberts, University of Houston Law Center)
Shifting Paradigms: Court Confusion About Supervisors' Dispositions
Kerri Stone, Florida International University College of Law
Henry L. Chambers, Jr., University of Richmond School of Law
William R. Corbett, Louisiana State University Law Center
Timothy P. Glynn, Seton Hall University School of Law
Tristin K. Green, University of San Francisco School of Law
Orly Lobel, University of San Diego School of Law
Ann C. McGinley, University of Nevada, Las Vegas, William S. Boyd School of Law
Michael Ashley Stein, College of William & Mary, Marshall-Wythe School of Law
Charles A. Sullivan, Seton Hall University School of Law
Steven Willborn, University of Nebraska Law School (visiting at Seton Hall )
Michael J. Zimmer, Loyola University Chicago School of Law
Changes in the Chinese Labor Market
The New York Times has an article on recent changes in the Chinese labor market, which is putting a lot more power in employees' hands (at least relative to where it has been). The main story line is that a declining supply of young workers--in addition to higher education levels for those workers--has made employers give a lot more to hire enough workers. A good reminder that no matter what the labor laws say, there are few things more important for establishing workplace conditions than supply and demand.
U. Cincinnati Looking for Labor/Employment Prof
The University of Cincinnati is looking to hire up to two visiting, tenure-track, or tenured faculty members to teach in a variety of subjects including Labor and Employment Law. Potential applicants should contact Verna Williams.
Discrimination from the Bottom Up
Most antidiscrimination law assumes that discrimination occurs from the top down, as from a supervisor to a subordinate, or (more generally) from the empowered to the disempowered. As Dean Dad points out, however, discrimination also can occur from the bottom up, as when students use teaching evaluations to "punish" a faculty member who is openly gay. Dean Dad's description of how he handles students complaining about gay professors is worth reading, and he raises interesting points about bottom-up discrimination.
July 13, 2010
Google & Gays
There's been considerable coverage of the new Google policy of “grossing up” the pay of gay employees with domestic partners in order to compensate for the adverse tax consequences of current federal law. When fringe benefits such as health insurance are extended to spouses, they are not taxable. However, since federal law doesn't recognize domestic partners as married, a domestic partner will be taxed on the value of the benefit received.
Google's new policy is designed to fix that. It's a wholly sensible approach aimed to level the playing field for gays at Google (there are apparently a few other companies that already have such policies). It's also quite possibly illegal.
No I'm not talking about DOMA (which has been in the news recently on a related front). I don't see any problem with a private employer "correcting" the federal government’s discriminatory policies. Although I'm not a tax lawyer and could easily be missing something.
From my point of view, the problem is state laws, including California's, that bar discrimination on the basis of sexual orientation. Now, I'm a little hesitant to raise this since the only other source suggesting a legal problem comes from Fox News, which raised the specter of "reverse discrimination" suits.
Nevertheless, as reported, Google's policy is applicable only to same-sex couples -- on the theory that straight couples can get married and so don't need the help. Such a benefit would seem to run afoul of California's law barring discrimination on the basis of sexual orientation in, inter alia, compensation. It's true that the benefit is not framed as a salary increase (it will appear as a separate line on employee pay stubs), but I don't see how it isn't "compensation" as that term is usually used.
"Normal" discrimination analysis, at least on the federal level (I'm by no means an expert on California law), would find this actionable. It's true that not all gays are benefited, but Phillips v. Martin Marietta held that it didn't matter if not all women were excluded if only women were excluded. In this case, not all gays benefit, but only gays benefit.
As for the argument that the reason for the policy justifies it (to counteract the effects of a federal tax policy that discriminates against gays), Title VII has generally rejected justifications for disparate treatment (other than BFOQ, which this isn't) no matter how rational.
The California law does allow for providing greater benefits for employees with dependents than those without, but this doesn't help Google since its policy is to "gross up" for non-dependents -- same-sex employees with dependents do not suffer the tax consequences for those dependents in the first place.
So maybe this is just a kind of affirmative action a la Weber and Johnson? It certainly does not "unduly trammel" the interests of similarly situated straights! As for the other prong of the analysis, whether it breaks down traditional patterns of discrimination, Google could ask a California court to refuse to apply the state's antidiscrimination law when to do so would frustrate a state policy for equality of gays and straights regarding benefits (California also requires insurers to treat domestic partners equally with married persons).
In any event, maybe Google lawyers aren't too worried about a suit. Maybe, Google is pretty confident that the straight "victims of the policy" (people living together without getting married) won't challenge it. After all, there have to be some pretty strong social norms at Google to avoid doing evil.
Thanks to Temi Kolarova for helping with this.