Friday, August 27, 2010

Clark on Compound Discrimination Claims After Iqbal and Gross

Clarke Brian Clarke (Washington & Lee) has just posted on SSRN his new article, "Grossly Restricted Pleading: How Twombly/Iqbal, Gross and the Assumption of Truth Rule Could Kill Compound Employment Discrimination Claim," which will appear in the Utah Law Review. The abstract:

Beginning in Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007) and concluding with Ashcroft v. Iqbal, 129 S. Ct. 1937 (U.S. 2009), the Supreme Court redefined the requirements of notice pleading under Fed. R. Civ. Proc. 8(a)(2) and the standard of review on motions to dismiss under F. R. Civ. Proc. 12(b)(6). Just one month after Iqbal, the Supreme Court decided Gross v. FBL Financial Servs., Inc., 129 S. Ct. 2343 (U.S. 2009). In Gross, which involved a claim for age discrimination under the Age Discrimination in Employment Act (the “ADEA”), the Court held that an ADEA claim required “but for” causation, meaning that only where “age was the reason” for the adverse employment action could a plaintiff prevail. The lower federal courts quickly began applying Gross to claims under other anti-discrimination statutes, notably the Americans with Disabilities Act and 42 U.S.C. § 1983, that, like the ADEA, prohibit discrimination “because” of a protected characteristic. Other anti-discrimination and anti-retaliation statutes – the Genetic Information Nondiscrimination Act, the Family Medical Leave Act, the Fair Labor Standards Act – also prohibit discrimination “because” of a protected characteristic and are subject to Gross’s requirement of but-for causation.

The combination of the Twombly/Iqbal requirement that a plaintiff plead facts sufficient to render each claim in her complaint facially plausible, Iqbal’s specific requirement that a plaintiff plead facts sufficient to make an inference of discriminatory intent facially plausible, the well established “assumption of truth” rule, and the but-for causation requirement articulated in Gross creates a significant problem in situations where an employment discrimination plaintiff pleads “compound employment discrimination claims.” Compound employment discrimination claims are claims in which the plaintiff alleges that her employer discriminated against her based on two or more protected categories protected by two or more separate employment discrimination statutes, such as age (protected by the ADEA) and race (protected by Title VII of the Civil Rights Act of 1964). In compound employment discrimination claims, the facts pled to satisfy Twombly/Iqbal, accepted as true, likely render any claim requiring but-for causation facially implausible.

This paper analyzes the complex interaction of Twombly/Iqbal, traditional bases for dismissal under Rule 12(b)(6), the “assumption of truth” rule, Rule 8(d), and Gross and the effect of their combination on compound employment discrimination claims. Additionally, in order to correct the iniquitous results of this combination, this paper sets forth a new proposal for amending the Federal Rules of Civil Procedure to ensure that courts construe pleadings in employment discrimination cases in accordance with the Congressional intent embodied in the ADEA and the other anti-discrimination statutes impacted by Gross.

Looks like an interesting take on the intersection of these already interesting cases.


August 27, 2010 in Scholarship | Permalink | Comments (1) | TrackBack (0)

Schaumber Leaves the NLRB

NLRB Member (and former Chairman) Peter Schaumber's term on the NLRB expires today.  According to the NLRB press release, Schaumber will take some time off before returning to work in some unknown (at least to the public) capacity.

This means, of course, that the Board is one again below full strength.  (Although four members is sure a lot better than only two.)  It's unlikely that we'll see a nomination, much less confirmation, of a replacement anytime soon.  The White House has no incentive to add another Republican member given the 3-1 Democratic edge currently on the Board.  What might give it an incentive is if Republicans gave something the White House wants--like, say, a confirmation of Craig Becker.  Because that's no going to happen, I foresee a four-member Board for quite a while.

In the meantime, watch out for a release of previous two-member Board decisions and perhaps some other cases of interest in the next week or so.  We'll try to identify any big ones, but please feel free to email me with any we have posted on yet.

Hat Tip:  Patrick Kavanagh


August 27, 2010 in Labor and Employment News | Permalink | Comments (0) | TrackBack (0)

Ninth Circuit Reverses Summary Judgment in Reasonable Accommodations Case

Sign As anyone who has read more than one or two ADA cases knows, the vast majority of litigation has focused on whether a person is a qualified individual with a disability--and more specifically, whether a major life activity is substantially impaired under the meaning of the statute. That is one reason for the ADA Amendments Act, loosening the definitions the courts had imposed on the ADA. In fact, there are still an awful lot of cases involving conduct engaged in before the amendments went into effect, so we're still in that world to some extent.  

Which is why it's refreshing to see a case that focuses on a different portion of the statute--the duty of reasonable accommodation. In EEOC v. UPS, the Ninth Circuit had to consider when an accommodation that an employer actually provided would be considered reasonable enough that it need not do more. And because reasonableness is usually a question of whether the employer has to provide something that is costly or difficult for the employer, this case is better framed as when a purported accommodation is actually an accommodation.

The employee in this case could not hear and had been born that way. His first and primary language was American Sign Language, which is not co-extensive with English. There are signs we have no English words for and words there are no signs for. As a result of this being his second language and a fundamentally different manner of communicating, the employee had limited capacity to read and write in English; he read and wrote at about a 4th grade level. There was no question that he could perform most of the duties of his job. The dispute arose about things connected to work outside of those primary duties: mandatory weekly and monthly meetings; training; and understanding policies and potential disciplinary actions.

The employee had requested an ASL interpreter to translate all of these thing, but UPS provided one only some of the time. Other times it relied on written communications that were either incomplete, not contemporaneous with the speaking, or written at a level above the employee's competency. When the employee stated that he didn't understand something in writing, UPS generally told him to look it up in a dictionary. When that didn't help, UPS provided nothing further. The Ninth Circuit found that at the very least there were contested facts about whether the attempted accommodations actually accommodated the employee and whether UPS even tried to explore accommodations in good faith. So the court reversed the district court's grant of summary judgment for UPS.

In the court's words, 

In summary, an employer has discretion to choose among effective modifications, and need not provide the employee with the accommodation he or she requests or prefers, but an employer cannot satisfy its obligations under the ADA by providing an ineffective modification. Where, as here, there is a disputed issue of fact regarding whether the modifications the employer selected were effective, and where the trier of fact could reasonably conclude that the employer was aware or should have been aware that those modifications were not effective, summary judgment is not appropriate.

Interestingly, UPS does not appear to have provided any reason for not employing an ASL interpreter--not even the obvious, that it was too expensive. It's possible that the company will raise that at trial on remand, but it would likely be better off settling this one.


August 27, 2010 in Disability, Employment Discrimination | Permalink | Comments (0) | TrackBack (0)

Unionization of Air Freight Ground Employees - NLRA or RLA?

Upslogo FedEx_logo Thanks to Mark Weber (DePaul) for bringing to my attention this interesting piece from PBS's Need to Know program on "The Ground War Between Federal Express and UPS."

The article discusses a provision in pending airline legislation on the unionization of ground employees of UPS & FedEx and whether the National Labor Relations Ac (NLRA) or the Railway Labor Act (RLA) applies. 

A taste:

Last month, Congress passed a funding extension to the Federal Aviation Administration and imposed stricter training mandates on pilots, and required passengers to be notified when a flight was being operated by a smaller commuter carrier on behalf of another airline. These changes were designed to address safety issues that led to the crash of a Colgan Air flight near Buffalo, N.Y., in February 2009 that killed 50 people.

However, the bill that passed was significantly pared down from a larger overhaul that had been stalemated in part by a controversial 250-word provision which has erupted into a confusing public spat between shipping giants UPS and FedEx. The simmering conflict will now be postponed until after the August congressional recess.

The struggle centers on several sentences that would amend the arcanely named Railway Labor Act (RLA), which governs labor relations for airlines. The language essentially forces non-airline employees of FedEx Express, like truck drivers, to be governed by the National Labor Relations Board (NLRB). This would allow them to organize locally instead of nationally, as they can under the RLA. In other words, it would make it easier for employees of FedEx to unionize. (UPS is already heavily unionized and governed by the NLRB) . . . .

In June 2009, FedEx launched Brown Bailout, a website portraying the rule change as a “bailout” for UPS. The site includes testimonials from business that rely on overnight shipping, a blog and videos attempting to explain the issue with a poor man’s doppelganger of the UPS whiteboard guy (and The Postal Service soundtrack).

Ouch. FWIW, I agree with this statement: "It’s a matter of equal protection under the law that people doing the same work should be covered by the same set of labor laws and not one particular company exempted from that law."

Kudos to Mark Weber's son, Sam, who wrote a very clear piece on a very confusing, and not well understood, area of labor law.  Heck, I still can't always figure out when one or the other law applies!


August 27, 2010 in Labor Law | Permalink | Comments (1) | TrackBack (0)

Why is the Public Suddenly So Down on Unions?

Unionyes The Center for American Progress Action Fund's American Worker Project asks this question  in an issue brief from this past month.

Here's a taste:

Americans have expressed generally positive attitudes toward unions for as long as pollsters have been asking, and for decades public approval of labor unions has hovered around 60 percent. But starting in 2009 public opinion toward labor unions dropped precipitously. Why?

Last summer less than half of Americans said they approved of labor unions. This is the first time this happened in the over 70 years the Gallup survey research group has asked. Just one year earlier nearly 60 percent of respondents approved of labor unions. Similarly, a 2010 Pew Center for the People and the Press survey found union favorability was at just 41 percent, while in 2007—the last time they asked the question—favorability was 58 percent. The Pew survey also found that the decline in support was widespread, falling for virtually every demographic and political group.

What happened? And what does this mean for the U.S. labor movement’s future given that membership is already at 30-year lows? The answer is largely that the public is angry about the weak economy and is blaming major economic institutions such as business, government, and organized labor. As a result, support for unions should improve when the economy gets back on track. Moreover, despite the drop in overall approval the public continues to value many of the functions unions perform—such as helping workers.

Granted this a rather rosy prediction by those who unabashedly support workers and the resurgence of the union movement, but I was struck by the simplicity of this take. I think it is much more speculative why more people have come to dislike unions, especially in the private sector. 

Other reasons why support of unions go down when unemployment rates rise include:

    a. Fear of Losing Job: “I will lose my job and not be able to find another one, especially in these difficult economic times.”

    b. The Blame Game:  "It is because of unions and their unreasonable demands for higher wages and benefits that American companies are losing jobs to global competition."

    c. We Need More Safety Nets: "Unions have shot themselves in the foot. Rather than working for safety net legislation like their European peers, unemployment means that those unemployed blame the unions for not helping them negotiate this difficult economic climate."

    d. Resentment of Unions: "When unemployment is high, the non-unionized working class resent unions for giving their members greater job security while they're left out in the cold."

In short, there are many reasons for union unpopularity among the public during hard economic times, but some of these reasons also suggest possible ways to put unions back on the right track.

Hat Tip: Monique Lillard


August 27, 2010 in Labor Law | Permalink | Comments (4) | TrackBack (0)

On Choosing Clients

Bad client Michael Maslanka, an employment law defense attorney in Dallas, writes in Work Matters about choosing clients:

The other night, I was having beers with a Houston plaintiff's lawyer who was in town for depositions. We talk about clients on whose cases we pass. Here is his test. He asks the following two questions, back to back: 1. What did the employer tell you was the reason for your termination (or whatever adverse employment action is at issue? 2. What do you believe the reason or reasons were? These two questions and the consistency (or its lack) in the answers pry out, he tells me, the truth. Here is my system. I recall two quotes before I talk to a potential client: 1. Salespeople say the best sale they make is often the sale they did not make. 2. Mark Twain admonished that it is easier to stay out than to get out. I was talking to a potential client about drafting a noncompete for the employees of his company. He said his employees loved him, so he did not see why he needed one. Sure, he went on, he threw things at them, but they all worked in a creative industry and that was to be expected. Pass on the questionable potential client; life is too short.


August 27, 2010 | Permalink | Comments (0) | TrackBack (0)

Pendo on GINA

Pendo Elizabeth Pendo (Saint Louis U.) has just posted on SSRN her article (forthcoming Houston J. Health L. & Policy) Race, Sex and Genes at Work: Uncovering the Lessons of Norman-Bloodsaw.  Here's an excerpt from the abstract:

... In its legislative findings [of GINA], Congress identified the facts of the 1998 case Norman-Bloodsaw v. Lawrence Berkeley Laboratory as a key example of genetic discrimination in the workplace.  Norman-Bloodsaw was the first class action suit raising privacy and discrimination claims related to medical and genetic testing in the workplace. In this piece, I focus on the story behind the Norman-Bloodsaw case to contextualize some thoughts about the use of genetic information in the workplace after GINA and draw out the troubling connections between genetic information and classifications based on race and sex. Part I provides an overview of GINA, including the significant exceptions to the prohibition against employer acquisition of genetic information. In Part II, I uncover the story behind Norman-Bloodsaw, drawing upon the published opinions and briefs, as well as contemporary reports in the national and local media, and a variety of professional publications. In Part III, I highlight two important points that arise from the rich context of Norman-Bloodsaw that can guide the interpretation of GINA in the future: genetic testing of workers occurs and is likely to continue even after GINA, and the gathering and use of genetic information in the workplace is not neutral and often exacerbates long-standing patterns of discrimination based on race and sex.


August 27, 2010 in Employment Discrimination | Permalink | Comments (0) | TrackBack (0)

Thursday, August 26, 2010

Recently Published Scholarship: Public Interest Practice & Worker Organizing

Organize .

New York City Law Review

Public Interest Practice Session


  • Shirley Lung, Law & Organizing: An Introduction to the Public Interest Practice Section, p. 171.
  • Sebastian Amar & Guy Johnson, Here Comes the Neighborhood: Attorneys, Organizers, and Immigrants Advancing a Collaborative Vision of Justice, p. 173.
  • Nadia Marin-Molina & Jamie Vargas, Role of Legal Service in Workers' Organizing, p. 195.
  • E. Tammy Kim, Lawyers as Resource Allies in Workers' Struggles for Social Change, p. 213.

August 26, 2010 in Labor Law, Scholarship | Permalink | Comments (0) | TrackBack (0)

Weight Discrimination at Hooters

Hooters The WSJ Law Blog has a story on a Michigan weight discrimination claim against a local Hooter's restaurant.  According to the complaint, which a judge has just allowed to proceed:

In a performance evaluation this earlier year, [the plaintiff] claims in her complaint, a restaurant manager advised her “to join a gym in order to lose weight and improve her looks so that she would fit better into the extra small-sized uniform.” She alleged she was put on a 30-day “weight probation” and resigned.

The official uniform for Hooters waitresses, she claims, comes in 3 sizes: extra extra small, extra small, or small.

The case falls under Michigan’s Elliott-Larsen Civil Rights Act, which has prohibited employment discrimination based on height and weight (among other factors) since 1976.  I'll admit that I didn't know that had been around that long.  I also wonder whether anyone has a list of all the states with height and weight discrimination laws--there can't be a lot.

Hat Tip: John Rodgers


August 26, 2010 in Employment Discrimination | Permalink | Comments (3) | TrackBack (0)

Recently Published Scholarship: Arbitration Symposium


Lewis & Clark Law Review
Volume 14, Number 3, Fall 2010

Symposium The Supreme Court and Arbitration

  • Edward Brunet, An Introduction to the Symposium, p. 821.
  • Margaret L. Moses, The Pretext of Textualism: Disregarding Stare Decisis in 14 Penn Plaza v. Pyett, p. 825.
  • Sarah Rudolph Cole, Let the Grand Experiment Begin: Pyett Authorizes Arbitration of Unionized Employees' Statutory Discrimination Claims, p. 861.
  • Christopher R. Drahozal, Contracting Around Hall Street, p. 905.
  • Maureen A. Weston, The Other Avenues of Hall Street and Prospects for Judicial Review of Arbitral Awards, p. 929.
  • Aubrey L. Thomas, Nonsignatories in Arbitration: A Good-Faith Analysis, p. 953.


August 26, 2010 in Arbitration, Scholarship | Permalink | Comments (0) | TrackBack (0)

Horton: Arbitration = Unconstitutional Delegation

Horton2 David Horton (Loyola Los Angeles) has just posted his article (forthcoming 86 NYU L. Rev. 2011 -- congrats, David!) Arbitration as Delegation.  Here's the abstract:

Hundreds of millions of consumer and employment contracts include mandatory arbitration clauses, class arbitration waivers, and other terms that modify the rules of litigation. These provisions ride the wake of the Supreme Court’s expansive interpretation of the Federal Arbitration Act (“FAA”). For decades, scholars have criticized the Court’s arbitration jurisprudence for distorting Congress’s wishes and ignoring the fact that companies use fine print dispute resolution provisions as a clandestine way to eliminate substantive rights. This Article claims that the Court’s reading of the statute suffers from a deeper, more fundamental flaw: it transforms the FAA into an unconstitutional delegation of legislative power. Article I, section 1 of the Constitution forbids Congress from conferring the right to make law upon private parties. As construed by the Court, that is exactly what the FAA does. Invoking the statute, firms have created a parallel system of civil procedure for consumer and employment cases.This widespread procedural rulemaking is especially troubling because it establishes a private regulatory regime in an area that Congress has already attempted to regulate. In light of these concerns, the Article proposes several ways that the Court can narrow the statute and thus assuage concerns about its constitutionality. 


August 26, 2010 in Arbitration, Scholarship | Permalink | Comments (0) | TrackBack (0)

Wednesday, August 25, 2010

Dukes v. Wal-Mart Cert. Petition

Wal-Mart Wal-Mart has just filed a cert. petition with the U.S. Supreme Court in Dukes v. Wal-Mart.  As we've been reporting on frequently (there's too many posts to link to, but you can search for "Dukes" to the right of this post for the full lineup), this is the largest employment discrimination case in history, covering over 1.5 million current and former women employees.  Recently, the Ninth Circuit, in a 6-5 en banc decision, affirmed certification of this class of plaintiffs, and that certification is the issue being raised before the Supreme Court.  Only if this certification stands will the discrimination issues be resolved.

My prediction?  The Supreme Court will grant cert. and reverse the Ninth Circuit.  There's a solid five justices who have repeatedly shown that they really don't like big plaintiff classes or employment discrimination cases in general.  So this one seems like a natural for reversal.


August 25, 2010 in Employment Discrimination | Permalink | Comments (2) | TrackBack (0)

Recently Published Scholarship: Journal of Dispute Resolution

Legalism Journal of Dispute Resolution
Volume 2010, Number 1, August 2010


  • Dennis R. Nolan, Disputatio: "Creeping Legalism" as a Deciension Myth, p. 1.
  • Ann C. Hodes, Fallout from 14 Penn Plaza v. Pyett: Fractured Arbitration Systems in Unionized Workplace, p. 19.
  • Martin H. Malin, The Evolving Schizophrenic Nature of Labor Arbitration, p. 57.
  • Michael H. LeRoy, Irreconcilable Deferences? The Troubled Marriage of Judicial Review Standards under the Steelworkers Trilogy and the Federal Arbitration Act, p. 89.
  • Stephen L. Hayford, A Holistic Strategy for Coming to Grips with the Creeping Legalism of Labor Arbitration, p. 111.
  • Lisa Blomgren Bingham, Susan Summers Raines, Timothy Hedeen, Lisa Marie Napoli, Mediation in Employment and Creeping Legalism: Implications for Dispute Systems Design, p. 129.


  • Samuel E. Buffaloe, Sweet Vindication: The Second Circuit Strikes a Blow to Companies That Use Class-Action Waivers in Arbitration Agreements to Avoid the Law, p. 175.
  • Matthew Gierse, All Bound Up With No Place to Go: A Lack of Individual Alternatives to Binding Arbitration Provisions for Statutory Claims, p. 189.
  • F. Shabnam Nouraie, Arbitration Nation: While Arbitration Grows, Judicial Review of Arbitral Awards May Be Shrinking, p. 205.
  • David C. Winters, Third Circuit Buyers Beward: District Court in Litman Holds Unconscionability Defense Contravened by Federal Arbitration Act, p. 223.

August 25, 2010 in Arbitration, Labor Law, Scholarship | Permalink | Comments (0) | TrackBack (0)

Tuesday, August 24, 2010

Consulting Opportunity Re Anti-Harassment and -Discrimination Training

Quest Natalie Holder-Winfield is an employment lawyer who creates leadership and compliance training programs for law firms, corporations, and government agencies. She is interested in partnering on some projects with employment/discrimination law professors to help corporations manage their workplace compliance and leadership initiatives on a consulting basis.  She is particularly interested in professors who can provide sexual harassment, EEO compliance, and multi-gen training.  Here's her email address if you're interested.


August 24, 2010 in Employment Discrimination | Permalink | Comments (0) | TrackBack (0)

Amir & Lobel on Underinvestment Effects of Noncompetes

Amir  LobelOn Amir & Orly Lobel have recently posted on SSRN their article Innovation Motivation: Behavioral Effects of Post-Employment Restrictions.  Here's the abstract:

While post-employment restrictions may encourage firms to invest in employee skill and research and development (R&D), such restrictions may also under certain circumstances discourage employees from investing in their own human capital and work performance. The article reports the findings of an original experimental study designed to unpack the effects of post-employment restrictions on task performance. The results demonstrate that under certain conditions of contractual restrictions, when tasks involve pure effort and are relatively easy to perform, individuals will abandon the tasks at higher rates, spend less time on task, and overwhelmingly fail more often to find the correct solution. At the same time, our findings show that under the same restrictions but different types of tasks – tasks that invoke internal talent and creativity rather than pure effort – some of these effects, including time on task and quality of performance, largely disappear. Significant gaps in task completion remain even under the more creative tasks. Traditional economic models view post-employment restrictions, primarily covenants not-to-compete, as necessary limitations stemming from the assumption that absent such contractual protections, employers would under-invest in research and development and employee training. This study enriches the analysis of human capital development and proposes a dyadic-dynamic investment model. It demonstrates in an experimental setting that regulatory and contractual background affects motivation and performance. The article complements recent empirical evidence about positive spillovers effects stemming from increased labor mobility with a behavioral analysis that suggests further positive effects, offering a nuanced view of the costs and benefits of post-employment contractual and regulatory restrictions.


August 24, 2010 in Scholarship | Permalink | Comments (0) | TrackBack (0)

Recently Published Scholarship: EREPJ


Special Issue in Honor of Clyde W. Summers

Employee Rights and Employment Policy Journal
Volume 14, Number 1, August 2010

  • Martin H. Malin, Douglas D. Scherer, In Honor of Clyde W. Summers: An Introduction to a Special Symposium, p. 1.
  • Paul H. Tobias, An Employment Lawyer's Tribute to Clyde W. Summers, p. 5.
  • Alfred W. Blumrosen, Clyde W. Summers' Influence on Individual Rights Against Employment Discrimination Under the Civil Rights Act of 1964, p. 7.
  • Matthew W. Finkin, Some Further Thoughts on the Usefulness of Comparativism in the Law of Employee Privacy, p. 11.
  • Anne Marie Lofaso, Talking is Worthwhile: The Role of Employee Voice in Protecting, Enhancing, and Encouraging Individual Rights to Job Security in a Collective System, p. 55.
  • Rafael Gely, Ramona L. Paetzold, Leonard Bierman, Educating the United States Supreme Court at Summers' School: A Lesson on the "Special Character of the Animal", p. 93.
  • Michael J. Goldberg, Present at the Creation: Clyde W. Summers and the Field of Union Democracy Law, p. 121.
  • Lea Vandervelde, A Singular Conscience: In Re Summers, p. 153.


August 24, 2010 in Faculty News, Scholarship | Permalink | Comments (0) | TrackBack (0)

Monday, August 23, 2010

GOP Senate Candidate Calls For Secondary Boycott

World Trade Center Ron Johnson, the Republican challenging Russ Feingold for his Wisconsin Senate seat, has called for construction workers to boycott work on the Muslim cultural center that is scheduled to be built a couple of blocks from the World Trace Center site in NYC, in government officials don't block the project.  This is a two-fer from the legal standpoint:  not only is Johnson arguing that government officials ignore the First Amendment (not to mention some other laws) in stopping the project, his backup plan would likely have workers violate the NLRA by engaging in an illegal secondary work stoppage (assuming the boycott was led by a union--a safe assumption in NYC).  Now, I'm sure unions would be willing to help out in exchange for eliminating the secondary pressure ban, but I'm guessing that that's not what he has in mind.

Hat Tip:  Jason Walta


August 23, 2010 in Labor and Employment News | Permalink | Comments (2) | TrackBack (0)

The Nuclear Option

New Image

Judge Carnes of the 11th Circuit wrote a spritely opinion in Alvarez v. Royal Atl. Developers, Inc., 2010 U.S. App. LEXIS 13597 (11th Cir. Fla. July 2, 2010), but one which has the potential to reduce further the right to oppose discriminatory conduct.  Fortunately, the scenario he addressed is relatively rare, and thus his approach doesn't open a large loophole in retaliation law.

Let's begin with the opening paragraphs of the opinion:

Some people are impossible to please. No one can meet their standards and no matter how hard anyone tries, they find fault, criticize, and are unhappy with the result. They demand continuous perfection, which is more than any human being can deliver. The evidence in this Title VII case indicates that Heidi Verdezoto is one of those people. She is the Chief Financial Officer of two closely related, family-owned companies in Miami. As CFO, she supervises the controller of the companies and passes judgment on the performance of the person in that position. And it seems that the judgment she passes is always unfavorable.

The first controller, an Indian-American, was fired because he could not meet Heidi Verdezoto's standards. Likewise with the second controller, an Anglo-American. The third controller for the companies was our plaintiff, Eliuth Alvarez, a Cuban-American. Alvarez,like the two men of different ethnic backgrounds who came before her, was also going to be fired because she could not meet the Verdezoto standards. If Alvarez had been fired as soon as the decision to let her go was made, her sole claim would have been one for discriminatory discharge, and the district court's grant of summary judgment against her on that claim could easily have been affirmed on the basis of what we have had occasion to call the Vince Lombardi rule. See
Baldwin v. Blue Cross/Blue Shield of Ala., 480 F.3d 1287, 1301 n.1 (11th Cir. 2007) (explaining that no player could accuse the great coach of discrimination because he treated all of them like dogs).

Alvarezwas not, however, fired as soon as the decision was made to replace her. Instead, she was kept on in her position while efforts were being made to find a fourth controller, one who--hope springs eternal--might be able to satisfy Ms. Verdezoto. Alvarez got wind of the plans to replace her and wrote a letter of protest to her bosses, complaining, among other things, about what she perceived to be discrimination against her based on her national origin. The company admits that Alvarez was fired sooner instead of later because of that letter, which it concedes is protected conduct. Given that admission and concession, one would think Alvarez's retaliation claim would sail past summary judgment, although the damages remedy might be trimmed because she eventually would have been fired anyway.

In fact, Alvarez's claim did survive summary judgment, but only after an excursion into a  few hypotheticals, including the to-be-fired employee who works in the  control room of a nuclear power plant, and "in her letter complaining of discrimination says that: 'I'm mad as hell and I'm not going to take it anymore!'" According to the judge:

Discrimination laws do not require that their goals be pursued at the cost of jeopardizing innocent life or that employers tolerate a serious risk that employees in sensitive positions will sabotage the company's operations. We are confident that if an employer removes an employee because of a reasonable, fact-based fear of sabotage or violence, the anti-retaliation provisions of our laws will not punish that employer for doing so.

Hmmm.  Alvarez in fact won because the company didn't have a reasonable fear of such consequences. But Title VII protection from retaliation may have shrunk in the process.

To the court's credit, it did reject out of hand the company's claim it would be "awkward and counterproductive: to keep an unhappy worker employed. "Anyone who complains about discrimination is likely to be an unhappy camper. . . . But recognizing [such concerns] as legitimate, nondiscriminatory reasons to fire someone . . . would do away with retaliation claims...."

But the court was not nearly so dismissive of the sabotage possibility.  As is often true, outlandish hypotheticals can make bad law, and we can pretty confident that the defense the judge invents will quickly move out of the nuclear power plant into more quotidian settings, and that "sabotage" will be expanded from physical harm to more economic costs, including perhaps fears of lost productivity because of the employee's (pretty understandable)  bad attitude.

Nor is this new wrinkle necessary. Even the nuclear power plant could solve the problem, for all practical purposes, by a severance package that paid the to-be-fired employee for the period she would have worked had she not engaged in protected conduct.  It's hard to believe that courts would find such action constituted the kind of adverse action the Court required in Burlington. Which would have left the plaintiff with only Vince Lombardi to worry about.


August 23, 2010 in Employment Discrimination | Permalink | Comments (0) | TrackBack (0)

Looking Forward to the UK Equality Act


The Equality Act 2010 (UK) becomes effective October 1, 2010. Under the new Act there are 9 protected characteristics:

  • age
  • disability
  • gender reassignment
  • marriage and civil partnership
  • pregnancy and maternity
  • race
  • religion or belief
  • sex
  • sexual orientation

We'll post periodically over the next month or so on the details of the Act.


August 23, 2010 in Employment Discrimination, International & Comparative L.E.L. | Permalink | Comments (0) | TrackBack (0)

Recently Published Scholarship


  • Ariana R. Levinson, Legal Ethics in the Employment Law Context: Who Is the Client?, 37 N. Ky. L. Rev. 1 (2010).
  • James J. Brudney, Collateral Conflict: Employer Claims of RICO Extortion Against Union Comprehensive Campaigns, 83 S. Cal. L. Rev. 731 (2010).
  • D. Carolina Nunez, Fractured Membership: Deconstructing Territoriality to Secure Rights and Remedies for the Undocumented Worker, 2010 Wis. L. Rev. 817.
  • Shannon Gleeson, Labor Rights for All? The Role of Undocumented Immigrant Status for Worker Claims Making, 35 L. & Social Inquiry 561 (2010).
  • Jessica L. Curiale, America's New Glass Ceiling: Unpaid Internships, The Fair Labor Standards Act, and the Urgent Need for Change, 61 Hastings L.J. 1531 (2010).

August 23, 2010 in Scholarship | Permalink | Comments (0) | TrackBack (0)