October 14, 2011
Barenberg, Brudney, and Klare on the Boeing Case
Mark Barenberg (Columbia), Jim Brudney (Fordham), and Karl Klare (Northeastern) have a guest op-ed in today's New York Times on the Boeing case. As readers well know, the attack on the NLRB's pending litigation in this case has gotten under my skin (see here and here), so in my view, the more defenses of the Board the better. I particularly like the following analogy, which nicely sums up the larger issue at stake here:
Everyone agrees that a company may legally locate its production anywhere it wishes and for any reason — except retaliatory ones. Imagine if Boeing had deliberately located a new plant in an area with a predominantly white labor force and then publicly stated that it did so because it was tired of listening to discrimination complaints made by African-American employees at its home plant. If the general counsel’s allegations are true, Boeing did something legally indistinguishable — unless labor rights no longer count as “real” rights.
But read the entire piece, it's worth it.
October 12, 2011
RIP Frank Kameny: Gay Rights Activist, Fired for Being Gay, the First to Sue
Frank Kameny died yesterday, on National Coming Out Day. I don't know if that's fitting or ironic for an icon in the gay rights movement. Kameny was one of thousands of men and women fired from military and government jobs in the mid-twentieth century, but he did not go quietly. He sued to get his job back. Kameny was a specialized astronomer, employed by the U.S. Army Map Service. While he did not win in court, he nonetheless helped start the Gay Rights Movement.
Kameny joined Jack Nichols, and together, they launched the Washington, D.C. Mattachine Society, one of the first and loudest Gay Rights Groups in the country. Kameny fought to get the federal government to change its policy, and in 1975, the federal government stopped excluding homosexuals from government employment. Kameny also fought the Pentagon on security clearance denials on the basis of homosexuality, a policy that was changed in 1995. And he fought the American Psychiatric Association for listing homosexuality as a mental disorder; they agreed in 1973. For more on Kameny, check out this interview with him from last year in the Washingtonian.
That makes three important figures in equality movements to have passed away in the last week--the Rev. Fred Shuttlesworth, one of the most influential figures in the Civil Rights movement, and Derrick Bell, one of the most influential critical race theorists. I hope that the next few years see some excellent memorial symposia in their individual and collective honor.
October 11, 2011
Revised Conference Announcement and Call for Papers: The Past, Present and Future of Supreme Court Jurisprudence on ERISA
The Center for Tax Law and Employee Benefits announces a one-day symposium for leading scholars, practitioners and policy makers, with papers to be published in The John Marshall Law Review, spring 2012 edition
When: Monday, April 16, 2012
Where: The John Marshall Law School, Chicago, IL
From the conference website:
Through a national call for papers, we wish to assemble a panel of academics, practitioners, and policy makers, to present papers on the past, present and future expectations of US Supreme Court jurisprudence on ERISA. Topics may include discussions and forecasts on a variety of topics, including:
• Deference to plan administrator decisions after Conkright v. Frommert (2010);
• Preemption of state laws after Aetna Health Inc. v Davila (2004);
• Remedies for violations of ERISA after Cigna Corp. v. Amara (2011);
• Attorneys fees after Hardt v. Reliance Standard (2011);
• Intersection with other Federal laws (such as PPACA, or others); or
• Other ERISA issues where there is a split in the Circuits.
More information about this conference and call for papers can be found here.
The Buck Stops Where?
My colleague, Bahar Azmy, on leave from Seton Hall to the Center for Constitutional Rights, recently forwarded two orders from Judge Garafuis of the SDNY in the CCR's Vulcan Society litigation challenging the dismal record of the NYFD in hiring and advancing minority firefighters. One was a Memorandum explaining the second, a Draft Remedial Order. The court had earlier found the Department liable for both disparate impact and disparate treatment discrimination. The Memorandum and Remedial Order reflected the court's effort to redress those violations.
They are worth reading. The Memorandum reflects a judge who has finally run out of patience with New York City's latest response to litigation that traces back at least to the early 1970s. Mayor Bloomberg comes in for especially heavy criticism for not taking any responsibility for the continuing state of affairs during his tenure. But he's not the only one. A sampling:
- the FDNY's EEO Office is "little more than a bureaucratic Potemkin village"
- Mayor Bloomberg was "satisfied" with FDNY compliance efforts, despite multiple individuals and agencies, including the City's own FEP, raising problems
- "Today, four years of litigation and two adverse liability rulings later-- the City still doesn't get it."
- "The blame-shifting and accountability-avoidance that goes on at the highest levels of the City's leadership was on full display at the remedial-phase bench trial."
- "if this litigation has proven anything, it is that it is folly to expect any official of the City of New York to accept accountability for seeing the equal employment opportunity laws are followed."
The Draft Remedial Order is perhaps less dramatic than this prelude might suggest. There are no hiring quotas imposed. Indeed, the judge described it as "simply compel[ling] the City to take a hard look at its policies and practices...." It does enjoin the practices found illegal, basically prior tests, and envisions a new entry-level test being developed in consultation with Special Master Mary Jo White. But taking the judge at his word about continued recalcitrance, one wonders why the past will not be prologue to the future for this employer.
Hart on NPR
Congrats to Melissa Hart (Colorado), who was quoted this morning on an NPR story about Clarence Thomas. The story was referring to Anita Hill's sexual harassment allegations during Thomas's confirmation hearings:
According to University of Colorado Law Professor Melissa Hart, "the hearings certainly brought this issue into the public eye, and people started being willing to say, 'This happened to me.'"
In the year after the hearings, the number of sexual harassment claims filed with the EEOC nearly doubled, then nearly tripled by 1997 and kept growing until 2001.
For the entire story, see Thomas Confirmation Hearings Had Ripple Effect.