Thursday, June 25, 2015

Reading the Disparate Impact Tea Leaves: Texas Dep't of Housing v. Inclusive Communities Project

SUPCTWhile everyone else in the country was reading the Supreme Court's opinion on health care subsidies, I had a chance to look at the other opinion issued today: Texas Department of Housing and Community Affairs v. The Inclusive Communities Project. This case was about whether disparate impact claims are cognizable under the Fair Housing Act. Given how negative the Court's opinions seem to have been when it comes to disparate impact -- or even any theory of liability other than for fully self-aware motive -- pretty much since Griggs v. Duke Power Co., with the partial exception of Smith v. City of Jackson, no one expected the Court to rule that they were. That's why the last two FHA disparate impact cases the Court granted cert on settled before the Court could decide them.

Somewhat surprisingly, the Court held that disparate impact claims were cognizable in an 5-4 opinion written by Justice Kennedy. Essentially, the Court based its decision on the statutory language, the history of the Act, and the Act's purpose. Although the FHA does not have language like Title VII or the ADEA that focuses on actions that would "tend to deprive" people of housing opportunities, the FHA does prohibit "otherwise mak[ing] unavailable" housing opportunities because of a person's protected status. That "otherwise" language was key.

It's not all great news for the plaintiffs here or for disparate impact under Title VII, though. Much of the opinion was devoted to discussing how the proof structure limits the claim. The plaintiff must point to a particular practice that causes a disparity, and the defendant has the opportunity to show that the practice is "necessary to achieve a valid [government] interest." The Court suggested that would be difficult in this case, especially where a single housing decision might not be evidence of any policy that would produce a disparity. Finally, the Court cautioned that the relief ordered be very narrowly tailored to the specific practice that was arbitrary, so that government discretion was not cabined more than necessary.

Of special interest in the employment context was this odd statement about the employment cases: 

These cases also teach that disparate impact liability must be limited so employers and other regulated entities are able to make the practical business choices and profit-related decisions that sustain a vibrant and dynamic free-enterprise system. And before rejecting a business justification—or, in the case of a governmental entity, an analogous public interest—a court must determine that a plaintiff has shown that there is “an available alternative . . . practice that has less disparate impact and serves the [entity’s] legitimate needs.” Ricci, supra, at 578. The cases interpreting Title VII and the ADEA provide essential background and instruction in the case now before the Court.

Even though the Court refers to the employment cases, in which the defendant bears the burden to prove that its practice is a business necessity, the statement about needing the plaintiff to prove an alternative practice before a court can reject a business justification, seems to put more of a burden on the plaintiff. Also, the test for business necessity itself is unclear. Congress, in the Civil Rights Act of 1991, stated that the standard should be what it had been the day before the Court decided Wards Cove v. Atonio, which had altered the standard to make it simply a legitimate business reason. But the only case since the CRA to discuss the business necessity standard was Ricci v. DeStefano, which didn't really do a full disparate impact analysis and seemed to interpret business necessity more like the Wards Cove reasonableness standard. My guess is that this will not help the lower courts much, although it may encourage them to use a reasonableness or business judgment type rule to assess the business necessity defense in the future.

There were two dissents. Justice Thomas dissented, essentially arguing that "because of" could only mean an intent to discriminate, which in turn requires that protected class be the motive for the decision. His dissent is interesting for those of us who study the history of Title VII and the EEOC because of its description of the influence of Alfred Blumrosen, who helped create the EEOC and served as its first Chief of Conciliations and Director of Federal-State relations. Justice Thomas was also worried about how this theory will frustrate the creation and maintenance of low-income housing, especially in places like Houston, which is a minority-majority city.

Justice Alito also dissented and was joined by the Chief Justice as well as Justices Scalia and Thomas. Justice Alito agreed that "because of" required that protected status be the decisionmaker's reason for the decision. He also disagreed with the Court's reading of Congress's intent and the history of the statute. He further disagreed that Griggs's rationale should be imported to the FHA, and implicitly disagreed that Griggs was supportable or even really about anything but sneaky disparate treatment. Finally, Justice Alito worried about how the theory would work in the housing context, which he sees as much more complicated than a relatively simple policy choice at a single employer.

In the end, those who think that disparate impact is a necessary tool in the fight against inequality can breathe some sigh of relief--it's not completely dead. At the same time, though, its viability seems very limited, and the standard for liability is not at all clear.


June 25, 2015 in Commentary, Employment Discrimination | Permalink | Comments (1)

Tuesday, June 23, 2015

The N-Word at Work: Jury Trial Edition

JuryboxThose of us who study race and social movements have had a lot to think about lately. The video of the white police officer in McKinney, Texas using force to subdue a black teenager and threaten others at a pool party, debate over Rachel Dolezal's identity, the racially motivated murders in Charleston and the ensuing calls to remove displays of the confederate battle flag, the Supreme Court's holding that Texas could refuse to issue a specialty license plate with the confederate battle flag on it, and the debate over President Obama's use of the n-word on Marc Maron's podcast have really sparked a prolonged national discussion. Fitting right in to the mix, a federal jury last week issued a defense verdict in Burlington v. News Corp. (civil action no. 09-1908 E.D. Pa) for an employer that  had fired an anchor for using the n-word in an editorial meeting. (h/t Leora Eisenstadt (Temple Business))

The case has a lot of interesting pieces. The white anchor used the term in an editorial meeting and several people at that meeting, some black and some white, were offended even though they did not perceive that he meant it then as a racial slur. Burlington's claim was, essentially, that he was only fired for using the word because he was white and that a black person would not have been. He also used a cat's paw theory, alleging that his co-anchor, who was black, was behind the firing. She allegedly told him "[b]ecause you’re white you can never understand what it’s like to be called a n***** and . . . you cannot use the word . . . ."

The case made it past summary judgment, and the court's opinion is worth a read. It has something for everyone. Not only are the allegations detailed more fully, but the court analyzes whether Title VII should take into account public perceptions about the use of the n-word in the context of the race of the speaker and also struggles with how to merge Staub v. Proctor Hosp.'s cat's paw holding with Vance v. Ball State's ruling on who counts as a supervisor.  You can also read more about the court's discussion of the context and use of the n-word in this ruling on motions in limine right before trial began.

And if you are looking for more commentary on Title VII, context, and use of the n-word at work, you should read Leora Eisenstadt's article, The N-Word at Work: Contextualizing Language in the Workplace--previously posted about here--which grew out of her work on the case when she was in practice. A couple of other interesting pieces by Gregory Parks (Wake Forest) and Shayne Jones (S. Fla. Criminology) here and here, are also thought provoking.


June 23, 2015 in Commentary, Employment Discrimination, Scholarship | Permalink | Comments (0)

Thursday, December 11, 2014

Secunda on Right to Work laws

SecundaWith right to work on the agenda and in the public eye in Wisconsin, it only makes sense that Milwaukee's NPR affiliate WUWM would turn to Paul Secunda, our friend and blogger emeritus. Paul was a guest on "Lake Effect," with this introduction:  "As a potential debate over right-to-work laws looms in Wisconsin, we get some historical perspective on such legislation, and more insight into the impact it could have on labor and politics in the Badger State." Follow the link to listen to the whole thing, or find just Paul's segment on this page. Nice work, Paul!


December 11, 2014 in Commentary, Faculty News, Faculty Presentations, Labor and Employment News, Labor Law, Labor/Employment History | Permalink | Comments (0) | TrackBack (0)

Wednesday, September 24, 2014

Bauries, Sutherland, and Legare Amicus in Eleventh Circuit Teacher Evaluation Case

Scott-Bauries-FULLScott Bauries (Kentucky) writes to tell us about an amicus brief he, Brian Sutherland, and Cheryl Legare (both from the Buckley Law Firm) filed on behalf of Professors of Education Law and Educational Measurement

From the abstract on SSRN: 

This appeal, to be decided by the United States Court of Appeals for the 11th Circuit, challenges two egregious misuses of "value-added modeling," a controversial teacher evaluation method that attempts to isolate the affect of one teacher on the learning gains of that teacher's students, as derived from annual standardized test scores. With the approval of the State Appellees, the School District Appellees used the test scores of students who took the Florida Comprehensive Assessment Test in reading and math to evaluate the teaching performance of teachers who either did not teach these students at all, or did not teach them the tested curriculum. Amici, who are experts in education, education law, and educational measurement, file this brief to assist the Court in understanding how irrational these uses of value-added modeling are. The uses challenged here contradict the very purpose of using value-added modeling in the first place. In addition, they completely lack scholarly support, and they undermine, rather than further, the state's avowed purpose in evaluating its teachers -- to incentivize the evaluated teachers to improve their teaching, and thereby improve student achievement.

Or in plainer terms as Scott wrote in an email,

The basic goal of amici was to educate the court about the many problems with value-added modeling as an employee performance evaluation tool, to better illustrate the ridiculousness (and therefore constitutional irrationality) of the uses to which it was put in these districts.  In brief, the districts used the test score data of one teacher’s students on a test in one subject area to judge the performance of teachers who either did not teach the students who took the test at all (e.g. kindergarten teachers, when testing begins in third grade), or did not teach them the tested curriculum (e.g., fourth grade music teachers). 

Very interesting read.


September 24, 2014 in Commentary, Faculty News, Public Employment Law | Permalink | Comments (0) | TrackBack (0)

Monday, July 21, 2014

RIP Dan Markel

MarkelUsually when we note the passing of someone, it's a person who has made an impact on the field of labor and employment law, but expressing dismay at the tragic death of Dan Markel seems an appropriate exception. Even though Dan's scholarly work was in retributive justice, we shared many connections. Dan cast a net for critique of his work widely beyond his field, and likewise was always ready to comment and help on others' works, including ours. He was committed to being part of a scholarly conversation and urged others to that same goal, whether they had been writing for years or just starting out. As the founder of Prawfsblawg, Dan brought together people of many fields to write on whatever they wished and to promote their work; he did this in real life, too, organizing social events and workshops wherever he went.

Dan was so very full of life, love for his boys and friends, and generosity towards all of us that his death feels unreal. We express our heartfelt condolences to his family, friends, FSU and Tallahassee community, and the broader community we too are a part of. In his memory, it seems appropriate to link to one of his last posts, Thoughts on Work-Life Imbalance from Those Left Behind.

July 21, 2014 in About This Blog, Commentary, Faculty News | Permalink | Comments (0) | TrackBack (0)

Tuesday, July 1, 2014

Gender and Race Issues in Harris and Hobby Lobby

ScotusThe analyses here of yesterday's decisions, Jeff's in Harris v. Quinn and Charlie's in Burwell v. Hobby Lobby were spot-on and highlighted many of the legal implications of the cases going forward.  There were some interesting facets that they did not discuss that I would like to think through a bit more.

One of the things that struck me about both decisions is their effect on women and particularly women of color. The workforce at issue in Harris is primarily female and heavily women of color. Similarly, lack of contraceptive access affects women most directly, and has larger impacts on women of color. Nearly half of the pregnancies in this country are unintended (a higher rate than other developed nations), and result in a large number of abortions and poorer health and economic, workplace-related consequences for the women who choose to continue their pregnancies and the children they deliver. The rates of unintended pregnancies among African American and Hispanic women are significantly higher than for white women because of lack of access to low cost, highly reliable contraception. And the health risks of pregnancy are significantly greater for women of color -- African American women are four times more likely to die in childbirth than are white women. Easy access (financially and logistically), reduces these effects significantly

Unionization has been good, in general, for the home health care workers in Illinois. These are workers not covered by safety net statutes like the Fair Labor Standards Act and the Occupational Safety and Health Act, nor are most covered by anti-discrimination statutes like Title VII. They are not covered by the National Labor Relations Act, either, which is one reason that these workers have had little luck bargaining for better wages or working conditions. These workers who were allowed to organize in Illinois and to bargain with the state have seen their wages increase significantly, nearly tripling for some (from as low as $3.35 to now over $11 and set to reach $13 by the end of the year). They also have health insurance and other workplace benefits. The result has been good for the majority of those women, although the named plaintiff, a woman who cared for her own son at home, perceived the deduction from her paycheck as a reduction in medicaid benefits for her son. Overall, most people who need in home care, like the elderly -- who again, are disproportionately women, although white women, based on aggregate life expectancy data -- and people with disabilities, also benefitted by being able to retain workers long-term who can be reliable (able to rely on this as their primary income and not look for other or better paying work) and better trained. Those people who need care could remain in their homes and not have to live in institutional settings.

To the extent that the gender pay gap and the racial pay gap (and the racialized gender pay gap) are driven by horizontal labor force segregation, organization seemed the most promising force for change. The decision in Harris seems to minimize the effects of that progress. To the extent that these pay gaps are driven by either horizontal or vertical workplace segregation that results from pregnancy and caregiving responsibilities, or by the higher cost of health care for one sex, easy access to contraception seems a way to reduce those indirect and direct effects. The decision in Hobby Lobby seems to threaten that. If insurers do not continue to agree to absorb the costs of contraceptives, who will? And finally, aside from the effects on individuals (workers, those who need home health care, and the families of both), to the extent that these pay gaps lead to wealth disparities, health outcomes disparities, and an inability to live independently, the states face greater expenses in supporting those who need help.

The Court's opinion in Hobby Lobby contained some additional food for thought on the interaction of RFRA and other federal laws. The Court stated in the early part of its opinion that the decision was confined in a number of ways, including that it was confined to the contraceptive mandate of the ACA. But the logic of the opinion and the language in the bulk of it has few bounds. As Justice Ginsburg's dissent pointed out, the logic of the opinion would allow any corporation, regardless of it's organization or corporate purposes, to challenge any federal law of general applicability, including, for example, Title VII. While the majority explained that Title VII's prohibition on racial discrimination in hiring was the least restrictive means to ensure equal opportunity in employment on the basis of race, the court left its analysis at that. Title VII also prohibits classifying and segregating employees in any way that would tend to deprive them of opportunities based on race. Is that narrowly tailored enough? Is the way that language has been interpreted to include disparate impact narrowly tailored enough?

Moreover, what about the other classes protected by Title VII? Sex is notably absent from that language. Is the Court anticipating the Title VII action brought by Hobby Lobby's female employees or the EEOC itself challenging a lack of access to contraception as sex discrimination? Such a suit could be a ways off if insurers will go along with the accommodation worked out for nonprofit religious entities and religious organizations in this context. However the process to take advantage of that opt-out is also currently being challenged. And based on the Court's decision, the Eleventh Circuit has suggested that it thinks that process will definitely fail. Yesterday, just hours after the Court's decision, the Eleventh Circuit granted the Eternal Word Television Network an injunction against complying with the opt-out because signing or indicating to an insurer or the government in any way that the Network would refuse to comply with the mandate would trigger that coverage to be provided in another way, thus facilitating the Network's employees in possibly engaging in acts the Network finds immoral--including having sex for any reason other than for procreation. Judge Pryor's concurrence quoted the majority's language at length, stating that it was clear the requirement would violate RFRA. It is no real stretch to extend that to for-profit corporations as well.

Moreover, what of the burgeoning case law on sex as including gender identity and sexual orientation at least when what is at issue is gender nonconforming behavior by the employee? Is that cut off at the knees for any company asserting that it finds gender nonconformity immoral for religious reasons? 

These are just some preliminary thoughts of the additional effects of the two cases--and I didn't even get into the government efficiency, corporate law, corporate personhood, or issues of religion also running through the one or the other decisions I'd love to hear thoughts on any of this in the comments or follow-up posts.



July 1, 2014 in Beltway Developments, Commentary, Employment Discrimination, Labor Law, Public Employment Law, Religion | Permalink | Comments (5) | TrackBack (0)

Tuesday, April 22, 2014

Issue Spotting

Thank you to the regular bloggers at Workplace Prof Blog for allowing me to guest post this month.  With their blessing, I will often be cross-posting from my new blog, Friend of the Court, available at  Friend of the Court will explore cutting edge and emerging issues in employment discrimination law.  It will provide in-depth, substantive commentary on each topic and discuss history, theory, doctrine and policy implications.  The goal of the blog is to assist courts, lawyers, and policymakers as they navigate complex discrimination issues.  

This blog's inspiration comes in part from Larry Solum's Legal Theory Blog and from Scott Moss' article, "Bad Briefs, Bad Law, Bad Markets: Documenting the Poor Quality of Plaintiffs' Briefs, Its Impact on the Law, and the Market Failure It Reflects." Their work has convinced me of the need for substantive, online resources and the potential of the blog platform.

Given the sophisticated audience of Workplace Prof Blog, I am hoping readers can provide me with their top picks for cutting edge issues.  What issues would you like to read about?  I look forward to reading your comments.


April 22, 2014 in Commentary, Faculty News | Permalink | Comments (0) | TrackBack (0)

Welcome to Guest Blogger Sandra Sperino

Sperino_0Welcome to guest blogger Sandra Sperino. Sandra teaches Civil Procedure, Employment Discrimination, and Torts at the University of Cincinnati College of Law. From her faculty bio page:

Professor Sperino teaches in the areas of civil procedure, torts, and employment law. She served as Chair for the AALS Section on Employment Discrimination Law and is a contributing editor to several employment law books published by the American Bar Association.

Professor Sperino’s scholarship focuses on employment discrimination, and her recent work focuses on the intersection of tort and discrimination law. She is a co-author (with Grover and Gonzalez) of Employment Discrimination: Cases and Materials, an employment discrimination casebook.  Her article, The Tort Label, was selected for the Harvard/Stanford/Yale Faculty Forum.  Her recent articles are published in the Michigan Law Review, the University of Illinois Law Review, the George Mason Law Review, and the Notre Dame Law Review

Prior to joining the UC Law faculty, she served on the faculty at Temple University Beasley School of Law. She also was a visiting professor at the University of Illinois College of Law and the St. Louis University School of Law.

Professor Sperino was in private practice as an attorney for the litigation and labor and employment departments at Lewis, Rice & Fingersh in St. Louis. There she co-authored the successful petition for writ of certiorari and the brief argued before the U.S. Supreme Court in United States v. Sell.

Professor Sperino received her J.D. from the University of Illinois College of Law, where she was editor-in-chief of the University of Illinois Law Review, and a M.S. in Journalism from the University of Illinois.  After law school, she clerked for the Hon. Donald J. Stohr of the U.S. District Court, Eastern District of Missouri.

A couple of her recent articles include,

The Tort Label (forthcoming U. Fla. L. Rev.)

Discrimination Statutes, the Common Law, and Proximate Cause (U. Ill. L. Rev.)

Welsome aboard, Sandra!


April 22, 2014 in About This Blog, Commentary | Permalink | Comments (0) | TrackBack (0)

Thursday, April 10, 2014

Lawyers and Mental Health

Depression liesBrian Clark (Charlotte) has posted part 3 of his series on Coming Out with mental health issues. It's as good as the first two. 

April 10, 2014 in Commentary, Worklife Issues | Permalink | Comments (0) | TrackBack (0)

Tuesday, April 8, 2014

Happy Equal Pay Day

Ryan-Gosling-ryan-gosling-22881860-1280-960(Photo credit The Individualist Feminist) Happy Equal Pay Day, the day that women's pay catches up to men's from last year. The gap is currently 77 cents for every dollar a man earns, but that does not account for racial differences. Black women only make 64 cents to every dollar a white man makes. For Latina women, it’s 54 cents. President Obama's new workplace orders are heartily applauded by those of us who think that something other than women's fully empowered and free choices are driving this gap.


April 8, 2014 in Commentary, Employment Discrimination, Labor and Employment News, Worklife Issues, Workplace Trends | Permalink | Comments (1) | TrackBack (0)

Thursday, April 3, 2014

Lawyers and mental health

Depression lies Brian Clark (Charlotte) has posted part 2 of his series on Coming Out with mental health issues. It's as good as promised.

April 3, 2014 in Commentary, Disability, Worklife Issues | Permalink | Comments (0) | TrackBack (0)

Monday, March 31, 2014

Lawyers and mental health

Depression liesBrian Clarke (Charlotte) has a very thought provoking piece at Faculty Lounge on lawyers and mental health. The figures on lawyers and depression are particularly horrifying. This is just the first of a planned three-part series, and the second and third installations look to be as good as this one--and so far, even the comments are good. Perhaps law schools and the legal community ought to be more vocal about strategies of self care and its place in our professional lives.

(necklace above available from the Bloggess's online store)


March 31, 2014 in Commentary, Worklife Issues, Workplace Trends | Permalink | Comments (0) | TrackBack (0)

Thursday, March 27, 2014

Commentary on NLRB Northwestern decision

FootballThe Wall Street Journal's Law Blog has a helpful roundup of media commentary on the decision by the NLRB's regional counsel that Northwestern football players were employees and eligible to bargain collectively, which Jason and Jeff posted about yesterday. Jon Hyman, the Ohio Employer's Blog, offers his thoughts here. Tom Crane, San Antonio Employment law blog, has posted this. Former guest blogger, Joseph Mastrosimone (Washburn), offered his perspective earlier this year in this post at the Huffington Post. 

If you prefer to listen to commentary, here is an interview of Joe Slater (Toledo) on the Scott Sands show on Toledo's WSPD.

In the scholarship category, Thomas Frampton and Nicholas Fram wrote A Union of Amateurs: A Legal Blueprint to Reshape Big-Time College Athletics, published in the Buffalo Law Review, outlining the case for the players. The article argues that oft-overlooked Seattle Opera case, affirmed by the DC Circuit, provides the strongest support for the players--and it was relied upon by the regional director in the Northwestern decision.

I'm sure many readers of the blog have also contributed to stories or have written on the subject--let us know. Post them in the comments or send me an email, and I'll add them to the list.


March 27, 2014 in Commentary, Faculty News, Labor and Employment News, Labor Law, Union News | Permalink | Comments (3) | TrackBack (0)

Wednesday, March 26, 2014

Hobby Lobby/Conestoga Wood Roundup

ScotusThe Supreme Court heard arguments yesterday in the companion cases of Sebelius v. Hobby Lobby and Conestoga Wood v. Sebelius, both dealing with whether the contraceptive mandate of the ACA violates the Religious Freedom Restoration Act if it applies to for-profit corporations that assert a religious objection to providing contraceptive coverage.

The oral argument transcripts show heavy questioning of the corporations' position by the three female justices, and heavy questioning of the Solicitor General by Justices Scalia, Alito. I won't try to read the tea leaves, because I'm almost always wrong, but I'll direct you to the commentary on the argument in ScotusBlog,  Forbes, The New Yorker, Politico, The Wall Street Journal, Time, and Slate

There are a number of scholarly works that address the issues, too. Some of them include this paper by Mal Harkins (SLU adjunct/Proskauer Rose, LLP), this article by Steven Willis (Florida), this article by Stephen Bainbridge (UCLA), this article by Jeremy Christiansen (Utah), this article by Edward Zelinsky (Yeshiva/Cardozo), this ACS issue brief and this article by Caroline Mala Corbin, this article by Matthew Hall (Georgia) and Benjamin Means (South Carolina), this article by Eric Bennett Rasmusen, this article by Priscilla Smith, this article by James Oleske, this article by Christopher Ross (Fordham), and this article by Elizabeth Sepper.

I do feel comfortable predicting that this is likely to be a 5-4 decision and likely not to be issued until June. 


March 26, 2014 in Commentary, Employment Discrimination, Labor and Employment News, Pension and Benefits, Religion, Scholarship | Permalink | Comments (0) | TrackBack (0)

Monday, March 17, 2014

Shriver Report Documentary: Paycheck to Paycheck

SHRIVERcovfront-1-144x192Back in January, Maria Shriver's organization "A Woman's Nation" issued its third report on fundamental challenges facing women in the U.S.: A Woman's Nation Pushes Back from the Brink. I have not had a chance to read the whole report, which focuses on financial insecurity of women and the children who depend on them, and the impact of that financial insecurity on our country's institutions and econonic futures, but the parts I have read have been very thought provoking. For more, see the Shriver Report's home page.

In connection with that report, Shriver and HBO created a documentary, Paycheck to Paycheck: The Life and Times of Katrina Gilbert, to personalize the struggles of low wage workers, most of whom are women. The documentary is streaming free at HBO Docs YouTube page this week only.


March 17, 2014 in Commentary, Employment Discrimination, Labor and Employment News, Labor/Employment History, Pension and Benefits, Wage & Hour, Worklife Issues | Permalink | Comments (0) | TrackBack (0)

Tuesday, January 28, 2014

Guest Workplace Prof Blog Post: Feldblum on Mach Mining

FeldblumWe are privileged to present as a guest blogger today, Chai R. Feldblum.  Chai is a Commissioner on the federal Equal Employment Opportunity Commission (EEOC), but is writing here on a recent 7th Circuit decision for herself only.  Her post is entitled: On Mach Mining.

Much attention has been paid to the Seventh Circuit’s opinion in EEOC v. Mach Mining.  That is how it should be.  Judge David Hamilton’s opinion for the panel is brilliant, concise, and correct.  The women at the center of the lawsuit who were seeking jobs in the mining industry will now finally have their day in court.

Instead of following precedents of other courts of appeal that have decided or presumed that courts can review the sufficiency of EEOC’s conciliation process, Judge Hamilton went back to first principles of statutory construction.  As his opinion noted:

The language of the statute, the lack of a meaningful standard for courts to apply, and the overall statutory scheme convince us that an alleged failure to conciliate is not an affirmative defense to the merits of a discrimination suit.  Finding in Title VII an implied failure-to-conciliate defense adds to that statute an unwarranted mechanism by which employers can avoid liability for unlawful discrimination. They can do so through protracted and ultimately pointless litigation over whether the EEOC tried hard enough to settle.  An implied failure-to-conciliate defense also runs flatly contrary to the broad statutory prohibition on using what was said and done during the conciliation process as "evidence in a subsequent proceeding." 42 U.S.C. § 2000e-5(b).  We therefore disagree with our colleagues in other circuits and hold that the statutory directive to the EEOC to negotiate first and sue later does not implicitly create a defense for employers who have allegedly violated Title VII.

While much attention has been paid to the fact that the Seventh Circuit broke from the pack in deciding the legal issue before it, less attention has been paid to the weight the Seventh Circuit placed on the internal "meaningful scrutiny" and oversight that the Commission applies to its conciliation process.  As Judge Hamilton explained:

[T]he commissioners who head the agency are appointed by the President with the advice and consent of the Senate.  In short, even without the judiciary trying to monitor the EEOC’s efforts at conciliation, those efforts are subject to meaningful scrutiny.

As a former professor of statutory interpretation, I give the Mach Mining decision an A for careful and thoughtful statutory analysis.  On a more practical level, as a sitting Commissioner of the EEOC, I welcome the court’s emphasis on the meaningful oversight Commissioners provide with regard to our staff’s conciliation efforts.  That is something I have been a strong supporter of since I joined the Commission.

My commitment to those efforts comes directly from the language of Title VII:

If the Commission determines after such investigation that there is reasonable cause to believe that the charge is true, the Commission shall endeavor to eliminate any such alleged unlawful employment practice by informal methods of conference, conciliation, and persuasion. 42 U.S.C. § 2000e-5(b).

The five of us who make up the Commission obviously cannot investigate, find cause and conciliate on the thousands of charges we receive each year.  Thus, in its regulations, the Commission has delegated authority to its field staff to investigate charges, issue findings of cause, and engage in the conciliation process, 29 CFR §§1601.15(a), .21(d), .24(b).  

This is how it should be.  Delegation is good governance.  But the Commission is ultimately responsible for all actions taken in its name.  Thus, our delegation to our field staff is, and must be, accompanied by reporting and accountability back to the Commission. Our Strategic Plan for 2012-2016 and our Strategic Enforcement Plan of 2013-2016 include components that enhance such accountability.

Judge Hamilton was correct that the language of Title VII, which provides no standard for the conciliation process, is not susceptible of judicial review of “whether the EEOC tried hard enough to settle.”  Rather, the statutory language provides significant deference to the agency in carrying out its obligation to “endeavor to eliminate” alleged unlawful employment practice by “informal methods of conference, conciliation, and persuasion.”  That deference presumes and is reinforced by active Commission oversight to ensure that the letter and the spirit of the statutory language continue to be carried out.

[The opinions expressed in this post are those of Commissioner Feldblum alone and do not reflect the opinions of the EEOC, the Federal Government, or any individual attorney.  The opinions provided are for informational purposes only and are not for the purpose of providing legal advice.]


January 28, 2014 in Commentary, Employment Discrimination | Permalink | Comments (2) | TrackBack (0)

Monday, January 20, 2014

Gelernter on In re Wal-Mart Wage and Hour Litigation FAA Case

GelernterThanks to Lise Gelernter (Teaching Faculty and Director, Externship Programs at SUNY Buffalo Law School) for bringing to my attention this interesting arbitration case decided by the Ninth Circuit on December 17th of last year and providing some commentary.

The case is In Re Wal-Mart Wage and Hour Litigation or Carolyn Burton v. Class Counsel.  The Ninth Circuit’s summarizes the case thusly:

[T]he panel held that a non-appealability clause in an arbitration agreement that eliminates all federal court review of arbitration awards, including review under § 10 of the Federal Arbitration Act, is not enforceable. 

Here is Lise's commentary:

The court reasoned that if the grounds for vacatur of an award cannot be expanded by contract beyond what is permitted by the FAA §§10-11 (per Hall Street), a contract cannot eliminate the federal judicial review of arbitration awards that is available under the FAA.  The Ninth Circuit cited to a Second Circuit case that had a similar holding:

Since federal courts are not rubber stamps, parties may not, by private agreement, relieve them of their obligation to review arbitration awards for compliance with § 10(a)” of the FAA.  Hoeft v. MVL Grp., Inc., 343 F.3d 57, 63–64 (2d Cir.2003), overruled on other grounds by Hall St. Assocs., L.L.C. v. Mattel, Inc., 552 U.S. 576, 128 S.Ct. 1396, 170 L.Ed.2d 254 (2008).  

This creates some tension with the United States Supreme Court’s strong push for honoring almost any term of an arbitration agreement, but since these holdings are grounded in the specific terms of the FAA, perhaps they are a bit more safe from reversal or even disagreement among other circuits.  

Lise points out that you can obtain this Ninth Circuit case by using the following link and selecting the Carolyn Burton case.


January 20, 2014 in Arbitration, Commentary, Wage & Hour | Permalink | Comments (0) | TrackBack (0)

Tuesday, January 7, 2014

Rubinstein on Attorney Labor Unions

MrubinsteinFriend of the blog, Mitchell Rubinstein of the Adjunct Law Prof Blog has an interesting post concerning the potential formation of attorney labor unions in Ohio.

Here is a taste:

A few years ago I wrote a short article about attorney labor unions. (Attorney Labor Unions article)

The point of that article is that attorneys are employees like anyone else. The rules are not any different simply because lawyers are involved.

There is a battle going on in Ohio whether Assistant Directors of Law for the Civil Division in the City of Cleveland are eligible for unionization. The issue boils down to whether or not these attorneys are public employees as that term is defined in the Ohio statute.

The City won round one in that the Ohio State Employment Relations Board held that the attorneys were not public employees because they act in a fiduciary capacity to public officals.

Read more about this interesting case and Mitch's observation in his post.  Could be an important development for attorneys looking for more voice in the workplace.


January 7, 2014 in Commentary, Union News | Permalink | Comments (0) | TrackBack (0)

Monday, December 2, 2013

Zelinsky: Use of HSAs and HRAs as Compromise to ACA Contraceptive Mandate Dispute

Zelinsky_edEd Zelinsky (Cardozo) has an interesting post on his OUP blog discussing a possible compromise to the on-going dispute between for-profit religious corporations, like Hobby Lobby, and the Obama administration's Affordable Care Act's (ACA's) contraceptive coverage mandate.

Here's a taste:

This entire controversy is unnecessary. The tax law contains devices for reconciling the religious concerns of employers like Hobby Lobby with the policy of expanding medical coverage: health savings accounts (HSAs) and health reimbursement arrangements (HRAs). The current regulatory exemption from the contraception mandate should be amended to include for-profit employers and to exempt from the federal contraception mandate employers (both non-profit and profit-making) who maintain HSAs or HRAs for their respective employees. Compromise along these lines would respect the genuinely-held views of religious minorities while implementing the federal policy of broadening access to health care.

An HSA/HRA compromise would eliminate the complicity of religious employers in the provision of contraception methods to which they object while enabling such employers’ employees to obtain on a pre-tax basis any medicines or devices such employees want, including contraception to which their employers object. Employers’ payments into their employees’ HSAs and HRAs would be the equivalent of the cash wages paid to such employees, wages which the employees are free to spend as they choose.

Personally, I do not see a RFRA or free exercise problem with ACA's mandate because it is not a law that targets religion or otherwise substantially burdens religious rights of individuals, for-profit corporations do not and should have have free exercise rights, and the exemption from the law for for-profit religious employers would permit them to inappropriately interfere with the personal health care decisions of their employees.  I also do not know what "religious minorities" Ed is referring to, since corporations like Hobby Lobby seek to impose their very much dominant Christian religious practices on their employees (Christian and non-Christian alike).

All that being said, Ed should be given credit for thinking outside of the box and coming up with a compromise which might satisfy both sides of the debate.  The likelihood of this suggestion being taken up in the short-term now that the Supreme Court has granted cert. in the Hobby Lobby case is unlikely.  However, if Hobby Lobby and similar religiously-oriented corporations should prevail (a real possibility with the current make up of the court), then this proposal might be a way in which this type of much needed health care coverage could be provided to employees of for-profit religious employers.


December 2, 2013 in Commentary, Pension and Benefits | Permalink | Comments (1) | TrackBack (0)

Tuesday, October 15, 2013

Much ERISA Fun at the Supreme Court Today: Heimeshoff and Benefit SOL Accrual Issues

4United States Supreme Court 112904Update: Thanks to blog reader, Albert Feuer, for bringing to my attention Tejinder Singh’s commentary on the oral argument,  Argument analysis: Nobody seems worried about ERISA limitations periods, SCOTUSBLOG (Oct. 17, 2013).

OK, hold onto your seats for some flat out ERISA law excitement. This morning, the United States Supreme Court heard oral argument in Heimeshoff v. Hartford Life & Accidental Insurance Company [Briefs at SCOTUSblog], concerning statute of limitation accrual issues for benefit claims under Section 502(a)(1)(B) of ERISA., as always, gets to the heart of the matter (which is really impressive when you consider it is ERISA after all):

Heimeshoff's disability policy, administered by Hartford, says that a court suit for wrongful denial of benefits has to be filed within three years of when the claimant files a proof of loss with the plan administrator.

That can be tough, given the fact that it's possible for the three-year period to begin to run before the claimant has gone through the administrative procedure that must be followed before bring a suit. I suppose it's even possible in some cases that the three years would run out before the claimant got a final denial.

Hartford has a simple response, which is that ERISA plans usually get enforced the way they are written.

There's really no statutory text that's much help.

The petition for certiorari points out that lower court have adopted three conflicting approaches to answer the question of accrual:

(1)   A plan’s statute of limitations cannot begin running until the claimant has exhausted administrative remedies and the plan has issued a formal, final adverse determination (Fourth and Ninth Circuits);

(2)   A plan’s pre-denial statute of limitations is enforceable if “reasonable,” as determined on a case-by-case basis (Second, Sixth, Seventh, Eighth, and Tenth Circuits);and

(3)   The plan must notify the claimant of the time limits for judicial review, in the SPD and adverse determinations, in compliance with ERISA regulations; and if it does not, the court will not allow the plan to assert the plan’s limitations defense or will equitably toll the limitations period (First Circuit and a District Court in Second Circuit).

I don't see any clear path for the Court on this one.

Also see Argument preview: When can an ERISA limitations period start to run? at SCOTUSblog.

I agree wth Ross that this area of ERISA law is a mess. The ERISA written plan requirement rule suggests that the plan administrator follow the terms of the plan as written, but to do so, at least conceivably in some cases, the administrator could drag their feet and wait for the statute of limitations to run before finally deciding the internal appeal and thereby prevent the employee to ever file a benefits denial claim in court.

Equitable tolling might be one way with dealing with the potential unfairness of the rule, but its implementation would also be messy.  Also, it is unavailing to say with a straight face that plan administrators and employee should be bound by terms of the plan because if the employee wanted a different type of SOL they could just bargain for it.  Everyone knows that employees don't bargain over plan language. They are classic adhesion contracts, presented on a take-it-or-leave-it basis.

To me, the best rule would be to start the SOL to run once the internal administrative process has been finalized and the employee is free to sue in court. This approach has the advantages of both providing a clear point when the SOL starts to run, plus provides incentive for the plan administrators to complete claims processing as quickly as possible.

No predictions on this one, folks, but I fear this pro-employer/pro-plan sponsor court will adopt the written plan requirement rule and permit the plan sponsor to unilaterally set in the plan document an accrual date and a length for the statute of limitations which will further undermine employee rights under ERISA.


October 15, 2013 in Beltway Developments, Commentary, Pension and Benefits | Permalink | Comments (0) | TrackBack (0)