Tuesday, May 26, 2015
[Foster v. UMES] is a Fourth Circuit case from late last week that deepens a circuit split about application on summary judgment of UT Southwestern v. Nassar to a Title VII retaliation plaintiff who is proceeding on a McDonnell-Douglas approach. This is a case of first impression in the Fourth Circuit with a tightly reasoned opinion that contains a few other gems. It is definitely a cert-worthy case that your readers will want to see.
Wednesday, April 29, 2015
The Supreme Court issued its decision in Mach Mining v. EEOC this morning. The decision was unanimous and written by Justice Kagan. Essentially, the Court said that the duty to conciliate was judicially reviewable, but the scope of that review was simply whether the EEOC had given the employer notice of what the employer is alleged to have done and which employees or class of employees has been injured, and must try to engage the employer in a discussion to give it a chance to voluntarily remedy the injury. Most importantly, the remedy for a failure to conciliate isn't dismissal, it's a stay of the action and an order to the EEOC to conciliate. Here is the holding from the syllabus:
1. Courts have authority to review whether the EEOC has fulfilled its Title VII duty to attempt conciliation. This Court has recognized a “strong presumption” that Congress means to allow judicial review of administrative action. Bowen v. Michigan Academy of Family Physicians, 476 U. S. 667, 670. That presumption is rebuttable when a statute’s language or structure demonstrates that Congress intended an agency to police itself. Block v. Community Nutrition Institute, 467 U. S. 340, 349, 351. But nothing rebuts that presumption here.
By its choice of language, Congress imposed a mandatory duty on the EEOC to attempt conciliation and made that duty a precondition to filing a lawsuit. Such compulsory prerequisites are routinely enforced by courts in Title VII litigation. And though Congress gave the EEOC wide latitude to choose which “informal methods” to use, it did not deprive courts of judicially manageable criteria by which to review the conciliation process. By its terms, the statutory obligation to attempt conciliation necessarily entails communication between the parties concerning the alleged unlawful employment practice. The statute therefore requires the EEOC to notify the employer of the claim and give the employer an opportunity to discuss the matter. In enforcing that statutory condition, a court applies a manageable standard. Pp. 4–8.
2. The appropriate scope of judicial review of the EEOC’s conciliation activities is narrow, enforcing only the EEOC’s statutory obligation to give the employer notice and an opportunity to achieve voluntary compliance. This limited review respects the expansive discretion that Title VII gives the EEOC while still ensuring that it follows the law.
The Government’s suggestion that review be limited to checking the facial validity of its two letters to Mach Mining falls short of Title VII’s demands. That standard would merely accept the EEOC’s word that it followed the law, whereas the aim of judicial review is to verify that the EEOC actually tried to conciliate a discrimination charge. Citing the standard set out in the National Labor Relations Act, Mach Mining proposes review for whether the EEOC engaged in good-faith negotiation, laying out a number of specific requirements to implement that standard. But the NLRA’s process-based approach provides a poor analogy for Title VII, which ultimately cares about substantive outcomes and eschews any reciprocal duty to negotiate in good faith. Mach Mining’s proposed code of conduct also conflicts with the wide latitude Congress gave the Commission to decide how to conduct and when to end conciliation efforts. And because information obtained during conciliation would be necessary evidence in a good-faith determination proceeding, Mach Mining’s brand of review would violate Title VII’s confidentiality protections.
The proper scope of review thus matches the terms of Title VII’s conciliation provision. In order to comply with that provision, the EEOC must inform the employer about the specific discrimination allegation. Such notice must describe what the employer has done and which employees (or class of employees) have suffered. And the EEOC must try to engage the employer in a discussion in order to give the employer a chance to remedy the allegedly discriminatory practice. A sworn affidavit from the EEOC stating that it has performed these obligations should suffice to show that it has met the conciliation requirement. Should the employer present concrete evidence that the EEOC did not provide the requisite information about the charge or attempt to engage in a discussion about conciliating the claim, a court must conduct the factfinding necessary to resolve that limited dispute. Should it find for the employer, the appropriate remedy is to order the EEOC to undertake the mandated conciliation efforts. Pp. 8–14.
738 F. 3d 171, vacated and remanded
The result seems in line with the questions the Justices had during the oral argument in this case, and seem a relatively pragmatic compromise, narrowly tailored to prevent fraud by the agency. The largest gap for more searching review seems to be the duty for the EEOC to identify all of the employees affected as part of its attempt to conciliate. It is relatively easy to see how this would work in a case with a single employee, or even a group of employees, but it is a little more difficult to see how it will work in a pattern and practice case like Mach Mining itself or CRST (and more on the issue here and here). In those cases, the members of the entire group of applicants or employees were unknown when the EEOC filed its action. In CRST, this was partly because the employer would not identify women who had applied and been assigned trainers so that the EEOC could find them.
The key seems to be two-fold. First, the EEOC needs to only identify the class of employees. In Mach Mining it could be potential women applicants, and in CRST, it could be women in the training program potentially harassed by their trainers. Especially where what is challenged is a policy, the identity of all potential individuals affected by that policy seems less important on the front end and in at least some situations, information may be more likely with the employer. Second, the remedy is not dismissal of the action, but only a stay to allow the conciliation process to take place. That means, for a case like CRST, where individuals were identified after the complaint was filed, the matter should have been stayed rather than dismissed.
Because there is so little payoff for employers to litigate this issue, the decision may actually diminish failure to conciliate claims. We'll have to wait and see.
Tuesday, April 28, 2015
The annual Colloquium on Scholarship in Employment and Labor Law (COSELL) will be held at Indiana University Maurer School of Law, Sept. 11-12, 2015, in Bloomington, Indiana. This conference, now in its tenth year, brings together labor and employment law professors from across the country. It offers participants the opportunity to present works-in-progress to a friendly and knowledgeable audience.
Registration is now open at: http://www.law.indiana.edu/cosell.
If you’re planning to come, please go ahead and register now; you can fill in details about the project you will present later in the summer.
The conference is free, and we will provide all meals during the conference. Travel & hotel information is found on the website.
Please feel free to contact any of us with questions.
We will look forward to hosting you in Bloomington!
April 28, 2015 in About This Blog, Conferences & Colloquia, Disability, Employment Common Law, Employment Discrimination, Faculty News, Faculty Presentations, International & Comparative L.E.L., Labor Law, Labor/Employment History, Pension and Benefits, Public Employment Law, Religion, Scholarship, Teaching, Wage & Hour, Worklife Issues, Workplace Safety, Workplace Trends | Permalink | Comments (0)
Wednesday, March 25, 2015
The Supreme Court issued an opinion today in Young v. UPS, a case concerning whether a pregnant woman denied a light duty accommodation under a policy that accommodated injuries caused on the job, but did not accommodate injuries caused off the job, violated Title VII as amended by the Pregnancy Discrimination Act.
The decision, written by Justice Breyer, and joined by Chief Justice Roberts and Justices Ginsburg, Sotomayor, and Kagan, is fairly complicated, and it will take some time to make sense of. Justice Alito concurred, and Justice Scalia dissented, joined by Justice Thomas and Justice Kennedy. Justice Kennedy also wrote a separate dissent.
Because I am still working through it, I'll reproduce part of the syllabus here. Note that the Court did not adopt the position urged by any of the parties, but instead adopted a middle ground, modifying the McDonnell Douglas proof structure to make something entirely new. Justice Scalia's dissent argues that this move will merge disparate treatment with disparate impact. I think that may be right, but I disagree that it's a bad thing.
Held: 1. An individual pregnant worker who seeks to show disparate treatment through indirect evidence may do so through application of the McDonnell Douglas framework. Pp. 10–23. (a) The parties’ interpretations of the Pregnancy Discrimination Act’s second clause are unpersuasive. Pp. 12–20. (i) Young claims that as long as “an employer accommodates only a subset of workers with disabling conditions,” “pregnant workers who are similar in the ability to work [must] receive the same treatment even if still other nonpregnant workers do not receive accommodations.” Brief for Petitioner 28. Her reading proves too much. The Court doubts that Congress intended to grant pregnant workers an unconditional “most-favored-nation” status, such that employers who provide one or two workers with an accommodation must provide similar accommodations to all pregnant workers, irrespective of any other criteria. After all, the second clause of the Act, when referring to nonpregnant persons with similar disabilities, uses the open-ended term “other persons.” It does not say that the employer must treat pregnant employees the “same” as “any other persons” who are similar in their ability or inability to work, nor does it specify the particular “other persons” Congress had in mind as appropriate comparators for pregnant workers. Moreover, disparate treatment law normally allows an employer to implement policies that are not intended to harm members of a protected class, even if their implementation sometimes harms those members, as long as the employer has a legitimate, nondiscriminatory, nonpretextual reason for doing so. See, e.g., Burdine, supra, at 252–258. There is no reason to think Congress intended its language in the Pregnancy Discrimination Act to deviate from that approach. Pp. 12–14.
(ii) The Solicitor General argues that the Court should give special, if not controlling, weight to a 2014 Equal Employment Opportunity Commission guideline concerning the application of Title VII and the ADA to pregnant employees. But that guideline lacks the timing, “consistency,” and “thoroughness” of “consideration” necessary to “give it power to persuade.” Skidmore v. Swift & Co., 323 U. S. 134, 140. The guideline was promulgated after certiorari was granted here; it takes a position on which previous EEOC guidelines were silent; it is inconsistent with positions long advocated by the Government; and the EEOC does not explain the basis for its latest guidance. Pp. 14–17.
(iii) UPS claims that the Act’s second clause simply defines sex discrimination to include pregnancy discrimination. But that cannot be right, as the first clause of the Act accomplishes that objective. Reading the Act’s second clause as UPS proposes would thus render the first clause superfluous. It would also fail to carry out a key congressional objective in passing the Act. The Act was intended to overturn the holding and the reasoning of General Elec. Co. v. Gilbert, 429 U. S. 125, which upheld against a Title VII challenge a company plan that provided nonoccupational sickness and accident benefits to all employees but did not provide disability-benefit payments for any absence due to pregnancy. Pp. 17–20.
(b) An individual pregnant worker who seeks to show disparate treatment may make out a prima facie case under the McDonnell Douglas framework by showing that she belongs to the protected class, that she sought accommodation, that the employer did not accommodate her, and that the employer did accommodate others “similar in their ability or inability to work.” The employer may then seek to justify its refusal to accommodate the plaintiff by relying on “legitimate, nondiscriminatory” reasons for denying accommodation.
That reason normally cannot consist simply of a claim that it is more expensive or less convenient to add pregnant women to the category of those whom the employer accommodates. If the employer offers a “legitimate, nondiscriminatory” reason, the plaintiff may show that it is in fact pretextual. The plaintiff may reach a jury on this issue by providing sufficient evidence that the employer’s policies impose a significant burden on pregnant workers, and that the employer’s “legitimate, nondiscriminatory” reasons are not sufficiently strong to justify the burden, but rather—when considered along with the burden imposed—give rise to an inference of intentional discrimination.
The plaintiff can create a genuine issue of material fact as to whether a significant burden exists by providing evidence that the employer accommodates a large percentage of nonpregnant workers while failing to accommodate a large percentage of pregnant workers. This approach is consistent with the longstanding rule that a plaintiff can use circumstantial proof to rebut an employer’s apparently legitimate, nondiscriminatory reasons, see Burdine, supra, at 255, n. 10, and with Congress’ intent to overrule Gilbert. Pp. 20–23.
2. Under this interpretation of the Act, the Fourth Circuit’s judgment must be vacated. Summary judgment is appropriate when there is “no genuine dispute as to any material fact.” Fed. Rule Civ. Proc. 56(a). The record here shows that Young created a genuine dispute as to whether UPS provided more favorable treatment to at least some employees whose situation cannot reasonably be distinguished from hers. It is left to the Fourth Circuit to determine on remand whether Young also created a genuine issue of material fact as to whether UPS’ reasons for having treated Young less favorably than these other nonpregnant employees were pretextual. Pp. 23–24.
Tuesday, March 10, 2015
How well does the "plausibility" pleading standard of Twombly and Iqbal filter cases on the merits? This has been a matter of some controversy, particularly as applied to employment discrimination cases. In a new paper, "Material Facts in the Debate Over Twombly and Iqbal" (forthcoming in the Stanford Law Review), Jonah Gelbach offers an empirical analysis with ambiguous results. Here's the abstract:
This paper presents empirical evidence concerning the adjudication of defendant-filed summary judgment motions from nearly 2,000 randomly selected employment discrimination and contracts cases to try to assess Twombly and Iqbal’s performance in filtering cases according to merit. I first explain how such data might be helpful in such an assessment, taking into account the possibility that parties’ behavior might have changed following Twombly and Iqbal. I then report results indicating that even using this large collection of data -- the most comprehensive data assembled to date to address this question -- we cannot tell whether “TwIqbal” supporters or critics are more correct about the efficacy of the new plausibility pleading regime in the pre-discovery filtering of cases according to merit. This null result points to the very real possibility that plausibility pleading’s case-quality effects -- a quintessential empirical question -- simply can't be answered using data. This paper’s basic message, then, is that empirical evidence is unlikely to settle the debate over the case-quality effects of the new pleading regime ushered in by Twombly and Iqbal.
Gelbach's sample of employment-discrimination cases consisted of 700 pre-Twombly cases (each with no pro se plaintiff and an adjudicated defense summary judgment motion) and 368 such cases post-Iqbal. His conclusion: Even assuming "no selection into summary judgment, the data on employment discrimination cases simply can’t settle the dispute over TwIqbal’s quality-filtering effect."
Sunday, March 8, 2015
A few weeks ago, the New York Court of Appeals became the first State supreme court to expressly import Ricci v. DeStefano, 557 U.S. 557 (2009)—which interpreted Title VII—into that State’s own employment-discrimination law. How precisely it did so, however, is a bit unclear.
Margerum v. City of Buffalo, No. 7 (N.Y. Feb. 17, 2015) concerns a lawsuit brought in New York state court by white firefighters against the City of Buffalo. At the time, the City also faced a Title VII lawsuit alleging that firefighter promotion exams had a disparate-impact on African-American firefighters. The white firefighters in Margerum argued that the City had violated State law—including New York Human Rights Law, the State’s own employment-discrimination statute---by letting expire certain promotion eligibility lists because the Margerum plaintiffs—who would otherwise have been promoted—are white. The trial court granted plaintiffs summary judgment, ruling that the City had failed to meet the “strong basis in evidence” standard set forth in Ricci. The Appellate Division affirmed: “[T]he City defendants did not have a strong basis in evidence to believe that they would be subject to disparate-impact liability if they failed to take race-conscious actions, i.e., allowing eligibility lists to expire, inasmuch as the examinations in question were job-related and consistent with business necessity.”
On appeal, the New York Court of Appeals ruled that the trial court had erred by granting the plaintiffs summary judgment on the Ricci standard. In so doing, however, that Court read the Ricci standard into New York’s Human Rights Law. Here’s the majority opinion’s reasoning in its entirety: “As both parties agree, the Ricci standard governs. We have consistently held that the standards for recovery under the New York Human Rights Law are in nearly all instances identical to Title VII and other federal law.”
This ruling drew dissent from Justice Jenny Rivera. She argued that importing the Ricci standard"undermines the legislative purpose and stated equal opportunity goals of our Human Rights Law.” Among other things, Justice Rivera wrote: “The federal approach [in Ricci] essentially subordinates the interests of plaintiffs alleging disparate impact to those of plaintiffs claiming disparate treatment. . . . Under the Human Rights Law, no individual has a stake in a workforce selected and maintained through the use of criteria that result in proscribed disparities. A workforce so constituted is antithetical to the statute's concept of equal opportunity, and the right to employment purged of discrimination.” Ricci should not apply, she concluded, because “an employer does not commit statutorily proscribed intentional discrimination when the employer seeks to reduce and eliminate the causes of inequality at the workplace.”
It is, however, unclear whether the Margerum precisely followed Ricci in how the “strong basis in evidence” standard is supposed to apply in suits under the New York Human Rights Law. In Ricci itself, the Court wrote: “We hold only that, under Title VII, before an employer can engage in intentional discrimination for the asserted purpose of avoiding or remedying an unintentional disparate impact, the employer must have a strong basis in evidence to believe it will be subject to disparate-impact liability if it fails to take the race-conscious, discriminatory action.” In other words, the “strong basis in evidence” standard is a defense to Title VII liability for the employer’s “race-conscious discriminatory action.” See also Ricci, 557 U.S. at 579 (“valid defense”); id. at 580 (“lawful justification”, “excuses”).
In contrast, the Margerum majority observed that once Buffalo “chose not to promote white candidates from the eligibility list,” the Margerum plaintiffs undisputedly “made out a prima facie case of discrimination. . . . The burden then shifted to the City to prove that it had “a strong basis in evidence to justify its race conscious action.” (emphasis added, citing, among other cases, St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 507–508 (1993), and McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973)). By using the burden-shifting idiom of McDonnell Douglas and progeny, the Margerum Court seems to have adopted the “strong basis” standard as a way to decide whether the City satisfied its burden of producing a legitimate non-discriminatory reason. Satisfying that burden, however, is usually part of the McDonnell Douglas approach to analyzing whether the plaintiff has proven liability in the first place. It’s not about whether the defendant-employer has proven a defense to Title VII liability. Thus, Margerum appears to depart from Ricci in this respect—or so a lawyer might argue about Margerum in the next case.
Tuesday, March 3, 2015
Last week, the Arkansas legislature prohibited local governments in that State from exceeding State law anti-discrimination protections—including protections against employment discrimination. The legislation—Act No. 137, or the “Intrastate Commerce Improvement Act”—amended title 14 of the Arkansas Code:
(a) A county, municipality, or other political subdivision of the state shall not adopt or enforce an ordinance, resolution, rule, or policy that creates a protected classification or prohibits discrimination on a basis not contained in state law.
(b) This section does not apply to a rule or policy that pertains only to the employees of a county, municipality, or other political subdivision.
Ark. Code § 14-1-403. In so doing, Arkansas joined Tennessee, which in 2011 enacted very similar legislation—the “Equal Access to Intrastate Commerce Act”—soon after Nashville passed an ordinance to add “gender identity” and “sexual orientation” to the classes covered under equal employment opportunity provisions applicable to government contractors. Bills similar to the Arkansas and Tennessee legislation have been introduced in the Texas and West Virginia legislatures. (For more on local-preemption statutes in general, see here.)
The Arkansas legislation is the latest move in a story that began in August 2014. That’s when, after ten hours of public debate, the City Council of the City of Fayetteville passed Chapter 119, an anti-discrimination ordinance that prohibited employers, landlords, and others from discriminating against anyone based on, among other characteristics, their sexual orientation or gender identity—protections not currently available under Arkansas state law. Once it passed, ordinance opponents began collecting signatures to seek repeal, with backing from the local Chamber of Commerce and others. That effort succeeded: In a December 2014 special election, a majority of Fayetteville residents voted in favor of repeal. Soon after, the Fayetteville City Council and its City Attorney began working on a new version of Chapter 119.
But on February 2, 2015, State Senator Bart Hester (R) introduced the bill that eventually became Act 137. On its face, Act 137 purports to “improve intrastate commerce” by making anti-discrimination law “uniform” for employers, businesses, and organizations in the State. Yet, in advocating for Act 137, Sen. Hester had suggested that Fayetteville’s ordinance jeopardized “basic rights of religious freedom.” In a December television debate about Chapter 119 before its repeal, Hester argued that Fayetteville’s ordinance would force pastors to perform same-sex marriages and would give “an adult man – 30, 40, 50 years old – the right to share a bathroom with a six-year-old little girl, the right to share the changing room with women at the local gym. It’s not right. We need to protect our children.”
Meanwhile, a few months ago in Tennessee, the Tennessee Court of Appeals affirmed the dismissal of an Equal Protection Clause challenge to Tennessee’s statute on the ground that no plaintiff had shown a distinct, palpable injury in-fact sufficient to confer standing. Howe v. Haslam, No. M2013–01790–COA–R3–CV (Tenn. Ct. App., Nov. 4, 2014). In so doing, the court distinguished Romer v. Evans, 517 U.S. 620 (1996). The reasoning: Whereas the law challenged in Romer “rendered all LGBT advocacy in Colorado futile at every level and within every branch of state government” and “barred a class of persons from equal participation in the political process,” the Tennessee statute “erects no such barrier.”
Thursday, February 26, 2015
The Supreme Court of Hawaii has issued an important opinion that offers a new way to think about the McDonnell Douglas test. Adams v. CDM Media USA, Inc., 2015 WL 769745, No. SCWC-12-00000741 (Hawaii Feb. 24, 2015).
In Adams, the plaintiff alleged she was subjected to age discrimination when a company refused to hire her for a telephone sales position. The Hawaii Supreme Court found that the plaintiff established a prima facie case under McDonnell Douglas. The question in the case was whether the defendant met its burden in step two of that test, to articulate a legitimate, non-discriminatory reason for its action.
In support of its motion for summary judgment, the employer proffered several reasons for not hiring the plaintiff. The employer asserted the plaintiff lacked sales experience in the last five years, her prior sales experience was in other fields and involved face to face communication, she had little or no sales experience with corporate executives at Fortune 1,000 companies, and the decisionmaker was told the plaintiff disliked tedious work.
The Hawaii Supreme Court held that the employer failed to meet its burden of production under the second step of the McDonnell Douglas test. The Court emphasized that the second step in the test requires the employer’s decision to be “legitimate.” The Court interpreted the word “legitimate” through the lens of Hawaii discrimination law to require that the refusal to hire an individual must relate to the ability of the individual to perform the work in question.
The Court held that summary judgment in the employer’s favor was inappropriate because the reasons provided by the employer either were properly contested by the plaintiff, were based or inadmissible hearsay or did not relate to her ability to do the job. Importantly, the Court held that the employer could not use the lack of sales experience in the last five years as a legitimate reason if the plaintiff could perform the sales job adequately without recent experience. In this case, the employer admitted that the decisionmaker did not rely on the published criteria for the job in his decision to not hire the plaintiff, and the Court expressed concern that this “recent job experience” criteria was only being applied to the plaintiff and that it was not a legitimate reason to disqualify a person for the job in question.
This case represents an important new way of looking at the second step of the McDonnell Douglas test and shows the further separation of state discrimination law from federal law. Also, the majority and dissenting opinions illustrate how confusing McDonnell Douglas still is, even though the test has been mulled over by courts for more than 40 years.
Wednesday, February 18, 2015
A recent paper investigates why corporate gender diversity programs tend to fail: Christine L. Williams, Kristine Kilanski, and Chandra Muller, "Corporate Diversity Programs and Gender Inequality in the Oil and Gas Industry," Work and Occupations 41 (Nov. 2014): 440-476. Here's the abstract:
Since the 1980s, major U.S. corporations have embraced diversity as a management strategy to increase the number of women in top jobs. Diversity management programs include targeted recruitment, hiring, and promotions policies; mentoring programs; affinity groups; and diversity training. Few of these programs have proven effective in achieving gender diversity in the corporate world, despite their widespread popularity. To explore the reasons for this, the authors investigate the experiences of women scientists in the oil and gas industry who are targeted by these programs. In-depth interviews reveal possible reasons why these programs fail to achieve their intended goals. The authors find that these programs can paradoxically reinforce gender inequality and male dominance in the industry. The authors discuss alternative approaches for addressing gender inequality in work organizations and conclude with implications of their findings for corporate approaches to promoting diversity and for future research.
The paper is based on in-depth interviews with 30 experienced women geoscientists (selected by snowball sampling), supplemented by observations at three professional meetings, an informal focus group with high-level executives, and interviews with three male supervisors.
Friday, February 13, 2015
While the idea of implicit bias pervades discussions about employment discrimination and employment discrimination law, researchers continue to fight about how well the Implicit Association Test (IAT)—perhaps the most prominent measure of such bias--predicts how people actually behave. Here are scenes from the latest round:
Anthony Greenwald, Mahzarin Banaji, and Barry Nosek have posted “Statistically small effects of the Implicit Association Test can have societally large effects,” forthcoming in the Journal of Personality and Social Psychology (2015). There, they dispute Oswald, Mitchell, Blanton, Jaccard, and Tetlock (2013), who found, in a meta-analysis of IAT studies, a lower average predictive validity correlation for IAT measures involving Black-White racial attitudes and stereotypes than reported in Greenwald, Poehlman, Uhlmann, and Banaji (2009). Oswald et al. have posted a reply.
Hart Blanton, James Jaccard, Erin Strauts, Gregory Mitchell, and Phillip Tetlock have also posted “Toward a Meaningful Metric of Implicit Prejudice,” forthcoming in the Journal of Applied Psychology. Here’s the abstract:
The modal distribution of the Implicit Association Test (IAT) is commonly interpreted as showing high levels of implicit prejudice among Americans. These interpretations have fueled calls for changes in organizational and legal practices, but such applications are problematic because the IAT is scored on an arbitrary psychological metric. The present research was designed to make the IAT metric less arbitrary by determining the scores on IAT measures that are associated with observable racial or ethnic bias. By reexamining data from published studies, we found evidence that the IAT metric is “right biased,” such that individuals who are behaviorally neutral tend to have positive IAT scores. Current scoring conventions fail to take into account these dynamics and can lead to faulty inferences about the prevalence of implicit prejudice.
Finally, Allan King, Gregory Mitchell, Richard Black, Catherine Conway, and Julie Totten have posted “Discovery and the Evidentiary Foundations of Implicit Bias,” Employee Relations Law Journal 40 (Winter 2014): 4-33. Here’s the abstract:
This article documents the extent to which expert opinions regarding implicit bias rely on research that evades careful scrutiny by either the academic journals or the courts that admit the expert’s testimony, discuss the arguments that shield the data underlying research from discovery, argue for discovery of secondary data notwithstanding the arguments against disclosure, and argue for excluding expert testimony that relies on data beyond the reach of the opposing party.
Note: Of this paper’s authors, most are lawyers who typically represent large employers: King and Black at Littler Mendelson; Conway at Gibson, Dunn, and Crutcher; and Totten at Orrick, Herrington and Sutcliffe. Mitchell is a professor at the University of Virginia Law School and a co-author of some of the other papers cited above.
Tuesday, January 13, 2015
The Supreme Court heard oral argument today in Mach Mining v. EEOC, which you might remember from some of our prior posts (also here) and a guest post by Commissioner Feldblum. The transcript has been posted on the Supreme Court's website, and you can read it here. The case was about the EEOC's concilation process and whether that process is judicially reviewable.
I've read through and have some initial impressions. Even though the EEOC is the respondent here, I'm going to start with its arguments because there was significantly more back and forth with the Justices and the EEOC than with the Justices and counsel for the employer, Tom Goldstein. The EEOC has taken an understandable but difficult position, that it cannot file suit unless it has tried and been unable to conciliate on terms it desires. The EEOC asserted that it had a duty to attempt to conciliate, but that essentially, as long as it sent a letter to the employer notifying it that the EEOC had found cause to believe discrimination had occurred in connection with the charge and asking the employer to get in touch, that duty was satisfied. Counsel for the EEOC conceded that this did not seem to be much for judicial review, but argued that even in courts that used a minimal good faith standard, those courts were getting bogged down in mini-trials attempting to assess the quality of the conciliation efforts, something the statute provides no sort of standards for, since the statutory language gives the EEOC has the sole discretion to decide whether any potential terms of resolution are acceptable to it. Counsel for the EEOC was pressed repeatedly to articulate what should be required to ensure that the EEOC actually attempted to conciliate. Chief Justice Roberts, especially was wary of trusting the word of the agency that it had acted in good faith, and Justice Breyer was as well, although to a lesser degree.
With counsel for the employer, the Justices focused primarily on how to frame the issue as a matter of administrative law, since the statute contains no standards for review, nor does it define this conduct as a final agency action. Additionally, the statute requires that the EEOC keep conciliation matters secret and prohibits information about the conciliation process to be used as evidence at trial.
In terms of Supreme Court bingo, predicting how the Justices will vote, I feel fairly confident that Chief Justice Roberts would vote to overturn the Seventh Circuit. I also feel fairly confident that Justices Ginsburg, Sotomayor, and Kagan are more sympathetic to the EEOC's position but might be willing to create some kind of standard more than what the Seventh Circuit required. Justice Kennedy questioned the employer's counsel pretty heavily, and Justice Breyer and Justice Scalia did the same for both sides.
One last observation. Developing a specialty in Supreme Court litigation will make you one smooth advocate. As a former appellate advocate, I have to say that Tom Goldstein (of Goldstein & Russell also founder of SCOTUSblog)'s argument was incredible to read.
Friday, December 19, 2014
Our own Joe Seiner was cited a couple of times in the Ninth Circuit's recent Aguilar decision. In the en banc decision, the court held that the Supreme Court's Gore ration test for punitive damages is not needed to examine capped Title VII punitive awards. The plaintiff won a claim of sexual harassment and received no actual damages, 1$ in nominal damages, and $300,000 in punitive damages (this was capped after the jury awarded $868,750).
In reaching the decision, the court cited Joe's Iowa Law Review article, Punitive Damages, Due Process, and Employment Discrimination.
Nice job Joe!
Sunday, December 14, 2014
Sandra Sperino (Cincinnati) and Suja Thomas (Illinois) have just posted on SSRN a powerful new indictment of Supeme Court LEL jurisprudence, Fakers and Floodgates (Stanford J. Civil Rights & Civil Liberties 2014). Here's the abstract:
There has always been the possibility of judicial skepticism about employment discrimination claims. Recently, the Supreme Court made this skepticism explicit. In University of Texas Southwestern Medical Center v. Nassar, the Supreme Court expressed concern about fake claims and floodgates of litigation. It then used these arguments to tip the substantive law against retaliation claims. This article responds to this explicit skepticism about discrimination claims. First, it shows that the Court created reasons to limit retaliation claims that are not tied to congressional intent. Second, the factual claims that the Court makes are not grounded in evidence, and available information suggests the opposite conclusion. Third, a change to the substantive law will not prevent spurious claims. Fourth, the fakers and floodgates arguments could become accepted and embedded in judicial doctrine. Finally, it shows that Nassar is symptomatic of the broader issue that courts use procedure and substance to impede factually intensive civil rights claims.
Wednesday, December 10, 2014
On the heels of oral argument at the US Supreme Court on Young v. United States Parcel Service, which concerns the Pregnancy Discrimination Act of 1978 (“PDA”), Mary Ziegler has posted (SSRN) “Choice at Work: Young v. United States Parcel Service, Pregnancy Discrimination, and Reproductive Liberty.” Based on original archival research, Ziegler argues that the PDA embodies a principle of “meaningful reproductive choice” that casts doubt on the Fourth Circuit’s opinion in Young. More from the abstract:
Feminist litigators first forged such an idea in the early 1970s, arguing that heightened judicial scrutiny should apply whenever state actors placed special burdens on women who chose childbirth or abortion. More ambitiously, some feminists suggested that the State may have to act to affirmatively support some fundamental rights. A line of Supreme Court decisions completely rejected this understanding of reproductive liberty. However, choice arguments rejected in the juridical arena flourished in Congress, during debate about the federal Pregnancy Discrimination Act (PDA). For a variety of strategic and ideological reasons, legal feminists and antiabortion activists turned to legislative constitutionalism to give meaning to the idea of reproductive liberty. While not requiring employers to provide any accommodations, the PDA prohibited employers from placing special burdens on women’s procreative decisions.
The history of the meaningful choice principle calls into doubt contemporary judicial interpretations of the PDA, including the Fourth Circuit opinion in Young. When employers accommodate non-pregnant workers, as Young suggests, courts often find no violation of the PDA so long as a policy is “pregnancy-blind” — that is, so long as an employer does not explicitly categorize employees on the basis of pregnancy. This history strengthens the argument against pregnancy-blind policies made in Young by petitioners and amici under a variety of legal theories, including disparate treatment, disparate impact, and disability accommodation under the Americans with Disabilities Act. Ultimately, however, the history studied here counsels that legislation, rather than litigation, may be the most promising path for expanding protections for pregnant women.
Hat tip: Legal History Blog
Wednesday, December 3, 2014
The Court heard oral argument in Young v. UPS (argued in part by Sam Bagenstos (Michigan)) this morning, and the transcript is now available on the Court's website. I've read it and am not entirely sure what to conclude. One analogy made by Justice Scalia, and used throughout the argument was "most favored nation" status. Does the second clause in the PDA, which requires that pregnant workers be treated the same as other workers similar in their ability or inability to work, require that pregnant workers be treated the same as the best treated of those others? Or can they be treated as least favored nations -- as long as there is a group of workers similar in their ability or inability to work that is treated poorly, pregnant workers can be treated poorly too? The policy at issue allowed light duty accommodations for workers injured on the job, but required those injured off the job who couldn't lift heavy things to take unpaid leave. So there was a distinction within the group of workers similar in their ability or inability to work that was not related to pregnancy. At the same time, the policy weeded out all pregnancy limitations. Moreover, there were two exceptions to the off-the-job part. If the off-the-job injury resulted in a disability under the ADA, or a DOT decertification, the injury was accommodated.
There was a significant amount of back and forth about what that second clause means, since it's not a full fledged accommodation requirement like the religious accommodations in Title VII or the accommodation requirement of the ADA. At the same time, it has to mean something more than simply that discrimination on the basis of pregnancy is discrimination on the basis of sex, since that's what the first clause says. And clearly the effect of the PDA on the Court's decision in General Electric Co. v. Gilbert is still under debate. I'm making no predictions, but I'd be interested in your insights in the comments.
Monday, December 1, 2014
Thanks to Monique Lillard (Idaho), chair of the AALS Labor Relations and Employment section and Natasha Martin (Seattle), chair of the AALS Employment Discrimination section for sending along the joint newsletter of the two sections for posting. Download it while it's hot: Download Joint Newsletter for AALS Sections
December 1, 2014 in Disability, Employment Common Law, Employment Discrimination, Faculty News, International & Comparative L.E.L., Labor and Employment News, Labor Law, Public Employment Law, Scholarship, Teaching, Wage & Hour | Permalink | Comments (0) | TrackBack (0)
Wednesday, November 26, 2014
Over a week ago, the President extended “deferred-action” status to millions of people who faced deportation for residing in the US in violation of federal immigration law. (He then defended his legal authority to do so.) Around the same time, in Juarez v. Northwestern Mutual Life Insurance Co., No. 14-cv-5107 (S.D.N.Y., filed July 9, 2014), US District Judge Katherine Forrest ruled that 42 U.S.C. § 1981 protects people with “deferred-action” immigration status from employer alienage discrimination.
In federal immigration law, extending “deferred action” status to someone is an exercise of administrative discretion to temporarily defer his or her removal for being unlawfully present in the US. Deferred action status doesn’t confer any legal right to remain in the US—it just signals the decision to temporarily delay that person’s deportation. Reno v. American-Arab Anti-Discrimination Committee, 525 U.S. 471, 484 (1999).
But, someone with deferred-action status can get from the Department of Homeland Security the authorization to be employed in the US. See 8 CFR § 274a.12(c)(14) (authorizing grant of a work permit to “[a]n alien who has been granted deferred action, an act of administrative convenience to the government which gives some cases lower priority, if the alien establishes an economic necessity for employment”). Such work authorization can be terminated or revoked at any time because of, among other things, a pre-set expiration date, or for good cause. See 8 CFR § 274a.14(a)-(b).
With such a work permit, a person with deferred-action status is no longer an “unauthorized alien” that employers must not knowingly employ, see 8 USC § 1324a(a), because an “unauthorized alien” can’t be someone who is “authorized to be so employed by this chapter or by the Attorney General,” 8 USC § 1324a(h)(3). The work permit itself, however, doesn’t change a person’s immigration status with respect to their eligibility to be admitted into the US. See Guevara v. Holder, 649 F.3d 1086, 1092 (9th Cir. 2011) (“There is no language in the statute or regulations that suggests aliens, not previously admitted, become ‘admitted,’ when they are granted employment authorization under 8 C.F.R. § 274a.12(c).”).
Employer Alienage Discrimination
What ifemployers refuse to hire or otherwise discriminate against a person because of his or her deferred-action immigration status? Discrimination based on a person’s citizenship status is called alienage discrimination. Title VII of the Civil Rights Act of 1964 does not expressly prohibit alienage discrimination. 42 U.S.C. § 2000e-2(a)-(c). Federal immigration law does prohibit alienage discrimination, 8 U.S.C. § 1324b(a)(1)(B), but only for US citizens, lawful permanent residents, refugees, and asylum grantees, see 8 U.S.C. § 1324b(a)(3). Even with a work permit, a person with deferred-action status falls outside that class of protected individuals. See Letter from Seema Nanda, Deputy Special Counsel, US Department of Justice, to David Burton, General Counsel, National Small Business Administration, dated Sep. 10, 2012.
Enter section 1981: “All persons within the jurisdiction of the United States shall have the same right in every State and Territory to make and enforce contracts . . . as is enjoyed by white citizens . . . .” 42 U.S.C. § 1981(a) (emphasis added). Originally enacted by the Reconstruction Congress after the Civil War as part of the Civil Rights of 1870, section 1981 today expressly extends to “impairment by nongovernmental discrimination,” 42 U.S.C. § 1981(c), and has been read to prohibit alienage discrimination by employers, see Anderson v. Conboy, 156 F.3d 167 (2d Cir. 1998); Duane v. GEICO, 37 F.3d 1036 (4th 1994). However, an employer does not violate section 1981 by knowingly refusing to hire someone who is an “unauthorized alien” under 8 U.S.C. § 1324a(a) (for example, a deferred-action recipient without a work permit). In such a case, “that employer is discriminating on the basis not of alienage but of noncompliance with federal law.” Anderson, 156 F.3d at 180.
In Juarez v. Northwestern Mutual Life Insurance Co., Juarez alleged the following: He was a Mexican national living in New York. In 2012, he obtained deferred-action status, and then, as that status allows, he got a federal work permit and a Social Security number. During a job interview with Northwestern Mutual, Juarez was asked whether he was a US citizen or a legal permanent resident. He explained that he had deferred-action status. Northwestern Mutual refused to hire him, because it had a policy of refusing to hire anyone who is neither a US citizen nor a permanent resident.
Juarez sued, alleging alienage discrimination in violation of 42 USC 1981. On its motion to dismiss, Northwestern Mutual argued that Juarez had no section 1981 claim: Since its policy permitted employment of a US legal permanent resident as well as a US citizen, Northwestern Mutual refused to hire Juarez because he lacked a green card, not because he lacked US citizenship.
On November 14, 2014, District Judge Katherine Forrest denied the motion to dismiss. Judge Forrest concluded that section 1981 extends “to all lawfully present aliens, whether or not they have a green card.” An employer can’t escape section 1981 liability for discriminating against a member of a protected class simply by showing that it did not discriminate against every member of that class. And here, since the employer’s alleged policy discriminated on its face against “lawfully present aliens without green cards—a protected subclass,” Juarez had stated a claim under section 1981 by alleging that Northwestern Mutual had rejected him pursuant to that policy. For further support, Judge Forrest also discussed precedent interpreting the Equal Protection Clause to invalidate State laws because they discriminated against certain subclasses of lawfully-present aliens.
Hat tip: Jon Bauer
Tuesday, November 25, 2014
Richard Ford (Stanford) has just posted on SSRN his article (forthcoming Stanford L. Rev. 2014) Bias in the Air: Rethinking Employment Discrimination Law. Here's the abstract:
Employment discrimination jurisprudence assumes that key concepts such as “discrimination,” “intent,” “causation,” and the various prohibited grounds of discrimination refer to discrete and objectively verifiable phenomena or facts. I argue that all of these concepts are not just poorly or ambiguously defined; most are not capable of precise definition. Drawing on familiar developments in private law, such as the legal realist critique of objective causation in torts, I argue that, in practice, the central concepts in antidiscrimination law do not describe objective phenomena or facts at all; instead, they refer to social conflicts between employer prerogatives and egalitarian goals. Ironically, at its best, employment discrimination law does not really prohibit discrimination; instead it imposes a duty of care on employers to avoid decisions that undermine social equality. This suggests that attempts to improve employment discrimination law by making it more attentive to “the facts” — for instance, refining causation in mixed-motives cases using quantitative empirical methods or defining discriminatory intent according to innovations in social psychology—are unlikely to be successful, because these facts are not really at the center of the dispute. Instead, we could better improve employment discrimination law — making it more successful as an egalitarian intervention and less intrusive on legitimate employer prerogatives — if we abandoned attempts to precisely define concepts such as “objective causation” and “discriminatory intent” and instead focused on refining the employer’s duty of care to avoid antiegalitarian employment decisions.
Thanks to Phil Sparkes for sending us a note about this gem. From yesterday's Atlanta Journal-Constitution:
Atlanta Fire Chief Kelvin Cochran has been suspended without pay for one month because of authoring a religious book in which he describes homosexuality as a “sexual perversion” akin to bestiality and pederasty.
Mayor Kasim Reed’s spokeswoman Anne Torres said the administration didn’t know about “Who Told You That You Are Naked?” until employees came forward with complaints last week. In addition to suspending Cochran, Reed’s office has now opened an investigation to determine whether the chief’s actions violated the city policies or discriminated against employees.
Cochran has been ordered to undergo sensitivity training and has been barred from distributing copies of the book on city property after a number of firefighters said they received them in the workplace.
Reed said he was “deeply disturbed” by the sentiments Cochran expressed in his book and will “not tolerate discrimination of any kind” in his administration.
Wednesday, November 19, 2014
Stephanie Greene and Christine Neylon O'Brien (both Boston College - Mgmt.) have just posted on SSRN their article (forthcoming 119 Penn St. L. Rev.) Judicial Review of the EEOC's Duty to Conciliate. Here's the abstract:
Fifty years after the enactment of Title VII of the Civil Rights Act of 1964, the federal courts remain unsettled on a variety of issues involving the Equal Employment Opportunity Commission’s pre-suit obligations. Courts currently disagree on: whether the EEOC’s conciliation efforts are subject to judicial review; what the standard of judicial review should be; what the remedy should be if a court finds the EEOC failed to fulfill its pre-suit obligations; and whether the EEOC may bring suit on behalf of unidentified individuals under Section 706. In EEOC v. Mach Mining, LLC, the Court of Appeals for the Seventh Circuit was the first circuit court of appeals to hold that conciliation efforts are a matter of agency discretion and are not subject to judicial review. Other courts have reviewed the conciliation process and have required that the EEOC demonstrate at least good faith efforts to conciliate. On June 30, 2014, the Supreme Court granted Mach Mining’s petition for certiorari and a decision is expected in the upcoming term. The Court’s decision will resolve some of the differences between the circuits and may indicate how courts should resolve related issues. This article maintains that the Supreme Court should affirm the Seventh Circuit’s decision. Supreme Court precedent emphasizes that the EEOC’s efforts should be focused on resolving the merits of discrimination claims and supports the conclusion that judicial review should be denied because it results in delays and distractions from Title VII’s objectives. If the Court decides that judicial review of the conciliation process is required, the EEOC will face a new landscape that will disturb Title VII’s mandate that the conciliation process be informal, confidential, and a matter of agency discretion.