Friday, July 17, 2015
Yesterday, the EEOC ruled that discrimination based on an applicant's or employee's sexual orientation is always a violation of Title VII. The EEOC had been making noises in that direction, but this makes the opinion official.
In its decision, the EEOC went beyond previous caselaw, which recognized that discrimination based on sexual orientation may fit under a sex stereotyping theory. But this theory required the plaintiff to establish that the adverse decision was motivated by the plaintiff's not fitting the employer's stereotype (e.g., an effeminate male). Yesterday's decision went further by holding that sexual orientation discrimination always equates to sex discrimination under Title VII. The EEOC's reasoning is that discrimination based on someone's sexual orientation necessarily discriminates against that person's sex. In other words, an employer that discriminates against a man who is attracted to men, but not to women who are attracted to men is engaged in sex discrimination. The money quote from the decision (you can see this Buzzfeed article for more quotes):
[S]exual orientation is inseparable from and inescapably linked to sex and, therefore,  allegations of sexual orientaticm discrimination involve sex-biased considerations. . . . Sexual orientation discrimination is sex discrimination because it necessarily entails treating an employee less favorably because of the employee's sex.
Plaintiffs pushed this argument years ago with almost no success (although, as the EEOC notes, courts have gone along with the same argument for other types of discrimination, such as an employee in an interracial marriage), so it'll be interesting to see if courts are more hospitable to this argument. One practical hurdle is preexisting precedent; however, an agency pronouncement should be entitled to deference, which could help overcome that problem. And there's also the reality that the country as a whole, not to mention the Supreme Court, has obviously become far more sensitive to sexual orientation discrimination over the past several years. But it will be interesting to see how this plays out.
For more reading, see Victoria Schwartz's (Pepperdine) article from 2012, where she argued for just this theory. Expect some court citations soon, Victoria . . . .
Hat Tip: Patrick Kavanagh and others.
As researchers continue to fight about the Implicit Association Test (IAT) and implicit bias research generally, a recent ruling in an ADEA age discrimination lawsuit suggests how hard it might be to introduce implicit-bias research into discrimination litigation. In Karlo v. Pittsburgh Glass Works LLC, No. No. 2:10–cv–1283, 2015 WL 3966852 (W.D. Pa., July 13, 2015), a federal district court judge concluded that an expert report on implicit bias authored by leading implicit-bias researcher (and IAT co-inventor) Anthony Greenwald failed to satisfy Federal Rule of Evidence 702. (For prior discussion of Karlo in the legal press, see, e.g., here and here. For related posts from some of us on implicit-bias research and discrimination litigation, take a look here and here.)
In Karlo, the plaintiffs wanted Greenwald’s expert report admitted into evidence so as to provide a “framework” to help a judge or jury evaluate evidence of discriminatory intent. In refusing to do so, Judge Terrence McVerry wrote that Greenwald’s expert report “is not based on sufficient facts or data. It is not the product of reliable methods. And it would not assist the factfinder in resolving an issue in this case.” And, the judge even doubted that it was relevant to the plaintiffs’ ADEA claims.
First, the expert report wasn’t based on enough “facts or data,” the judge reasoned, because Greenwald hadn’t visited the defendant-employer’s plant, hadn’t spoken with current or former employees, hadn’t interviewed the managers involved in the layoffs at issue in the lawsuit, and hadn’t subjected any of them to “his self-invented IAT.” Instead, the judge concluded, Greenwald opined on the defendant’s employment practices “after reviewing one deposition in full and excerpts of others”—selected and supplied by the plaintiffs’ attorneys—as well as another expert’s appraisal of that material. This made his opinion “not expert material,” but “the say-so of an academic who assumes that his general conclusions from the IAT would also apply to [defendant-employer PGW].”
Second, the judge declared the IAT itself an unreliable measure, because Greenwald couldn’t show that the IAT has been “taken by a representative sample of the population—let alone any person or the relevant decision-maker(s) at PGW.” Greenwald also hadn’t adjusted the IAT data to account for “those who self-select to participate” and had not adopted controls to, “for example, exclude multiple retakes or account for any external factors on the test-taker.” And even if the IAT is a well-validated measure, it “still says nothing about those who work(ed) at PGW.”
Third, there wasn’t enough “fit” between the general principles of implicit bias in his report and the case facts. Rule 702 permits expert opinion “to educate the factfinder about general principles, without ever attempting to apply these principles to the specific facts of the case,” but such expert testimony must “‘fit’ the facts of the case.” FRE 702, Advisory Committee Notes to the 2000 Amendment. To show lack of fit, Judge McVerry pointed out that, in his report, Greenwald wrote that his implicit bias findings “‘provide a framework that can aid a judge or jury in evaluating the facts of this case .... to determine whether the Plaintiffs' ages substantially motivated the defendants' [sic] actions outlined in the Complaint.’ Greenwald Exp. Rep. at 2, ECF No. 380–5.” The judge then seemed to argue that the italicized text shows that, in fact, Greenwald’s report purported to prove causation in the case and that it didn’t match up the ADEA’s (but-for causation) requirement. “If anything, Dr. Greenwald's opinion is more likely to confuse a jury rather than elucidate the issue(s) for the factfinder.”
Fourth, the judge doubted that Greenwald’s report was even “relevant”for deciding the plaintiffs’ ADEA disparate impact or disparate treatment claims. (To be relevant, an item of evidence must tend “to make a fact more or less probable than it would be without the evidence” and that fact has to matter to deciding the clam. FRE 401.) For disparate treatment claims, the plaintiff has to prove that “intentional discrimination occurred at the particular employer, not just that gender stereotyping or intentional discrimination is prevalent in the world.” Besides, proving an employer discriminatory motive “seems incompatible with a theory in which bias may play an unconscious role in decision-making. In a disparate impact claim, evidence of implicit bias makes even less sense, particularly because a plaintiff need not show motive.”
Prior courts have differed on whether to admit into evidence Anthony Greenwald’s expert opinion on implicit-bias in discrimination lawsuits. Compare Samaha v. Washington State Dep't of Transp., No. CV–10–175–RMP, 2012 WL 11091843 (E.D. Wash. Jan. 3, 2012) (yes) with Jones v. National Council of YMCAs, 34 F.Supp.3d 896 (N.D. Ill. 2014) (no).
Sunday, July 12, 2015
Brittany Bronson (left) writes in today's New York Times (Sin City's Dirty Pools) about sex discrimination at Las Vegas "pool clubs", where the well-paid cocktail-server positions are sex-specific and the rare male who does get hired has a dress code much more modest than that of his female counterparts. Congratulations to Ann McGinley (UNLV, right), whose great work on this and related topics for the last long while forms the basis of much of the article.
Friday, June 26, 2015
Jillian Weiss, an attorney in Tuxedo Park, NY, has been the subject of several of my posts on this Blog for her tireless advocacy, both public and judicial, on behalf of trans clients. I don't believe I had ever met her in person, until earlier this week I was squatting between meetings in the library of the New York City Bar Association, heard a party going on as I was leaving, and saw that Jillian was the guest of honor. It was a great opportunity for us to reconnect and finally meet in person, and it's a testament to how far GLBT acceptance has come that she was being celebrated by the NYCBA.
Andrew Kimler is an attorney with Vishnick McGovern Milizio in NYC, and is an alum of Ohio Northern Law School. He has an employment litigation practice, with a particular focus on GLBT, and especially trans, litigation. More importantly, his firm has parlayed its experience with GLBT employment cases into representation of GLBT folks on a much wider variety of issues, such as marriage, adoption, estate planning, and the like. The more he spoke about his firm becoming a full-service LGBT-focused firm, the more I thought about how elder law has developed from nothing 10 years ago into a comprehensive practice specialty today, encompassing not just estate planning but Medicare/Medicaid planning, living wills, end-of-life issues, etc. etc. Perhaps this is the wave of the future for GLBT practice.
Thursday, June 25, 2015
While 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.
Tuesday, June 23, 2015
Those 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.
Saturday, June 20, 2015
In a recently posted paper (forthcoming in the Southern California Law Review), Stephen Rich argues for a way to reconstruct the legal conception of diversity—narrowly endorsed in Grutter v. Bollinger, 539 U.S. 306 (2003) only for the use of an applicant’s race for public university admissions —to better advance equal opportunity in workplace settings and beyond. More from the abstract:
This Article demonstrates that Grutter underserves the law’s equality values by deferring to institutional constructions of diversity’s benefits, naively equating the achievement of numerical diversity with the accomplishment of those benefits, and failing to distinguish between exploitative and egalitarian uses of diversity. These deficiencies obscure diversity’s potential to reimagine the relationship between equal opportunity, individual achievement, and institutional design. The Article uses the managerial conception of diversity as a foil for the legal conception. One the one hand, proponents of diversity management in the business context seek to exploit workforce diversity for financial gain, and they reject the emphasis of affirmative action programs and civil rights enforcement on the achievement of integration for its own sake. On the other hand, however, proponents of diversity management sometime marshal the diversity ideal also in order to promote new institutional practices that extend to underrepresented persons equal opportunity for individual growth and advancement. The Article proposes a reconstruction of the diversity rationale to fulfill its potential as an instrument of equal opportunity, within and beyond the educational realm and in circumstances including, but not limited to, the implementation of affirmative action programs.
In the paper, Rich argues, among other things, that, a diversity rationale should distinguish between “exploitative and egalitarian uses of diversity” and should endorse only “measures that provide equal opportunities for individual achievement and advancement to all persons, regardless of their social status.” To this end, it shouldn’t matter that an institution’s “diversity” efforts also advance its own self-interest, even if that “spur[s] an institution to pursue diversity voluntarily.”
Tuesday, June 9, 2015
In Wal-Mart Stores v. Dukes (2011), the US Supreme Court ruled in part that a district court had improperly applied Federal Rule of Civil Procedure 23(a)(2) (requiring “questions of law or fact common to the class”) when it had certified a plaintiff class in a Title VII pay discrimination lawsuit against Wal-Mart, because those plaintiffs had provided “no convincing proof of a companywide discriminatory pay and promotion policy.” Since then, some have argued for reading Wal-Mart’s gloss on FRCP 23(a)(2) into the Fourteenth Amendment’s Due Process Clause to set a minimum necessary condition for class actions under State law as well as federal law.
Enter Joe Seiner (our fellow co-blogger), who has posted a new paper: “Commonality and the Constitution: Applying Wal-Mart to State Court Cases,” forthcoming in the Indiana Law Journal (2016). From the paper:
This Article begins by explaining the contours of the Wal-Mart decision, emphasizing the Court’s view of commonality under the federal rules. Next, this paper discusses the argument that Wal-Mart creates a constitutional floor for commonality in all class-action litigation. This paper critiques this argument, and explains why the Wal-Mart decision should be limited to federal court claims brought under Rule 23. Finally, this Article develops a normatively fair definition of commonality, identifying five core guideposts that should be considered when determining whether a class-action claim satisfies the Due Process Clause. This Article explains the implications of adopting the proposed guideposts, and situates the proposed framework within the context of the existing academic literature. . . .
[Those guideposts:] [T]o satisfy the Due Process Clause of the Constitution with regard to commonality, all complex litigation must: (1) present a uniform company policy or problem that is (2) effectuated by management level employees, (3) creates common harm; and (4) the case must include mutual questions shared by all plaintiffs (5) that are capable of resolution across the entire class.
This topic is particularly salient given the Supreme Court’s recent decision to grant a cert. petition in Tyson Foods, Inc. v. Bouaphakeo.
Monday, June 1, 2015
The Supreme Court issued its decision in EEOC v. Abercrombie today. As a reminder, this is the case in which a female job applicant (Samantha Elauf) who wore a head scarf was rejected for a job because it conflicted with company dress policy. The employer argued that there was no religious accommodation claim available unless the applicant or employee specifically noted the need for such accommodation (in other words, there was no religious discrimination because she didn't say the head scarf was for religious reasons and, as a result, the employer didn't need to see if there was a reasonable accommodation). The Court rejected that argument in a decision joined by 7 Justices, with Alito concurring and Thomas concurring in part and dissenting in part. From the syllabus:
To prevail in a disparate-treatment claim, an applicant need show only that his need for an accommodation was a motivating factor in the employer’s decision, not that the employer had knowledge of his need. Title VII’s disparate-treatment provision requires Elauf to show that Abercrombie (1) “fail[ed] . . . to hire” her (2) “because of ” (3) “[her] religion” (including a religious practice). 42 U. S. C. §2000e–2(a)(1). And its “because of” standard is understood to mean that the protected characteristic cannot be a “motivating factor” in an employment decision. §2000e–2(m). Thus, rather than imposing a knowledge standard, §2000e–2(a)(1) prohibits certain motives, regardless of the state of the actor’s knowledge: An employer may not make an applicant’s religious practice, confirmed or otherwise, a factor in employment decisions. Title VII contains no knowledge requirement. Furthermore, Title VII’s definition of religion clearly indicates that failure-to-accommodate challenges can be brought as disparate-treatment claims. And Title VII gives favored treatment to religious practices, rather than demanding that religious practices be treated no worse than other practices.
The Court made clear that Title VII was only concerned with whether religion was a motive, no matter what the employer's knowledge was. Although that seems a bit hard to distinguish, especially for juries, as in most cases, a plaintiff would have a hard time showing motive without knowledge (indeed, the Court recognizes in a footnote that it may be hard or impossible to show motive without some knowledge). That said, it does distinguish Title VII's religious accommodation from the ADA, which specifically refers to "known" limitations. For the case at hand, this means that even if Abercrombie did not know she wore the scarf for religious reasons, they will still violate Title VII if she can show that they refused to hire her in order to avoid making an accommodation. For instance, if Abercrombie suspected that this was a religious headscarf, but couldn't confirm it, the plaintiff could show that the desire not to accommodate was a motivating factor for the rejection.
Another important aspect of the decision is that the Court held that Title VII puts religion in a favored position. Rejected Abercrombie's argument that a neutral policy (dress code) couldn't be discriminatory, the Court stressed that employers must reasonably accommodate religious practices. What it didn't say though is that the reasonable accommodation duty is very narrow under previous cases. In other words, Elauf still has work to do to win this one.
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.