Friday, May 13, 2016

Pilots Who Are Nursing Moms Bring EEOC Charges against Frontier Airlines

It's too bad that law school finals are over because this situation has all of the labor and employment bases covered. The ACLU and the Colorado law firm of Holwell Shuster & Goldberg have filed charges with the EEOC on behalf of four pilots who argue that the airline's policies discriminate against women by failing to provide accommodations related to pregnancy and breast feeding. You can download the charges from that link if you are interested in the details.

Essentially, the charges allege that pregnant pilots are forced to take unpaid leave beginning as early as 10 weeks before their due dates and are then allowed up to 120 days after delivery of unpaid leave. Those who are nursing when they return are not accommodated at the airports nor allowed to express milk during flights, according to the charges. Three of the four women suffered mastitis as a result of the lack of accommodations. The pilots have proposed a number of accommodations like temporary non-flying assignments that would allow women to work longer before delivery and to allow for easier accommodation of milk expression, extension of maternity leave for women who want it, and designated places where the women could pump in airports Frontier uses and on the plane when necessary. According to NPR, the airline asserts that there are locations for expressing milk in airports that comply with federal and state law.

Although the charges themselves really only deal with Title VII (although they also mention Colorado's Fair Employment Practices Act and Colorado's Workplace Accommodation of Nursing Mothers Act), the lack of accommodations may also violate the FLSA (as amended by the Patient Protection and Affordable Care Act). In addition, the workplace is governed by a collective bargaining agreement, which has rules setting out non-flying reassignments, but only for on-the-job injuries.

If the charge does not lead to a settlement, the subsequent lawsuit will give a court the chance to apply the Supreme Court's framework for accommodations set out in Young v. UPS. This case is similar as it relates to pre-delivery leave, but it's also different. It is not clear that the women must take pre-delivery leave because of any medical reason. The policy requires that pilots take leave once they are no longer "medically authorized to fly," or at 32 weeks, whichever is earlier. For healthy women, doctors generally don't suggest limits on flying until 36 weeks, mostly because of the possibility of early labor. Because Frontier, requires leave by the 32d week of pregnancy, (and some women don't deliver until the 42d week), there might be several weeks where the pilot could work, but is prohibited. This requirement looks like the one struck down in Cleveland Bd. of Educ. v. LaFleur, which required pregnant school teachers to take leave before it was medically required.  

The case is also somewhat different on the accommodations for milk expression. The situation Peggy Young found herself in at UPS would likely be taken care of by the ADA as amended. Her lifting restriction, imposed to prevent miscarriage or premature activity, would be found an impairment of a major life activity, most likely. And transfer to a vacant position, likely a reasonable accommodation that would not pose an undue hardship, since UPS provided that accommodation for a number of other reasons. Here, lactation itself isn't an impairment but an extension of the normal physiological processes of pregnancy and delivery. Lactation isn't impairment of normal breast function; it is normal breast function. So these accommodations may only be protected by Title VII and not by the ADA.

In any event, it will be interesting to see how this one plays out and whether remedies under other laws that might provide relief are pursued.


May 13, 2016 in Employment Discrimination, Worklife Issues | Permalink | Comments (0)

Wednesday, May 4, 2016

Secunda and Hertel-Fernandez on Workplace Political Intimidation

Secunda HFAs the primary season transitions more solidly into the presidential election, our thoughts in the labor and employment world naturally turn to workplace captive audience speeches. WPB emeritus Paul Secunda (Marquette) is probably the country's expert on the subject. He has an important piece out in the UCLA Law Review Discourse with Alexander Hertel-Fernandez (doctoral candidate in government and social policy, Harvard), who has been engaged in empirical work to study the scope of employer political intimidation. The article, Citizens Coerced: A Legislative Fix for Workplace Political Intimidation Post-Citizens United summarizes some of Hertel-Fernandez's empirical findings and recommends that Congress amend Title VII to prohibit discrimination on the basis of political affiliation or belief.

The article lays out a compelling case and a workable solution. It finishes with this powerful exhortation:

As the country enters into a highly-contested and polarizing presidential election cycle, it is imperative that Congress act quickly to end political coercion in the workplace.  Consistent with longstanding principles of freedom of speech, expression, association, and political affiliation, private-sector employees, just as much as their public-sector counterparts, have the right to engage (or not engage) in political activities without fear of retribution or disadvantage from their employer.  It is one thing to provide corporations with expanded free speech rights in the electoral process.  It is quite another to permit companies to coerce workers in their political expression.  We should not tolerate the latter encroachment on worker autonomy.

The article is a great read, and I highly recommend it.


May 4, 2016 in Commentary, Employment Discrimination, Scholarship | Permalink | Comments (0)

Friday, April 15, 2016

North Carolina, HB2, and the Right to Sue for Employment Discrimination

    Meanwhile, back in North Carolina, there is still no private right of action for employment discrimination under North Carolina law—except now, North Carolina Governor Pat McCrory says he wants to “restore” it.  There is, however, a third way.

    By now, you’ve heard the story: On a single day (March 23), the North Carolina House and Senate passed, and the Governor signed, HB2 into law.  Many have blasted HB2’s bathroom provisions as motivated by prejudice against transgender people and as unconstitutional, too.  HB2 also preempts local anti-discrimination ordinances, including those that had covered sexual orientation and gender identity, as well as local wage and hour laws. 

    But as a few quickly noticed, HB2 had also supplanted existing law affording a private right of action to enforce the North Carolina Equal Employment Practices Act (EEPA).  Before HB2, EEPA had declared:

It is the public policy of this State to protect and safeguard the right and opportunity of all persons to seek, obtain and hold employment without discrimination or abridgement on account of race, religion, color, national origin, age, sex or handicap by employers which regularly employ 15 or more employees.

As originally passed in 1977, EEPA had declared such a “public policy” but afforded no real enforcement mechanism.  Years later, however, some judges began letting plaintiffs use the common-law tort of wrongful discharge to sue for violation of EEPA’s expressed public policy.  Not everyone was happy with this.  For example, Cohen (1995, p. 55) complained that, by letting plaintiffs use the tort of wrongful discharge to enforce EEPA, judges had changed EEPAfrom a toothless legislative compromise into an apparently limitless source of employment discrimination claims”—something the legislators that originally passed EEPA in 1977 wouldn’t have wanted. 

    Then came HB2, which supplanted the existing legal grounds for private tort suits to enforce EEPA by adding this to EEPA itself:

This Article does not create, and shall not be construed to create or support, a statutory or common law private right of action, and no person may bring any civil action based upon the public policy expressed herein.

The reaction, however varied (e.g., here, here and here, and also this interview with fellow law professor Brian Clarke), generally hasn’t been favorable.

    So, now to our latest episode, in which Governor McCrory issues an Executive Order No. 93, dated April 12, 2016, which includes this statement: “I support and encourage the General Assembly to take all necessary steps to restore a State cause of action for wrongful discharge based on unlawful employment discrimination.”  And from the Governor’s accompanying video statement: “I will immediately seek legislation in the upcoming short session to reinstate the right to sue for discrimination in North Carolina state courts.”  Who put HB2’s no-civil-action sentence in there in the first place?  The Governor didn’t say, and no one else is talking—for now, that’s an unsolved mystery. 

    What will North Carolina’s legislators do now?  Repeal HB2’s no-civil-action sentence?  Do nothing?  There is a third way. Amend HB2’s no-civil-action sentence like this:

This Article does not create, and shall not be construed to create or support, a statutory or common law private right of action, and no any person may bring any civil action based upon the public policy expressed herein.

Instead of just restoring the law to pre-HB2 days, now—almost forty years after North Carolina passed EEPA as a “toothless legislative compromise”— maybe it’s finally time for EEPA to get some teeth of its own.



--Sachin Pandya

April 15, 2016 in Employment Discrimination | Permalink | Comments (0)

Wednesday, April 13, 2016

Seiner's Employment Discrimination: Procedure, Principles, and Practice

Seiner_FINAL COVER crop.jpgOur own, Joe Seiner, has a new Employment Discrimination textbook now out, which is definitely worth looking into.  According to promotion materials, the book, Employment Discrimination: Procedure, Principles, and Practice:

This text offers a fresh perspective on employment discrimination law, presenting a procedural-based approach to the topic with interactive materials throughout the book. While still providing the traditional employment discrimination casebook coverage, this text emphasizes the importance of procedural issues in workplace cases. It includes a unique “best practices” chapter which discusses the most effective ways to address workplace discrimination, from both a theoretical and legal perspective. Numerous exercises and problems foster classroom discussion. Practice tips situate students in the role of a practicing lawyer.

Cases are modern and cutting-edge, demonstrating the importance of employment discrimination law. Each chapter includes a chapter-in-review, and summary charts and graphs are used throughout the text to further student comprehension. Text boxes within cases, historical notes, and news events are all used to help bring the material to life in an innovative new way. Instructors will have access to sample exam problems and answers, proposed syllabi, Teacher’s Manual with problem answers, and PowerPoint slides.


April 13, 2016 in Employment Discrimination | Permalink | Comments (1)

Tuesday, March 1, 2016

EEOC Sues for Sexual Orientation Discrimination

EEOC The EEOC issued a press release today, announcing that it has brought two cases alleging that discrimination on the basis of sexual orientation is discrimination on the basis of sex under Title VII. From the press release:

The federal agency's Philadelphia District Office filed suit in U.S. District Court for the Western District of Pennsylvania against Scott Medical Health Center, and, in a separate suit, in U.S. District Court for the District of Maryland, Baltimore Division, against Pallet Companies, dba IFCO Systems NA.

In its suit against Scott Medical Health Center, EEOC charged that a gay male employee was subjected to harassment because of his sexual orientation. The agency said that the male employee's manager repeatedly referred to him using various anti-gay epithets and made other highly offensive comments about his sexuality and sex life. When the employee complained to the clinic director, the director responded that the manager was "just doing his job," and refused to take any action to stop the harassment, according to the suit. After enduring weeks of such comments by his manager, the employee quit rather than endure further harassment.

In its suit against IFCO Systems, EEOC charged that a lesbian employee was harassed by her supervisor because of her sexual orientation. Her supervisor made numerous comments to her regarding her sexual orientation and appearance, such as "I want to turn you back into a woman" and "You would look good in a dress," according to the suit. At one point, the supervisor blew a kiss at her and circled his tongue at her in a suggestive manner, EEOC alleged. The employee complained to management and called the employee hotline about the harassment. IFCO fired the female employee just a few days later in retaliation for making the complaints, EEOC charged.

These cases are an outgrowth of the agency's decision in the federal sector case Baldwin v. Dep't of Transp., Appeal No. 0120133080 (July 15, 2015). In that case, EEOC held that Title VII's prohibition of sex discrimination includes discrimination because of sexual orientation because:

(1) sexual orientation discrimination necessarily involves treating workers less favorably because of their sex because sexual orientation as a concept cannot be understood without reference to sex; (2) sexual orientation discrimination is rooted in non-compliance with sex stereotypes and gender norms, and employment decisions based in such stereotypes and norms have long been found to be prohibited sex discrimination under Title VII; and (3) sexual orientation discrimination punishes workers because of their close personal association with members of a particular sex, such as marital and other personal relationships.

 The EEOC has also been filing amicus briefs in private cases urging the courts to accept this argument, most recently in Burrows v. The College of Central Florida and Evans v. Georgia Regional Hospital, both in the 11th Circuit. Accepting it would mean that the courts could stop struggling with trying to distinguish between sex stereotyping cases that are cognizable because they are really about sex and sex stereotyping cases that are not cognizable because they are about sex but also sexual orientation.


March 1, 2016 in Beltway Developments, Employment Discrimination, Labor and Employment News, Workplace Trends | Permalink | Comments (0)

Friday, January 29, 2016

Digging for Dirt

New ImageThe New York Law Journal reports a story about a restaurant group going the extra mile in trying to dig up dirt about a plaintiff in an employment discrimination suit. According to the story, the defendant served third party subpoenas on the plaintiff's former employers, seeking pretty much everything they had on the plaintiff's work record. To add a nice touch, the subpoenas were served on Christmas Eve.

In Henry v. Morgan's Hotel Group, the plaintiff's motion to quash was granted by Magistrate Judge Cott.  First, the defendant failed to serve notice on the plaintiff before serving the subpoenas on the third parties, thus frustrating the plaintiff's opportunity to object before the third parties were notified. This created the real possibility of prejudice -- indeed, one of the former employers had produced the records before the court's decision on the motion to quash. Indeed, the mere service of the subpoena was found to be prejudicial to the plaintiff -- his concern that once and potentially future employers were effectively notified that plaintiff had filed a discrimination suit was legitimate.    

To add insult to injury, the subpoenas were both overbroad as to what was to be produced and sought clearly irrelevant information.  The defendant claimed that it needed the information to challenge plaintiff's credibility in his claim that he was an "exceptional waiter." The court found it not "remotely apparent what difference that would make regarding the allegations of discrimination and retaliation he has made in this case. The issue presented here is whether Defendant's actions directed toward Henry were based on valid considerations or violated the discrimination laws. Henry's prior employment has little if any bearing on that issue."  The court did not that there was no evidence adduced about any misrepresentations that might justify an after acquired evidence defense.

I'm not sure how often tactics like this are used by defense firms, at least where there is no claim of resume fraud or similar after-acquired evidence defense, but the decision may cause defense counsel to think twice about such tactics.
For civil procedure buffs, there's a final interesting aspect to the decision: in dealing with the overbreadth argument, the court invoked the new FRCP proportionality standard for discovery, a standard being widely decried as likely to restrict plaintiff's efforts. In Henry, however, it was the defendant who was on the wrong end of the proportionality analysis.



January 29, 2016 in Employment Discrimination | Permalink | Comments (2)

Monday, January 18, 2016

11th Circuit OKs Mixed-Motive Transgender Case

JTWEISS-copyThe 11th Circuit on Thursday released Chavez v. Credit Nation Auto Sales, reversing a trial court's grant of summary judgment for the employer on a mixed-motive claim. The trial court held that a plaintiff in a mixed-motive case must prove pretext. The 11th Circuit disagreed, finding that mixed-motive analysis is a separate method of proof from the McDonnell Douglas/Burdine analysis, and that a plaintiff need not prove pretext in a mixed-motive case.

Jillian Weiss (photo above), who litigated the case for the plaintiff, writes to us:

As you may recall, I had an appeal before the 11th Circuit on the issue of standards in mixed motive cases. The Court has issued its opinion, and I thought you might be interested.  It's attached.  It was your blog's suggestion that Nassar would be important in making the case on mixed motive causation (from 4/24/14). It was. Here's what the Court said:

From pages 11-12:  More recently, the Supreme Court has told us that “Section 2000e-2(m) is not itself a substantive bar on discrimination. Rather, it is a rule that establishes the causation standard for proving a violation defined elsewhere in Title VII.” Univ. of Tex. Sw. Med. Ctr. v. Nassar, __ U.S. __, at __, 133 S. Ct. 2517, 2530 (2013) (emphasis added). “[B]ut-for causation is not the test”; rather, “[i]t suffices instead to show that the motive to discriminate was one of the employer’s motives, even if the employer also had other, lawful motives that were causative in the employer’s decision.” Id. at 2523.

That quote came from our brief, which I put in there because I read your blog. Thanks! ... We appreciate your blog.


January 18, 2016 in Employment Discrimination | Permalink | Comments (0)

Tuesday, January 12, 2016

Spitko on Anti-LGBT Bias in Role Model Occupations

SpitkoGary Spitko (Santa Clara) has just posted on SSRN his new article (48 Connecticut Law Review 71-117 (2015)) A Reform Agenda Premised Upon the Reciprocal Relationship Between Anti-LGBT Bias in Role Model Occupations and the Bullying of LGBT Youth. Here's the abstract:

Employment discrimination in role model occupations on the basis of LGBT status has long been used systematically to define negatively the LGBT identity and to reinforce the associations between the non-LGBT majority and certain positive qualities, values, and institutions. This Article argues that a reciprocal relationship exists between such discrimination and the bullying of LGBT youth. This Article then proposes a reform agenda to combat anti-LGBT bias in role model occupations grounded in an understanding of the nature of this reciprocal relationship. Part I demonstrates that anti-LGBT discrimination in role model occupations has been employed systematically to disassociate LGBT people from certain positive qualities and values and to maintain and strengthen the associations between these positive qualities and values and the non-LGBT majority as well as the institutions that the non-LGBT majority holds dear. One effect of such discrimination, as intended, is that known LGBT role models are removed from public visibility. This exclusion makes it more likely that young people will come to devalue LGBT people which, in turn, is likely to increase the prevalence of the bullying of LGBT youth. Part II reviews recent empirical studies that evidence that the bullying of LGBT youth is a widespread problem and that the consequences of this bullying can be profound and tragic. This Part also reviews empirical evidence that bullying in the workplace is a significant problem and that much of this workplace bullying targets LGBT people. This hostile environment, in turn, encourages LGBT workers to conceal their sexual orientation or gender identity. Thus, bullying is not only a consequence of the intentional exclusion of known LGBT people from role model occupations; bullying also furthers this exclusionary project. Finally, Part III considers in greater detail the mutually reinforcing relationship between employment discrimination against known LGBT role models and the bullying of LGBT youth, focusing on their common genesis and effects. This Part then proposes a reform agenda grounded in an understanding of the interconnections between such discrimination and the bullying of LGBT youth.

The article grew out of a book that Gary has forthcoming from the University of Pennsylvania Press later this year:  – “Anti-Gay Bias in Role Model Occupations.”  The book argues that much employment discrimination against gay people is intended to disassociate gay people from certain positive qualities and values and to maintain and strengthen the association between these positive qualities and values and the heterosexual majority as well as the institutions that the heterosexual majority holds dear.  The law review article considers the mutually reinforcing relationship between such employment discrimination against known LGBT role models and the bullying of LGBT youth, focusing on their common genesis and effects. The Article then proposes a reform agenda to combat anti-LGBT bias in role model occupations grounded in an understanding of the nature of this reciprocal relationship.


January 12, 2016 in Employment Discrimination, Scholarship | Permalink | Comments (0)

Thursday, December 17, 2015

SEALS 2016 Call for Papers: New and Existing Voices in Labor and Employment Law

Seals logoFriend of the blog and Southeastern Association of Law Schools Labor and Employment Law Workshop organizer extraordinaire Michael Green (Texas A & M) sends along this call for papers for the 2016 SEALS annual conference:

The Southeastern Association of Law Schools(SEALS) is pleased to host the fourth annual “New Voices in Labor and Employment Law” program during the 2016 SEALS Annual Meeting in Amelia Island, Florida. This year we have extended the program to also include “Existing Voices in Labor and Employment Law.” The purpose of this works-in-progress program is to give junior and existing scholars feedback on papers from senior scholars before the upcoming submission cycle.  We are seeking submissions from labor and employment law scholars with five or fewer years of full-time teaching experience (not counting the 2015-16 academic year) and will also consider drafts from existing labor and employment scholars regardless of experience.

Submissions should be drafts of papers relating to labor and employment law that will be near completion by the time of the SEALS meeting held August 3-9, 2016.  To be considered for participation in the program, please send an email to Professor Michael Z. Green, Texas A&M University School of Law, at and by 5:00 p.m. E.S.T., Monday, January 11, 2016. In your email, please include the title of your paper, a short description of the context (e.g., “Disparate Impact after Dukes”), and a full abstract. Full-time faculty members of SEALS member or affiliate member schools, who have been teaching labor and employment law courses for five or fewer years as of July 1, 2015, will be given a preference in the selection of those contacted to submit final papers but we hope that labor and employment scholars with even more experience will submit papers as well. 

To ensure enough time for adequate feedback, space will be limited to 6 participants; additional registrants will be placed on a waiting list and invited to participate on a space available basis. Those individuals accepted into the program must submit a complete draft by 5:00 p.m. E.S.T., Friday, June 10, 2016. Please submit your drafts electronically to the email addresses above. The draft should be accompanied by a cover letter with the author’s name, contact information, and confirmation that the submission meets the criteria in this call for papers.

Submissions are limited to a maximum 40,000 word limit (including footnotes). Papers can be committed for publication prior to their submission as long as they are not actually scheduled to be printed prior to August 9, 2016. Each professor may submit only one paper for consideration. No papers will be accepted after the deadline and the submission of an incomplete draft may limit participation in this workshop.  Paper commentators may include Professors Brad Areheart (Tennessee), Anthony Baldwin (Mercer), Richard Bales (Ohio Northern), Scott Bauries (Kentucky), Theresa Beiner (Arkansas-Little Rock), Miriam Cherry (St. Louis), Brian Clarke (Charlotte), Michael Green (Texas A&M), Wendy Greene (Samford), Stacy Hawkins (Rutgers Camden), Jeff Hirsch (North Carolina), Nancy Levit (Missouri-Kansas City), Natasha Martin (Seattle), Marcia McCormick (St. Louis), Angela Onwuachi-Willig (Iowa), Elizabeth Pendo (St. Louis), Nicole Porter (Toledo), Jessica Roberts (Houston), Veronica Root (Notre Dame), Ani Satz (Emory), Paul Secunda (Marquette), Kerri Stone (Florida International), Michael Waterstone (Loyola), and others to be determined. 

Please be aware that selected participants and commentators are responsible for their own travel and lodging expenses related to attending the SEALS Annual Meeting, including the SEALS registration fee. Any inquiries about the SEALS New and Existing Voices in Labor and Employment Law Program should be submitted to Professor Michael Green at the email above.

 SEALS is a great conference because it is not overly formal, and people are quite approachable. Also, like many workshops in the labor and employment community, the commentators are usually supportive and really engaged. I always leave with more energy than I had when I arrived. We'll keep you posted on other programming as it's set.


December 17, 2015 in Conferences & Colloquia, Disability, Employment Common Law, Employment Discrimination, Faculty Presentations, International & Comparative L.E.L., Labor Law, Labor/Employment History, Pension and Benefits, Public Employment Law, Religion, Scholarship, Wage & Hour | Permalink | Comments (0)

Monday, December 7, 2015

DOJ’s Second Try: Avoiding the ADA’s Gender-Identity-Disorder Exclusion

            How will the Department of Justice (DOJ) defend against an Equal Protection Clause challenge to that part of the Americans with Disabilities Act (ADA) that excludes “gender identity disorders not resulting from physical impairments” from the statutory term “disability,”  42 U.S.C. § 12211(b)(1) (the “GID exclusion)?  When we last talked about Blatt v. Cabela’s Retail, Inc., No. 5:14-cv-04822-JFL (E.D. Pa., filed Aug. 15, 2014) —an employment discrimination lawsuit brought by a transgender plaintiff.—DOJ had asked the district judge to avoid the constitutional issue by deciding the plaintiff’s Title VII claim (discrimination because of gender identity) instead of her ADA claim. The district court didn’t buy it and asked DOJ to say more or intervene.

            So, a second try.  DOJ has a new constitutional-avoidance argument: According to “a growing body of scientific evidence,” gender dysphoria—the plaintiff’s alleged disability—is a gender identity disorder that does “result[ ] from physical impairments.” Therefore, the district court can (and must) read the ADA’s GID exclusion not to apply in this case.  The ADA’s definition of disability contemplates impairments as “physical” or “mental”.  42 U.S.C. § 12102(1)(A) (“a physical or mental impairment”). DOJ’s key move here is to read the phrase “resulting from physical impairments” in the GID exclusion to not cover “GIDs rooted in biology or physiology, even if the precise etiology is not yet definitively understood,” that is, a GID that “has a physical basis.” Citing various sources in support, including a recent literature review (Saraswat et al., 2015), DOJ concludes: “While no clear scientific consensus appears to exist regarding the specific origins of gender dysphoria (i.e., whether it can be traced to neurological, genetic, or hormonal sources), the current research increasingly indicates that gender dysphoria has physiological or biological roots.”

            In response, the defendant-employer agreed that the GID exclusion doesn’t cover gender dysphoria stemming from a physical impairment, but emphasized that the plaintiff hadn’t alleged that her gender dysphoria resulted from a physical impairment.  As a result, the defendant’s lawyers wrote, DOJ’s avoidance argument wasn’t “credible”.  The plaintiff’s amici—several NGOs that advocate for transgender people’s rights— agreed that DOJ’s position was, in its result, at least consistent with their view that, after the DSM-5, gender dysphoria isn’t a gender identity disorder at all, but a “new diagnosis.”  But if not, the amici added, and if DOJ’s view requires a plaintiff in any particular to prove that his or her gender dysphoria does actually result from a physical impairment, then the court can’t avoid the Equal Protection Clause challenge completely.  That’s because (1) only transgender plaintiffs would bear that burden of proof; (2) that burden would burn a lot of “attorney resources for discovery and the preparation of expert reports and requiring courts to delve into a thicket of medical evidence and opine on etiology, with the attendant risk of different courts reaching differing results in similar cases”; and (3) if the plaintiff couldn’t meet that burden, the court would then have to decide the constitutional issue.  The plaintiff’s lawyers agreed with this view.

    What about the plaintiff’s ADA claim based on perceived disability? First Amended Complaint ¶¶ 36, 53.  The ADA defines “disability” to include cases in which a person is “regarded as” disabled.  42 U.S.C. § 12102(1)(C).  Today, that’s defined to cover a person who suffers discrimination “because of an actual or perceived physical or mental impairment whether or not the impairment limits or is perceived to limit a major life activity,” id. § 12102(3)—the result of the ADA Amendments of 2008.  So, if the defendant’s alleged illegal conduct had occurred today, maybe DOJ would also say—to make avoidance work—that the GID exclusion doesn’t apply to “regarded-as” ADA claims.  (That is, not even when a defendant-employer treats a person adversely because it thinks (erroneously) that a person has a “gender identity disorder” caused by a physical impairment; or thinks (erroneously, in DOJ’s view) that a person has a “gender identity disorder” caused by a mental impairment; or thinks a person has a “gender identity disorder” but doesn’t know or care whether that condition has a mostly physical or mostly mental etiology.)  But the alleged illegal conduct in Blatt took place before the ADA amendments of 2008.  Back then, the Third Circuit had required that, for a regarded-as claim, the plaintiff’s perceived disability would, if true, count as an “impairment” under the ADA, see Rinehimer v. Cemcolift, Inc., 292 F.3d 375, 381 (3d. Cir. 2002).

    Maybe we’ll find out soon how DOJ’s second try at avoidance will fare.  Oral argument on the defendant’s partial motion in Blatt is scheduled for this Thursday (Dec. 10).


--- Sachin Pandya

December 7, 2015 in Disability, Employment Discrimination | Permalink | Comments (0)

Monday, November 23, 2015

Tipping as Employment Discrimination?

     When does paying workers via tips count as illegal employment discrimination? Arguments against tip compensation--around for a while (e.g., Scott, 1916)---re-emerged last month (e.g., here and here) after restauranteur Danny Meyer (like some others) decided to ban tipping and raise prices instead. One of these anti-tipping arguments: Customers of all races tend to tip black restaurant servers far less than white restaurant servers, even after controlling for service quality (Lynn et al. 2008; Brewster & Lynn, 2014). In turn, some (e.g., Lynn et al., 2008, p. 1057-58) suggest that such a race disparity in tips exposes employers to Title VII disparate-impact liability. That liability applies if a defendant-employer “uses a particular employment practice that causes a disparate impact on the basis of” race or sex, among other characteristics, 42 U.S.C. § 2000e-2(k)(1)(A)(i), regardless of “the employer's motives and whether or not he has employed the same practice in the past,” Lewis v. City of Chicago, 560 U.S. 205, 217 (2010).

    So, can a race disparity caused by tip compensation amount to Title VII disparate impact liability? There isn’t much litigation on this issue, but the answer is yes, if we treat tips just like bonuses, commissions, and other kinds of compensation practices used to pay an amount on top of base pay—practices that, according to the EEOC (Title VII’s federal agency enforcer), may generate disparate-impact liability. EEOC Compliance Manual § 10(III)(C)(2).

    Although Wang (2014, p. 157-58) doubts it, it’s pretty easy to conclude that a race disparity in tips is caused by the employer’s use of a “particular employment practice.” But for tip compensation, there can’t be a tip disparity.  Sure, employers don’t control how much their customers tip. But employers do decide whether part of a worker’s pay comes from tips, instead of, say, imposing a flat service charge.  Besides, customer race bias can’t excuse an employer’s legal responsibility for causing a race disparity in tips. In general, Title VII does not excuse employers who defer to their customers’ racial preferences.

    Wang also suggests that a court might treat a disparate-impact challenge to tip compensation—which partly leaves worker pay to customer discretion—like the challenged policy upheld in Wal-Mart Stores v. Dukes, 131 S. Ct. 2541, 2554-57 (2011), which left worker pay and promotion to local store managers’ discretion. But Wal-Mart—a class action lawsuit—mostly turned on an issue of federal class action procedure. See, e.g., Gschwind v. Heiden, 692 F.3d 844, 848 (7th Cir. 2012); Tabor v. Hilti, Inc., 703 F.3d 1206, 1221-22 & n. 8 (10th Cir. 2013). So, Wal-Mart might matter in a Title VII disparate-impact class action filed in federal court against a restaurant chain that lets each restaurant’s local manager decide whether to adopt tip compensation there. But Wal-Mart doesn’t stop a court from saying that an employer who adopts tip compensation thereby “uses a particular employment practice” under Title VII.

     There is, however, no hard and fast rule about how big a race disparity in tips has to be for a court to declare Title VII liability. And whatever any individual employee collects in tips, any resulting race disparity in tip income—what workers take home—might differ depending on how the employer engages in tip pooling. Although collected tips belong to the employee, see 29 C.F.R. § 531.52; see also, e.g., Cal. Labor Code § 351; NY Labor Law § 196-d, under certain conditions, an employer can redistribute the tips among a set of employees, see 29 C.F.R. § 531.54; see also, e.g., Avidor v. Sutter's Place, 212 Cal. App. 4th 1439, 1449-50 (6th Dist. 2013); 12 NYCRR § 146-2.16.  Which employees get to join a tip pool can be complicated, but since 2011, the US Department of Labor (DOL) reads the Fair Labor Standards Act to “not impose a maximum contribution percentage on valid mandatory tip pools.” 29 C.F.R. § 531.54. (DOL had set a maximum of 15% of an employee’s tips, but it changed tack after some courts rejected it. See 76 Fed. Reg. 18832-01, 18839 (2011). How far DOL may regulate tip pooling is disputed. See, e.g., Oregon Restaurant and Lodging v. Solis, No. 13-35765 (9th Cir., appeal submitted July 10, 2015)).

    As the tip-pool contribution percentage increases, any race disparity in tip income likely decreases. Accordingly, in some cases, there may be a big enough disparity in tips collected but the disparity in tip income (after tip-pooling) is too small. Title VII, however, says that a plaintiff has to show that “each particular challenged employment practice” causes a disparate impact, unless she can show that an employer’s “decisionmaking process” can’t be separated for analysis. 42 U.S.C. § 2000e-2(k)(1)(B)(i). This implies that if a plaintiff can prove that tip compensation (the challenged practice) causes a big enough race disparity in tips collected, that’s enough, whether or not the disparity in tip income (after those tips are pooled) is big enough, too. Tip compensation and tip pooling are practices that can be analyzed separately. An employer can adopt tip compensation without tip pooling. Some do.

    Once the plaintiff proves the requisite disparate impact, the employer has several defenses, including that its tip compensation practice is “job related for the position and consistent with business necessity,” 42 U.S.C. § 2000e-2(k)(1)(A)(i), a “bona fide . . . merit system,” or “a system which measures earnings by quantity or quality of production,” 42 U.S.C. § 2000e-2(h).  For all these, the employer bears the burden of proving that, at bottom, tipping really relates pay to job performance. The problem for employers: In general, past studies suggest that, even after controlling for service quality, tips substantially vary with, among other things, a server’s race (e.g., Brewster & Lynn, 2014) or physical attractiveness (e.g., Parrett, 2015). That doesn’t settle the matter, because the defendant’s restaurant may be the odd case in which tips do measure job performance pretty well.  But, in Title VII litigation, it’s the defendant-employer’s burden to prove that, not the plaintiff’s. And what counts as good job performance is an objective inquiry, not whatever the employer sincerely believes.

    Similarly, using tips as a proxy for job performance is, by itself, hardly a bona fide “merit system.” According to the EEOC, a merit system involves evaluating employee job performance “at regular intervals according to predetermined criteria, such as efficiency, accuracy, and ability.” EEOC Compliance Manual § 10(IV)(F)(1) (discussing parallel defense in Equal Pay Act). Similarly, tips don’t really measure the “quantity or quality of production.” This defense covers not just piece-rate-compensation for making goods, but also compensation for services, such as securities-broker bonuses.  See McReynolds v. Merrill Lynch & Co., 694 F.3d 873, 882 (7th Cir. 2012). Even for broker bonuses, this defense may not apply if “for example, black brokers were receiving systematically poorer reviews than their white counterparts who performed substantially similar work, and the reviews determined compensation.” Id. Here, in any particular case, an employer can’t assume that tips accurately measure the “quality of production” (service quality). Instead, the employer must prove that they really do. Facing this possibility, some employers may want just to ban tipping instead.


---Sachin Pandya


H/t: Jon Bauer, Peter Siegelman.  A version of this essay first appeared at OnLabor.

November 23, 2015 in Employment Discrimination | Permalink | Comments (0)

Thursday, November 12, 2015

New resource by Center for WorkLife Law: Pregnant@Work

Preg at workThe Center for WorkLife Law at UC Hastings has launched a new resource called Pregnant@Work. The site has resources on pregnancy accommodation for a wide range of audiences – attorneys from both sides of the employment bar, pregnant women, their healthcare providers, and employers.  The laws surrounding pregnancy accommodation have changed drastically over the last couple of years, and the site provides educational materials and practical tools to help various audiences understand these changes.

The materials the site provides or organizes for different audiences range from model policies, to forms, to ideas for accommodations that will work for both employers and pregnant workers who might need them. It's a great model for a kind of problem solving advocacy that we don't see very often. Check it out.


November 12, 2015 in Employment Discrimination, Labor and Employment News, Worklife Issues | Permalink | Comments (0)

Wednesday, November 11, 2015

Two views of past as prologue by Widiss, one on Griggs, and the other on the ADA

Widiss Deb Widiss (Indiana) has two recent articles that will be of interest to our blog readers. The first is Griggs at Midlife, 113 Mich. L. Rev. 992 (2005), reviewing Bob Belton's recent book, The Crusade for Equality in the Workplace. From the abstract: 

Griggs v. Duke Power, the Supreme Court case that held that policies that disproportionately harm minority employees can violate federal employment discrimination law even without evidence of “intentional” discrimination, recently turned forty. Griggs is generally celebrated as a landmark decision, but disparate impact’s current relevance (and its constitutionality) is hotly debated. Robert Belton’s The Crusade for Equality in the Workplace offers a rich and detailed history of the strategic choices that led to the plaintiffs’ victory in Griggs. This Review uses Belton’s history as a jumping off point to consider the contemporary importance of disparate impact in efforts to challenge employers’ use of criminal background screens. The Review also suggests that the failure to develop intersectional analysis — that is, an analysis of how sex and race may interact — in disparate impact doctrine risks obscuring key vectors of exclusion.

Belton’s book gives modern readers an inside look at the NAACP Legal Defense and Education Fund’s litigation campaign in Griggs, and it does an excellent job showing how lawyers used disparate impact doctrine to dismantle test and educational requirements that could have excluded many black employees. The book, however, focuses almost exclusively on race discrimination cases. This Review explores the contemporaneous — and less successful — development of the doctrine in early sex discrimination cases. Generally, courts have not required employers to modify workplace structures that fail to accommodate caregiving responsibilities or pregnancy, despite their disparate impact on the basis of sex. Moreover, such policies often disproportionately harm women of color. By filling in this history, the Review offers a more nuanced assessment of disparate impact’s early years.

The Review then considers contemporary efforts to challenge employers’ use of criminal background screens, policies that likewise cause a disparate impact on the basis of both race and sex. It suggests that current litigation might be more successful if the intersectional approach were better developed, but it also highlights the importance of compliance work in achieving equal employment opportunity in the modern world. Although the EEOC has lost some high profile cases in this area, its guidance indicating that criminal background screens may cause an unlawful disparate impact has pushed employers to reconsider and refine their use of such screens.

The second expanded on Deb's other work on "shadow precedents," precedents that still seem to guide the courts even after Congress amends statutes to reverse the effects of those precedents: Still Kickin after All these Years: Sutton and Toyota as Shadow Precedents, 63 Drake L. Rev. 919 (2015). From that abstract:

Congress’s ability to override judicial opinions that interpret statutes is generally understood as an important aspect of maintaining legislative supremacy. In a series of articles, I have challenged the validity of this assumption by showing that courts often continue to rely on overridden precedents — what I have called shadow precedents. My earlier work explores instances in which it was unclear or debatable whether the override or the prior precedent should control. This article further documents such ambiguities, but its primary objective is to highlight examples of ongoing reliance on shadow precedents where it is unquestionably improper. It suggests, however, that citation of shadow precedents may often stem from information failure, including poor briefing by counsel, rather than courts’ willful disregard of legislative mandates.

The article, written for a symposium on the Americans with Disabilities Act (ADA), examines implementation of the ADA Amendments Act of 2008 (ADAAA). The ADAAA, a broadly bipartisan bill, was intended to supersede Supreme Court decisions that had set a very stringent standard for what impairments qualified as a disability. The ADAAA explicitly “rejected” the reasoning in these decisions; amended the ADA’s substantive provisions; and instructed courts to interpret the standard “in favor of broad coverage.” Many lower courts are properly implementing the revised standard, and the overall number of citations to the superseded decisions has dropped sharply. But this article identifies numerous post-ADAAA cases in which courts follow the old precedents for propositions that were undeniably superseded. Mistakes are particularly prevalent in cases alleging discrimination because one is “regarded as” having a disability. Even though the ADAAA was an unusually strong and clear override, it has failed to change fully the law on the ground.

The symposium mentioned in the abstract was published in the Drake Law Review and was an outgrowth of the AALS Employment Discrimination section panel at last year's annual meeting. It's a great symposium with pieces by Senator Tom Harkin (D-Iowa), Steven Befort (Minnesota), Ruth Colker (Ohio State), Arlene Kanter (Syracuse), and Nicole Porter (Toledo).


November 11, 2015 in Disability, Employment Discrimination, Labor/Employment History, Scholarship | Permalink | Comments (0)

Thursday, October 8, 2015

Obergefell and Employment

ObergefellFollowing up on Charlie's post yesterday on The Next Gay Rights Battle, I had the pleasure yesterday of seeing Jim Obergefell speak at Bowling Green (OH) State University. He is speaking widely these days, telling his (very moving) story, and making the same point that Keith Cunningham-Parmeter makes in his article -- that marriage equality is only one battle in the much larger fight for nondiscrimination. If you have a chance to see Mr. Obergefell speak, I highly recommend it; better yet, bring him to your campus.


October 8, 2015 in Employment Discrimination | Permalink | Comments (0)

Wednesday, October 7, 2015

The Next Gay Rights Battle

Keith Cunningham-Parmeter just posted  Marriage Equality,Workplace Inequality: The Next Gay Rights Battle.  The abstract:

Same-sex marriage is not the only civil rights issue impacting the gay community. Although the Supreme Court's decision in Obergefell v. Hodges represented a momentous victory on same-sex marriage, workplace protections affect far more people and remain a high priority for many lesbians and gay men. Today, even though the Supreme Court has invalidated state marriage restrictions across the country, federal law still makes it perfectly permissible to fire a gay man for telling a coworker about his sexuality or to discharge a woman for displaying her wife's picture at work.

This Article critically evaluates the relationship between same-sex marriage and workplace rights. Focused narrowly on case-by-case tactics, proponents of same-sex marriage won in court by selectively choosing gay couples who appeared “safe” and “ordinary” to judges. The decision to prioritize marriage over other gay civil rights-while utilizing reductive depictions of gay relationships in the process-raises distinct challenges for lawyers attempting to extend victories on the marriage front to other important legal realms such as employment protections.

Outlining a model for thinking about gay rights beyond marriage, this Article calls for renewed attention to the argument that sexual orientation discrimination constitutes a form of sex discrimination. The cultural imperative requiring individuals to desire only partners of the opposite sex constitutes American society's most enduring gender stereotype. Employers and states that punish sexual minorities for violating this norm engage in both sexual orientation discrimination and sex discrimination. By combating discrimination in employment, housing, and other civil rights areas, this refocused approach to gay rights applies to numerous legal contexts outside of marriage, thereby addressing the legal needs of a much larger segment of the gay community.

Sounds well worth a read!!


October 7, 2015 in Employment Discrimination | Permalink | Comments (0)

Monday, October 5, 2015

New ED Casebook by Seiner

SeinerCoverCongratulations to our own Joe Seiner on the publication of his casebook, Employment Discrimination: Procedure, Principles, and Practice. I have had a chance to look through it quickly and, as the title might suggest, it brings together two of Joe's areas of expertise: procedure and employment discrimination law. In addition to the usual cases, notes, and questions, the text also contains interactive problems, notes about newsworthy issues,  and exercises. From the news release: 

This text offers a fresh perspective on employment discrimination law, presenting a procedural-based approach to the topic with interactive materials throughout the book. While still providing the traditional employment discrimination casebook coverage, this text emphasizes the importance of procedural issues in workplace cases. It includes a unique “best practices” chapter which discusses the most effective ways to address workplace discrimination, from both a theoretical and legal perspective. Numerous exercises and problems foster classroom discussion. Practice tips situate students in the role of a practicing lawyer.

Cases are modern and cutting-edge, demonstrating the importance of employment discrimination law. Each chapter includes a chapter-in-review, and summary charts and graphs are used throughout the text to further student comprehension. Text boxes within cases, historical notes, and news events are all used to help bring the material to life in an innovative new way.  Instructors will have access to sample exam problems and answers, proposed syllabi, Teacher’s Manual with problem answers, and PowerPoint slides.

A great resource that's worth checking out, for sure. 


October 5, 2015 in Books, Employment Discrimination, Teaching | Permalink | Comments (0)

Thursday, September 17, 2015

Microsoft Sued for "Stack Ranking" System

Bell curvePaul Caron has the details here at Tax Prof Blog. I'm on the go, so if anyone has time to expand on this post, please feel free.



September 17, 2015 in Employment Discrimination, Labor and Employment News | Permalink | Comments (0)

Teaching Sex Stereotyping

CorrellI used this video clip by Shelley Correll (Stanford - Sociology) today to introduce the topic of sex discrimination and stereotyping, to terrific effect. Students are appropriately outraged by the facts of Price Waterhouse, but they also know that few employers these days are so stupid as to be as overtly discriminatory. Today's flavors of discrimination are much more subtle, and this 20-minute video does a nice job of illustrating that.

I followed the video by asking the students to describe sex stereotyping that they had observed at our law school, at our university, and in the law firms and courtrooms they were working and interning in. This generated an animated discussion, and wearing my decanal hat, gave me some ideas of things I can do to improve our law school environment. One of the many interesting directions our discussion took was that law student perceptions of the expertise of junior law professors can vary considerably by gender, and that that in turn may influence the "personas" that male and female law professors may adopt in the classroom.

Thanks to my colleague Dacy Wilcox for sending the video to me.


September 17, 2015 in Employment Discrimination, Teaching | Permalink | Comments (0)

Tuesday, September 1, 2015

EEOC Finds "Continuing Pattern" of Pay Discrimination at U. Denver Law School

DenverThe Denver Post reported yesterday that the EEOC

has threatened to sue the University of Denver's law school over what the commission calls a "continuing pattern" of paying female professors less than their male colleagues.

In a letter sent to the university on Friday, the director of the Equal Employment Opportunity Commission's office in Denver wrote that an EEOC investigation found a gender pay gap among the school's legal faculty dating back to at least 1973. The commission concluded that the university knew about the gap by 2012, "but took no action to ameliorate this disparity, in effect intentionally condoning and formalizing a history of wage disparity based on sex."

The EEOC's investigation came after longtime DU law school Professor Lucy Marsh filed a complaint with the commission more than two years ago. Marsh's attorney on Monday provided a copy of the letter to The Denver Post.

Marsh said the law school could have to pay as much as $1.2 million in total damages to its female law professors, in addition to paying them salaries going forward equal to what their male colleagues in similar positions are paid.

Hat tip: Paul Caron at TaxProf Blog.


September 1, 2015 in Employment Discrimination | Permalink | Comments (0)

Monday, August 17, 2015

Managing Without the Manager Rule

MeThis is a good summer for those interested in the “manager rule” but not for the rule itself. A few weeks ago I posted on the New Jersey Supreme Court’s refusal in Lippman v. Ethicon to limit statutory whistleblower protection for “watchdogs”; now the Second and Fourth Circuits have followed suit under Title VII.

A “watchdog” or “manager rule” would bar employees whose job responsibilities include investigating and preventing discrimination by their employer (or otherwise ensuring its compliance with the law) from claiming legal protection for acts taken within those job duties. In other words, opposition to, say, discrimination, within a manager’s job duties is not protected conduct; rather, such employees must step outside their roles in order to have the protection of the antidiscrimination and whistleblower laws.

In Demasters v. Carilion Clinic, the Fourth Circuit considered what would (despite the district court's analysis) seem to be a pretty open-and-shut case if plaintiff’s allegations were true and if no manager rule took the employer off the hook.  The plaintiff claimed to have been told he was fired for failing to take his employer’s side when he supported a worker’s sexual harassment and retaliation complaint and criticized the employer’s handling of the matter. The employer argued that his conduct was within plaintiff’s job duties EAP consultant and therefore not protected conduct,

Writing sweepingly, the court ruled that the manager rule “has no place in Title VII jurisprudence.” Looking to the broad language in Crawford v. Metropolitan Government of Nashville & Davidson County -- an employee’s communication to her employer of a belief that it has discriminated, “virtually always constitutes the employee’s opposition to the activity” – it found the textual answer clear. It also noted the catch-22 that would be created by a contrary rule: since “insubordinate, disruptive, or nonproductive” conduct is not protected, a rule requiring an employee to step outside of his duties to be within § 704(a) would create a damned-if-you-do-damned-if-you-don’t scenario. Citing Deborah Brake’s superb article, Retaliation in the EEO Office, the court saw “no need to make plaintiffs walk a judicial tightrope when the statutory scheme created by Congress offers a clear path.” 

DeMasters also saw a tension between a manager rule and the affirmative defense to harassment by discouraging HR employees “from voicing concerns about workplace discrimination and put in motion a downward spiral of Title VII enforcement.” And it rejected the employer’s policy argument of a “litigation minefield,” finding it much more troubling that the manager rule would permit employers to punish those for advocating the claims of those they are duty-bound to protect.”

As a side-note, while DeMasters seems to be a precedential Fourth Circuit opinion, the three judges on the panel were all from the Third Circuit since all members of the Fourth Circuit recused.  The court provided no reasons, but it's been reported that one of the judges is married to the CEO of the defendant. In any event, I guess there’s not much chance of en banc reversal!

The least protective of employees is the Second Circuit’s Littlejohn opinion, but even there the manager rule as it is often framed fared poorly.  The plaintiff, an African American woman, complained of racial discrimination after being demoted from her position as Director of EEO and replaced by a white female employee. Littlejohn objected to her former employer’s selection process and “failure to abide by proper anti-discrimination policies and procedures” both in her capacity of Director of EEO and after her demotion. The Second Circuit also looked to Crawford’s “virtually always” language in rejecting the defendant’s argument that, under this standard, any terminated human resources or EEO employee (such as Littlejohn) would have an “automatic” prima facie case of retaliation, which would in turn lead to gratuitous litigation for employers.

In finding such a concern overblown, however, the court recognized a “significant distinction” between reporting other employees’ complaints of discrimination and communicating the manager’s own support for such a claim. In other words, conveying others’ complaints is a routine job duty, but if the manager actively supports other employees in their Title VII claim or has a personal complaint, that activity is protected opposition. In the case at hand, Littlejohn was not merely conveying others’ complaints; rather, she communicated her belief that the personnel decision-making process involved unlawful discrimination. Therefore, her complaints were protected activities.

Given this distinction, one could categorize Littlejohn as adopting a “mini-manager rule” since some job duties do not constitute protected conduct. However, it will be a rare HR professional who is a complete automaton (“merely transmits or investigates a discrimination claims”) and does not make a recommendation or comment on a complaint of discrimination or the results of an investigation.


Thanks to Samira Paydar for her help on this. 



August 17, 2015 in Employment Discrimination | Permalink | Comments (0)