Monday, April 27, 2015
Friday, October 9, 2015
Building on the successes of the last decade, the Seton Hall Employment & Labor Law Scholars’ Forum will continue to provide junior scholars with commentary and critique by their more senior colleagues in the legal academy while offering senior scholars an opportunity to understand and appreciate new scholarly currents.
For the Scholars’ Forum, three relatively junior scholars (untenured, newly tenured, or prospective professors) will be selected to present papers from among the proposals submitted. Selections will reflect a wide spectrum of sub-disciplines within the field of Employment and Labor Law.
The event will be held at Seton Hall Law School, Friday, October 9, 2015. As is our tradition, leading senior scholars from the legal academy will provide commentary on each of the featured papers in an intimate and collegial atmosphere. Seton Hall will pay transportation and accommodation expenses, and will host a dinner on Friday evening.
Junior scholars are invited to submit paper proposals, 3-5 pages in length, by Monday, June 15, 2015.
Proposals should be submitted to:
Professor Charles Sullivan, Seton Hall Law School, One Newark Center, Newark, NJ 07102 or firstname.lastname@example.org.
Electronic submissions are preferred. Papers will be selected to ensure a range of topics. Selected presenters must have a distribution draft available for circulation to other forum participants by September 14, 2015.
Sunday, April 26, 2015
The first of no doubt many updates on the legal wrangling of the NLRB's new election rules. In Baker v. NLRB, a D.C. district court judge has denied plaintiffs' motion for a temporary restraining order stopping enforcement of the new rules, which went into effect on April 14, 2015. Of particular note is the court's finding that the plaintiffs had not shown a likelihood of winning on the merits. This is far from the final word, but a nice first step for the NLRB.
For a description of the major changes in the new rules, and an argument that those changes are quite modest in scope and effect, see my recent article, NLRB Elections: Ambush or Anticlimax?.
Hat Tip: Patrick Kavanagh
Recently, in Buckeye Florida, the NLRB invited briefing on whether to overturn its precedent prohibiting unions from charging nonmember employees for grievance processing. This is an issue in right-to-work states because, under current NLRB law (H.O. Canfield Rubber Co.), a union has a duty to pursue nonmember grievances the same as member grievances, but can't require nonmembers to pay anything for the service.
Given all the recent attacks on union security agreements (requiring dues), this is one way the NLRB can respond. Expect major outcries if the NLRB decides to allow unions to charge for grievance processing. However, it's not that easy to defend the current precedent. That line of reasoning is that grievance processing is a central part of collective representation, which is certainly a reasonable legal argument given that right-to-work laws are legal. That said, this is one area in which the non-labor expert is likely to feel more sympathetic to the union, which merely has to argue something along the lines of "we shouldn't have to work for free."
Thursday, April 23, 2015
There was a recent article in the New York Times which reported that one company -- Gravity Payments -- had decided to raise its minimum wage to $70,000 for its entire 120 employee workforce. From the piece:
"The idea began percolating, said Dan Price, the founder of Gravity Payments, after he read an article on happiness. It showed that, for people who earn less than about $70,000, extra money makes a big difference in their lives."
Price plans to pay for the move by dramatically cutting his own pay and turning to company profits. The move has garnered a lot of attention. Indeed, a blog at the Washington Post looked at whether Wal-Mart could similarly raise its minimum wage to $70,000. In short, analyzing revenue and costs, the answer appears to be no. However, the article speculates that a minimum wage of $47,230 (the current mean wage in this country) could be possible at the nation's largest retailer.
The question is largely academic, however, as there is little reason to believe that major companies would move toward this huge of a jump in pay. Nonetheless, as companies like Gravity Payments grab headlines with this type of enhanced wage structure, it may cause corporations to re-evaluate their own pay strategies.
- Joe Seiner
Wednesday, April 22, 2015
Little Rock Passes Anti-Discrimination Ordinance: Conflict with Arkansas Statute Prohibiting Local Anti-Discrimination Ordinances?
On Tuesday, the city of Little Rock, Arkansas, passed an anti-discrimination ordinance that may conflict with a recently-enacted Arkansas statute that limits local civil rights ordinances in the State. The Little Rock ordinance provides, among other things, that the city will not contract with any entity that discriminates against anyone on the basis of a set of characteristics, including but not limited to sexual orientation and gender identity. Last month, however, in response to a similar anti-discrimination ordinance passed by the City of Fayetteville, the Arkansas legislature enacted Act No. 137. That Act prohibits local governments in that State from exceeding the anti-discrimination protections—including but not limited to protections against employment discrimination—afforded under state law. (For more, see this previous post.)
How does the Little Rock ordinance survive, given Act No. 137? Before Little Rock’s ordinance passed, City Attorney Thomas Carpenter issued a legal opinion, dated April 19, 2015. There, Carpenter concluded, among other things, that the ordinance did not conflict with Arkansas state law. The pertinent text of Act No. 137 provides:
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.
Ark. Code § 14-1-403(a).
In his opinion, City Attorney Carpenter found no conflict between Act 137 and the ordinance, because the ordinance “lists types of discrimination that are already prohibited for one reason or another by state law.” For the ordinance’s coverage of “sexual orientation” and “gender identity” discrimination, Carpenter pointed to three State statutes currently in the Arkansas statute books: (1) an anti-school-bullying statute that covers bullying based on attributes that include “gender identity” and “sexual orientation,” Ark. Code § 6-18-514(b)(1); a statute requiring shelters to develop a policy for delivering services “without regard to . . . sexual preference,” Ark. Code § 9-4-106(1); and a statute letting a person change their birth records with a court order indicating that person’s sex had been changed “by surgical procedure” and that person’s name had been changed, Ark. Code § 20-18-307(d).
This legal analysis appears to turn on how a court would read Act No. 137’s phrase “discrimination on a basis not contained in state law.” The City Attorney seems to read that phrase to mean that if an Arkansas statute protects a person from any type of adverse action based on “sexual orientation,” then “sexual orientation” is therefore “a basis . . . contained in state law.” The rival reading: The Arkansas legislature intended that phrase to cover both the protected characteristic and the type of adverse action motivated by that characteristic. By this reasoning, since no Arkansas law (including the Arkansas Civil Rights Act, Ark. Code § 16-123-107) expressly prohibits an employer from refusing to hire someone (the “discrimination”) because of his or her sexual orientation (the “basis”), Act No. 137 does not let Little Rock refuse to contract with an entity for the reason that it refuses to hire people because they are gay.
The City Attorney’s legal opinion did not address another legal argument available to defend the ordinance: Act No. 137 is void, because it was really motivated by anti-gay animus, and thus violates the “equal protection” guaranteed by the US Constitution and the “equality of all persons” guaranteed by article 2, section 3, of the Arkansas Constitution.
Sunday, April 19, 2015
Edward Zelinsky (Cardozo) has just posted on SSRN his article
(Cornell Law Review On Line, Vol. 100, 2015) Gobeille v. Liberty Mutual: An Opportunity to Correct the Problems of ERISA Preemption. Here's the abstract:
Gobeille v. Liberty Mutual Insurance Company is an opportunity for the U.S. Supreme Court to correct the three fundamental problems of its current ERISA preemption jurisprudence. While incrementalism has its virtues, on balance, it would be better for the Court to use Gobeille to correct the basics of ERISA preemption.
Specifically, the Court should acknowledge the tension between Shaw v. Delta Air Lines, Inc. and the Court’s subsequent decision in New York State Conference of Blue Cross & Blue Shield Plans v. Travelers Ins. Co. by reconsidering the statute afresh. As part of such reconsideration, the Court should construe ERISA § 514(a) as creating a presumption for preemption. Such a construction of § 514(a) respects the text of the statute without yielding to the potential indeterminacy of the statute’s broad language. Finally, the Court should jettison the notion that traditional areas of state law as defined by the Court are immune from ERISA’s more expansive than usual preemption and should instead acknowledge what the statute says: Per §§ 514(b)(2)(A) and 514(b)(4), the areas immunized from ERISA’s more stringent preemption are – and are only – state banking, securities, insurance, and criminal laws.
In the final analysis, a system of statutory law requires courts to take statutes seriously.
Friday, April 17, 2015
In what has been termed "Sonypocalypse," hackers breached the Sony Pictures corporate database and stole widespread data from the company. Much of this data was later leaked to the public. While most of the attention for this unprecedented data breach has been over the internal comments made about the company's films, as well as concerns over the protection of private worker information such as employee social security numbers, there are possible discrimination issues here as well. Specifically, CNN reports that the data revealed startling salary disparities between the highest paid Sony workers:
"The world now knows what Sony employees make [and there is] a major pay gap that runs on gender and race lines. There are 17 people at Sony Pictures who make more than $1 million a year. Only one is black. Only one is a woman."
This salary data raises interesting questions about the pay practices at the company. Perhaps more importantly, it demonstrates how difficult pay discrimination claims are to establish in the first place, as such data is not typically available at private companies. While the way in which this information was uncovered is undoubtedly reprehensible, the salary data certainly raises some difficult questions for the company. In my mind, those questions are far more important than the internal squabbling over whether the company is making too many "formulaic Adam Sandler films", which is currently capturing the headlines. It will be interesting to follow this issue and see whether the salary gap leads to litigation or a public response from the company.
-- Joe Seiner
Thursday, April 16, 2015
Soon after Congress enacted the Civil Rights Act of 1991, liability insurers began marketing separate liability insurance coverage for employment-law liability—what insurers today call it Employment Practices Liability Insurance (EPLI). How does EPLI coverage, and the insurer practices behind it, affect what people do? In this recently posted paper, Shauhin Telesh takes a look at EPLI's role in influencing what employer see as compliance with employment-discrimination law: "Legal Intermediaries: How Insurance Companies Construct the Meaning of Compliance with Anti-Discrimination Laws,” Law and Policy (forthcoming 2015). Here's the abstract:
Existing empirical research suggests that human resource officials, managers, and in-house counsel influence the meaning of anti-discrimination law by communicating an altered ideology of what civil rights laws mean that is colored with managerial values. This article explores how insurance companies play a critical and as yet, unrecognized role in mediating the meaning of anti-discrimination law through Employment Practice Liability Insurance (EPLI). My analysis draws from, links, and contributes to two literatures that examine organizational behavior in different ways: new institutional organizational sociology studies of how organizations respond to legal regulation and socio-legal insurance scholars’ research on how institutions govern through risk. Through participant observation at EPLI conferences, interviews, and content analysis of insurance loss prevention manuals, my study bridges these two literatures and highlights how the insurance field uses a risk-based logic to construct the threat of employment law and influence the form of compliance from employers. Faced with uncertain legal risk concerning potential discrimination violations, insurance institutions elevate the risk and threat in the legal environment and offer EPLI and a series of risk-management services that build discretion into legal rules and mediate the nature of civil rights compliance. My data suggest that insurance risk management services may sometimes be compatible with civil rights goals of improving equality, due process, and fair governance in workplace settings, but at other times may simply make discrimination claims against employers more defensible.
Wednesday, April 15, 2015
It's official. As of yesterday, the NLRB's new representation rules are now effective. Challenges are already raised, and more are likely to follow, so there's plenty more to come. In the meantime, if you're look for a primer on the major new changes, you can see my forthcoming article, NLRB Elections: Ambush or Anticlimax?, which will appear in the Emory Law Journal as part of its symposium on the NLRB at 80 years.
Monday, April 13, 2015
In an interesting and well-publicized arbitration decision in an employment discrimination suit against Hooters, an employee was recently awarded a quarter-of-a-million dollars. While several sex and sexual harassment claims have been brought against the company, this case involved racial discrimination. A former waitress of the restaurant chain alleged that the company told her that she could not wear blond highlights in her hair, which did not look natural for blacks. The waitress further alleged that employees of other races were permitted to alter their hair color. The employee was ultimately terminated by Hooters.
From an article on the case at NBC.com: "Arbitrator Edmund D. Cooke Jr. wrote that Hooters violated state and federal civil rights laws and that the hair policy 'as implemented in a discriminatory manner adversely affecting African-American women.'" The company calls the decision "flawed." This is an interesting case that has been in the news for awhile now. It seems that appearance discrimination claims are becoming more prevalent of late. One such claim brought against Abercrombie is still pending before the U.S. Supreme Court after oral arguments, and is being closely followed by academics and practitioners.
-- Joe Seiner
A recent case out of Ohio, Pohmer v. JPMorgan Chase Bank, N.A., may cause some scurrying around among employer counsel as they try to plug procedural holes which may have allowed a former employee to end-run the employer’s rather elaborate (and typical) rules regarding awards of bonuses. The basic fact scenario is common – plaintiff discharged (in this case for apparently good reason) before any bonus was due. I use “due” loosely since JPMorgan Chase’s Bonus Plan was excruciatingly clear that any bonus, and the amount thereof, was in its sole discretion, and, in any event, an employee had to still working when bonuses were paid to receive one.
The plaintiff’s rather clever ploy was to sue for quantum meruit and unjust enrichment because plaintiff had conferred value on his former employer, for which compensation was due. Like most financial services firms, JPMC had a practice of awarding bonuses, and, in fact, plaintiff had received one each of the previous 13 years. But plaintiff had never been provided a copy of the Bonus Plan, much less assented to be bound by it, and so claimed a right to quantum meruit and unjust enrichment recovery free of its constraints.
The court agreed, reversing summary judgment for the bank. While acknowledging that neither quantum meruit nor unjust enrichment applies “when a contract exists between the parties covering the same subject,” it rejected the trial court’s conclusion that the Bonus Plan was such a contract. Since the Plan was “explicit that the decision of whether to award bonuses and in what amount rests entirely in the discretion” of the employer, it was an illusory contract, binding neither party.
The court hastened to add that such plans need not always be illusory – if executed in connection with gaining or continuing employment, such a plan would presumably be supported by that consideration. Plaintiff, however, had not executed a document regarding the Plan nor even been made aware of its terms and so could not be said to have assented to its terms in exchange for continued employment. For that reason, summary judgment for the employer was reversed.
Pohmer is only an intermediate appellate decision, but it does cast into doubt the practice of generally disseminating compensation policies rather than requiring express employee assent to them. Further, it is by no means clear that the plaintiff will prevail on remand since the appellate court spent little time analyzing the core claims of unjust enrichment and quantum meruit, and it it’s not so clear how either theory would work in this setting.
The plaintiff was paid a salary for his work for JPMorgan Chase, and either theory would have to take that reality into account. That’s clearest with unjust enrichment. Assuming that plaintiff’s efforts in fact enriched the defendant, what’s unjust about it retaining that benefit when it bought and paid for the very efforts that enriched it? Plaintiff will argue that he worked harder to obtain a bonus, but – Bonus Plan aside – we would not normally think an extra-zealous employee is entitled to compensation above and beyond his agreed rate for such efforts, even when they bear fruit. Much the same could be said of the quantum meruit theory. And that’s entirely aside from what remains of contract law’s preexisting duty doctrine.
But what about the employer’s practice of paying bonuses? Plaintiff can be expected to argue that that gave rise to an implied promise (terms of the unknown Bonus Plan aside, of course) that “extra” or “better” work would receive extra compensation. Indeed, bonus systems exist to motivate employees to work harder, and companies like JPMC (especially in financial services where bonuses can approximate yearly salary) clearly expect the prospect of the pot of gold to trigger better work. Further, the structure of the Bonus Plan is a classic example of an employer trying to have its cake and eat it too: the prospect of a bonus motivates employees but no single employee has any legal right to it. So long as the employer’s practices do not appreciably undercut those expectations, it can have the best of both worlds. And not paying a bonus to a former employee like Pohmer, one discharged for apparently good reason, will not impair the firm’s reputation for paying bonuses.
So do unjust enrichment or quantum meruit justify recovery where an employer’s practices imply a bonus, which expectation is not effectively disclaimed by some binding contract? The Restatement (Third) of Restitution provides some hints: Section 31 deals with contracts that are unenforceable for some reason, including indefiniteness, and Illustration 4 would allow an agent to recover for the value of his services when he was promised a bonus but there was no way to calculate its amount. The measure of recovery would be the market rate of services, less (of course) the salary paid. In the Illustration, however, there was an express agreement to pay a bonus, see also Ill. 15, while in Pohmer’s case any such agreement would depend on finding an implied promise arising out of past practice.
Friday, April 10, 2015
Last week, Governor Terry McAuliffe executed an executive order in the state of Virginia which prohibits employers from asking state applicants about any criminal convictions on their job application. There are certain exceptions that apply for more safety-related positions such as those working in childcare or law enforcement jobs, and the order applies to state (not private) employees. Virginia joins more than a dozen states that now have such prohibitions. The Governor was quoted on the executive order in an article over at Reuters.com:
"In a new Virginia economy, people who make mistakes and pay the price should be welcomed back into society and given the opportunity to succeed. . . This executive order will remove unnecessary obstacles to economic success for Virginians who deserve a second chance."
For those of you interested in which other jurisdictions have similar prohibitions (and what those prohibitions are), the National Employment Law Project has a number of great resources available. It is definitely a great topic to raise with your students, as there are always varying opinions on this issue.
-- Joe Seiner
Wednesday, April 8, 2015
News is out today that Sharon Block, former NLRB Member of Noel Canning fame, will be working at the White House. She will be a senior advisor for labor and working families at the White House Office of Public Engagement.
Great to hear that my former colleague at the NLRB has moved such an important position.
Hat Tip: Patrick Kavanagh
Tuesday, April 7, 2015
This Friday, the Emory Law Review will host a symposium, The National Labor Relations Board After Eighty Years. The lineup, present company excluded, is impressive and includes all current NLRB members (plus a former Chairman) and the current NLRB General Counsel. In addition, several of the top labor academics will be presenting. As I can personally attest, the law review has already been working hard on getting the symposium issue ready for publication, so it should be out relatively soon.
Here's the symposium description, which appropriately gives thanks to Michael Green, who--in addition to the law review members--put this entire symposium together:
The Emory Law Journal is pleased to present a special symposium the Journal has put together with the invaluable assistance of Professor Michael Z. Green of the Texas A&M University School of Law. Our symposium will address the continued viability of the National Labor Relations Board as an administrative agency at the dawn of its eightieth anniversary. The decisions and actions of the Board have drawn increased scrutiny in the modern era, and even more so in the wake of President Obama's efforts to ensure the Board was comprised of a full contingent of members. But even before President Obama was elected, because the Board primarily develops its rules through adjudications its decisions have become quite controversial, no doubt in part as a result from the lack of legislative changes to guide the agency's actions over the past forty years. The NLRB’s effectiveness as it reaches its eightieth anniversary in 2015 represents an important legal question and a major concern for all those interested in labor law. This Symposium will assemble some of the most prominent labor law scholars in the country along with the NLRB Chairman and NLRB General Counsel and other members of the NLRB to assess the role of the Board today, what actions Congress may take with respect to the Board, and what the future of the Board might be. Specifically, our symposium will feature three panels, highlighted below.
Assessing the NLRB's Impact & Political Effectiveness
Charlotte Garden, Seattle University School of Law, “A Shot Across the Bow”: Politics and the Obama Board
Julius Getman, University of Texas School of Law, The NLRB, What Went Wrong, and Should We Try to Fix It?
William B. Gould IV, Stanford Law School, Politics and the Effect on the NLRB’s Adjudicative Process
Theodore St. Antoine, University of Michigan Law School, The NLRB’s Role Vis-à-Vis Courts
A Conversation with NLRB Members & General Counsel
Moderator: Professor Charles A. Shanor
Mark Gaston Pearce, Chairman
Richard F. Griffin, Jr., General Counsel
Kent Y. Hirozawa, Member
Harry I. Johnson, III, Member
Lauren McFerran, Member
Philip A. Miscimarra, Member
Opportunities for Improvement in Changing Times
Kenneth G. Dau-Schmidt, Maurer School of Law, Indiana University, Labor Law 2.0: The Impact of the New Information Technology on the Employment Relationship and the Relevance of the NLRA
Samuel Estreicher, NYU School of Law, Towards a Depoliticization of the NLRB: Administrative Steps
Michael Z. Green, Texas A&M University School of Law, Expanding Protections in the Non-Union Workplace: The New Age of the NLRB
Jeffrey Hirsch, UNC School of Law, NLRB Elections: Ambush or Anticlimax?
I have just learned that Friend-of-blog Michael Duff (Wyoming) has posted his piece, The Cowboy Code Meets the Smash Mouth Truth: Meditations on Worker Incivility, on SSRN. This piece, which is a symposium essay, looks at some of the realities and practicalities in today's workplace environment. From the abstract:
This symposium essay argues that workers must face up and wake up to the emerging real world of perpetual employment vulnerability. Clinging to the faith that those who govern us will abide by simple moral codes simply will not do in this world. Workers must resist forces promoting vulnerability and internalize a steely and clear-eyed ethic of self-defense in response to the smash mouth truth of this challenging new environment. Workers and dissidents must not shrink when their frank opposition to the status quo is cabined and marginalized as “incivility.” The law—and I focus in the essay on American labor law—can be of some help at the margins to the cause of worker resistance; but one cannot lose sight of the implacability of the adversary or the ineluctability of the situation. As Chinua Achebe once said with his customary penetrating wisdom:
To answer oppression with appropriate resistance requires knowledge of two kinds: in the first place, self-knowledge by the victim, which means awareness that oppression exists, an awareness that the victim has fallen from a great height of glory or promise into the present depths; secondly, the victim must know who the enemy is.
However, the dire predicament remains full of possibilities. And many such possibilities along the way are beautiful and ennobling. Workers need not lose their humanity, or their values, when confronting the moral insouciance of owners and employers. In the end, I am convinced and argue (from the context of my own life) that both my law students and their former-blue-collar, Teamster law professor (and perhaps others) can learn to appreciate, and even venerate, the sometimes beautiful incivility of human resistance. Whether in Ferguson, Missouri or in the workplace, the human spirit fights on.
Professor Duff has put together a wonderful, inspiring piece and it is certainly well worth taking a close look.
- Joe Seiner
image from www.doj.gov
In an interesting case brought by the Department of Justice, the agency maintains that a transgender civil rights activist was denied tenure by Southeastern Oklahoma State University in the face of positive peer recommendations. The case is the first brought by the agency to argue that transgender employees have any protections under Title VII. The complaint is available here. There is an interesting article at the International Business Times that discusses the case. From the article:
"According to the lawsuit when [she] was hired in 2004, the English professor presented as a man and went by a traditional male name. When she told superiors in 2007 that she would be transitioning from male to female, university officials allegedly reacted in disgust. The school’s vice president for academic affairs . . . was particularly put off, according to the lawsuit. [She] was informed that her lifestyle was a “grave offense” to the vice president’s religious sensibilities, the lawsuit says."
This marks an important development in Title VII litigation, and it will be an interesting case to follow in the weeks ahead.
- Joe Seiner
Saturday, April 4, 2015
Noah Zatz (UCLA) sends us the information below on the UCLA Labor, Entertainment, & Sports Conference to be held on April 17-18, 2015. The website is available at
It looks like a great conference for those that can attend:
Thursday, April 2, 2015
Wal-Mart filed a petition for certiorari on March 13 with the U.S. Supreme Court, asking that it throw out a $151 million class-action award approved by the Pennsylvania State Supreme Court. The award involved a wage case brought in state court that certified the claims of close to 200,000 workers. Wal-Mart is asking that the Court apply the principles from the Dukes decision – which was brought in federal court under Title VII – to the state court claims. It will be an interesting petition to follow, and if granted by the Court, could raise some important due process concerns for state court claims. Other cases have already raised the applicability of the Supreme Court’s commonality test in Dukes to state class action cases, which I wrote about here, and the Court has denied at least one cert petition on the issue already. If the commonality test does apply to state cases, it would be a huge game-changer for all class-action litigants. Philly.com posted an interesting article on the case, quoting a Wal-Mart official that
“We disagree with the Pennsylvania Supreme Court's decision, and continue to believe that these claims should not be bundled together into a class-action lawsuit. Most of these claims are over 10 years old. Wal-Mart has had strong policies in place to make sure all associates receive their appropriate pay and break periods. We have taken additional steps over the last decade, including enhancing our timekeeping systems and additional training, to make sure all our associates understand the importance of those policies and comply with them."
We will follow the petition and keep you posted on any updates in this case.
- Joe Seiner
Tuesday, March 31, 2015
Congratulations to blogger emeritus and our friend Paul Secunda (Marquette), who has been awarded a Senior Fullbright Scholar award for this fall. He will be teaching and conducting research on the national pension program in Australia. Paul will become a senior fellow at the Melbourne University Law School, teaching courses and conducting research on the Australian Superannuation workplace pension system, which is widely considered to be a global benchmark for workplace pension programs. You can get more detail from Marquette's press release. Great work, and wonderful news, Paul!
Thursday, March 26, 2015
As we all know by now, the Supreme Court issued its decision yesterday in Young v. UPS, which resulted in a 6-3 victory for the plaintiff. Congratulations to friend-of-blog Sam Bagenstos, who was closely involved in the case and provided some thoughtful comments below. As Marcia notes in her summary of the case, the Court took a middle-of-the-ground approach here which surprised many of us. After a quick read of the decision, I am convinced that we will be talking about this case for awhile to come, and I thus wanted to highlight a few quick thoughts and (more importantly) attempt to spark a discussion in the comments section below.
First, the case reminds me tremendously of the Faragher/Ellerth decisions, where the Court again created a new standard in the employment discrimination context (perhaps to secure votes?). Those cases, though, seemed much more firmly grounded in the common law than the approach here, which the dissent accuses of being magically created. Second, though it seems like an almost throw-away part of the opinion, I was struck by the fact that the Court appears to definitively describe two ways of establishing intentional discrimination -- through circumstantial and direct evidence. Much was written following Reeves and Costa questioning the ongoing existence of this distinction, which now appears to be alive and well. Finally, for those of you that have not read Scalia's dissent yet -- it is a must read (for example, he accuses the majority of waving its "Supreme Wand" to "Poof!" achieve its "desired result" in this case). Scalia raises a number of fair concerns -- in particular, will the analysis of the case truly be limited to the PDA and has the Court conflated disparate impact and disparate treatment in reaching its result. This decision, combined with Ricci, truly does raise some questions about the future of disparate impact doctrine.
There is certainly enough in this case to fill a few symposium issues, and I am primarily interested in starting a discussion of this case here while it is still fresh in our minds. I am thus starting a thread below, and encourage a dialogue about the decision in the comments section. Feel free to share any thoughts, questions, disagreements, etc. in the forum below.
-- Joe Seiner