Thursday, June 26, 2014
The Supreme Court today affirmed the D.C. Circuit's opinion in Noel Canning (Breyer wrote the unanimous decision, with Scalia writing a concurrence, joined by Roberts, Thomas, and Alito). However, the Court did not limit the President's recess appointment power as much as the appellate court, which had defined "recess" as only a forma inter-session recess and an opening that occured during the recess (not surprisingly, given that it was supported by a strict originalist reading of the recess clause, the concurrence agreed with the D.C. Circuit opinion). Instead, relying on historical practice extending over 150 years, the Court held that both inter- and intra-session recess appointments are valid as long as the recess was of "sufficient length." That length, according to the Court, is presumptively at least ten days. Moreover, the vacancy doesn't have to occur during the recess. The Board ultimately loses in Noel Canning because the pro forma recess at issue was only three days.
In sum, this is about as good as the NLRB could expect. The pro forma recess was always iffy and the NLRB can reconsider the now-invalidated decisions, as it did after New Process Steel (although the earlier invalidated cases were easier because two, ideologically different, members had agreed on them). As for the future, there are a couple of practical considerations. First, the President's recess appointment power is now largely determined by the houses of Congress, which can both control when, or if, there is a sufficient recess for appointment purposes. However, that control isn't absolute; the Court emphasized that if the Senate simply says it is in session isn't enough. That statement is given great deference, but if it "is without the capacity to act, under its own rules, it is not in session even if it so declares." Second, control over recesses doesn't matter as much as it did when the Court granted cert. in Noel Canning. Under the Senate's new filibuster rules, the President's power to appoint depends less on whether there is a recess and more on which party controls the Senate. If it's the President's party, there is no need for a recess appoinment, assuing no defections that change the outcome. If it's the other party, then the appoint is dead without getting agreement between both sides. All in all, this was a very interesting constitutional case that will waste a lot of hours of work at the NLRB, but is unlikely to have a big impact on appointments in the future, as long as the current Senate rules remain--no matter what many reports have been saying.
Wednesday, June 25, 2014
Image from eeoc.gov
The EEOC recently published an interesting news release about a settlement that the agency reached with Chapman University (San Diego) with regard to a race discrimination claim filed by a professor that failed to receive tenure from the business and economics school. The school agreed to pay $75,000 and provide other affirmative relief. From the press release:
"According to the consent decree settling the suit, aside from the monetary relief, Chapman agreed to designate an internal equal employment opportunity officer; train all [Chapman's George L. Argyros School of Business & Economics] employees on their rights and responsibilities on discrimination in the workplace; maintain a centralized system to track complaints by ASBE faculty members about denial of tenure and discrimination; revise its policies on discrimination and retaliation; and post a notice on the matter at ASBE. The EEOC will monitor compliance with the two-year consent decree."
It is very interesting to see the agency pursue these claims in the academic arena.
Tuesday, June 24, 2014
This is not directly a labor and employment law paper, but it should be of interest to those of us who teach these and other classes. Paula Schaefer (Tennessee) has posted on SSRN her article, A Primer on Professionalism for Doctrinal Professors, which be published in the Tennessee Law Review The absract:
Legal education reform advocates agree that law schools should integrate “professionalism” throughout the curriculum. Ultimately, it falls to individual professors to decide how to incorporate professionalism into each course. This can be an especially difficult task for doctrinal professors. The law — and not the practice of law — is the focus of most doctrinal casebooks. Law students typically do not act in role as lawyers in these classes, so they are not compelled to resolve professional dilemmas in class, as students would be in a clinic or simulation-based course. As a result, it takes some additional preparation and thought to introduce professionalism issues into these courses. Some professors may resist making this change — not knowing which aspect or aspects of professionalism should be the focus, fearing that time spent on professionalism will detract from the real subject matter of the class, or believing professionalism is adequately covered elsewhere in the curriculum.
This Article considers how and why doctrinal professors should address the challenge of integrating professionalism into the classroom. Part I briefly discusses the multitude of meanings ascribed to attorney professionalism and argues that the lack of a clear, concise, and shared definition is a substantial barrier to effectively incorporating professionalism into the law school curriculum. Next, Part II provides a more coherent, streamlined definition of attorney professionalism. This Part also identifies and describes three primary aspects of lawyer professionalism: fulfilling duties to clients, satisfying duties to the bar, and possessing core personal values essential to being a good lawyer. This simplified conception of professionalism should begin to address the concerns of professors who do not know where to begin to incorporate professionalism into their classes. It is also intended to persuade skeptics that professionalism is something they can and should teach as part of their doctrinal classes.
Thereafter, Part III provides guidance for developing course outcomes that connect course subject matter and professionalism. Questions prompt doctrinal professors to look for the natural connections between their course subject matter and issues of professionalism. Then, Part IV considers various methods doctrinal professors can use to introduce professionalism topics into their courses. Integrating professionalism into the classroom does not require professors to abandon their casebooks; using case law can be an effective method. This Part also considers other teaching methods and materials for combining doctrine, skills, and professionalism. Finally, Part V concludes with thoughts on how students benefit when professors make the effort to incorporate professionalism into every law school classroom.
Check out the article--it's really useful, especially for folks like me who still get chills thinking about the MPRE.
I recently posted on this blog a recent study of those states that provide paid leave to workers to care for themselves or a family member. As many of you likely saw, President Obama came out yesterday in support of this type of paid leave system on a federal basis. From the AP article:
"The president is touting paid maternity in the midst of a midterm election campaign focused on women voters, without describing the details of how he would fund such a system. 'If France can figure this out, we can figure this out,' Obama said."
It is interesting that this issue is now taking on a political dimension in the struggle to attract voters during the midterm elections. This will be an interesting issue to follow . . .
Monday, June 23, 2014
Some recent news items:
- The New York Times looks at what me the new Taylorism: the use of workplace surveillance to monitor workers and quantify their effectiveness.
- Serious allegations of illegal actions at popular Kum Gang San restaurant in New York. It's almost like someone wanted to see how many different ways they could violate FLSA.
- Union drive at Bloomberg Law fails. Also brings up possible tension between unions' willingness to press NLRB charges and the allegations of retaliation from employees.
- OSHA and NLRB enter into agreement to share information about charges that pass the OSHA statute of limitations, but may raise NLRA issues.
Hat Tips: Michael Duff, Alan Hyde, Patrick Kanvanagh
Congratulations to Katherine V.W. Stone (UCLA) on the publication by Vandeplas Publishing of Globalization and Labor Standards Annotated Bibliography: An Essential Research Tool. Here's the publisher's description:
The Globalization and Labor Standards (GALS) Annotated Bibliography is a compendium of articles about international labor rights, national and transnational labor standards, and comparative labor law that have been published in law journals. All of the articles in the library are abstracted and cross-referenced by subject. Each article is accompanied by an annotation that describes its contents clearly and concisely. The annotations have been written by Professor Katherine V.W. Stone with the help of her students at the Cornell Law School, the Cornell School of Industrial and Labor Relations, and UCLA School of Law. This volume compiles all of the content in the GALS bibliographic library from 2000 to 2014. The purpose of the book is to preserve the wealth of material developed over the past fifteen years and make it available to libraries and researchers.
Dick Kaplan (Illinois) has posted a new paper on SSRN entitled, Desperate Retirees: The Perplexing Challenge of Covering Retirement Health Care Costs in a YOYO World, recently published at 20 Conn. Ins. L.J. 433 (2014). From the abstract:
A retiree’s single largest and most unpredictable expense is paying for health care, and this article explains the various choices and options that a retiree confronts regarding that expense. The article examines the traditional components of Medicare (Parts A and B), prescription drug plans (Medicare Part D), Medigap coverage, and managed care alternatives, as well as long-term care insurance. Each section addresses the financial trade-offs and time-sensitive decisions that are involved.
A great roadmap to help make sense of this complicated system that a growing section of the population has to navigate.
Thursday, June 19, 2014
Call for Papers and Workshops: National Center for the Study of Collective Bargaining in Higher Education and the Professions
The National Center for the Study of Collective Bargaining in Higher Education and the Professions at Hunter College, CUNY invites scholars, practitioners and labor attorneys to submit abstracts for conference papers and proposed workshops for the National Center’s 42nd annual national conference. The conference will be held at the CUNY Graduate Center, New York, New York, April 19-21, 2015. The theme of next year’s conference will be: Thinking about Tomorrow: Collective Bargaining and Labor Relations in Higher Education.
The National Center seeks abstracts for conference papers related to the conference theme including the following topics:
- Leadership in contract negotiations and labor relations
- Public and private sector negotiations: distinctions and similarities
- Collective bargaining issues and results for non-tenure track faculty
- Academic freedom, due process and shared governance issues for adjunct faculty
- Special issues and challenges in negotiating over graduate assistants
- Approaches for ensuring faculty diversity and for responding to discrimination, harassment and retaliation issues
The Center also seeks proposals for interactive workshop trainings on the topics listed below. Workshop proposals should include a description of planned interactive opportunities and learning outcomes.
- Developing and implementing effective succession plans
- Collective bargaining skills for new administrators and new union representatives
- Tools and best practices for ensuring effective contract administration
- Training, practices, and policies on bullying and harassment
Précis of proposed papers and workshop trainings should be submitted by October 17, 2014 to firstname.lastname@example.org.
The Supreme Court just announced its decision in Lane v. Franks this morning. In a unanimous decision, the Court held an employee's sworn testimony is not part of his job duties under Garcetti and, therfore, is protected by the First Amendment. According to the decision of the Court,
Sworn testimony in judicial proceedings is a quintessential example of citizen speech for the simple reason that anyone who testifies in court bears an obligation, to the court and society at large, to tell the truth.That obligation is distinct and independent from any separate obligations a testifying public employee might have to his employer.
The Court then went on to find that the employee should win under the Pickering/Connick balancing test (although one defendent was held to have qualified immunity).
The three concurring Justices (Thomas, joined by Scalia and Alito), stressed that this case was easy under Garcetti. However, they noted that Lane says nothing about the harder set of cases in which employees regularly testify as part of their job. Another case we can look forward to in the future.
The Supreme Court issued its decision in Lane v. Franks, today, holding unanimously that a public employee is entitled to First Amendment protection for testifying in court where testifying is not a part of that employee's regular job duties. The Court further held that the individual defendant had qualified immunity because circuit court precedent was not clear enough. Here is the syllabus:
1. Lane’s sworn testimony outside the scope of his ordinary job duties is entitled to First Amendment protection. Pp. 6–13.
(a) Pickering v. Board of Ed. of Township High School Dist. 205, Will Cty., 391 U. S. 563, 568, requires balancing “the interests of the[employee], as a citizen, in commenting upon matters of public concern and the interest of the State, as an employer, in promoting the efficiency of the public services it performs through its employees.” Under the first step of the Pickering analysis, if the speech is made pursuant to the employee’s ordinary job duties, then the employee is not speaking as a citizen for First Amendment purposes, and the inquiry ends. Garcetti v. Ceballos, 547 U. S. 410, 421. But if the “employee spoke as a citizen on a matter of public concern,” the inquiry turns to “whether the relevant government entity had an adequate justification for treating the employee differently from any other member of the general public.” Id., at 418. Pp. 6–8.
(b) Lane’s testimony is speech as a citizen on a matter of public concern. Pp. 8–12.
(1) Sworn testimony in judicial proceedings is a quintessential example of citizen speech for the simple reason that anyone who testifies in court bears an obligation, to the court and society at large, to tell the truth. That obligation is distinct and independent from any separate obligations a testifying public employee might have to his employer. The Eleventh Circuit read Garcetti far too broadly in holding that Lane did not speak as a citizen when he testified simply because he learned of the subject matter of that testimony in the course of his employment. Garcetti said nothing about speech that relates to public employment or concerns information learned in the course of that employment. The critical question under Garcetti is whether the speech at issue is itself ordinarily within the scope of an employee’s duties, not whether it merely concerns those duties. Indeed, speech by public employees on subject matter related to their employment holds special value precisely because those employees gain knowledge of matters of public concern through their employment. Pp. 9–11.
(2) Whether speech is a matter of public concern turns on the “content, form, and context” of the speech. Connick v. Myers, 461 U.S. 138, 147–148. Here, corruption in a public program and misuse of state funds obviously involve matters of significant public concern. See Garcetti, 547 U. S., at 425. And the form and context of the speech—sworn testimony in a judicial proceeding—fortify that conclusion. See United States v. Alvarez, 567 U. S. ___, ___. Pp. 11–12.
(c) Turning to Pickering’s second step, the employer’s side of the scale is entirely empty. Respondents do not assert, and cannot demonstrate, any government interest that tips the balance in their favor—for instance, evidence that Lane’s testimony was false or erroneous or that Lane unnecessarily disclosed sensitive, confidential, or privileged information while testifying. Pp. 12–13.
2. Franks is entitled to qualified immunity for the claims against him in his individual capacity. The question here is whether Franks reasonably could have believed that, when he fired Lane, a government employer could fire an employee because of testimony the employee gave, under oath and outside the scope of his ordinary job responsibilities. See Ashcroft v. al-Kidd, 563 U. S. ___, ___. At the relevant time, Eleventh Circuit precedent did not preclude Franks from holding that belief, and no decision of this Court was sufficiently clear to cast doubt on controlling Circuit precedent. Any discrepancies in Eleventh Circuit precedent only serve to highlight the dispositive point that the question was not beyond debate at the time Franks acted. Pp. 13–17.
3. The Eleventh Circuit declined to consider the District Court’s dismissal of the claims against respondent Burrow in her official capacity as CACC’s acting president, and the parties have not asked this Court to consider them here. The judgment of the Eleventh Circuit as to those claims is reversed, and the case is remanded for further proceedings. P. 17.
523 Fed. Appx. 709, affirmed in part, reversed in part, and remanded
Justice Sotomayor wrote the opinion. Justice Thomas wrote a short concurrence that Justices Scalia and Alito concurred in, explaining that because Lane was not testifying as part of his job duties, the case was a straightforward application of Garcetti v. Ceballos, 547 U.S. 410 (2006). Justice Thomas further wrote,
We accordingly have no occasion to address the quite different question whether a public employee speaks “as a citizen” when he testifies in the course of his ordinary job responsibilities. See ante, at 8, n. 4. For some public employees—such as police officers, crime scene technicians, and laboratory analysts—testifying is a routine and critical part of their employment duties. Others may be called to testify in the context of particular litigation as the designated representatives of their employers. See Fed. Rule Civ. Proc. 30(b)(6). The Court properly leaves the constitutional questions raised by these scenarios for another day.
I'll admit that I'm a bit relieved by the decision, and I'm not alone--Paul expressed concern when cert was granted. The decision seemed to track my impressions from the oral argument, but that's not always the way it turns out, and the Court has not ruled in favor of public employees lately on this issue.
It will be interesting to see what the Eleventh Circuit does with the claims against the office of the President of the Community College on remand.
Wednesday, June 18, 2014
Those of you that teach in the area of employment law are well aware of the controversy that exists over family and medical leave. Many believe that the leave protections provided by federal law are insufficient, and this country lags far behind many others in this area – – particularly in Western Europe. One criticism of the FMLA which often arises is the lack of any paid leave in the statute. Some states – – notably California and New Jersey – – have acted to help fill this gap with paid leave systems of their own. A recent story at CNN.com looks at how paid leave for family reasons has worked out on a state level. The story provides an interesting look at how the fears raised by opponents of a paid leave system never truly materialized once the system was actually implemented.
Tuesday, June 17, 2014
I'm just back from a great conference -- Future Directions in Psychology, Public Policy, and the Law -- at the University of Nebraska in Lincoln, where I presented on "Microaggression and the Law." And, no, I'm not conceited enough to think that that talk made the conference great. Indeed, the best thing about the conference as a whole was the wide range of subjects, including discrimination, immigration, sexual orientation and gender identity, and educational policy, all with a focus on how empirical research could contribute to the legal debate.
But back to microaggression, a word that has been all the rage in the last few months in the media and on college campuses. The concept -- as framed by Professor Derald Wing Sue -- describes “brief and commonplace daily verbal, behavioral, and environmental indignities, whether intentional or unintentional, that communicate hostile, negative racial slights and insults to the target person of group.” Dr. Sue divides the phenomenon into microassaults, microinsults, and microinvalidations.
The question for me was whether the concept could have much traction in the law. Aside from microassaults, the answer seems to be no. No litigant has successfully deployed the concept, and the only attempt to do so (coincidentally, before the Nebraska Supreme Court) failed pretty miserably. And only a handful of law review articles wrestle with microaggression despite a cottage industry in the psychological literature.
I should probably qualify this conclusion a bit: "microassaults," such as racial epithets, obviously play an important role in discrimination and harassment cases. But this category adds the least to our understanding of human behavior, and, indeed, some question the prefix "micro" when the n-word is used in the workplace or on campus. As a society, we do tend to take this kind of stuff seriously. Ask Donald Sterling.
It's "microinsults" and "microinvalidations" that are more interesting -- probably exactly because they are less visible but still potentially devastating to the victims. The former category, according to Sue, includes behaviors that are insensitive, rude, or inconsiderate of a person's identity, but do not necessarily reflect an intent to harm by the actor. Microinvalidations, in contrast, consist of behavior that minimizes the thoughts, feelings, or experiences of targets.
To get an idea of what this might mean in concrete terms, consider some of Sue's more extreme cases: a microinsult might occur when a white student asks an Asian classmate for help with math, the message being that Asians are all good at the topic. And a microinvalidation might occur when an institution announces a color-blind philosophy, which implicitly denies the lived experience of minorities.
I'm intentionally focusing on the more extreme applications of microaggression theory as it is currently conceived. In those outer reaches, it seems unlikely to have much application in the law and maybe not much more in "softer" settings, like HR training.
But Sue is certainly correct that low-level conduct can be personally and professionally difficult and even devastating-- and maybe torpedo institutional efforts at diversity. The challenge for the psychologists may be to come up with a more rigorous definition of the phenomenon, which can then lead to empirical studies, and perhaps, to deployment in discrimination or harassment suits.
Thanks to Dr. Richard Wiener of the UNL Psychology Department for putting together a great Conference and to Steve Willborn at the College of Law for being fascinating both as tour guide and commentator.
Monday, June 16, 2014
Talk has been swirling for months that, while ENDA stalls in Congress, the President would sign an executive order barring LGBT discrimination for federal contractors. Today, the White House announced that he will sign the order. No word on when it will occur.
One interesting aspect of this is that the majority of the biggest federal contractors already ban such discrimination. Of course, the order is important for workers of the other contractors. It also has major symbolic significance and, hopefully, is a step towards ENDA's passage. It seems inevitable that it will pass at some point, but unclear how long it will take.
Hat Tip: Patrick Kavanagh
Saturday, June 14, 2014
Blogger emeritus, Paul Secunda, has just posted on SSRN his article, Litigating for the Future of Public Pensions in the United States. The abstract:
It is nearly impossible in the United States today to go long without reading a headline about some aspect of the American public pension crisis or about some State undertaking public pension reform. Public pensions are horribly unfunded, millions of public employees are being forced to make greater contributions to their pensions, retirees are being forced to take benefit cuts, retirement ages and service requirements are being increased, and the list goes on and on.
These headlines involve all level of American government, from the recent move to require new federal employees to contribute more to their pensions, to the significant underfunding of state and local public pension funds across the country, to the sad spectacle of the Detroit municipal bankruptcy where the plight of public pensions plays a leading role in that drama. The underfunding of public pension plans has led not only to a number of bankruptcy proceedings, but has also led various states to reduce promised pension payouts to retired plan members or to increase pension contribution requirements for active employees.
As a result, government officials, employees, and retirees are in the midst of litigating for the future of American public pensions. This article focuses on all three levels of American government (federal, state, and local), and reviews the current status of pension litigation at each level. Although pension litigation does not exist as of the writing of this article at the federal level, there has been a large swath of litigation involving state and local pensions over the last few years, with diverse outcomes. After discussing the federal employee pension system in the United States, the article then considers one state’s (Wisconsin) recent experience with pension reform legislation and litigation, and one city’s experience (Detroit) with the municipal bankruptcy process to illustrate emerging trends in public pension litigation that are currently playing out throughout the United States.
The start of a solution lies with harmonizing and standardizing the existing hodge-podge of American public pension law. Although ERISA is far from perfect in regulating private-sector pension plans in the United States, it nevertheless has provided uniform standards for management and administration of occupational retirement plans. In order to replicate that same consistency, this article proposes a hybrid approach which seeks to avoid some of the federalism pitfalls of previous public pension reform proposals. By applying ERISA only to federal pension plans, and by permitting the states to adopt uniform, state-wide pension legislation, public pension plans can take advantage of a reliable and stringent pension framework which will make future underfunding and fiduciary lapses less likely.
Check it out!
Thursday, June 12, 2014
I am concluding here with my four-part discussion on what I view as the best ways for plaintiffs to act collectively following the Supreme Court's Wal-Mart decision. This post features a final unique procedural tool: issue class certification (discussed in much greater detail in the attached article).
Federal Rule of Civil Procedure 23(c)(4)(A) allows issue class certification, which permits common issues in a systemic claim to be certified for review while all other issues in the case are litigated independently. In my view, the issue class is the most appealing tool available to employment litigants seeking to act collectively in light of the Wal-Mart decision. It does not offer all the benefits of a traditional class-action claim, but it does preserve many of the advantages. The rule provides specifically,
“Particular Issues. When appropriate, an action may be brought or maintained as a class action with respect to particular issues.”
Issue class certification is often used where there is a shared set of facts common to all litigants, but where individuals have each suffered distinct damages in the case. Employment discrimination claims often fit neatly within these requirements. For example, many systemic workplace cases will involve common employees, common company policies, and common corporate practices. Nonetheless, damages in employment discrimination cases are almost always individualized, as workers will suffer varying degrees of harm depending on the facts of the particular situation.
Following Wal-Mart, the issue class may be the best available mechanism for systemic employment actions. In a recent case, McReynolds v. Merrill Lynch & Co., Judge Posner (writing for the Seventh Circuit) approved an issue class in a case involving the impact of an employer’s policies on minority workers in the financial industry. This case demonstrates that the issue class is much more than simply a theoretical tool available to workers, and can be used as a way of helping to circumvent the problems presented by the commonality requirement of Wal-Mart. Workplace claims will often have unique aspects that will undermine complete commonality in a systemic discrimination case. The issue class allows plaintiffs to collectively pursue the common issues in a case while still allowing individualized determinations to be made on the other issues.
I encourage others to weigh in the comments below on different ways that issue class certification (or other procedural tools) can be used as a way of effectuating the antidiscrimination statutes. I am very appreciative to the Workplace Prof Blog for the opportunity to share my views on this important case, and I am hopeful that it will spark further conversation on the various ways plaintiff can proceed after Wal-Mart.
Just a friendly reminder from conference organizers, Melissa Hart and Scott Moss at the University of Colorado Law School, that the deadline to register to attend, and/or present a paper at, the 9th Annual Labor and Employment Scholars Colloquium is Friday, August 1, 2014. The Colloquium is scheduled in Boulder between September 11-13, 2014.
You can register and submit a paper proposal at this link:
June 12, 2014 in About This Blog, Arbitration, Conferences & Colloquia, Disability, Employment Common Law, Employment Discrimination, Faculty Presentations, International & Comparative L.E.L., Labor Law, Pension and Benefits, Public Employment Law, Religion, Scholarship, Teaching, Wage & Hour, Worklife Issues, Workplace Safety, Workplace Trends | Permalink | Comments (0) | TrackBack (0)
Monday, June 9, 2014
Image from eeoc.gov
The EEOC recently filed a lawsuit under the ADA in the U.S. District Court for the Eastern District of Michigan.
The lawsuit alleges disability discrimination on behalf of a hearing impaired worker against Disability Network – – an organization designed to help individuals with disabilities. In a press release, the EEOC recognized the irony of the case:
“'The irony in this case is incredible,’ said EEOC Trial Attorney Nedra Campbell. "Disability Network was formed to help and protect people with disabilities - and so was the ADA, under which we now have to sue them for violating their mandate and betraying an employee." … Metropolitan Detroit Center for Independent Living dba Disability Network/Wayne County-Detroit is a Michigan nonprofit corporation whose primary function is to provide services for people with disabilities.”
The case seems like a very interesting one and should be intriguing to follow…
Just a reminder that junior scholars (untenured, newly tenured, or prospective professors) interested in presenting papers at this year's Forum on Friday, October 24, 2014 should submit proposals of 3-5 pages in length by Friday, June 20, 2014. Seton Hall will pay transportation and accommodation expenses, and will host a dinner on Friday evening.
More information, including how to submit, at the earlier posting here.
Friday, June 6, 2014
For those following Ellis v. Costco Wholesale Corporation, the court approved the settlement between the parties. The settlement agreement is available here: http://genderclassactionagainstcostco.com/wordpress/wp-content/uploads/Exhibit-1.pdf . In Ellis, the plaintiffs alleged that Costco "has maintained a promotion system that discriminated against women in making promotions to Assistant General Manager and General Manager in U.S. warehouses."
The settlement agreement spells out a number of steps Costco will take, including posting certain positions and interviewing all candidates who meet the qualifications for certain jobs (unless there are more than five qualified candidates). Interestingly, the settlement contemplates that Costco employees will now have formal mechanisms for officially registering interest in certain management positions. A candidate can register interest in connection with his or her performance review or six months after. The expression of interest will then be good for a one-year period.
The settlement agreement also allows women who believe they were discriminated against in promotions for certain positions to submit their claim to an arbitrator. Damages for successful claims are capped at limits listed in the settlement agreement.
I am continuing here with my four-part discussion on what I view as the best ways for plaintiffs to act collectively following the Supreme Court's Wal-Mart decision. I am not attempting to critique the decision, but rather seek to present different ways that plaintiffs can work around the case.
The approach I offer today is admittedly the most difficult Wal-Mart work around to implement – – revised relief. Title VII currently permits a combined total of $300,000 in compensatory and punitive damages for victims of discrimination in cases brought against large employers. This relief has remained static since the Civil Rights Act of 1991 was passed almost 25 years ago. Indeed, the inflationary effect of time has substantially eroded the impact of these damages. It would take over half a million dollars in damages today to have the same real dollar impact of $300,000 in 1991.
Punitive damages serve many purposes. Three of the most commonly cited reasons for this form of relief are deterrence, retribution, and education. Class-action claims brought against employers serve many of the same purposes. The threat of class actions deter employers from engaging in discriminatory conduct, punish employers that do break the law, and educate the public when large dollar verdicts hit the news.
As class-action claims are likely diminished following Wal-Mart, now is the time for Congress to consider raising or eliminating the statutory caps on punitive damages to help fill the void of shrinking class-action claims. Alternatively, litigants (and the government ) should more actively pursue cases that can yield punitive relief to help vindicate the purposes of Title VII. A more thorough discussion of my revised relief proposal can be found here.
I encourage others to weigh in on the comments below on different ways that relief can be used as a way of effectuating antidiscrimination statutes. I will continue shortly with a discussion of how issue class certification can be used to help limit the Court’s Wal-Mart decision.