Monday, October 13, 2014

EEOC Brings ADA Class Case Against FedEx

EEOC

image from eeoc.gov

The EEOC just announced a class case that it filed against FedEx Ground Package System, Inc. The lawsuit was brought under the Americans with Disabilities Act, and seeks relief for hearing impaired employees of the company.  From the press release:

“The EEOC says that FedEx Ground failed to provide needed accommodations such as American Sign Language (ASL) interpretation and closed-captioned training videos during the mandatory initial tour of the facilities and new-hire orientation for deaf and hard-of-hearing applicants. The shipping company also failed to provide such accommodations during staff, performance, and safety meetings. Package handlers physically load and unload packages from delivery vehicles, place and reposition packages in FedEx Ground's conveyor systems, and scan, sort and route packages.  

The EEOC charges that, in addition to failing to provide communications-based accommodations for mandatory meetings, FedEx Ground refused to provide needed equipment substitutions and modifications for deaf and hard-of-hearing package handlers, such as providing scanners that vibrate instead of beep and installing flashing safety lights on moving equipment."

It is very interesting to see this type of litigation brought in the disability context, were such claims are often more individualized.  It is also interesting to see this type of high profile class claim brought by the agency after the Supreme Court's Wal-Mart decision, which made it more difficult for private plaintiffs to pursue class-action litigation.  This will definitely be a case worth following.

--Joe Seiner

October 13, 2014 | Permalink | Comments (1) | TrackBack (0)

Thursday, October 9, 2014

BMW Seeks EEOC Hiring Data

EEOC

image from eeoc.gov

Many of you are probably following the federal litigation involving the EEOC's employment discrimination suit against BMW Manufacturing Co.  That litigation alleges that the company's policy of not hiring individuals with certain criminal backgrounds created a disparate impact against workers on the basis of race for which there was no sufficient business justification. The suit is specifically targeted at BMWs Spartanburg facility in South Carolina.

In an interesting twist to this lawsuit, BMW has now asked a court to order the Commission to disclose its own treatment of applicants with criminal backgrounds. This move certainly shows the contentious nature of the litigation. The EEOC has opposed the motion on grounds that the information sought is not relevant to the case.

This case is a fascinating one to follow on an important issue of disparate impact law. This recent development highlights yet another interesting aspect of this case.

-- Joe Seiner

October 9, 2014 | Permalink | Comments (1) | TrackBack (0)

Wednesday, October 8, 2014

NLRB Rejects D.C.Circuit's FedEx Independent Contractor Analysis

NLRBLast week, the NLRB issued its decision in FedEx Home Delivery, the most recent case addressing FedEx's  attempts to classify its drivers as independent contractors. What's notable about this case is that the NLRB expressly refused to follow an earlier FedEx decision by the D.C. Circuit.  In that decision, the court rejected the traditional right-to-control focus of the common law test for employee status.  Instead, the court held that the principal focus was entreprenurial opportunity.  In its recent decision, the NLRB noted that its precedent, as well as the Supreme Court's, used the traditional common-law test.  Moreover, although entrepreneurial opportunity was one of the factors, the proper focus is on actual entrepreneurial opportunity, not the more theoretical opportunity that the court's decision turned on.

As I've written before, I'm no fan of the court's FedEx decision, so I'm glad to see this development.  There's a question whether this is a prelude to Supreme Court action in this area, which has gained increased attention.  I tend to think the Court won't step in any time soon, as it's precedent has been pretty clear on this issue, the D.C. Circuit notwithstanding.  But we'll see.  In in the meantime, it's baeen a bad month for FedEx on this issue, as they've some other cases involving their drivers' classifications.

-JH

 

October 8, 2014 in Labor and Employment News, Labor Law | Permalink | Comments (1) | TrackBack (0)

Politico's New "Morning Shift"

Politico Pro just launched its new "Morning Shift," which is described as a "daily speed read on labor and employment policy" by Brian Mahoney, with help from Timothy Noah and Mike Elk. Their stated intent is to resuscitate the workforce journalism beat.  So far, so great.  It looks like it will immediately become an integral and indispensable part of my workday. 

Check it out.

-J. Bent

October 8, 2014 | Permalink | Comments (0) | TrackBack (0)

Oral Argument in Integrity Solutions

SecurityAs Jason previewed yesterday, the Supreme Court heard oral arguments this morning in Integrity Staffing Solutions v. Busk, a case about whether end-of-shift security screenings are compensable or non-compensable as postliminary activities under the Portal to Portal Act. The oral argument transcript is now up on the Supreme Court's website for your reading pleasure.

I've skimmed it and have just a few observations. The questions for the employer's counsel and the Solicitor General pushed them to distinguish this security process from things like closing out a cash register or showering after working with chemicals (compensable). The questions for the employees' counsel pushed for a distinction between this and the process to clock out (not compensable). The one main takeaway for me is that the concepts in this area are especially slippery. What does it mean for something to be a principal activity of one's work, for example. Is it the central thing a person is hired to do, or might it be more task focused? Does the location of the conduct matter? Does it help to think about whether the person is waiting to be engaged or engaged to wait? Everyone at the argument tried to come up with a definition, but words failed them, and examples seemed the only way to talk about the rules. Those examples were hard to generalize from, though, leading the argument in circles several times.

Ultimately, I think the decision will ultimately rest on whether a majority of the justices see this as more like clocking out or like showering off chemicals at shift's end.

MM

October 8, 2014 in Beltway Developments, Wage & Hour | Permalink | Comments (0) | TrackBack (0)

Update on EEOC's New Section 707 Theory

EEOC Logo

previously wrote about the EEOC's new theory that Section 707 of Title VII contains substantive protections, rather than simply the procedural framework for claims that an employer has engaged in a "pattern or practice" of unlawful discrimination.  There are two important developments to report in this area.

First, an update on the severance agreement challenge:  In EEOC v. CVS Pharmacy, Inc., the EEOC alleged that CVS's severance agreement violated Section 707(a) and constituted a "pattern or practice of resistance" to the full enjoyment of Title VII rights by implying that the former employee could not file a charge of discrimination with the EEOC.  CVS disputed this characterization of the severance agreement, and also argued that Section 707 did not create separate substantive rights.  CVS also argued that the the EEOC had failed to conciliate, as required by Section 707(e) [which, in turn, references the procedures of Section 706]. District Judge Darrah in the Northern District of Illinois has now dismissed the EEOC's complaint.  The opinion, just released today, can be found here.  Judge Darrah agreed with CVS that the EEOC was required to conciliate this claim and failed to do so. Judge Darrah rejected the EEOC's contention that Section 707(a) created a claim for a "pattern or practice of resistance" that is separate and independent of otherwise prohibited discrimination or retaliation, and that is free from the conciliation requirement for charges of a "pattern or practice of discrimination" found in Section 707(e).     

Second, the EEOC has recently introduced a new use of the substantive Section 707 theory.  In my earlier post, I wondered whether we might see similar Section 707 challenges to mandatory predispute arbitration provisions.  We now have the answer.  The EEOC has sued Doherty Enterprises, which owns and operates many Applebee's and Panera Bread restaurants in several states, alleging that its mandatory arbitration agreement violates Section 707(a) and constitutes a pattern or practice of resistance to the full enjoyment of Title VII rights.  The EEOC alleges that the arbitration agreement at issue, which insists upon the exclusive arbitration of claims that might otherwise "require or allow resort to any court or other governmental dispute resolution forum," denies employees "the full exercise of the Title VII right to file a charge."  The EEOC press release is here, and the complaint is here

-J. Bent

October 8, 2014 | Permalink | Comments (0) | TrackBack (0)

DOL Issues Child Labor Report

Child labor

image from www.DOL.gov

The US Department of Labor just issued its annual report on the status of child labor violations around the world. The report looks at over 140 countries and analyzes the status of improvements on various child labor issues. The report paints a picture of a situation that is improving to some degree, but still has a very long way to go. From the news release on the report:

"This report shines a light on the estimated 168 million children around the world who toil in the shadows — crawling underground in mine shafts, sewing in textile factories or serving in households as domestic workers," said Secretary Perez. "We are seeing more countries take action to address the issue, but the world can and must do more to accelerate these efforts. When children are learning rather than working, families flourish, economies grow and nations prosper."

This annual report performs an enormously important public service by bringing to the forefront this critically important issue.

--Joe Seiner

October 8, 2014 | Permalink | Comments (0) | TrackBack (0)

Tuesday, October 7, 2014

Is Time Spent Waiting to Clear Security Compensable?

On Wednesday the Supreme Court will hear arguments in Integrity Staffing Solutions v. Busk.  The employer, Integrity, provides staffing for Amazon.com warehouses.  Plaintiffs brought an opt-in class action under the FLSA (and a related state law claim), alleging that they were not compensated for time spent waiting to go through security screening after their shifts had been completed.  Plaintiffs alleged that the time spent going through security, which included waiting in line and removing items from their pockets to go through a metal detector, were approximately 25 minutes.  Plaintiffs were only required to go through the security screening at the end of their shift, as the security was aimed at detecting “shrinkage” – potential employee theft of merchandise from the warehouse.   

The question is whether the time spent waiting in line and going through security is compensable time under the FLSA, as amended by the Portal-to-Portal Act.  The Ninth Circuit held that it was compensable, as “integral and indispensable” to the employees’ principal activities.  Integrity argues that a post-shift security screening is a “postliminary” activity under the Portal-to-Portal Act, that the security screen is not “integral and indispensable” to the principal activities of the warehouse workers, and that the time should not be compensable.

Our friend, Paul Secunda, discussed the case in this Washington Post piece, explaining how relatively small bits of time each day can add up to billions of dollars in these FLSA cases.  Aside from the statutory interpretation arguments, there is a question about setting appropriate incentives.  Integrity argues that if the security time is compensable, employees will have a strong incentive to “take their time” on their way through the security screen.  (But couldn’t employers discipline employees for such loafing, just as they could for any other loafing on the job?)  Conversely, as Paul suggests, if Integrity’s position prevails, employers will have little incentive to adequately staff the security screen to speed up the wait time.  Unless, of course, the wait times grew so long that employees (at least those at the margins) began to quit or demand more pay, such that the market could correct for the problem.    

The United States filed a brief in support of Integrity’s interpretation. 

-J. Bent

October 7, 2014 | Permalink | Comments (0) | TrackBack (0)

Monday, October 6, 2014

SEALS call for participants

SEALS 2015The Southeastern Association of Law Schools holds its annual meeting every summer at the end of July/beginning of August, and planning for next year's programming has started. For the past several years, a workshop for labor and employment law has taken place over several of the days. Michael Green (Texas A & M) is helping to organize the workshop for next summer. If you are interested in participating, feel free to get in touch with him: mzgreen@law.tamu.edu. Some suggestions already made include panels or discussion groups on whistleblowing, joint employer issues, termination for off-duty conduct (including recent NFL scandals), disability and UPS v. Young, and a junior scholars workshop.

One additional piece of programming already proposed is a discussion group on attractiveness issues in Employment Discrimination cases. Wendy Greene is helping to organize it, so get in touch with her if you are interested in participating on that topic.

And regardless of whether you get in touch with Michael or Wendy, you should think about proposing programming for the annual meeting if you are at all interested and regardless of the topic. The meeting is surprisingly (because of the lovely environs) substantive, and the environment is very relaxed and is designed to be egalitarian.  Here are the details:

The SEALS website www.sealslawschools.org is accepting proposals for panels or discussion groups for the 2015 meeting which will be held at the Boca Raton Resort & Club http://www.bocaresort.com/  Boca Raton, Florida, from July 27 to Aug. 2.  You can submit a proposal at any time.  However, proposals submitted prior to October 31st are more likely to be accepted.

This document explains how to navigate SEALS, explains the kinds of programs usually offered, and lays out the rules for composition of the different kinds of programming: Download Navigating submission. The most important things the Executive Director emphasizes are these:  First, SEALS strives to be both open and democratic.  As a result, any faculty member at a SEALS member or affiliate school is free to submit a proposal for a panel or discussion group.  In other words, there are no "section chairs" or "insiders" who control the submissions in particular subject areas.  If you wish to do a program on a particular topic, just organize your panelists or discussion group members and submit it through the SEALS website.  There are a few restrictions on the composition of panels (e.g., panels must include a sufficient number of faculty from member schools, and all panels and discussion groups should strive for inclusivity).  Second, there are no "age" or "seniority" restrictions on organizers.  As a result, newer faculty are also free to submit proposals.  Third, if you wish to submit a proposal, but don't know how to reach others who may have an interest in participating in that topic, let Russ Weaver know and he will try to connect you with other scholars in your area.

MM

October 6, 2014 in Conferences & Colloquia, Disability, Employment Common Law, Employment Discrimination, Faculty News, Faculty Presentations, International & Comparative L.E.L., Labor Law, Pension and Benefits, Public Employment Law, Religion, Scholarship, Teaching, Wage & Hour, Workplace Trends | Permalink | Comments (0) | TrackBack (0)

Friday, October 3, 2014

Minimum Wage Hike for Federal Contractors

Dol

The Department of Labor announced a final rule this week that implements Executive Order 13658, which will raise the minimum wage for federal contractors to $10.10 per hour.  The rate hike will help approximately 200,000 federal contract workers.  From the official blog of the Department of Labor:

"The underlying principle couldn’t be simpler: no one who works full-time in America should have to raise their family in poverty. And if you serve meals to our troops for a living, for example, then you shouldn’t have to go on food stamps in order to serve a meal to your family at home. By raising the minimum wage for these workers, we’re not just upholding the president’s promise, but the fundamental American promise that hard work should be rewarded with a fair wage."

The minimum wage issue continues to be a controversial one. While the minimum wage has remained static for years under federal law, many local jurisdictions have acted to raise this rate.  Now we see the federal government acting for some workers as well on this issue.

-- Joe Seiner

October 3, 2014 | Permalink | Comments (0) | TrackBack (0)

Round-up of Last Term

Just in time for the beginning of this Term, which, as Marcia suggests may be a blockbuster, Jonathan Harkavy has posted 2014 Supreme Court Employment Law Commentary on SSRN.  It contains not only useful nuetral summaries of the opinions but also, in separate italicized sections,  the author's personal take on the decisions -- often in with a dash a humor.

CAS  

October 3, 2014 in Scholarship | Permalink | Comments (0) | TrackBack (0)

Thursday, October 2, 2014

Supreme Court grants cert in EEOC v. Abercrombie

ScotusThe Supreme Court granted cert in a number of cases today as a result of its long conference, including EEOC v. Abercrombie & Fitch. The cert question is this:

Whether an employer can be liable under Title VII of the Civil Rights Act of 1964 for refusing to hire an applicant or discharging an employee based on a “religious observance and practice” only if the employer has actual knowledge that a religious accommodation was required and the employer's actual knowledge resulted from direct, explicit notice from the applicant or employee.

The district court had denied A & F's motion for summary judgment and granted the EEOC's, holding that, as a matter of law, A & F had failed to reasonably accommodate the religious practices of an applicant for employment. The Tenth Circuit reversed, remanding and ordering the district court to enter summary judgment for A & F. The applicant, a young Muslim woman, wore a hijab, a head covering, and although the store manager recommended she be hired, a district manager decided that because she wore the hijab, she should not. He determined that the hijab would not comply with the company's "Look Policy." 

The Tenth Circuit held that summary judgment for A & F was proper because the applicant "never informed Abercrombie prior to its hiring decision that she wore her headscarf or 'hijab' for religious reasons and that she needed an accommodation for that practice, due to a conflict between the practice and Abercrombie’s clothing policy." Interestingly, the store manager assumed that the applicant wore her hijab for religious reasons and never raised the issue during the interview. She also did not suggest that there might be a conflict between that practice and the "Look Policy," which the applicant otherwise could easily comply with.

The Court also granted cert in another case that might have implications for employment discrimination. The question in Texas Dep't of Housing and Community Affairs v. The Inclusiveness Project is whether disparate impact claims are cognizable under the Fair Housing Act. The Fifth Circuit did not consider that question in the case. Instead, it followed its prior precedent that they were cognizable, and held that the legal standard to be used should be the regulations adopted by the Department of Housing and Urban Development.

So, overall, this term is shaping up to be another blockbuster for employment and labor. Here is a roundup.

Cases that directly deal with employment and labor questions:

And there is one additional case that might have implications for religious accommodations in the workplace. Holt v. Hobbs, which concerns whether a department of corrections policy that prohibits beards violates the Religious Land Use and Institutionalized Persons Act insofar as it prohibits a man  from growing a one-half-inch beard in accordance with his religious beliefs.

MM

October 2, 2014 in Beltway Developments, Employment Discrimination, Labor and Employment News, Labor Law, Labor/Employment History, Pension and Benefits, Public Employment Law, Religion, Wage & Hour, Worklife Issues | Permalink | Comments (0) | TrackBack (0)

Sex Discrimination on Jeopardy!

“What are offensive gender-specific stereotypes for $800, Alex?”

In an episode of Jeopardy! earlier this week, the show featured a category which is raising many eyebrows and is further causing substantial controversy.  The category, “What Women Want,” seemed to feature answers that further sex-based stereotypes, including the $600 answer which was “a vacuum cleaner.”  The Today Show ran an interesting segment which highlighted the controversy and includes an excerpt from the program.  It is worth a quick look particularly if you are covering sex discrimination in class this week, as I am doing with my students.

-- Joe Seiner

October 2, 2014 | Permalink | Comments (0) | TrackBack (0)

Tuesday, September 30, 2014

EEOC Sues Pizza Giant for Disability Discrimination

EEOC

image from eeoc.gov

In what looks to be a fascinating case, the EEOC recently sued Papa John’s under the Americans with Disabilities Act. The agency alleges that the company failed to permit an employee with Down Syndrome a reasonable accommodation and then later terminated him. From the news release on the case:

“According to the EEOC's suit, Papa John's employed Bonn successfully at its Farmington, Utah location, allowing an independently employed and insured job coach to assist him, until an operating partner visited the location. The EEOC alleges that the operating partner, upon observing Bonn working with the assistance of his job coach, ordered Papa John's to fire Bonn.”

Cases involving intellectual disabilities are always interesting to follow, and this case will be one to watch closely.

-- Joe Seiner

September 30, 2014 | Permalink | Comments (0) | TrackBack (0)

Monday, September 29, 2014

Econometric Evidence in Employment Discrimination Cases

    In employment-discrimination cases, plaintiffs sometimes present regression analysis to support their claims, particularly for disparate impact claims.  In a new paper, Joni Hersch and V. Blair Druhan, “The Use and Misuse of Econometric Evidence in Employment Discrimination Cases,” Washington and Lee Law Review 71(4) (forthcoming December 2014), the authors argue that certain objections by defendants to such regression analysis---omitted variable bias, sample size, and statistical significance—are often invalid yet succeed in making it harder for plaintiffs to prevail.  Here’s the abstract:

Experts routinely criticize three aspects of regression analyses presented by the opposing party in employment discrimination cases: omitted explanatory variables, sample size, and statistical significance. However, these factors affect the reliability of the regression results only in very limited circumstances. As a result, valid regression analyses do not provide the critical guidance that they should in employment discrimination cases. Our own statistical analyses of seventy-eight Title VII employment discrimination cases find that merely raising these critiques, even if spurious, reduces plaintiffs’ likelihood of prevailing at trial. We propose that courts adopt a peer-review system in which court-appointed economists, compensated by each party as a percentage of the total payment to econometric expert witnesses, review econometric evidence before the reports are submitted to the judge or jury.

 Their sample of Title VII cases comes from a Westlaw search of Title VII cases published between January 2000 and October 2013 in which the words “regression analysis” were present. The total sample includes summary judgment motions, evidentiary motions, trial verdicts, district court opinions and appellate court opinions.

 

--Sachin Pandya

September 29, 2014 | Permalink | Comments (0) | TrackBack (0)

The NLRB Ducks Electronic Communications Issue--For Now

NLRBThe NLRB recently issued its decision in Purple Communications.  This was the case that the Board had indicated it was using to reexamine its Register-Guard precedent that gave employers virtually unfettered ability to bar employee use of employer electronic communication services.  Only it didn't.

In its Purple decision, the Board concluded that the employer's non-dispruption rule was overly broad and warranted overturning an election that the union had lost.  However, the Board decided not to address the employer's ban on electronic commnunications and the broader Register-Guard issue, holding it for "further consideration."

It's not clear why the NLRB decided to table the Register-Guard issue at this point.  It could be any number of things--for instance, a desire to resolve the election at issue sooner.  But those of us who have been interested in this issue, the bottom line is more waiting.

-JH

September 29, 2014 in Labor and Employment News, Labor Law | Permalink | Comments (0) | TrackBack (0)

Ninth Circuit Holds Tribal Preferences Do Not Violate Title VII

NavajoThanks to Matthew Fletcher (Michigan State) for forwarding a link to his Turtle Talk post about EEOC v. Peabody Western Coal Co. (9th Cir. 9-26-14), holding that tribal preferences (as opposed to Indian preferences generally) are not national-origin classifications prohibited by Title VII. Here's the syllabus:

The panel affirmed the district court’s summary judgment against the Equal Employment Opportunity Commission with respect to its claim that Title VII of the Civil Rights Act of 1964 prohibited the tribal hiring preference contained in Peabody Western Coal Co. leases with the Navajo Nation.

The panel held that the Navajo hiring preference in the leases was a political classification, rather than a classification based on national origin, and therefore did not violate Title VII. The panel concluded that the district court correctly granted summary judgment to defendants Peabody Western Coal Company and Navajo Nation, and third-party defendant Secretary of the Interior....

rb

September 29, 2014 in Employment Discrimination | Permalink | Comments (0) | TrackBack (0)

Saturday, September 27, 2014

DOL Rule on Veterans and Federal Contractors

 Dol

image from www.dol.gov.

The Department of Labor just issued a final rule which will lower the federal contractor reporting requirements when these employers hire veteran workers. From the DOL’s press release on the rule:

“ 'Over the next decade, this change will result in a significant reduction in paperwork burden for federal contractors and subcontractors,' said Assistant Secretary of Labor for Veterans’ Employment and Training Keith Kelly. 'In addition to easing the burden on contractors, the data collected by these reports will help the Labor Department develop more informative yearly trends in the employment of protected veterans.'

The final rule revises the VETS-100A Report and renames it the VETS-4212 Report. The VETS-100 Report will no longer be used. The VETS-4212 Report requires contractors to report specified information on protected veterans in their workforce in the aggregate, rather than for each category of veterans protected under the statute, reducing the required reporting elements by almost half, from 82 to 42. Under VEVRAA, the term “protected veterans” includes: disabled veterans, veterans who served on active duty during a war or campaign for which a campaign badge was authorized, veterans who were awarded an Armed Forces Service Medal and recently separated veterans.”

This is an interesting development particularly for those of you working on scholarship in the areas of federal employment or veteran’s rights.

-- Joe Seiner

 

September 27, 2014 | Permalink | Comments (0) | TrackBack (0)

Friday, September 26, 2014

Does Ricci Apply to Affirmative Action Plans?

    Must a court read Ricci v. DeStefano, 557 U.S. 557 (2009), to apply to Title VII challenges to affirmative action plans?  That’s part of the fight in Shea v. Kerry, a case—now on appeal before the D.C. Circuit (No. 13-5153)—involving a Title VII challenge to the US State Department Foreign Service’s Mid-Level Affirmative Action Plan.  (The briefs are in.  Oral argument hasn’t yet been scheduled.)

 In Ricci itself, the (mostly white) plaintiffs hadn’t challenged an affirmative action plan.  Rather, they’d argued that their employer—the City of New Haven— had violated Title VII, section 703(a), by refusing to certify the results of promotion tests.  Their employer argued that it had feared that, given the race disparity in those test results, certifying them would subject it to Title VII disparate-impact liability.  In ruling that the plaintiffs deserved summary judgment, the Ricci Court described its holding this way: “We hold only that, under Title VII, before an employer can engage in intentional discrimination for the asserted purpose of avoiding or remedying an unintentional disparate impact, the employer must have a strong basis in evidence to believe it will be subject to disparate-impact liability if it fails to take the race-conscious, discriminatory action.”

 In Shea, the plaintiff is now represented by lawyers from the Pacific Legal Foundation (PLF).  They read Ricci to have overruled United Steelworkers of America v. Weber, 443 U.S. 193 (1979), and Johnson v. Transportation Agency, 480 U.S. 616 (1987)—the Supreme Court precedent on when Title VII permits employers making training, promotion, or other employment decisions to consider race or sex pursuant to valid affirmative action plans---and to place the burden on the State Department to justify its affirmative action plan under Ricci’s strong-basis-in-evidence standard.  For support, they point to, among other things, Justice Ginsburg’s dissent in Ricci, and their conclusion that “[n]early all scholarship on Ricci's applicability” supports their reading (citing, as examples, Corrada (2011) and Harris & West-Faulcon (2010)).

 In response, the State Department’s lawyers read Ricci to apply only “after an employer invalidates the selection that resulted from a ‘fair opportunity process.’”  Ricci doesn’t apply, they argue, because the State Department neither invalidated the results of “an established testing process” nor made any “mid-stream change” to the mid-level placement criteria. Affirmative action plans—including the State Department’s plan—are “governed by Johnson and Weber,” not Ricci, because in adopting such plans, “the employer acts ex ante and ‘in the light of past discrimination,’ and ‘establishes hiring or promotion procedures designed to promote equal opportunity and eradicate future discrimination.’”

 Among other replies, Shea’s lawyers criticize this view as “not useful”: Ricci “could just as easily be described as a forward-looking (ex ante) case. The City of New Haven threw out the test results in order to avoid a future disparate impact.” Besides, Ricci’s strong-basis-in-evidence standard “applies irrespective of whether an employer is ‘avoiding or remedying’ illegal conduct . . . ‘avoiding’ would be forward-looking (ex ante) and ‘remedying’ would be backward looking (ex post). Ricci applies to both.”

 Which reading of Ricci will prevail?  Which reading should prevail?  Which reading(s) of Ricci did both sides miss?  (Discuss!)  In theory, lower courts aren’t supposed to treat US Supreme Court precedents (here, Weber and Johnson) as implicitly overruled (for discussion, see Shannon 2009).  Accordingly, Shea’s PLF lawyers have also asked that if the DC Circuit feels bound to apply Johnson and Weber, that court should “invite” the US Supreme Court to review Johnson and Weber and to “clarify its decision in Ricci.”

 

---Sachin Pandya

September 26, 2014 in Employment Discrimination | Permalink | Comments (0) | TrackBack (0)

Thursday, September 25, 2014

EEOC Update: Class-Action Settlement

EEOC

image from eeoc.gov

In an interesting settlement announcement the well-known seafood restaurant chain McCormick & Schmick’s has agreed to pay $1.3 million to settle a claim of race discrimination brought by the EEOC. The suit had alleged that front-of-house employees at two of the restaurant's locations were not given equal work assignments as a result of race, and that the company's advertising practices had suggested a preference for nonblack workers. Per the EEOC's press release, in addition to the large monetary settlement amount, the restaurant will “

  • implement numerical goals for hiring of black job applicants for front-of-the-house positions at the two Baltimore locations;
  • implement targeted recruitment efforts to attract black job applicants at the two Baltimore locations;
  • review its job advertisements to make certain they do not violate Title VII's prohibitions against expressing intended or unintended preferences because of race;
  • conduct extensive self-assessment of hiring and work assignment practices to ensure non-discrimination and compliance with the terms of the consent decree;
  • designate a decree compliance monitor for oversight of compliance with the requirements of the consent decree; and
  • submit reports to the EEOC concerning numerical hiring goals and other consent decree compliance issues.”

It is interesting to see the EEOC pursue these types of systemic claims, particularly after the difficulty private plaintiffs now have certifying class-action claims following the Walmart decision.

-- Joe Seiner

September 25, 2014 | Permalink | Comments (0) | TrackBack (0)