Friday, May 22, 2015
There are two international labor and employment law conferences coming up in the next month or so. First up is the second Labor Law Research Network conference in Amsterdam, from June 25-27, 2015. You can see the program here.
The International Society for Labour and Social Security Law is also holding its second conference, in Venice from June 30-July 9, 2015. You can see the program here.
While I do not suffer personally from this problem, many of us out there are over-achievers that excel at their particular job. A recent study from Duke's Fuqua School of Business looked at these individuals, and concluded that there are dangers inherent with this type of achievement. An interesting article at Yahoo.com summarized some of the results of the study:
"High-self-control people, the researchers found, end up burdened by their own competence. For one thing, people will expect more of you — whether or not that's actually a valid expectation. . . . All that leads to a problem: High-self-control people feel more burdened by their work relationships than their less-disciplined peers. They sacrifice more for the coworkers, the researchers found, even when those sacrifices come at the expense of their own goals."
These results do not seem surprising, and are consistent with the observations that many of us have had in various workplaces. The study is definitely worth taking a look at, as it is interesting to see this workplace dynamic being examined.
-- Joe Seiner
Thursday, May 21, 2015
The winner of the 2015 Marco Biagi Award is Uladzislau Belavusau (Vrije Universiteit Amsterdam, the Netherlands) for a paper entitled A Penalty Card for Homophobia from EU Labor Law: Comment on Asociaţia ACCEPT (C-81/12). In the paper, the author provides a detailed analysis of Asociaţia ACCEPT, an important case from the Court of Justice of the European Union on sexual orientation discrimination. The Court held (1) that an employer could be found liable for the discriminatory statement of a person who is publicly perceived as playing a leading role for the employer, even though the person does not have the legal capacity to bind the employer and (2) that national rules prohibiting such discrimination must be effective, proportionate, and dissuasive. Professor Belavusau evaluates the case as an example of cause lawyering that could be used as a model of legal mobilization for LGBT advocates and for other social movements.
The International Association of Labor Law Journals sponsors the Marco Biagi Award in honor of one of the founders of the Association: Marco Biagi, a distinguished labor lawyer and a victim of terrorism because of his commitment to social justice. A list of the member journals of the International Association can be found at http://www.labourlawjournals.com.
This year’s winner was chosen by an academic jury composed of Frank Hendrickx (Belgium), Alan Neal (UK), and György Kiss (Hungary).
Prior winners of the Marco Biagi Award were:
2014 Lilach Lurie (Bar-Ilan University, Israel), Do Unions Promote Gender Equality?
Specially Noted ̶ Isabelle Martin (University of Montreal, Canada), Corporate Social Rsponsibility as Work Law? A Critical Assessment in the Light of the Principle of Human Dignity
2013 Aline Van Bever (University of Leuven, Belgium), The Fiduciary Nature of the Employment Relationship
2012 Diego Marcelo Ledesma Iturbide (Buenos Aires University, Argentina), Una propuesta para la reformulación de la conceptualización tradicional de la relación de trabajo a partir del relevamiento de su especificidad jurídica
Specially Noted ̶ Apoorva Sharma (National Law University, India), Towards an Effective Definition of Forced Labor
2011 Beryl Ter Haar (Universiteit Leiden, the Netherlands), Attila Kun (Károli Gáspár University, Hungary) & Manuel Antonio Garcia-Muñoz Alhambra (University of Castilla-La Mancha, Spain), Soft On The Inside; Hard For the Outside.An Analysis of the Legal Nature of New Forms of International Labour Law
Specially Noted ̶ Mimi Zou (Oxford University, Great Britain), Labour Relations With “Chinese Characteristics”? Chinese Labour Law at an Historic Crossroad
2010 Virginie Yanpelda, (Université de Douala, Cameroun), Travail décent et diversité des rapports de travail
Specially Noted ̶ Marco Peruzzi (University of Verona, Italy), Autonomy in the European social dialogue.
2009 Orsola Razzolini (Bocconi University, Italy), The Need to Go Beyond the Contract: “Economic” and “Bureaucratic” Dependence in Personal Work Relations
Wednesday, May 20, 2015
The Executive Committee of the AALS Labor Relations and Employment Law Section is seeking abstracts for papers to be presented at the 2016 Annual Meeting in New York, NY. The section program is entitled: Local Laboratories of Workplace Regulation.
This program will focus on local governments as sources of labor and employment regulation. In recent years, local governments across the United States have enacted labor protections, including mandatory paid leave, a higher minimum wage, and wage theft protections. In response, several state legislatures have passed laws designed to preempt such local regulation. May a local government, “if its citizens choose, serve as a laboratory” to try experiments in workplace regulation “without risk to the rest of the country?” For example, local “right-to-work” laws have been adopted in a dozen Kentucky counties, with similar efforts underway in Illinois. Are these local laws permitted by the National Labor Relations Act? Are they good policy in any event? This program will cover these and other issues raised by the rise of local workplace regulation.
A panel of leading scholars already committed to present will provide a multidisciplinary perspective on these questions. We are seeking one additional speaker who will present on a relevant topic, and we particularly encourage new voices to submit a paper abstract.
The Labor Relations and Employment Law Section program will take place on Friday, January 8, 2016 from 10:30am to 12:15pm. This program is co-sponsored by the Section on State and Local Government.
Please submit an abstract of no more than 400 words and a resume to Section Chair Jason Bent at firstname.lastname@example.org, by August 15, 2015.
Tuesday, May 19, 2015
- Catherine Fisk (U.C.-Irvine) and Jessica Rutter (NLRB Honors Attorney), Labor Protest Under the New First Amendment, 36 Berkeley JLEL (2015). Catherine's scholarship over the last several years has focused on exposing the Supreme Court's inconsistent treatment of labor law under evolving constitutional law doctrine -- and how such inconsistency almost always disadvantages workers. This article is no different. Here, she argues that the Court's treatment of the NLRA's prohibition of 8(b)(7) picketing is unconstitutional speaker-based and content-based discrimination.
- Michelle Travis (San Francisco), Disqualifiying Universality Under the Americans with Disabilities Act Amendments Act, __ Mich. St. L. Rev. ___ (2015). The ADAAA removed the Supreme Court's extraordinarily restrictive definition of "disability", which for years made the ADA a toothless disability-rights statute. Now employers and courts are attempting to use the statute's "otherwise qualified" and "essential job functions" provisions to again constrain the ADA. Michelle demonstrates that employers and courts are using these provisions to entrench able-bodied norms into seemingly neutral job descriptions and workplace designs. This effectively shifts disability stereotypes away from individuals with disabilities and onto the definition of work itself, which may render those stereotypes even more difficult to recognize and disrupt.
- Edward A. Zelinsky (Cardozo), Retirement in the Land of Lincoln: The Illinois Secure Choice Savings Program Act, __ U. Ill. L. Rev. ___ (2015). Illinois has now become the first state to legislatively enact a state-mandated, state-operated retirement system for private employers. It will not be an ERISA-regulated employee benefit plan but, rather, will be an IRA payroll deposit arrangement. Is this the next wave?
Thursday, May 14, 2015
There is a great article in the Washington Post Blog which discusses a Whistleblowing plaintiff's attempts to achieve adequate recovery. The plaintiff had gone to federal authorities with allegations of fraud, and was subsequently terminated by Bayer. The plaintiff brought suit, and was awarded $1.2 million in damages as well as reinstatement. Bayer decided to comply with the judgment by making the following reinstatement offer:
"The drug maker recently offered him a position that was located in Knoxville, Tn., which is more than 500 miles from his home in Little Rock, Ark., where Townsend spent six years as a Bayer rep, according to court documents."
The district court (U.S. District Court Judge James Moody Jr.) was not amused by the company's reinstatement efforts, which it determined were “not a good faith effort” and it further found that the new job was not a "substantially similar or comparable position”.
Reinstatement does not arise that frequently in employment discrimination cases, where front pay is often favored, despite the common recitation that reinstatement is the "preferred remedy." It is interesting to see how one employer tried to (questionably) navigate complying with just such a reinstatement order.
-- Joe Seiner
Tuesday, May 12, 2015
The U.S. Court of Appeals for the Fourth Circuit issued a fascinating opinion yesterday in Brown v. Nucor Corporation, which found error in a district court's decision not to certify a Title VII class following Wal-Mart. The case alleged “endemic” discrimination on the basis of race by steel workers employed at a South Carolina facility. The discrimination allegedly involved improper promotion practices and harassment under Title VII and Section 1981. From the decision:
"We . . . confront the question of whether the workers’ have presented a common question of employment discrimination through evidence of racism in the workplace. Despite Wal-Mart’s reshaping of the class action landscape, we hold that the district court has for a second time erred in refusing to certify the workers’ class, where (1) statistics indicate that promotions at Nucor depended in part on whether an individual was black or white; (2) substantial anecdotal evidence suggests discrimination in specific promotions decisions in multiple plant departments; and (3) there is also significant evidence that those promotions decisions were made in the context of a racially hostile work environment."
This case presents a wonderful example of the difficulty in applying the commonality standard created by the Supreme Court in Wal-Mart, which I have explored here. The case includes an extensive ninety page dissent (154 pages here total), so if you are looking for some light summer reading, this presents just such an opportunity. The case exemplifies the differing views on this issue.
-- Joe Seiner
Saturday, May 9, 2015
A recent article over at CNN/Fortune highlights a problem that many of us have been talking about for years -- the lack of enforcement and any meaningful penalties for workplace safety violations under OSHA. The article focuses on the problems of criminal enforcement, noting that there have been only a handful of convictions since the statute was debated and passed in the 1970s -- even in the face of worker fatalities. And, even where criminal prosecutions are successful, the maximum penalties are only misdemeanors which carry minimal jail terms. Similarly, the civil penalties involved in these cases are far too low. As the article notes, many states have stepped in to increase workplace safety penalties on their own, which was highlighted in last week's high-profile case out of California:
"Los Angeles County prosecutors charged two Bumble Bee Foods workers with willful violations of safety regulations—which resulted in three felony counts each—in the gruesome 2012 death of a Bumble Bee worker who was trapped inside an oven as it sterilized tuna cans. The workers could serve up to three years in state prison and be forced to pay fines of $250,000 each. The company faces a maximum fine of $1.5 million."
It will be interesting to see if these types of high-profile decisions result in any proposed amendments to federal law, though OSHA has remained largely unchanged since its inception.
- Joe Seiner
Wednesday, May 6, 2015
image from www.eeoc.gov
The EEOC launched today a pilot program that will allow the electronic filing and transmission of documents related to discrimination charges in a number of its offices. The agency receives about 90,000 charges a year, and the hopes are that this system will help streamline the process. Those offices that are included in the pilot program (starting today) are Charlotte, Greensboro, Greenville, Norfolk, Raleigh, Richmond and San Francisco. The EEOC offices located in Denver, Detroit, Indianapolis and Phoenix plan to initiate the program by the end of the month. The EEOC's website explains that the new system:
"allows employers against whom a charge has been filed to communicate with the EEOC through a secure portal to download the charge, review and respond to an invitation to mediate, submit a position statement, and provide and verify their contact information. The newly designed EEOC notice of a charge will provide a password-protected log in for the employer to access the system in the pilot offices. Employers will also have the option of opting out of the pilot program and receiving and submitting all documents and communications in paper form."
This an important development for EEOC claims. It will be interesting to follow the success of the program, and whether it leads to a more efficient process.
-- Joe Seiner
Monday, May 4, 2015
Christine Neylon O'Brien (Boston College School of Management) has just posted on SSRN her article (forthcoming 66 Lab. L.J. (2015)) Am I Blue or Seeing Red? The NLRB Sees Purple When Employer Communication Policies Unduly Restrict Section 7 Rights. Here's the abstract:
This paper analyzes the National Labor Relations Board’s recent Purple Communications decision. There, the Obama Board found Purple Communication’s restrictions on employee use of its email system violated the National Labor Relations Act as employees were authorized to use the employer email system for work purposes but prohibited from using the email for concerted activities on nonworking time. The Purple Communications ruling has broad significance for employer email policies in the private sector because Section 7 of the NLRA protects employee rights to engage in concerted activity whether employees are unionized or not. The decision specifically overturned the Bush Board’s 2007 holding in Register Guard that employer property rights took precedence over employee Section 7 rights to communicate on employer email systems. This paper evaluates the parameters and implications of the Board’s recent decision on email, including the concerns raised by the dissenters regarding the application of the Board's rebuttable presumption. Practical solutions are recommended.
Thursday, April 30, 2015
Susan Bisom-Rapp (Thomas Jefferson) sends along the annual call for papers for the 14thInternational Conference in Commemoration of Professor Marco Biagi and the Fifth Young Scholars’ Workshop in Labour Relations. The theme of the 2016 conference is Well Being At and Through Work, a topic that could not be more timely given the lingering effects of the global economic crisis on working people. In addition, in connection with the Young Scholars’ Workshop, this year the Foundation is awarding a Marco Biagi Prize, which will allow the author of the best paper to take up a three-month residence at the Foundation and comes with a prize of 3500 euros.
Wednesday, April 29, 2015
Seth Harris, Distinguished Scholar at Cornell's ILR School, has just posted on SSRN his article, Managing for Social Change: Improving Labor Department Performance in a Partisan Era, which will appear in the West Virginia Law Review. The abstract:
I saw Seth present this paper at a West Virginia University Symposium, and it was really interesting. That's right, it's about managerial performance measures and it was really interesting. Don't believe me? Read the article.
The Supreme Court issued its decision in Mach Mining v. EEOC this morning. The decision was unanimous and written by Justice Kagan. Essentially, the Court said that the duty to conciliate was judicially reviewable, but the scope of that review was simply whether the EEOC had given the employer notice of what the employer is alleged to have done and which employees or class of employees has been injured, and must try to engage the employer in a discussion to give it a chance to voluntarily remedy the injury. Most importantly, the remedy for a failure to conciliate isn't dismissal, it's a stay of the action and an order to the EEOC to conciliate. Here is the holding from the syllabus:
1. Courts have authority to review whether the EEOC has fulfilled its Title VII duty to attempt conciliation. This Court has recognized a “strong presumption” that Congress means to allow judicial review of administrative action. Bowen v. Michigan Academy of Family Physicians, 476 U. S. 667, 670. That presumption is rebuttable when a statute’s language or structure demonstrates that Congress intended an agency to police itself. Block v. Community Nutrition Institute, 467 U. S. 340, 349, 351. But nothing rebuts that presumption here.
By its choice of language, Congress imposed a mandatory duty on the EEOC to attempt conciliation and made that duty a precondition to filing a lawsuit. Such compulsory prerequisites are routinely enforced by courts in Title VII litigation. And though Congress gave the EEOC wide latitude to choose which “informal methods” to use, it did not deprive courts of judicially manageable criteria by which to review the conciliation process. By its terms, the statutory obligation to attempt conciliation necessarily entails communication between the parties concerning the alleged unlawful employment practice. The statute therefore requires the EEOC to notify the employer of the claim and give the employer an opportunity to discuss the matter. In enforcing that statutory condition, a court applies a manageable standard. Pp. 4–8.
2. The appropriate scope of judicial review of the EEOC’s conciliation activities is narrow, enforcing only the EEOC’s statutory obligation to give the employer notice and an opportunity to achieve voluntary compliance. This limited review respects the expansive discretion that Title VII gives the EEOC while still ensuring that it follows the law.
The Government’s suggestion that review be limited to checking the facial validity of its two letters to Mach Mining falls short of Title VII’s demands. That standard would merely accept the EEOC’s word that it followed the law, whereas the aim of judicial review is to verify that the EEOC actually tried to conciliate a discrimination charge. Citing the standard set out in the National Labor Relations Act, Mach Mining proposes review for whether the EEOC engaged in good-faith negotiation, laying out a number of specific requirements to implement that standard. But the NLRA’s process-based approach provides a poor analogy for Title VII, which ultimately cares about substantive outcomes and eschews any reciprocal duty to negotiate in good faith. Mach Mining’s proposed code of conduct also conflicts with the wide latitude Congress gave the Commission to decide how to conduct and when to end conciliation efforts. And because information obtained during conciliation would be necessary evidence in a good-faith determination proceeding, Mach Mining’s brand of review would violate Title VII’s confidentiality protections.
The proper scope of review thus matches the terms of Title VII’s conciliation provision. In order to comply with that provision, the EEOC must inform the employer about the specific discrimination allegation. Such notice must describe what the employer has done and which employees (or class of employees) have suffered. And the EEOC must try to engage the employer in a discussion in order to give the employer a chance to remedy the allegedly discriminatory practice. A sworn affidavit from the EEOC stating that it has performed these obligations should suffice to show that it has met the conciliation requirement. Should the employer present concrete evidence that the EEOC did not provide the requisite information about the charge or attempt to engage in a discussion about conciliating the claim, a court must conduct the factfinding necessary to resolve that limited dispute. Should it find for the employer, the appropriate remedy is to order the EEOC to undertake the mandated conciliation efforts. Pp. 8–14.
738 F. 3d 171, vacated and remanded
The result seems in line with the questions the Justices had during the oral argument in this case, and seem a relatively pragmatic compromise, narrowly tailored to prevent fraud by the agency. The largest gap for more searching review seems to be the duty for the EEOC to identify all of the employees affected as part of its attempt to conciliate. It is relatively easy to see how this would work in a case with a single employee, or even a group of employees, but it is a little more difficult to see how it will work in a pattern and practice case like Mach Mining itself or CRST (and more on the issue here and here). In those cases, the members of the entire group of applicants or employees were unknown when the EEOC filed its action. In CRST, this was partly because the employer would not identify women who had applied and been assigned trainers so that the EEOC could find them.
The key seems to be two-fold. First, the EEOC needs to only identify the class of employees. In Mach Mining it could be potential women applicants, and in CRST, it could be women in the training program potentially harassed by their trainers. Especially where what is challenged is a policy, the identity of all potential individuals affected by that policy seems less important on the front end and in at least some situations, information may be more likely with the employer. Second, the remedy is not dismissal of the action, but only a stay to allow the conciliation process to take place. That means, for a case like CRST, where individuals were identified after the complaint was filed, the matter should have been stayed rather than dismissed.
Because there is so little payoff for employers to litigate this issue, the decision may actually diminish failure to conciliate claims. We'll have to wait and see.
Tuesday, April 28, 2015
The annual Colloquium on Scholarship in Employment and Labor Law (COSELL) will be held at Indiana University Maurer School of Law, Sept. 11-12, 2015, in Bloomington, Indiana. This conference, now in its tenth year, brings together labor and employment law professors from across the country. It offers participants the opportunity to present works-in-progress to a friendly and knowledgeable audience.
Registration is now open at: http://www.law.indiana.edu/cosell.
If you’re planning to come, please go ahead and register now; you can fill in details about the project you will present later in the summer.
The conference is free, and we will provide all meals during the conference. Travel & hotel information is found on the website.
Please feel free to contact any of us with questions.
We will look forward to hosting you in Bloomington!
April 28, 2015 in About This Blog, Conferences & Colloquia, Disability, Employment Common Law, Employment Discrimination, Faculty News, Faculty Presentations, International & Comparative L.E.L., Labor Law, Labor/Employment History, Pension and Benefits, Public Employment Law, Religion, Scholarship, Teaching, Wage & Hour, Worklife Issues, Workplace Safety, Workplace Trends | Permalink | Comments (0)
Monday, April 27, 2015
image from www.supremecourt.gov
The Supreme Court has just granted certiorari in an employment discrimination case, Green v. Donahoe, which will examine the filing period for the constructive discharge claims of federal employees. The specific issue for which cert was granted (from Scotusblog) is:
"Whether, under federal employment discrimination law, the filing period for a constructive discharge claim begins to run when an employee resigns, as five circuits have held, or at the time of an employer's last allegedly discriminatory act giving rise to the resignation, as three other circuits have held."
This will be an interesting case to follow and see what the Court ultimately decides. Hat tip: Ross Runkel.
-- Joe Seiner
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 email@example.com.
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.