Monday, July 28, 2014
Two members of Congress, Tom Harkin (D-Iowa) and George Miller (D-California), just introduced a plan that would raise the minimum wage which is currently set at $7.25 per hour to $10.10 per hour. The plan also recommends an annual inflation index which would continue to raise the minimum wage in subsequent years. Lawmakers in favor of the plan note that the minimum wage has not been raised in over five years. From an article on the issue at Huffington Post:
“Proponents of raising the minimum wage gathered Thursday on Capitol Hill to mark what they deemed an embarrassing five-year milestone. . . ‘They're not going to spend that extra money flying to Paris for the weekend. They are not buying a yacht or a private jet," Harkin said. "They're spending it on pizza and beer and things like that in their local stores.’"
The minimum wage issue has always been divisive and it will be interesting to follow this plan and see if it gets any traction in Congress, particularly as the next election cycle begins to come around.
Sunday, July 27, 2014
Marcy Karin and Robin Runge have posted “Breastfeeding and a New Type of Employment Law,” forthcoming in Catholic University Law Review, Vol. 63, No. 2 (2014). The paper focuses on section 4207 of the Patient Protection and Affordable Care Act, codified at 29 U.S.C. 207(r). Here’s the abstract:
Buried deep within the Patient Protection and Affordable Care Act is section 4207, a little-noticed provision that amended the Fair Labor Standards Act to provide protections for some women to express milk at work. Section 4207 borrows concepts from existing labor standards and employment discrimination laws to offer job-protected break time and space-related accommodations for breastfeeding purposes. Unlike these prior employment laws, however, these protections are designed to achieve public health goals for a relatively small subgroup of individuals: non-exempt working women who choose to express milk for children under the age of one. The use of employment law to promote public health is not novel, but the decision to place breastfeeding protections in this framework must be considered within the larger context of employment law.
In its examination of this new law, this Article places section 4207 in the broader civil rights context and examines how legislation aimed to achieve goals outside the civil rights context may still nonetheless effectively address historical discrimination and societal oppression. The employment provisions of this new law represent a shift away from traditional labor standards designed to improve employment conditions for all workers and traditional employment discrimination provisions used to address historic discrimination. Its unique combination of protections and its focus on one particular class of workers facilitates the consideration of whether the government should enact workplace legislation to promote healthcare-based conduct. This Article considers, and ultimately rejects, the incorporation of limited employment rights that place symbolic requirements — without more — on employers for a public health purpose.
Friday, July 25, 2014
Michael Duff (Wyoming) recently posted Beneath the Veneer of Harris v. Quinn in the ClassismExposed blog. In the post, Duff puts forth what is a fairly controversial view for a union supporter: that reliance on agency fees is a bad idea for labor, which would not be mortally wounded had the Court gone all the way in Harris and declared public-sector agency fees unconstitutional.
To me, this issues pulls in others questioning the exclusivity principle in labor law. I'm still of a mixed mind on what would happen if exclusivity fell away, but that may be where we're headed. Certainly, unions would have more legitimacy if they only represented and collected dues from supporters. That said, opposition to unions won't be going away. Moreover, it's unclear to me how widespread members-only bargaining would work in practice. To my mind, there's still free-rider aspects to that kind of bargaining (e.g., employers are likely to extend union wages across-the-board), although that doesn't mean non-exclusive bargaining isn't superior. At base, it all really goes to the heart of what we mean by "collective" representation and whether an individualistic America still supports it in its current form. But enough of me--here's a sample of Duff's post:
I, a friend of the labor movement, oppose [agency fees] on strategic grounds.
First, I have never though it looked good even to elements within the working class to require membership or even payment of an agency fee.
Second, in my opinion, any union that relies on government power for support or dues collection is in big trouble in the long run. What the government giveth today it may taketh away tomorrow, and I simply do not trust or seek to rely upon the forces I believe have utterly captured government.
Finally, if a union really believes that ending the practice of requiring payment of dues or agency fees dues will cause members to stop paying dues, or nonmembers not to seek (eventually) membership, what kind of strength can that union actually have? Does anyone believe that such a union could, for example, motivate employees to take the risk inherent in collective action—the kind of risk that built the labor movement (think, for example, of the sit down strikes in Flint, Michigan) and that will soon be required again? You do not have to require working class fire breathers to pay dues and non-members in a workplace in which the union diligently fights for members will want to join. If this is not the state of things unions will lose every big fight since success comes from the working class intensity of the membership, not from the micro-tactics of leadership.
Read the entire thing!
Thursday, July 24, 2014
There is an interesting article over on CNN.com that discusses a class action case that was just certified against technology giant Apple which alleges that the company failed to provide its workers sufficient time for meals and rest breaks in violation of California state law. The company also faces an additional class action suit in a similar case which maintains that the Apple Store did not provide compensation for waiting time to employees while company officials checked the personal belongings of workers when leaving the premises. From the article:
"Among other things, the lawsuit claims Apple employees were forced to work for stretches of five hours or more without meals, and didn't get breaks on shorter shifts. . . The lawsuit contends that Apple's employment rules restrict employees from talking about the company's labor conditions with one another, allowing the company to ‘invoke fear into the class members that if they so much as discuss the various labor policies, they run the risk of being fired, sued or disciplined.’"
These cases are always interesting to follow. This type of litigation on an individual level is often not pursued, but in a class setting it obviously makes the stakes much higher.
Wednesday, July 23, 2014
As lawyers fight over an employer’s duty to accommodate under the Americans with Disabilities Act, a recent paper on employer accommodation practices finds, among other things, that disability accommodations may benefit co-workers and employers as well as the disabled worker: Lisa Schur et al., “Accommodating Employees With and Without Disabilities,” Human Resources Management (published online July 1, 2014). Here’s the abstract:
Efforts to recruit and retain employees with disabilities are often tempered by employers’ concerns over potential workplace accommodation costs. This study reports on accommodations requested and granted in intensive case studies of eight companies, based on more than 5,000 employee and manager surveys, and interviews and focus groups with 128 managers and employees with disabilities. Two unique contributions are that we analyze accommodations for employees without disabilities as well as for those with disabilities, and compare perspectives on accommodation costs and benefits among employees, their coworkers, and their managers. We find people with disabilities are more likely than those without disabilities to request accommodations, but the types of accommodations requested and the reported costs and benefits are similar for disability and non-disability accommodations. In particular, fears of high accommodation costs and negative reactions of coworkers are not realized; all groups tend to report generally positive coworker reactions. Multilevel models indicate granting accommodations has positive spillover effects on attitudes of coworkers, as well as a positive effect on attitudes of requesting employees, but only when coworkers are supportive. Consistent with recent theorizing and other studies, our results suggest the benefits from a corporate culture of flexibility and attention to the individualized needs of employees.
The eight employers in the study were a pharmaceutical company, a hospital, a disability service organization, a financial services company, a consumer products manufacturer, a supermarket chain, a restaurant, and an infrastructure services company. According to the authors, the study’s findings “on the value of accommodations should help address potential employer concerns about accommodation costs, which historically has been one of the perceived barriers to the employment of individuals with disabilities.”
Tuesday, July 22, 2014
There is another interesting ruling from the Iowa Supreme Court. This one is essential reading for anyone interested in disparate impact law or in arguing for different legal standards under state and federal discrimination law. The opinion has so many different facets deserving much more attention than is possible in a blog post so the following provides only the highlights.
In Pippen v. State, 12-0913, 2014 WL 3537028 (Iowa July 18, 2014), plaintiffs brought a class action alleging that the state of Iowa unlawfully discriminates against African Americans in employment. The case was brought under Title VII and Iowa state law and alleged discrimination in merit-system positions across 37 departments of state government. After a trial, the court found in favor of the state.
In its opinion, the Iowa Supreme Court tries to grapple with the complicated intersection of disparate impact law and class actions post Dukes. The opinion contains a lengthy discussion of the historical development of federal disparate impact law.
The key discussion in the opinion focused on whether the state’s practices were incapable of separate analysis under Title VII’s disparate impact analysis. The plaintiffs’ evidence was largely aimed at employment practices generally, rather than isolated to a particular practice. The Court recognized several instances where plaintiffs could proceed on class wide allegations on a disparate impact theory without focusing on specific practices, including when employer record-keeping is so shoddy that the record-keeping makes separate analysis impossible or when decisions were made with unfettered discretion across departments. The Iowa Supreme Court held, based on the facts of the particular case, that the plaintiffs did not show under federal law that the available data made it difficult to analyze particular practices. However, the reasoning leading up to this holding offers many different avenues for future claimants to argue that the evidence is incapable of separate analysis.
It also continues to separate Iowa state law from Title VII law. The Court stated: “While Congress passed the Civil Rights Act of 1991 in response to Wards Cove, no similar amendment has been made to the Iowa Civil Rights Act. The fact that Congress enacted a legislative change in response to a binding majority opinion of the United States Supreme Court does not have persuasive force in the interpretation of the Iowa Civil Rights Act. We have not adopted the principles of Wards Cove in the construction of the Iowa Civil Rights Act and are not bound to do so. Congressional reaction to a specific case decided by the United States Supreme Court does not shed light on the meaning of state law when there has been no comparable narrow state court precedent to stimulate a legislative override.” Id. at 15. The Court found that the plaintiffs in this particular case had not argued for a different disparate impact analysis and so the Court declined to provide one. However, the opinion leaves the door wide open for future plaintiffs to argue that Iowa disparate impact doctrine is significantly different than federal law.
Interestingly, the opinion also posits that based on questions during oral argument in Dukes, Justices Kennedy and Roberts might be interested in a negligence theory of discrimination, as discussed in Professor David Benjamin Oppenheimer’s article, Negligent Discrimination, 141 U. Pa. L. Rev. 899 (1993).
Hat tip: Alex Long
On Remand from the Supreme Court, Fisher Decided in the Fifth Circuit in Support of Affirmative Action Plan
Thanks so much to the bloggers at the Workplace Prof Blog for inviting me. I am excited to join such a great group as a guest blogger.
For my initial post, I’d like to discuss Fisher v. University of Texas at Austin and its analysis of race-conscious affirmative action under strict scrutiny, in light of the Fifth Circuit’s ruling in the case last Tuesday (following the Supreme Court’s remand order last year). My goal is to provide a starting point for dialogue on the continuing vitality of Fisher in supporting race-conscious affirmative action in various settings, including in the public workplace.
First, to provide some procedural background on the case, it was an open question as to whether the Fifth Circuit would send the case back down to the federal district court for further factfinding on the constitutional question under the Equal Protection Clause. After additional briefing and oral argument, the federal appellate court denied the University’s motion for remand, stating that while it had the discretion to remand the case to the district court, it found the existing record sufficient since no new factual issues needed to be addressed, and the mistake identified by the Supreme Court was made by the appellate court and the district court alike and in the same fashion. The Supreme Court, after hearing the case last year, remanded it for proper judicial assessment of the narrow tailoring requirement under strict scrutiny. Although the Supreme Court found the state university’s use of race in admissions decisions in order to achieve student body diversity a compelling governmental interest, in line with the Court’s decisions in Bakke and Grutter, the Court nonetheless remanded the case, stating that the reviewing court must independently assess whether UT-Austin’s plan was narrowly tailored to meet its diversity objective rather than defer to the University’s claims on this point.
On the merits of the case, the Fifth Circuit noted that under the correct strict scrutiny standard, it had to evaluate, without deference to the University, whether the school’s method of achieving student body diversity was narrowly tailored to meet its diversity goal based on the evidence presented. To satisfy the narrow tailoring requirement, the reviewing court must find that it is necessary for a university to use race for it to achieve the pedagogical benefits that flow from student diversity, and that no workable race-neutral alternatives would bring about these benefits. In conducting its independent assessment, the appellate court carefully reviewed the record concerning UT-Austin’s use of its race-neutral Top Ten Percent Plan to select over 80% of its Texas students, and the school’s additional use of an individualized, race-conscious holistic review process to select the small remaining percentage of students. The court noted that UT-Austin also engaged in various race-neutral outreach and scholarship programs to reach under-represented student populations. In its evaluation, the court of appeals found that the school used a range of race-neutral methods to try to boost minority enrollment and selected the vast majority of its students through the race-neutral Top Ten Percent Plan. Further, the court explained that the University’s use of a holistic review that took into account the race of the applicants served to complement the pool of students admitted through the Top Ten Percent Plan by bringing in students who have much to contribute to the school’s diversity based on their various skills, achievements, and perspectives but who were overlooked using the Percent Plan alone. The court determined that this holistic review was a highly individualized and highly competitive process, and not a quota system. In attentively examining all of these facets of UT-Austin’s admissions program, the court held that the narrow tailoring requirement under strict scrutiny for race-conscious decisionmaking was satisfied, and affirmed the district court’s grant of summary judgment in favor of UT.
This was a 2-1 decision, with Judge Carolyn King joining Judge Patrick Higginbotham in the majority decision, and Judge Emilio Garza dissenting. Judge Garza in his dissent took issue with the meaning of a “critical mass” of student diversity, stating that the University framed its diversity objective as achieving a critical mass but was unable to objectively define this term. Because Judge Garza found that the school failed to clearly explain its goal and what “critical mass” requires, he did not think the court could make an independent determination on whether the school met its narrow tailoring burden.
The Fifth Circuit’s latest decision in Fisher is an important win for UT-Austin, and for affirmative action. Although Fisher concerns the constitutionality of affirmative action plans using race in the higher education setting, its analysis would apply to affirmative efforts involving race by other state actors and thus has implications for public employers who wish to use race-conscious affirmative action plans to attain a diverse workforce. As I discussed in a talk I gave at a symposium this past spring and further discuss in a forthcoming piece, the Supreme Court’s decision in Fisher, and now along with the Fifth Circuit’s recent decision on remand, can be used to help demonstrate the constitutional validity of race-conscious affirmative efforts in the public workplace to achieve workforce diversity.
Monday, July 21, 2014
Illinois is the latest State to enact “ban the box” legislation, i.e., legislation that restricts when an employer can ask a job applicant about his or her criminal history. (The “box” is the one on a job application to answer the question “Have you ever been convicted of a crime?”) Twelve States now have such legislation on the books, as will over sixty counties and cities.
The Illinois legislation—which takes effect next year—provides that, absent certain exceptions, an employer “may not inquire about or into, consider, or require disclosure of the criminal record or criminal history of an applicant until the applicant has been determined qualified for the position” and the employer either has told the applicant that it has selected her for an interview or has made her a conditional offer of employment. The Illinois Department of Labor is the enforcer here—there’s no provision in the bill for a private right of action.
Meanwhile, the District of Columbia’s city council has also passed a “ban the box” bill and sent it to the mayor for his signature. That bill prohibits employers from asking about, or asking a job applicant to reveal, "any arrest or criminal accusation made against the applicant, which is not then pending against the applicant and or which did not result in a conviction." Employers can ask about criminal convictions but only after making a conditional offer of employment. Like the Illinois legislation, the D.C. bill makes the D.C. Office of Human Rights the exclusive enforcer here—there’s no private right action.
Among its other features, the D.C. bill provides that if the employer extends a conditional offer, checks the applicant’s criminal history, and then rescinds that offer, and if the applicant believes that the employer did that “on the basis of a criminal conviction,” the applicant can, upon request, get from the employer, within thirty days, “a copy of “any and all records procured by the employer in consideration of the applicant or employee, including criminal records.” In June, the bill had also required that employer to give the applicant a written “statement of denial” that identified the employer’s “legitimate business reason” for its action. Failing to provide that statement would have triggered a rebuttable presumption that the employer had no “legitimate business reason” for its action. The D.C. Chamber of Commerce opposed this provision, and in mid-July, the bill was amended to remove it.
Since 2012, the EEOC has opined that, under some circumstances, employer use of a job applicant’s criminal history may violate Title VII of the Civil Rights Act. For an entry point into the research on how much a job applicant’s criminal history matters, see, for example, Devah Pager, Bruce Western, and Naomi Sugie, “Sequencing Disadvantage: Barriers to Employment Facing Young Black and White Men with Criminal Records,” Annals of the American Academy of Political and Social Sciences 623 (May 2009): 195-213.
The next puzzle on the horizon: Figuring out how and how much these “ban the box” statutes actually affect employer hiring.
Hat tip: R. Michael Fischl
Usually when we note the passing of someone, it's a person who has made an impact on the field of labor and employment law, but expressing dismay at the tragic death of Dan Markel seems an appropriate exception. Even though Dan's scholarly work was in retributive justice, we shared many connections. Dan cast a net for critique of his work widely beyond his field, and likewise was always ready to comment and help on others' works, including ours. He was committed to being part of a scholarly conversation and urged others to that same goal, whether they had been writing for years or just starting out. As the founder of Prawfsblawg, Dan brought together people of many fields to write on whatever they wished and to promote their work; he did this in real life, too, organizing social events and workshops wherever he went.
Dan was so very full of life, love for his boys and friends, and generosity towards all of us that his death feels unreal. We express our heartfelt condolences to his family, friends, FSU and Tallahassee community, and the broader community we too are a part of. In his memory, it seems appropriate to link to one of his last posts, Thoughts on Work-Life Imbalance from Those Left Behind.
Please welcome guest blogger Rebecca Lee, who teaches at Thomas Jefferson School of Law. Rebecca teaches Contracts, Employment Law, and Employment Discrimination. From her faculty bio page:
Professor Rebecca K. Lee teaches in the areas of employment law, employment discrimination, and contracts. Her scholarship focuses on issues of antidiscrimination law and policy in the workplace concerning how to achieve substantive equality at work, particularly gender and race equity. She has written on the relationship between diversity goals and antidiscrimination objectives, and has further examined the importance of organizational leadership in achieving substantive diversity and equality. Her work in this area has been quoted in the amicus briefs for the State of California and other amici filed in the U.S. Supreme Court for Fisher v. University of Texas at Austin. More recently, her research has centered on questions of judicial decision making in order to reach impartial and fair outcomes, and also looks at judicial leadership as a significant but under-recognized aspect of a judge’s work. In addition to her scholarship and teaching, Professor Lee currently serves as the Chair of the Association of American Law Schools (AALS) Section on Labor Relations and Employment Law. In addition, she is a board member of the Conference of Asian Pacific American Law Faculty (CAPALF).
Before joining the faculty, Professor Lee was a Visiting Researcher at Georgetown University Law Center and practiced law at the international law firm of Crowell & Moring LLP in Washington, D.C. Her practice centered on employment and labor law, government contracts, and antitrust matters. She also worked at the Washington Lawyers' Committee for Civil Rights and Urban Affairs as a Crowell & Moring Public Interest Fellow. In law school, she served as editor-in-chief of the Georgetown Journal on Poverty Law and Policy and worked as a judicial intern for the Honorable Colleen Kollar-Kotelly in the U.S. District Court for the District of Columbia.
Prior to attending law school, Professor Lee earned a Master's degree in Public Policy from Harvard Kennedy School, where she received the Dean Albert Carnesale Fellowship and was co-managing editor of the Asian American Policy Review. Before pursuing her graduate studies, she joined Teach for America as a corps member and taught at an under-resourced middle school in Oakland, California. Professor Lee obtained her Bachelor of Arts degree in Public Policy Studies from the University of Chicago. At Chicago, she was awarded a University Prize for her senior thesis, which was selected as the best undergraduate paper written in the area of women's studies, feminist criticism, or gender studies and subsequently published in a law journal.
A couple of her recent articles include:
Judging Judges: Empathy as the Litmus Test for Impartiality, 82 U. Cin. L. Rev. 145 (2013)
Fisher v. University of Texas at Austing: Promoting Full Judicial Review and Process in Applying Strict Scrutiny, 4 Houston L. Rev. (HLRe): Off the Record 33 (2013).
Welcome aboard, Rebecca!
image from: www.eeoc.gov
The EEOC appears to be continuing its active efforts to enforce the Americans with Disabilities Act. The agency recently filed suit against a health care provider that terminated (and failed to re-employ) a nurse who worked for the employer for over a decade. The employee required additional medical leave after finishing her treatment for cancer. From the EEOC's press release on the case:
“Francisca Lee had worked as a nurse at [Dialysis Clinic, Inc. (DCI)]’s Sacramento Southgate location for 14 years when she was diagnosed with breast cancer. Lee took medical leave in order to have mastectomy surgery and chemotherapy treatments. Four months later, DCI notified Lee by mail that she was being terminated for exceeding the time limit dictated by its medical leave policy, the EEOC said. This was done despite Lee being on approved medical leave and cleared by her doctor to return to work without restrictions in less than two months. Lee was told that she would have to reapply for open positions. However, when Lee did apply over two months later, she was rejected, and not long after, DCI hired a newly licensed nurse.”
These allegations of disability discrimination, if true, are quite unfortunate. This will be an interesting case to follow in the courts…
Saturday, July 19, 2014
If Salas v. Sierra Chemical has you thinking more about inquiries into a plaintiff-worker’s immigration status in workplace rights enforcement, you might be interested in a recent paper on the labor enforcement agency’s views on this question: Shannon Gleeson, “Means to an End: An Assessment of the Status-blind Approach to Protecting Undocumented Worker Rights,” Sociological Perspectives (published online April 3, 2014) (here). Here’s the abstract:
This article applies the tenets of bureaucratic incorporation theory to an investigation of bureaucratic decision making in labor standards enforcement agencies (LSEAs), as they relate to undocumented workers. Drawing on 25 semistructured interviews with high-level officials in San Jose and Houston, I find that bureaucrats in both cities routinely evade the issue of immigration status during the claims-making process, and directly challenge employers’ attempts to use the undocumented status of their workers to deflect liability. Respondents offer three institutionalized narratives for this approach: (1) to deter employer demand for undocumented labor, (2) the conviction that the protection of undocumented workers is essential to the agency’s ability to regulate industry standards for all workers, and (3) to clearly demarcate the agency’s jurisdictional boundaries to preserve institutional autonomy and scarce resources. Within this context, enforcing the rights of undocumented workers becomes simply an institutional means to an end.
Friday, July 18, 2014
The Stetson Law Review seeks written submissions for a symposium to be held at the Stetson University College of Law in Gulfport, Florida on Friday, March 6, 2015.
This symposium will be an interdisciplinary exploration of questions about growing economic inequality in the United States, changes in the available opportunities for upward social mobility, and the proper role for labor and employment laws in ensuring adequate opportunities for mobility. Featured speakers at the symposium will include former Chairperson of the NLRB, Wilma Liebman, and MSNBC journalist and author of The Great Divergence, Timothy Noah. Accepted essays will be published in the Stetson Law Review, and the authors of accepted essays will be invited to present their work at the symposium. Invited participants will receive travel and lodging for the symposium. Academics, practitioners, and others working in the field are invited to submit abstracts for consideration and are welcome to attend the event. Interested applicants should submit an abstract (1 to 4 pages in length) and a curriculum vitae to firstname.lastname@example.org no later than Friday, September 5, 2014. Authors of accepted essays will be notified by October 1, 2014. Completed drafts must be submitted for circulation to the symposium participants by Friday, February 6, 2015.
Questions regarding the symposium should be directed to the Stetson Law Review Editor-in-Chief, Erin Hoyle (email@example.com).
Thursday, July 17, 2014
Although hiring discrimination by employers is infrequently litigated, audit studies—using fictional resumes—continue to show that it persists. A recent contribution to this literature focuses on religious affiliation: Michael Wallace, Bradley R.E. Wright, and Allen Hyde, “Religious Affiliation and Hiring Discrimination in the American South: A Field Experiment,” Social Currents 1(2) (2014): 189-207 (here). Here’s the abstract:
This article describes a field experiment in which we sent fictitious résumés to advertised job openings throughout the American South. We randomly altered the résumés to indicate affiliation in one of seven religious groups or a control group. We found that applicants who expressed a religious identity were 26 percent less likely to receive a response from employers. In general, Muslims, pagans, and atheists suffered the highest levels of discriminatory treatment from employers, a fictitious religious group and Catholics experienced moderate levels, evangelical Christians encountered little, and Jews received no discernible discrimination. We also found evidence suggesting the possibility that Jews received preferential treatment over other religious groups in employer responses. The results fit best with models of religious discrimination rooted in secularization theory and cultural distaste theory. We briefly discuss what our findings suggest for a more robust theory of prejudice and discrimination in society.
For a companion study, see Bradley R.E. Wright et al., “Religious Affiliation and Hiring Discrimination in New England: A Field Experiment,” Research in Social Stratification and Mobility 34 (Dec. 2013): 111-126.
Anyhow, a mildly amusing Case of the Disappearing Opinion. The case, Foglia v. Renal Ventures Mgmt., LLC, is to be found at 2014 U.S. App. LEXIS 10549. It's not an uninteresting decision in any event -- adopting the "nuanced" branch of the circuit split on pleading a False Claims Act case -- but that's not the point of the present posting.
The opinion is dated June 6, 2014 but has a Lexis stop sign to the left, suggesting a BIG PROBLEM. Clicking the "subsequent history" link takes one to an order, dated June 10th, stating:
It is hereby ORDERED that the Opinion filed on June 6, 2014 is vacated and an amended opinion shall be filed simultaneously with this Order. The revised opinion does not alter the June 6, 2014 judgment.
So far so good, except that there is no opinion dated June 10th and filed simultaneously with the order.
With the June 6th opinion vacated, and nothing substituted, Foglia, which was intended to be a precedential opinion, has in effect disappeared from Lexis.
Not to worry. Further sleuthing (entailing the assistance of two colleagues and two research assistants) determined that the June 6th opinion posted on Lexis was in fact the amended opinion referred to in the June 10th order. So all's well but for the stop sign.
A call to Lexis, hopefully, set the wheels in motion to correct that problem. Apparently, Westlaw simply posted the amended opinion, so there was no confusion there.
If you're wondering, the reason for the amendment was the misidentification of one of the circuits in the split -- a single word change.
There are a few lessons to be learned from this:
1. Researchers should be wary of stop signs.
2. Courts maybe shoudn't simply swap out opinions -- any problem would have been obviated if the amended opinion had been dated June 10th.
3. Law professors have an awful lot of time on their hands in the summer.
Thanks to my colleagues Ed Hartnett and Michael Risinger and my RAs John Dumnich and Angela Raleigh for their help.
UPDATE, July 18: I received a very gracious call today from Lexis but the bottom line is that the red stop sign remains in place. Even though the caller acknowledged that the opinion that one is cautioned to beware of is actually an uncriticized, precedential opinion. The effect will be to mislead anyone researching on Lexis, but apparently that's OK. This has gone from being mildly amusing to being frustrating.
Wednesday, July 16, 2014
image from eeoc.gov
Earlier this week, the EEOC issued updated guidance on pregnancy discrimination and other related issues. The EEOC also issued a fact sheet and a question and answer document that are further related to these issues. From the EEOC's press release:
"Among other issues, the guidance discusses:
- The fact that the PDA covers not only current pregnancy, but discrimination based on past pregnancy and a woman's potential to become pregnant;
- Lactation as a covered pregnancy-related medical condition;
- The circumstances under which employers may have to provide light duty for pregnant workers;
- Issues related to leave for pregnancy and for medical conditions related to pregnancy;
- The PDA's prohibition against requiring pregnant workers who are able to do their jobs to take leave;
- The requirement that parental leave (which is distinct from medical leave associated with childbearing or recovering from childbirth) be provided to similarly situated men and women on the same terms;
- When employers may have to provide reasonable accommodations for workers with pregnancy-related impairments under the ADA and the types of accommodations that may be necessary; and
- Best practices for employers to avoid unlawful discrimination against pregnant workers."
The guidance is definitely worth taking the time to read, as it updates the Commission's position in several important areas. It will be interesting to see if the guidance holds up in light of the Supreme Court's pending decision in Young v. United Parcel Service.
-- Joe Seiner
In the most recent issue of The New Yorker, Louis Menand has this essay on how “sex” got added to the list of protected characteristics in Title VII of the Civil Rights Act of 1964. The standard story: The “sex” amendment was an unsuccessful attempt to defeat the entire bill—a failed poison pill. In contrast, Menand emphasizes how that amendment was partly the result of vigorous efforts by women activists—in particular, Alice Paul of the National Women’s Party—and some female House representatives, especially Michigan Democrat Martha Griffiths.
Menand is openly borrowing here from scholars, including Carl Brauer, “Women Activists, Southern Conservatives, and the Prohibition of Sex Discrimination in Title VII of the 1964 Civil Rights Act, “ Journal of Southern History 49(1) (1983): 37-56, and Jo Freeman, We Will Be Heard: Women’s Struggles for Political Power in the United States (Rowan & Littlefield, 2008) (chapter 12). On the origins and durability of the “failed poison pill” story, see Rachel Osterman, “Origins of a Myth: Why Courts, Scholars, and the Public Think Title VII’s Ban on Sex Discrimination Was an Accident,” Yale Journal of Law and Feminism 20 (2009): 409-440. In the courts, a fleeting recent reference to this literature appears in Nelson v. James H. Knight DDS, 834 N.W.2d 64, 74 n.8 (Iowa 2013) (Cady, J., concurring specially).
Monday, July 14, 2014
image from: www.ca8.uscourts.gov
The US Court of Appeals for the Eighth Circuit recently issued an interesting opinion which concluded that a physics professor at the University of South Dakota could be discharged for violating the university’s “civility code.” After sending an inflammatory e-mail to his department head, the professor was discharged under a policy which provided that,
“Faculty members are responsible for discharging their instructional, scholarly and service duties civilly, constructively and in an informed manner. They must treat their colleagues, staff, students and visitors with respect, and they must comport themselves at all times, even when expressing disagreement or when engaging in pedagogical exercises, in ways that will preserve and strengthen the willingness to cooperate and to give or to accept instruction, guidance or assistance.”
The plaintiff in the case sued the university for his discharge alleging, in part, that the policy was unconstitutionally vague. The District Court agreed with the plaintiff, but the Eighth Circuit reversed, holding that:
“While the district court focused exclusively on the policy’s use of the term “civility,” the civility clause articulates a more comprehensive set of expectations that, taken together, provides employees meaningful notice of the conduct required by the policy. The outer contours of the civility clause perhaps are imprecise, but many instances of faculty misconduct would fall clearly within the clause’s proscriptions, thus precluding the conclusion that the policy is facially unconstitutional.”
This decision presents a number of fascinating issues. The intersection between the First Amendment and civility-type codes is one that often comes up in the employment context. It is particularly interesting to see the issue arise in the academic setting.
Many of our readers are familiar with Lanning v. SEPTA, 308 F.3d 286 (3d Cir. 2002), involving an unsuccessful challenge to a police force physical fitness test on the ground that it had a disparate impact on women. The Third Circuit ultimately held that, despite its impact, the test was justified by business necessity.
Contrast that with a recent district court faced with another challenge to a law enforcement physical fitness test, this time by a male against the FBI, and plaintiff won: Bauer v. Holder held that the FBI’s physical fitness test with different minimum requirements for men and women violates Title VII by discriminating on the basis of sex.
Jay Bauer, a 35-year-old man at the time he entered into the FBI New Agent Trainee class, took the challenged test seven times. Each time, save for once, Bauer failed the push-up segment, which required men to do a minimum of thirty push-ups while women had a minimum of fourteen. On his seventh test and after twenty-two weeks of training, Bauer completed only twenty-nine push-ups, leading to his forced resignation as a Special Agent (although he continued to be employed by the Bureau as an analyst).
The FBI implemented its physical fitness test in 2004 as a mandatory requirement for all New Agent Trainees (NATs). It set the minimum standards by using a pilot study of 260 male and 64 female NATs, finding the average of the scores for both men and women, and then setting the passing score for each tested skill at one standard deviation below the average performance for each sex. In order to pass the overall test, an NAT must achieve the minimum standard on each part.
While this structure had its own complication, critical to the court’s holding was that each segment had different minimum standards for men and women NATs. In all categories, men had to outperform women in absolute terms. Thus, passing males had to perform three more sit-ups and sixteen more push-ups, complete a 300 meter run 12.5 seconds faster, and complete a 1.5 mile run one minute and seventeen seconds faster than women.
For the court, this facial difference went a long way towards dictating its result. Since the physical fitness test facially treated men and women differently it was prima facie unlawful under well-established precedents, notably City of Los Angeles Dep't of Water & Power v. Manhart, and Auto Workers v. Johnson Controls. It’s true that physiological differences exist between the sexes, but that was true in both Supreme Court cases (longer life expectancy for women in Manhart and female reproductive role in Johnson Controls). And not only did the governing precedents suggest that such differences didn't affect the initial discrimination question but 42 U.S.C. § 2000e–2(l), also specifically prohibits employers from discriminating when conditioning employment on the passage of a test.
For the court, there was one potential out for the FBI: proving a BFOQ for the differential standards, which would allow otherwise-prohibited discrimination. The FBI attempted to do so by justifying the physical fitness test (in particular, the push-up portion) in terms of the skills required for Special Agents; however, it failed to sufficiently link push-ups to any duty actually performed by such agents. The court was especially concerned by the fact that the fitness requirements applied only in training new Special Agents; there was no testing of Special Agents throughout their employment, thus the court did not believe that passage was actually essential to successful performance of job tasks. This argument had not cut a lot of mustard in Lanning as applied to the business necessity defense, but it seemed dispositive in Bauer.
That seemed to leave the FBI with two choices:
The Bureau could lower the minimum standard for both sexes to that of the standard for women, probably the legally safest option. In light of physiological differences between men and women, that would result in less physically fit men passing the test. Assuming no job relation between physical fitness and being an FBI Special Agent, that’s not necessarily problematic, but if there are only a certain number of positions available, the net result might be fewer women Special Agents simply because there are more men in the pool.
Second, the Bureau could raise the minimum standard for both sexes to one that is higher than the current minimum standard for women. By definition, this would create a disparate impact on women and, while Lanning upheld the test used there as a business necessity, the Bauer court's analysis suggests that the FBI might not be so lucky.
Is there a third alternative? Could the Bureau revise the physical skills tested test in order to reflect the actual job-related skills needed to be a Special Agent while retaining different standards for men and women? The court recognized that possibility since it did not purport to be striking down all gender-normed physical fitness tests: a possibly permissible test would more closely test the applicant’s actual ability to do the job. For example, instead of merely testing upper-body strength by doing push-ups, the test would focus on actual Special Agent tasks such as “carrying objects weighing a certain number of pounds for a certain period of time.” But how could a fitness test that holds women to a lesser physical fitness standard than men can truly measure the “job-related skills and aptitudes” unless the FBI were to assign male and female agents to different duties – and try to also justify that assignment as a BFOQ?
In any event, the case raises a number of interesting doctrinal issues. First, the BFOQ defense seems an awkward fit. As the court recognized, it’s typically been used to entirely exclude one sex (or workers over a certain age) from certain positions. Further, the standard formulation doesn’t fit this scenario very well: either (1) “all or substantially all” members of one sex can’t perform as well as members of the other sex or (2) members of one sex as a group are less able to do the job as well as members of the other sex as a group and it is highly impractical to determine which of them can). On the other hand, there doesn't seem to be any logical reason why the BFOQ would require total exclusion, and, if the standards in fact produced better Special Agents, it would seem odd to rule out the statutory defense. Still, so conceived, BFOQ sounds a lot like business necessity, and Title VII explicitly rules out business necessity as a defense to disparate treatment. 42 USC 2000e-2(k)(2).
And then there's 2000e-2(l). While it's true that the FBI “use[d] differential cutoff scores . . . on the basis of . . . sex,” a strict reading of the language might suggest that the prohibition (which continues "or otherwise alter the results of, employment related tests") reaches only alterations of scores, rather than differential scores to begin with. Ricci v. DeStefano, however, seemed to take a broad view of the provision.
But speaking of Ricci, what about justifying the test as the FBI's effort to avoid disparate impact against women? Sachin Pandya pointed out to me the possible application of the "strong basis in evidence" justification for the Bureau's rules. Given the FBI's own studies, setting the passing score above the female minimum would have had such an impact, and, given the court's analysis, there was no business necessity -- or, certainly, a strong basis in evidence that none existed.
Pretty interesting stuff, and it'll be especially interesting to see what the Bureau does.
Thanks to to Sachin Pandya for his thoughts on some of these issues and to Angela R Raleigh, Seton Hall class of ’16 for her assistance on this.
Saturday, July 12, 2014
There was an interesting piece at the Business Insider today about the hiring practices at Google. The article discusses how the technology giant is moving away from its practice of asking difficult and bizarre questions of potential applicants, such as “how many golf balls can fit in a school bus?” or “how many gas stations are there in Manhattan?” From the article:
"'We found that brainteasers are a complete waste of time,'" Laszlo Bock, Google's senior vice president of people operations told The New York Times last year . . . ‘They don’t predict anything. They serve primarily to make the interviewer feel smart.’"
The article goes on to address the type of hiring practices now employed at the company. Hiring practices have long been an important aspect of labor and employment law, and it is interesting to see the struggles one major player in the corporate world has experienced in trying to attract qualified people to fill its ranks.