Monday, May 22, 2017
Caroline Mala Corbin (Miami) has just posted a new essay on SSRN that hits several of the workplace social issues sweet spots connected with LGBTQ rights and claims of conscience: A Free Speech Tale of Two County Clerk Refusals, forthcoming in the Ohio State Law Journal. Here's the abstract:
The ever-expanding Free Speech Clause has made possible claims that would have been unthinkable until recently. This symposium Essay examines the compelled speech claims of two hypothetical county clerks who believe that marriage should be limited to unions between one man and one woman, and who argue that forcing them to issue marriage licenses to gay and lesbian couples compels them speak in favor of same-sex marriage in violation of the Free Speech Clause.
When a government employee such as a county clerk speaks, she may not be speaking as just a private individual. She may also be speaking as the government. This governmental component affects each side of the speech versus equality analysis. First, the Free Speech Clause interests in speech are weaker (sometimes to the point of extinguishment) when the speech is not purely private. Second, to the extent the government employee’s conduct is the government’s, then it amounts to state action, and the Equal Protection Clause is triggered.
Part I addresses the free speech claims of a county clerk who is terminated after she informs a same-sex couple that by reason of her beliefs, she cannot grant them a marriage license. The outcome here is straightforward: she loses. Because her refusal will be treated as the government’s own, her individual free speech interests are at their lowest while the government’s equal protection interests are at their highest. Part II addresses the free speech claims of a clerk who has found a coworker willing to cover for her, but her supervisor declines to accommodate her and instead fires her for refusing to do her job. The analysis here is more complicated, as it raises questions about expressive conduct, official duties, and expressive harms.
I'm looking forward to reading this.
Tuesday, April 11, 2017
In 2012, in Kloeckner v. Solis, the court appeared to resolve the question of the appropriate forum for federal civil-service employees appealing decisions of the Merit Systems Protection Board in “mixed cases” (cases alleging an adverse employment action that also violated a federal anti-discrimination statute), holding that those decisions must be challenged in federal district court. But in Perry v. Merit Systems Protection Board, to be argued April 17, the court returns to the issue to decide whether, as the U.S. Court of Appeals for the District of Columbia Circuit held, the answer is different when the MSPB rejects the employee’s claim for lack of jurisdiction because the adverse employment action is not appealable, rather than on the merits or on some procedural ground.
Tuesday, March 28, 2017
Bill Herbert (Hunter College) recently did an interview with Radio Higher Ed: "A Primer on Unionization and Collective Bargaining in U.S. higher Education Institutions." According to the summary:
This primer on collective bargaining in higher education traces historical developments of unionization in public and private institutions as well as among tenure track, non-tenure-track faulty and graduate students. In the last five years, unionization activity has increased over 25% in the private sector, mostly in adjunct faculty units. While institutions can participate in voluntary collective bargaining activities, agreements in a formal collective bargaining context include clear rules applicable to the entire bargaining unit and enforcement mechanisms. The emergence of micro bargaining units (department level activity), and specifics of the unionization process are discussed. Specific unions that work with higher education institutions are named. Mandatory subjects in the collective bargaining process include salary, hours, healthcare, pension, professional development grievance, antidiscrimination, academic freedom, tenure, use of facilities, appointment and reappointment details, leaves, holidays, evaluations, personnel files, disciplinary actions, research and fellowship monies. Institutions may resist unionization due to flexibility limitations, institutional concept of shared governance and fiscal implications that may result from compensation negotiations. It is likely that unionization will continue to increase for non-tenure track faculty in the private sector. Regularity of access to faculty by students may be aided by collective bargaining.
Check it out!
Wednesday, December 28, 2016
The New York State Bar Association has just published Lefokwitz on Public Sector Labor & Employment Law (4th ed. 2016), edited by William A. Herbert, Philip L. Maier, and Richard K. Zuckerman. Here's the publisher's description:
This landmark text is the leading reference on public sector labor and employment law in New York State. Editors William Herbert, Philip Maier, and Richard Zuckerman bring together leading attorneys in the field to contribute their expertise to this two-volume work.
Covering all aspects of this area of law, Lefkowitz on Public Sector Labor and Employment Law includes chapters on the Taylor Law, the representation process, the duty to negotiate, improper practices, strikes, mini-PERBS, arbitration and contract enforcement, and more. Much of the discussion in this two-volume resource has been revised and contains updated case and statutory references throughout. Practitioners new to the field, as well as the non-attorney, will benefit from the book's clear, well-organized coverage of what can be a very complex area of law. All practitioners will benefit from the exhaustive coverage of this book, whether they represent employees, unions or management.
With this edition, this treatise has been renamed to recognize Jerome Lefkowitz, who served as former Public Employment Relations Board chair, as Editor-in-Chief of the first three editions, and who transformed New York's labor landscape by helping to write the Taylor Law.
Tuesday, November 29, 2016
Friend of the Blog Bill Herbert sends word that registration is now open for the National Center's 44th Annual Conference on March 26-28, 2017 in New York City. The conference keynote speaker is NLRB Chair Mark G. Pearce. The number and breadth of panels and workshops is far too long to list and describe here, but is available at the Conference Registration Website.
Friday, August 26, 2016
The Center for Applied Feminism (Baltimore) has a call for papers that will be of interest to some of our readers:
CALL FOR PAPERS
APPLIED FEMINISM AND INTERSECTIONALITY:
EXAMINING LAW THROUGH THE LENS OF MULTIPLE IDENTITIES
The Center on Applied Feminism at the University of Baltimore School of Law seeks paper proposals for the Tenth Anniversary of the Feminist Legal Theory Conference. We hope you will join us for this exciting celebration on March 30-31, 2017.
This year, the conference will explore how intersecting identities inform -- or should inform -- feminist legal theory and justice-oriented legal practice, legal systems, legal policy, and legal activism. Beginning in 1989, Kimberlé Crenshaw identified the need for law to recognize persons as representing multiple intersecting identities, not only one identity (such as female) to the exclusion of another (such as African American). Intersectionality theory unmasks how social systems oppress people in different ways. While its origins are in exploring the intersection of race and gender, intersectionality theory now encompasses all intersecting identities including religion, ethnicity, citizenship, class, disability, and sexual orientation. Today, intersectionality theory is an important part of the Black Lives Matter and #SayHerName movements. For more information, see https://www.washingtonpost.com/news/in-theory/wp/2015/09/24/why-intersectionality-cant-wait/.
We seek submissions of papers that focus on the topic of applied feminism and intersecting identities. This conference aims to explore the following questions: What impact has intersectionality theory had on feminist legal theory? How has it changed law and social policy? How does intersectionality help us understand and challenge different forms of oppression? What is its transformative potential? What legal challenges are best suited to an intersectionality approach? How has intersectionality theory changed over time and where might it go in the future?
We welcome proposals that consider these questions from a variety of substantive disciplines and perspectives. As always, the Center’s conference will serve as a forum for scholars, practitioners and activists to share ideas about applied feminism, focusing on connections between theory and practice to effectuate social change. The conference will be open to the public and will feature a keynote speaker. Past keynote speakers have included Nobel Laureate Toni Morrison, Dr. Maya Angelou, Gloria Steinem, Senators Barbara Mikulski and Amy Klobuchar, NOW President Terry O’Neill, EEOC Commissioner Chai Feldblum, and U.S. District Judge Nancy Gertner.
To submit a paper proposal, please submit an abstract by Friday October 28, 2016 to firstname.lastname@example.org. Your abstract must contain your full contact information and professional affiliation, as well as an email, phone number, and mailing address. In the “Re” line, please state: CAF Conference 2017. Abstracts should be no longer than one page. We will notify presenters of selected papers in November. About half the presenter slots will be reserved for authors who commit to publishing in the annual symposium volume of the University of Baltimore Law Review. Thus, please indicate at the bottom of your abstract whether you are submitting (1) solely to present or (2) to present and publish in the symposium volume. Authors who are interested in publishing in the Law Review will be strongly considered for publication. For all presenters, working drafts of papers will be due no later than March 3, 2017. Presenters are responsible for their own travel costs; the conference will provide a discounted hotel rate as well as meals.
We look forward to your submissions. If you have further questions, please contact Prof. Margaret Johnson at email@example.com. For additional information about the conference, please visit law.ubalt.edu/caf.
August 26, 2016 in Conferences & Colloquia, Employment Common Law, Employment Discrimination, Labor Law, Labor/Employment History, Pension and Benefits, Public Employment Law, Religion, Scholarship, Wage & Hour, Worklife Issues, Workplace Safety | Permalink | Comments (0)
Thursday, December 17, 2015
Friend of the blog and Southeastern Association of Law Schools Labor and Employment Law Workshop organizer extraordinaire Michael Green (Texas A & M) sends along this call for papers for the 2016 SEALS annual conference:
The Southeastern Association of Law Schools(SEALS) is pleased to host the fourth annual “New Voices in Labor and Employment Law” program during the 2016 SEALS Annual Meeting in Amelia Island, Florida. This year we have extended the program to also include “Existing Voices in Labor and Employment Law.” The purpose of this works-in-progress program is to give junior and existing scholars feedback on papers from senior scholars before the upcoming submission cycle. We are seeking submissions from labor and employment law scholars with five or fewer years of full-time teaching experience (not counting the 2015-16 academic year) and will also consider drafts from existing labor and employment scholars regardless of experience.
Submissions should be drafts of papers relating to labor and employment law that will be near completion by the time of the SEALS meeting held August 3-9, 2016. To be considered for participation in the program, please send an email to Professor Michael Z. Green, Texas A&M University School of Law, at firstname.lastname@example.org and email@example.com by 5:00 p.m. E.S.T., Monday, January 11, 2016. In your email, please include the title of your paper, a short description of the context (e.g., “Disparate Impact after Dukes”), and a full abstract. Full-time faculty members of SEALS member or affiliate member schools, who have been teaching labor and employment law courses for five or fewer years as of July 1, 2015, will be given a preference in the selection of those contacted to submit final papers but we hope that labor and employment scholars with even more experience will submit papers as well.
To ensure enough time for adequate feedback, space will be limited to 6 participants; additional registrants will be placed on a waiting list and invited to participate on a space available basis. Those individuals accepted into the program must submit a complete draft by 5:00 p.m. E.S.T., Friday, June 10, 2016. Please submit your drafts electronically to the email addresses above. The draft should be accompanied by a cover letter with the author’s name, contact information, and confirmation that the submission meets the criteria in this call for papers.
Submissions are limited to a maximum 40,000 word limit (including footnotes). Papers can be committed for publication prior to their submission as long as they are not actually scheduled to be printed prior to August 9, 2016. Each professor may submit only one paper for consideration. No papers will be accepted after the deadline and the submission of an incomplete draft may limit participation in this workshop. Paper commentators may include Professors Brad Areheart (Tennessee), Anthony Baldwin (Mercer), Richard Bales (Ohio Northern), Scott Bauries (Kentucky), Theresa Beiner (Arkansas-Little Rock), Miriam Cherry (St. Louis), Brian Clarke (Charlotte), Michael Green (Texas A&M), Wendy Greene (Samford), Stacy Hawkins (Rutgers Camden), Jeff Hirsch (North Carolina), Nancy Levit (Missouri-Kansas City), Natasha Martin (Seattle), Marcia McCormick (St. Louis), Angela Onwuachi-Willig (Iowa), Elizabeth Pendo (St. Louis), Nicole Porter (Toledo), Jessica Roberts (Houston), Veronica Root (Notre Dame), Ani Satz (Emory), Paul Secunda (Marquette), Kerri Stone (Florida International), Michael Waterstone (Loyola), and others to be determined.
Please be aware that selected participants and commentators are responsible for their own travel and lodging expenses related to attending the SEALS Annual Meeting, including the SEALS registration fee. Any inquiries about the SEALS New and Existing Voices in Labor and Employment Law Program should be submitted to Professor Michael Green at the email above.
SEALS is a great conference because it is not overly formal, and people are quite approachable. Also, like many workshops in the labor and employment community, the commentators are usually supportive and really engaged. I always leave with more energy than I had when I arrived. We'll keep you posted on other programming as it's set.
December 17, 2015 in Conferences & Colloquia, Disability, Employment Common Law, Employment Discrimination, Faculty Presentations, International & Comparative L.E.L., Labor Law, Labor/Employment History, Pension and Benefits, Public Employment Law, Religion, Scholarship, Wage & Hour | Permalink | Comments (0)
Friday, July 17, 2015
Yesterday, the EEOC ruled that discrimination based on an applicant's or employee's sexual orientation is always a violation of Title VII. The EEOC had been making noises in that direction, but this makes the opinion official.
In its decision, the EEOC went beyond previous caselaw, which recognized that discrimination based on sexual orientation may fit under a sex stereotyping theory. But this theory required the plaintiff to establish that the adverse decision was motivated by the plaintiff's not fitting the employer's stereotype (e.g., an effeminate male). Yesterday's decision went further by holding that sexual orientation discrimination always equates to sex discrimination under Title VII. The EEOC's reasoning is that discrimination based on someone's sexual orientation necessarily discriminates against that person's sex. In other words, an employer that discriminates against a man who is attracted to men, but not to women who are attracted to men is engaged in sex discrimination. The money quote from the decision (you can see this Buzzfeed article for more quotes):
[S]exual orientation is inseparable from and inescapably linked to sex and, therefore,  allegations of sexual orientaticm discrimination involve sex-biased considerations. . . . Sexual orientation discrimination is sex discrimination because it necessarily entails treating an employee less favorably because of the employee's sex.
Plaintiffs pushed this argument years ago with almost no success (although, as the EEOC notes, courts have gone along with the same argument for other types of discrimination, such as an employee in an interracial marriage), so it'll be interesting to see if courts are more hospitable to this argument. One practical hurdle is preexisting precedent; however, an agency pronouncement should be entitled to deference, which could help overcome that problem. And there's also the reality that the country as a whole, not to mention the Supreme Court, has obviously become far more sensitive to sexual orientation discrimination over the past several years. But it will be interesting to see how this plays out.
For more reading, see Victoria Schwartz's (Pepperdine) article from 2012, where she argued for just this theory. Expect some court citations soon, Victoria . . . .
Hat Tip: Patrick Kavanagh and others.
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, February 2, 2015
Last week, the Supreme Court decided two labor and employment cases. In one, M&G Polymers, a unanimous Supreme Court held that courts should apply ordinary contract principles when deciding whether health-care benefits survive the expiration of a collective-bargaining agreement. This holding reversed the Sixth Circuit's Yard-Man presumption that CBAs intend these benefits to vest for life. The Court remanded for the CBA to be interpreted by "ordinary contract principles," but ominously noted that "when a contract is silent as to the duration of retiree benefits, a court may not infer that the parties intended those benefits to vest for life." This stance seemed to be a primary motivation for a four-Justice concurrence (the more liberal Justices). The concurrence stressed that courts should be open to interpreting a CBA to intend vesting of retirees' health benefits, albeit without the Yard-Man "thumb on the scale." The impact of M&G Polymers will depend on how courts apply the decision, so we'll have to wait and see.
In the other decision, Department of Homeland Security v. MacLean, the Court held (7-2, with Justices Sotomayor and Kennedy dissenting) that a TSA regulation did not eliminate whistleblower protection. At issue was a provision in the federal whistleblower statute that makes an exception for disclosures "specifically prohibited by law." In MacLean, the Court held that Congress intended this provision to apply to statutes, but not agency regulations (e.g., elsewhere in the statute, Congress used the phrase "law, rule, or regulation"). The dissenters largely agreed with the majority, but thought the exception was satisfied by the Homeland Security Act's mandate that the TSA prescribe regulations to prevent disclosure of certain information. This case is certainly a win for federal whistleblowers and will require Congress to be more proactive if it wants exceptions for certain whistleblower disclosures.
Friday, January 9, 2015
As student football players at Northwestern University press forward with their case at the National Labor Relations Board, the Michigan legislature has amended its statute governing public-employee collective bargaining to exclude student athletes at Michigan’s public universities. The amendment, now in effect, added the underlined text:
An individual serving as a graduate student research assistant or in an equivalent position, and a student participating in intercollegiate athletics on behalf of a public university in this state, or any individual whose position does not have sufficient indicia of an employer-employee relationship using the 20-factor test announced by the internal revenue service of the United States department of treasury in revenue ruling 87-41, 1987-1 C.B. 296 is not a public employee entitled to representation or collective bargaining rights under this act.
Michigan Complied Laws 423.201(1)(e)(iii). (Although the text of this provision also excludes graduate student research assistants, a federal district court declared that exclusion to violate article IV, section 24, of the Michigan Constitution. Toth v. Callaghan, 995 F. Supp. 2d 774 (E.D. Mich. 2014).)
Monday, December 1, 2014
Thanks to Monique Lillard (Idaho), chair of the AALS Labor Relations and Employment section and Natasha Martin (Seattle), chair of the AALS Employment Discrimination section for sending along the joint newsletter of the two sections for posting. Download it while it's hot: Download Joint Newsletter for AALS Sections
December 1, 2014 in Disability, Employment Common Law, Employment Discrimination, Faculty News, International & Comparative L.E.L., Labor and Employment News, Labor Law, Public Employment Law, Scholarship, Teaching, Wage & Hour | Permalink | Comments (0) | TrackBack (0)
Tuesday, November 25, 2014
Thanks to Phil Sparkes for sending us a note about this gem. From yesterday's Atlanta Journal-Constitution:
Atlanta Fire Chief Kelvin Cochran has been suspended without pay for one month because of authoring a religious book in which he describes homosexuality as a “sexual perversion” akin to bestiality and pederasty.
Mayor Kasim Reed’s spokeswoman Anne Torres said the administration didn’t know about “Who Told You That You Are Naked?” until employees came forward with complaints last week. In addition to suspending Cochran, Reed’s office has now opened an investigation to determine whether the chief’s actions violated the city policies or discriminated against employees.
Cochran has been ordered to undergo sensitivity training and has been barred from distributing copies of the book on city property after a number of firefighters said they received them in the workplace.
Reed said he was “deeply disturbed” by the sentiments Cochran expressed in his book and will “not tolerate discrimination of any kind” in his administration.
Monday, October 6, 2014
The 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: firstname.lastname@example.org. 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.
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)
Thursday, October 2, 2014
The 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:
- Department of Homeland Security v. MacLean, a whistleblower/retaliation case
- Integrity Staffing Solutions, Inc. v. Busk, whether time spent in security screenings is compensable under the FLSA as amended by the Portal to Portal Act.
- M&G Polymers v. Tackett, a case about presumptions related to interpretation of CBAs on retiree health benefits under the LMRA.
- Mach Mining v. EEOC, whether and to what extent the courts can enforce the EEOC's duty to conciliate before filing suit.
- Tibble v. Edison, Int'l, an ERISA case involving the duty of prudence and the limitations period for bringing claims.
- Young v. UPS, whether light duty accommodations only for on-the-job injuries violates Title VII as amended by the Pregnancy Discrimination Act.
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.
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)
Wednesday, September 24, 2014
Scott Bauries (Kentucky) writes to tell us about an amicus brief he, Brian Sutherland, and Cheryl Legare (both from the Buckley Law Firm) filed on behalf of Professors of Education Law and Educational Measurement.
From the abstract on SSRN:
This appeal, to be decided by the United States Court of Appeals for the 11th Circuit, challenges two egregious misuses of "value-added modeling," a controversial teacher evaluation method that attempts to isolate the affect of one teacher on the learning gains of that teacher's students, as derived from annual standardized test scores. With the approval of the State Appellees, the School District Appellees used the test scores of students who took the Florida Comprehensive Assessment Test in reading and math to evaluate the teaching performance of teachers who either did not teach these students at all, or did not teach them the tested curriculum. Amici, who are experts in education, education law, and educational measurement, file this brief to assist the Court in understanding how irrational these uses of value-added modeling are. The uses challenged here contradict the very purpose of using value-added modeling in the first place. In addition, they completely lack scholarly support, and they undermine, rather than further, the state's avowed purpose in evaluating its teachers -- to incentivize the evaluated teachers to improve their teaching, and thereby improve student achievement.
Or in plainer terms as Scott wrote in an email,
The basic goal of amici was to educate the court about the many problems with value-added modeling as an employee performance evaluation tool, to better illustrate the ridiculousness (and therefore constitutional irrationality) of the uses to which it was put in these districts. In brief, the districts used the test score data of one teacher’s students on a test in one subject area to judge the performance of teachers who either did not teach the students who took the test at all (e.g. kindergarten teachers, when testing begins in third grade), or did not teach them the tested curriculum (e.g., fourth grade music teachers).
Very interesting read.
Tuesday, July 29, 2014
Following up on my last post regarding the latest ruling in Fisher, I’d like to continue the dialogue on the issue of public-sector affirmative action, and its relevance for the public workplace and other public domains, in light of the Supreme Court’s decision in Shuette v. Coalition to Defend Affirmative Action, Integration and Immigrant Rights and Fight for Equality By Any Means Necessary (BAMN) this past Term. Shuette concerned whether an amendment to a state’s Constitution, prohibiting the consideration of race in all state decisionmaking, including in public employment, public education, and public contracting, violated the federal Equal Protection Clause of the Fourteenth Amendment. Because the Court held that such an amendment is valid, as a practical matter this case should alert public universities and public employers in other states to keep in mind how they would justify their use of race-conscious programs—potentially both in the public voting arena and in the courtroom. In addition, the Court’s splintered decision in this case, and the differing interpretations of the relevant case law presented in this case, suggests the difficulty of resolving questions regarding how the courts should review state voter actions that affect the ability of state entities to use or not use race-conscious processes in various areas of public decisionmaking.
Shuette is part of the larger story of affirmative action in Michigan. In 2003, the Supreme Court decided two cases involving the University of Michigan, Gratz v. Bollinger and Grutter v. Bollinger. In Gratz, the Court held that the school’s use of race in its undergraduate admissions policy was invalid under the Equal Protection Clause, while in Grutter, the Court held that the Law School’s more confined use of race was constitutionally valid. After these rulings, the University modified its college admissions program so that an applicant’s race would be considered in a more restricted manner. After failing to dismantle affirmative action through the courts, anti-affirmative action citizens and groups next turned to the state ballot box. The State of Michigan then engaged in a public debate and vote on whether to prohibit state actors from using race in any manner in their decisions and actions. A ballot proposal on this question, referred to as Proposal 2, passed by a 58 to 42 percent vote, resulting in a broad amendment to the State Constitution. This amendment, now found in Article I, Section 26 of the Michigan Constitution, prohibits all state entities from “grant[ing] preferential treatment to, any individual or group on the basis of race, sex, color, ethnicity, or national origin in the operation of public employment, public education, or public contracting.”
Various interest groups and individuals in support of affirmative action challenged the validity of Section 26 under the Equal Protection Clause in Shuette. Justice Kennedy wrote the controlling opinion in the case, in which Chief Justice Roberts and Justice Alito joined. Justice Kennedy very clearly stated in Shuette that the Court’s decision in Fisher is not at all affected by this case, so that race-conscious decisionmaking in university admissions remains constitutionally permissible if strict scrutiny is satisfied. The different question in Shuette involved whether and in what manner a state’s voters may adopt a prohibition against all consideration of racial preferences in state decisions, with the focus specifically on public university admissions. Justice Kennedy viewed this case as one that primarily concerned the right of a state’s voters to exercise their electoral power to ban race-conscious affirmative action in the public realm, and upheld the amendment to the Michigan Constitution. Chief Justice Roberts filed a concurring opinion, as did Justice Breyer, who concurred for narrower reasons. Justice Scalia also wrote a separate concurrence, in which Justice Thomas joined. Justice Kagan took no part in the consideration or decision of this case.
Justice Sotomayor wrote in dissent, joined by Justice Ginsburg. Justice Sotomayor expressed hearty support for democratic voter action, but nonetheless argued that the voters in Michigan restructured the political process in the state so as to burden racial minorities, who would have to amend the State Constitution to pursue their diversity goals in public university admissions. She pointed out that Michigan citizens who want to pursue non-race-related interests would face less of a hurdle by only needing to influence the governing boards of each state school, who retain the authority to make all other admissions decisions not prohibited by Section 26. As a result, Justice Sotomayor contended that the electoral majority’s action in this case required strict scrutiny review by the courts under the “political process doctrine” established in the Court’s earlier cases, the last of which was Washington v. Seattle School District No. 1.
Justice Kennedy, however, disagreed with language in Seattle that he believed created an unnecessarily broad rationale, and also rejected the interpretation of Seattle by the court below (the Sixth Circuit en banc), which relied on Seattle to invalidate the amendment in Shuette. As Justice Kennedy put it in Shuette:
… Seattle stated that where a government policy “inures primarily to the benefit of the minority” and “minorities … consider” the policy to be “ ‘in their interest,’ ” then any state action that “place[s] effective decisionmaking authority over” that policy “at a different level of government” must be reviewed under strict scrutiny … In essence, according to the broad reading of Seattle, any state action with a “racial focus” that makes it “more difficult for certain racial minorities than for other groups” to “achieve legislation that is in their interest” is subject to strict scrutiny. It is this reading of Seattle that the Court of Appeals found to be controlling here. And that reading must be rejected.
… To the extent Seattle is read to require the Court to determine and declare which political policies serve the “interest” of a group defined in racial terms, that rationale was unnecessary to the decision in Seattle; it has no support in precedent; and it raises serious constitutional concerns. That expansive language does not provide a proper guide for decisions and should not be deemed authoritative or controlling.
Justice Kennedy in Shuette thus stated that the Court was not required to make a racial determination regarding the public university admissions policy changed through the amendment to the Michigan Constitution, and also found that this amendment was not subject to strict scrutiny.
On the other hand, Justice Sotomayor in her dissent asserted that under stare decisis, Seattle along with an earlier case, Hunter v. Erickson, are the proper precedents, and as such, strict scrutiny was required in Shuette:
Section 26 has a “racial focus”…That is clear from its text … Like desegregation of public schools, race-sensitive admissions policies “inur[e] primarily to the benefit of the minority,” … as they are designed to increase minorities’ access to institutions of higher education.
Justice Sotomayor, in directly applying the language from Seattle and agreeing with the Sixth Circuit’s reading of Seattle, found that the amendment in Shuette focused on race and inured primarily to the benefit of racial minorities, thus triggering strict scrutiny.
But the plurality, as well as Justices Scalia and Thomas, disagreed that the Court can or should properly decide when state action actually inures primarily to the benefit of a racial minority group, and asserted that the judiciary should avoid trying to determine such racial interests and classifications. They posited that such inquiries would contribute to racial divisiveness, and entrench racial stereotypes. But, perhaps somewhat ironically, the plurality’s position prompted Justices Sotomayor and Ginsburg to respond with a vigorous and lengthy dissent, maintaining that the Court cannot avoid such questions in the face of a restructured political process that operates to disadvantage racial minorities.
Shuette produced marked divergences on the Court. But under the plurality’s decision, state employers and universities ought to be prepared to make their case for affirmative action in response to any possible public or legislative challenge, as I point out in a forthcoming paper further examining Shuette.
Tuesday, July 22, 2014
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.
Tuesday, July 1, 2014
The analyses here of yesterday's decisions, Jeff's in Harris v. Quinn and Charlie's in Burwell v. Hobby Lobby were spot-on and highlighted many of the legal implications of the cases going forward. There were some interesting facets that they did not discuss that I would like to think through a bit more.
One of the things that struck me about both decisions is their effect on women and particularly women of color. The workforce at issue in Harris is primarily female and heavily women of color. Similarly, lack of contraceptive access affects women most directly, and has larger impacts on women of color. Nearly half of the pregnancies in this country are unintended (a higher rate than other developed nations), and result in a large number of abortions and poorer health and economic, workplace-related consequences for the women who choose to continue their pregnancies and the children they deliver. The rates of unintended pregnancies among African American and Hispanic women are significantly higher than for white women because of lack of access to low cost, highly reliable contraception. And the health risks of pregnancy are significantly greater for women of color -- African American women are four times more likely to die in childbirth than are white women. Easy access (financially and logistically), reduces these effects significantly.
Unionization has been good, in general, for the home health care workers in Illinois. These are workers not covered by safety net statutes like the Fair Labor Standards Act and the Occupational Safety and Health Act, nor are most covered by anti-discrimination statutes like Title VII. They are not covered by the National Labor Relations Act, either, which is one reason that these workers have had little luck bargaining for better wages or working conditions. These workers who were allowed to organize in Illinois and to bargain with the state have seen their wages increase significantly, nearly tripling for some (from as low as $3.35 to now over $11 and set to reach $13 by the end of the year). They also have health insurance and other workplace benefits. The result has been good for the majority of those women, although the named plaintiff, a woman who cared for her own son at home, perceived the deduction from her paycheck as a reduction in medicaid benefits for her son. Overall, most people who need in home care, like the elderly -- who again, are disproportionately women, although white women, based on aggregate life expectancy data -- and people with disabilities, also benefitted by being able to retain workers long-term who can be reliable (able to rely on this as their primary income and not look for other or better paying work) and better trained. Those people who need care could remain in their homes and not have to live in institutional settings.
To the extent that the gender pay gap and the racial pay gap (and the racialized gender pay gap) are driven by horizontal labor force segregation, organization seemed the most promising force for change. The decision in Harris seems to minimize the effects of that progress. To the extent that these pay gaps are driven by either horizontal or vertical workplace segregation that results from pregnancy and caregiving responsibilities, or by the higher cost of health care for one sex, easy access to contraception seems a way to reduce those indirect and direct effects. The decision in Hobby Lobby seems to threaten that. If insurers do not continue to agree to absorb the costs of contraceptives, who will? And finally, aside from the effects on individuals (workers, those who need home health care, and the families of both), to the extent that these pay gaps lead to wealth disparities, health outcomes disparities, and an inability to live independently, the states face greater expenses in supporting those who need help.
The Court's opinion in Hobby Lobby contained some additional food for thought on the interaction of RFRA and other federal laws. The Court stated in the early part of its opinion that the decision was confined in a number of ways, including that it was confined to the contraceptive mandate of the ACA. But the logic of the opinion and the language in the bulk of it has few bounds. As Justice Ginsburg's dissent pointed out, the logic of the opinion would allow any corporation, regardless of it's organization or corporate purposes, to challenge any federal law of general applicability, including, for example, Title VII. While the majority explained that Title VII's prohibition on racial discrimination in hiring was the least restrictive means to ensure equal opportunity in employment on the basis of race, the court left its analysis at that. Title VII also prohibits classifying and segregating employees in any way that would tend to deprive them of opportunities based on race. Is that narrowly tailored enough? Is the way that language has been interpreted to include disparate impact narrowly tailored enough?
Moreover, what about the other classes protected by Title VII? Sex is notably absent from that language. Is the Court anticipating the Title VII action brought by Hobby Lobby's female employees or the EEOC itself challenging a lack of access to contraception as sex discrimination? Such a suit could be a ways off if insurers will go along with the accommodation worked out for nonprofit religious entities and religious organizations in this context. However the process to take advantage of that opt-out is also currently being challenged. And based on the Court's decision, the Eleventh Circuit has suggested that it thinks that process will definitely fail. Yesterday, just hours after the Court's decision, the Eleventh Circuit granted the Eternal Word Television Network an injunction against complying with the opt-out because signing or indicating to an insurer or the government in any way that the Network would refuse to comply with the mandate would trigger that coverage to be provided in another way, thus facilitating the Network's employees in possibly engaging in acts the Network finds immoral--including having sex for any reason other than for procreation. Judge Pryor's concurrence quoted the majority's language at length, stating that it was clear the requirement would violate RFRA. It is no real stretch to extend that to for-profit corporations as well.
Moreover, what of the burgeoning case law on sex as including gender identity and sexual orientation at least when what is at issue is gender nonconforming behavior by the employee? Is that cut off at the knees for any company asserting that it finds gender nonconformity immoral for religious reasons?
These are just some preliminary thoughts of the additional effects of the two cases--and I didn't even get into the government efficiency, corporate law, corporate personhood, or issues of religion also running through the one or the other decisions I'd love to hear thoughts on any of this in the comments or follow-up posts.
Thursday, June 19, 2014
The Supreme Court issued its decision in Lane v. Franks, today, holding unanimously that a public employee is entitled to First Amendment protection for testifying in court where testifying is not a part of that employee's regular job duties. The Court further held that the individual defendant had qualified immunity because circuit court precedent was not clear enough. Here is the syllabus:
1. Lane’s sworn testimony outside the scope of his ordinary job duties is entitled to First Amendment protection. Pp. 6–13.
(a) Pickering v. Board of Ed. of Township High School Dist. 205, Will Cty., 391 U. S. 563, 568, requires balancing “the interests of the[employee], as a citizen, in commenting upon matters of public concern and the interest of the State, as an employer, in promoting the efficiency of the public services it performs through its employees.” Under the first step of the Pickering analysis, if the speech is made pursuant to the employee’s ordinary job duties, then the employee is not speaking as a citizen for First Amendment purposes, and the inquiry ends. Garcetti v. Ceballos, 547 U. S. 410, 421. But if the “employee spoke as a citizen on a matter of public concern,” the inquiry turns to “whether the relevant government entity had an adequate justification for treating the employee differently from any other member of the general public.” Id., at 418. Pp. 6–8.
(b) Lane’s testimony is speech as a citizen on a matter of public concern. Pp. 8–12.
(1) Sworn testimony in judicial proceedings is a quintessential example of citizen speech for the simple reason that anyone who testifies in court bears an obligation, to the court and society at large, to tell the truth. That obligation is distinct and independent from any separate obligations a testifying public employee might have to his employer. The Eleventh Circuit read Garcetti far too broadly in holding that Lane did not speak as a citizen when he testified simply because he learned of the subject matter of that testimony in the course of his employment. Garcetti said nothing about speech that relates to public employment or concerns information learned in the course of that employment. The critical question under Garcetti is whether the speech at issue is itself ordinarily within the scope of an employee’s duties, not whether it merely concerns those duties. Indeed, speech by public employees on subject matter related to their employment holds special value precisely because those employees gain knowledge of matters of public concern through their employment. Pp. 9–11.
(2) Whether speech is a matter of public concern turns on the “content, form, and context” of the speech. Connick v. Myers, 461 U.S. 138, 147–148. Here, corruption in a public program and misuse of state funds obviously involve matters of significant public concern. See Garcetti, 547 U. S., at 425. And the form and context of the speech—sworn testimony in a judicial proceeding—fortify that conclusion. See United States v. Alvarez, 567 U. S. ___, ___. Pp. 11–12.
(c) Turning to Pickering’s second step, the employer’s side of the scale is entirely empty. Respondents do not assert, and cannot demonstrate, any government interest that tips the balance in their favor—for instance, evidence that Lane’s testimony was false or erroneous or that Lane unnecessarily disclosed sensitive, confidential, or privileged information while testifying. Pp. 12–13.
2. Franks is entitled to qualified immunity for the claims against him in his individual capacity. The question here is whether Franks reasonably could have believed that, when he fired Lane, a government employer could fire an employee because of testimony the employee gave, under oath and outside the scope of his ordinary job responsibilities. See Ashcroft v. al-Kidd, 563 U. S. ___, ___. At the relevant time, Eleventh Circuit precedent did not preclude Franks from holding that belief, and no decision of this Court was sufficiently clear to cast doubt on controlling Circuit precedent. Any discrepancies in Eleventh Circuit precedent only serve to highlight the dispositive point that the question was not beyond debate at the time Franks acted. Pp. 13–17.
3. The Eleventh Circuit declined to consider the District Court’s dismissal of the claims against respondent Burrow in her official capacity as CACC’s acting president, and the parties have not asked this Court to consider them here. The judgment of the Eleventh Circuit as to those claims is reversed, and the case is remanded for further proceedings. P. 17.
523 Fed. Appx. 709, affirmed in part, reversed in part, and remanded
Justice Sotomayor wrote the opinion. Justice Thomas wrote a short concurrence that Justices Scalia and Alito concurred in, explaining that because Lane was not testifying as part of his job duties, the case was a straightforward application of Garcetti v. Ceballos, 547 U.S. 410 (2006). Justice Thomas further wrote,
We accordingly have no occasion to address the quite different question whether a public employee speaks “as a citizen” when he testifies in the course of his ordinary job responsibilities. See ante, at 8, n. 4. For some public employees—such as police officers, crime scene technicians, and laboratory analysts—testifying is a routine and critical part of their employment duties. Others may be called to testify in the context of particular litigation as the designated representatives of their employers. See Fed. Rule Civ. Proc. 30(b)(6). The Court properly leaves the constitutional questions raised by these scenarios for another day.
I'll admit that I'm a bit relieved by the decision, and I'm not alone--Paul expressed concern when cert was granted. The decision seemed to track my impressions from the oral argument, but that's not always the way it turns out, and the Court has not ruled in favor of public employees lately on this issue.
It will be interesting to see what the Eleventh Circuit does with the claims against the office of the President of the Community College on remand.