Sunday, April 30, 2006
- Christopher M. Fairman (photo above), Fuck (258).
- Michael McCann & Joseph Rosen, Legality of Age Restrictions in the NBA and the NFL (179).
- Melissa Hart, Subjective Decisionmaking and Unconscious Discrimination (106).
- Richard A. Bales, Contract Formation Issues in Employment Arbitration (104).
- Richard A. Bales, The Employment Due Process Protocol at Ten: Twenty Unresolved Issues and a Focus on Conflicts of Interest (81).
- Michael McCann & Joseph Rosen, Legality of Age Restrictions in the NBA and the NFL (179).
- Richard A. Bales, The Employment Due Process Protocol at Ten: Twenty Unresolved Issues, and a Focus on Conflicts of Interest (81).
- Marley S. Weiss, Architectural Digest for International Trade and Labor Law: Regional Free Trade Agreements and Minimum Criteria for Enforceable Social Clauses (24).
- Antonio Jose Morgado (left) & Nuno Garoupa (right), Employment Policy and Bankruptcy Law -- Does Legal Tradition Matter? (24).
- James J. Brudney (photo above), Isolated and Politicized: The NLRB's Uncertain Future (22).
[T]his case presents the limited question of whether Title VII's prohibition on discrimination on the basis of "sex" includes a termination on the basis of an employee's admitted, consensual sexual conduct with a supervisor.
Thus begins the recent 8th Circuit opinion in the Title VII case of Tenge v. Phillips Modern Ag Co., No. 05-2803 (8th Cir. April 28, 2006).
The case concerns a female secretary who took a liking to her male boss, and demonstrated her interests through a number of love notes and a few physical touchings.
Only problem was that her boss' wife was also her boss and she fired the secretary when she pieced together an old love note that she found in a dumpster. Although the male boss initially reinstated the secretary, he eventually again terminated her stating that his wife was "making me choose between my best employee or her and the kids."
The 8th Circuit affirmed the district court granting summary judgment to the employer finding that it was not illegal to fire an employee for engaging in consensual sexual conduct with a supervisor. Characterizing this case as one of sexual favortism, the court stated that:
the principle that emerges from [sexual favoritism] cases is that absent claims of
coercion or widespread sexual favoritism, where an employee engages in consensual
sexual conduct with a supervisor and an employment decision is based on this
conduct, Title VII is not implicated because any benefits of the relationship are due
to the sexual conduct, rather than the gender, of the employee.
Additionally, as a case involving consensual sexual conduct without allegations of hostile work enivronment, the court also found that:
A number of federal district courts have faced similar cases and concluded that terminating an employee based on the employee's consensual sexual conduct does not violate Title VII absent allegations that the conduct stemmed from unwelcome sexual advances or a hostile work environment.
In sum, the court concluded that if the "ultimate basis for [an employee's] dismissal was not her sex, [but the boss's] desire to allay his wife's concerns over [the employee's] admitted sexual behavior with him," a claim of sex discrimination under Title VII cannot be made out.
Hat Tip: How Appealing
Here's an interesting ADEA case featured in this week's ABA Journal eReport.
In the case of Tomasso v. the Boeing Co., No. 04-4657 (3rd Cir. April 19, 2006), the Third Circuit considered how the McDonnell Douglas burden-shifting framework should apply in a reduction-in-force (RIF) situation.
Unlike an individual termination, the conventional wisdom is that a reduction in force is less likely to involve unlawful discrimination because it impacts a large number of employees and generally involves a structural decision to downsize based upon economics. Consequently, some courts have placed a lighter burden on employers to justify their termination decisions in the RIF situation. Nevertheless, discrimination can still be shown in such cases if a company lays off more older workers than young ones because of age considerations such as higher salaries or higher pension costs.
The question in Tomasso was whether the normal pretext framework for individual disparate treatment cases should apply in the RIF context. The Third Circuit responded in the affirmative. Judge Becker wrote in the 2-1 decision:
The McDonnell Douglas standard still applies even when companies carry out layoffs involving numerous employees . . . . "But even in a genuine RIF (one that is motivated on a programmatic level by genuine economic concerns), individuals may be selected for layoff on the basis of age. For this reason, even in a RIF, we use the McDonnell Douglas framework to expose such discrimination."
In dissent, Judge Roth wrote :
"In a RIF, a company is often forced to terminate the worst of the best, i.e, an adequate or even high-performing employee who is underperforming relative to his peers ..... As such, more nuanced distinctions must be drawn between retained and terminated employees."
It will be interesting to see if other courts apply the Third Circuit's rationale which will probably make it easier for employee plaintiffs to avoid summary judgment in these type of cases.
Hat Tip: Parker Smythe
Saturday, April 29, 2006
- Rob Euwals, Daniel J. van Vuuren, & Ronald P. Wolthoff, Early Retirement Behaviour in the Netherlands: Evidence from a Policy Reform (22).
- Matthew Finkin, Life Away From Work (20).
- John T. Addison, Claus Schnabel, & Joachim Wagner, The (Parlous) State of German Unions (18).
- Wolfgang Franz & Friedhelm Pfeiffer, Reasons for Wage Rigidity in Gemany (16).
- Jean-Olivier HairaultFrancois Langot, & Thephida Sopraseuth, The Interaction Betwen Retirement and Job Search: A Gloal Approach to Older Workers' Employment (13).
- Jennifer G. Hill, Regulating Executive Remuneration: International Developments in the Post-Scandal Era (61).
- Brian K. Powell & Richard A. Bales, HIPAA as a Political Football and Its Impact on Informal Discovery in Employment Litigation (46).
- Tapen Sinha & Alejandro Renteria, The Cost of Minimum Pension Guarantee (36).
- Elizabeth Rose Schiltz, Motherhood and the Mission: What Catholic Law Schools Could Learn from Harvard About Women (36).
- Christian Grund & Dirk Sliwka, Performance Pay and Risk Aversion (34).
Friday, April 28, 2006
According to a new AFL-CIO report, the number of fatal workplace injuries has gone up for the first time in a decade. "On an average day in 2004, 152 workers lost their lives as a result of workplace injuries and diseases and another 11,780 were injured.... Wyoming, Alaska, Montana, West Virginia and Kentucky had the highest fatality rates, while Rhode Island, New Hampshire, Vermont, Delaware, and Massachusetts had the lowest."
See Death on the Job: The Toll of Neglect. Hat tip to Carol Furnish.
Julie Greenberg (Thomas Jefferson) has posted a piece she published a number of years ago on SSRN: What Do Scalia and Thomas Really Think About Sex: Title VII and Gender Nonconformity Discrimination: Protection for Transsexuals, Intersexuals, Gays and Lesbians, 24 Thomas Jeff. L. Rev. 149 (2002).
From the abstract:
Title VII bans discrimination because of sex. Sex discrimination clearly includes discrimination against men because they are men and women because they are women. Whether it also bans discrimination against transsexuals, intersexuals, gays and lesbians who suffer discrimination based upon their gender nonconformity, sex nonconformity or sexual orientation nonconformity is less clear.
Until recently, the answer would have been an unambiguous no; Title VII did not protect any of these persons from discriminatory employment practices. During the last few years, however, courts have begun to protect these traditionally marginalized individuals based upon the gender nonconformity theory established by the U.S. Supreme Court in Price Waterhouse v. Hopkins.
This article analyzes the evolution of Title VII’s discrimination “because of sex” jurisprudence in the federal district and circuit courts and the likelihood that the U.S. Supreme Court will allow transsexuals, intersexuals, gays and lesbians to state a Title VII cause of action if they suffer discrimination because of their failure to conform to sex and gender norms.
Although this article may be a little out-of-date given the recent flurry of activity regarding transsexuals and Title VII in recent months, this article is still a worthwhile read. You can download it here.
Hat Tip: Feminist Law Professors
The federal government jobs web site has a listing for a temporary, full-time labor and employment litigation attorney for the United States Postal Service, to be located in Dallas, Texas.
From the job description:
The United States Postal Service has the following excellent and challenging employment opportunity for highly motivated and innovative individuals to work in our Law Department. Our attorneys represent management in employment litigation matters before the Equal Employment Opportunity Commission and the Merit Systems Protection Board. They conduct discovery, draft and file motions, and participate in trials and mediation. Some travel will be required.
Applicants should have current and extensive trial experience in civil litigation or labor and employment administrative hearings. Applicants must possess strong academic credentials from an ABA accredited law school, demonstrate excellent writing and advocacy skills, work effectively in a team environment, and be an active member in good standing of a state bar.
The application deadline for the job is May 4, 2006. You can read about the rest of this job here.
Montgomery Maulers owner Jamie LaMunyon had an emphatic response to her players' demand for back wages: You're fired.
LaMunyon said she will field a replacement team for the National Indoor Football League game at Osceola, Fla., on Friday, and next week at home.
The mass firings came after four Maulers held a news conference at a local attorney's office Wednesday saying the team wouldn't travel to Osceola if LaMunyon didn't pay money they claimed she owed them.
The players' checks bounced earlier this month, which LaMunyon said was just a mistake in her checking account.
"I don't know what happened," she said. "But immediately when I found out, I sent $5,000 in to fix it. If there's a player who hasn't been paid, I'm sorry, but that happens everywhere."
My best guess now is that Ms. LaMunyoun is about to find about a little something called Wage Payment laws and she will probably end up paying them (and more) what she owes them anyway.
Congratulations, Ms. LaMunyoun, you are my nomination for insensitive employer of the week.
Thursday, April 27, 2006
Lithwick on "RICO-Mania": An Analysis of the Oral Arguments in the Supreme Court RICO Employment Case
Dahlia Lithwick has a written an amusing piece for Slate on the oral arguments that took place yesterday in the Supreme Court employment RICO case of Mohawk Industries v. Williams (previously blogged about here). At stake is whether an employer can be held liable under RICO for engaging in a scheme with recruiting agencies to hire illegal immigrants and then file fraudulent work papers.
Lithwick does a good job explaining both the textual and conceptual arguments which underlie the plaintiff's RICO case. As she explains, the argument comes down to:
whether everything that comes after "and" in th[e relevant RICO] definition is an exclusive list of possible RICO violators, or merely a list of possible examples. The second issue is whether Mohawk was conducting the affairs of a distinct enterprise—as required under RICO—or just doing its own normal business. If it was just performing its own business functions, it's not a violation of RICO.
Her commentary seems to suggest, that with the exception of Justice Souter, the Justices are skeptical that RICO-type claims were contemplated for this type of situation. Look for an 8-1 or 9-0 decision for the employer on this one.
Also check out Ross Runkel's informative post on the oral arguments in this case.
Anne Lawton (Roger Williams) has posted on SSRN: The Bad Apple Theory of Sexual Harassment Law, 13 Geo. Mason L. Rev. (forthcoming 2006).
From the abstract:
In this Article, I critique the basic premise underlying the current theory of sexual harassment law: that sexual harassment results from individual misconduct within an otherwise "innocent" organization.
What is missing from the Court's sexual harassment jurisprudence is a theory of direct employer liability, which more accurately reflects what is happening in many sexual harassment cases. While I am not sanguine about the prospects for change, I conclude the Article with a brief sketch of a direct liability scheme.
You can download this thought-provoking article here.
Janet Orlando, 53, quit her job at the home security company Alarm One Inc. and sued, alleging discrimination, assault, battery and infliction of emotional distress.
Employees were paddled with rival companies' yard signs as part of a contest that pitted sales teams against each other, according to court documents. The winners poked fun at the losers, throwing pies at them, feeding them baby food, making them wear diapers and swatting their buttocks.
"No reasonable middle-aged woman would want to be put up there before a group of young men, turned around to show her buttocks, get spanked and called abusive names, and told it was to increase sales and motivate employees," her lawyer, Nicholas "Butch" Wagner, said in his closing argument.
The company's defense?: "The spankings were part of a voluntary program to build camaraderie and were not discriminatory because they were given to both male and female workers."
Ms. Orlando is asking a jury for $1.2 million dollars for the humiliation she suffered.
I want to know who the rocket scientist human resources or corporate managers were who thought this was a good way to increase sales and motivate employees?!
Hat Tip: Katie Wetherbee
Wednesday, April 26, 2006
As featured in The Carnival of Business #2:
One of the more difficult questions which I often had to answer from my clients while in practice was when, if ever, was it permissible to terminate someone who was frequently absent from work because of legitimate medical reasons.
This legal analysis would always require consideration of a number of different overlapping statutory schemes. Assuming that the injury did not take place at work (and thus, workers' compensation did not apply), and assuming that the person had a "serious health condition" for purposes of the FMLA, the standard advice was to give the employee up to 12 weeks of leave, requiring them to use whatever accrued paid leave they had along the way, and revisit the situation at the end of the 12 weeks to see if the worker could obtain a fitness for duty certification to come back to work.
However, even after the FMLA leave entitlement was exhausted, there was the further issue of whether the Americans with Disabilities Act required the employer to make an accommodation of the employee's disability by providing a modified work schedule which permitted additional absences from work.
And this where I have always had the most trouble in providing legal counsel. Assuming the individual met the definition of a qualified individual with a disability under the ADA, how long did the employer have to accommodate the employee through a modified or reduced work schedule? In other words, did there ever come a time when the employee was absent for such a long time or for such a large percentage of the time that the employer no longer had to accommodate them?
Well, the 8th Circuit Court of Appeals has now shed some light on that exact question. In Schierhoff v. GlaxoSmithKline, No. 05-1552 (8th Cir. Apr. 14, 2006), an employee was absent from work during a two year period over 40% of the time and had accumulated 172 days worth of absences. At that point, the company fired him finding that his absences "ha[d] impaired the operation of the Department and
diminished [his] effectiveness to the Company."
The 8th Circuit found against the employee who had alleged both age and disability discrimination. On the disability discrimination claim, the court found that the amount of absences that the employee had taken basically amounted to him not being able to perform the essential functions of the job. In other words, the Court seemed to suggest that because he was no longer a "qualified" individual with a disability, the company no longer had to provide him with an accommodation under the ADA.
Although the Court's reasoning makes some sense, it is still not clear how long a company like Glaxo would have to wait before saying that the employee no longer was fulfilling the essential functions of the job. Here, the number of absences were overwhelming, but where does the line lie? All the court stated in this regard was: "Schierhoff’s absences, which peaked at 96 days in a one-year period, are well beyond the level of non-attendance that we said in Pickens amounted to an inability to perform one’s job."
I'm still waiting for a court to better articulate where the line lies between the inability to perform the essential functions of a job and the right to have a modified work schedule as part of a permissible work accommodation.
Hat Tip: PlanSponsor.com
The 2nd US Circuit Court of Appeals has decided that offering a shift change on Sundays was not an accommodation for an employee's religious belief of observing the Sabbath,
In its opinion, the appellate court said that the US District Court for the Western District of New York erred in granting summary judgment to Home Depot in a suit brought by Bradley Baker, who said his religious beliefs prevented him from working on Sundays. According to the appellate court, the shift change offered to Baker was not an accommodation at all because it only permitted him to attend church services, but did not address his "religious requirement to abstain totally from work on Sundays."
Because the standard for religious accommodation is de minimis post-Hardison, this is one of those unusual cases where the employee's accommodation claim was actually successful. But notice the court had to find that the employers' actions amounted to no accommodation at all for it to rule in favor of the employee.
Notwithstanding the outcome of this case, this standard is still out of wack.
The EEOC has released the report Diversity in the Finance Industry, based on data from EEO-1 reports. The overall findings: there's not much diversity in the finance industry:
Employment as officials and managers is examined in more detail for [women, African-Americans, Hispanics, and Asians] by determining their chance of being officials and managers in contrast to professionals and sales workers. This shows that each subsector has a large portion of establishments where such chances are unfavorable to women, African Americans, Hispanics and Asians when compared to white males. Entry into management may be a particular concern for Asians.
Tuesday, April 25, 2006
Many blogs have been covering the recent "Friends" sexual harassment decision which came down from the California Supreme Court last week. I have to admit that I did not bother to blog on it previosuly because I thought it was rather run-of-the-mill as far as sexual harassment cases go, other blogs stirring pronouncements on the case notwithstanding.
And now, I have found a fellow traveler! Joe Slater (Toledo) has an excellent discussion of Lyle v. Warner Bros. today at PrawfsBlawg. Like me, Joe suggests that different sides might have different ideas about how sexual harassment law in this country should be changed, but under current law, the only thing exceptional about the Lyle case is that it concerned a very popular former TV series. The applicable doctrinal law was relatively easy to apply and the outcome was unsurprising.
In case you are currently living under a rock or just haven't surfed the web lately, CNN.com is reporting that:
TV talk show host Maury Povich was hit with a $100 million lawsuit Monday by a producer who alleges she was forced to expose herself in the studio for crude videos that were shown to guests of the show.
Bianca Nardi, 28, also alleged that Povich's relationship with a female producer created a hostile workplace that was abusive to women, and that a male producer asked her to secretly videotape her attempts to seduce married men.
The sexual harassment suit was filed in state Supreme Court, naming NBC Universal Television Inc., the Maury Povich Show and three fellow producers as defendants.
Jerry Springer must be so jealous over the publicity Maury is getting for this!
The thesis of Wang's book is that most racism is more thoughtless than purposeful. By "discrimination by default," Wang recognizes the title has multiple meanings, but:
[she] homes in on the default settings that most of us passively accept for our computers. Those settings can become the expected, the standard. We may not even realize there are other options.
The same thing happens with discrimination, so that "we take it for granted and fail to recognize the extent to which it influences how we operate in the world."
Wang also discussed in her book the idea of "situational racism,":
the complex idea that people discriminate based more on the situation rather than innate character. Experts "believe that hard-core, committed bigots comprise a much smaller share of the population than in the past," she writes. "Today, more people seem to embrace egalitarian values and to truly want to treat others fairly. Certainly, they want to see themselves as the kind of people who would not discriminate. Most people probably do not realize the extent to which they do discriminate, however, because they are acting on unconscious biases -- whether cognitive (race and other group-based stereotypes), motivational (the desire to maintain and promote the interests of their own group), sociocultural (internalized societal values, beliefs, and traditions), or a combination thereof."
Although this is not a book strictly relating to employment discrimination, its findings and observations certainly apply to that context and provide some important insights.
Indeed, as other authors have suggested in this area of the law, it might be that our employment discrimination law needs to change to recognize and address the more prevalent forms of unconscious, non-purposeful discrimination that exist in the American workplace.
In the meantime, check out this worthy book when you get the chance.
Over the years, I have written a couple of articles on faculty-student consensual relationships in higher education both from a policy perspective and a constitutional perspective in light of the Supreme Court's decision in Lawrence v. Texas.
In those articles, I suggested a sliding scale approach for universities to adopt with regard to permitting such relationships. With supervisory situations, the presumption was that such relationships should not be permitted unless the faculty member could show unusual circumstances which justified the relationship. On the other hand, nonsupervisory situations should be presumptively permitted unless the university could show unusual circumstances which made the relationship particularly damaging to the university, fellow faculty members, or fellow students. I felt that this balancing approach adequately took into account the interests of the university and the individuals involved in such relationships (including interested third-parties).
This story from the University of Oklahoma School of Law is a classic supervisory relationship situation that should have never started in the first place. The story is filled with allegations that a sexual relationship started between a professor and a student when they were both married and while the student was in the professor's class, that they ended up having a child together out of wedlock (though the professor fought paternity), and that now there is a big bruhaha over whether the university conducted an adequate investigation into alleged professorial misconduct.
Putting the legal niceties aside for the moment, let me clear about how I view these relationships: both faculty and students, whether in supervisory or non-supervisory situations, should go to pains to avoid such relationships. They're just not worth it.