Monday, April 30, 2007
A number of months ago, a number of commenters and I debated
how careful one needs to be when handing out employment references for current
or former employees. I recommended that employers take the "name,
rank, and serial number" approach, given the risks of being sued by an
employee who is given a negative reference.
Law.com points out the 11th Circuit recently examined the other side of this issue during oral argument in the consolidated cases of Stephens County School District v. Dale, No. 06-14083, and White County School District v. Dale, No. 06-11565: What happens when a first employer knew relevant negative information about an employee and failed to tell a second employer? Can there be liability for the first employer when that employee causes harm at the second employer?
[A] case argued [this past] Thursday at the 11th U.S. Circuit Court of Appeals showed that staying quiet has its risks, too -- especially if the employer was a public school official who did not warn a colleague at another school that a former teacher had left amid allegations he touched female students inappropriately.
When the teacher was accused of molesting children at the second school, the parents of two girls sued both school districts. A federal judge refused to dismiss the claims against the first district, Stephens County, Ga., even though the molestation alleged by the plaintiffs' children had taken place at the second school district, in nearby White County.
Lawyers in the case said the question of a school district's liability for a professional reference is a new one for the 11th Circuit.
This might be a new question for the 11th Circuit, but other courts have considered similar issues. For instance, in Randi W. v. Muroc Joint Unified School District, 929 P.2d 582 (Cal. 1997), a school district gave a positive reference to an employee who was discharged for sexual misconduct. The school district was sued in for fraud and negligent misrepresentation when that employee later sexually abused a thirteen-year-old student at the new school. The California Supreme Court held that employers giving good reference to bad employees may be liable if the reference causes a foreseeable and substantial risk of physical harm to third parties.
Interestingly, the Randi W. court said the school would not have been liable if it had chosen to give no information. So perhaps under this line of reasoning, the school district in the 11th Circuit may be able to escape liability. Should be an interesting decision.
Hat Tip: How Appealing
So suggest this article in the St. Louis Post-Dispatch. Here's a taste:
Cross' firing and the ensuing age-bias litigation is a scenario being repeated across the country as companies' streamlining efforts take their toll on baby boomers who want to stay on the job but whose salaries make them targets for layoffs . . . .
The large number of baby boomers in the work force is helping to drive what some lawyers see as a steady rise in the number of age-bias complaints.
According to the Census Bureau, there were 78.2 million baby boomers as of July 1, 2005. Many boomers, the generation born between 1946 and 1964, have fought for civil rights, are bolder than the previous generation, and will stand up for themselves when they fall victim to what they see as unfair treatment.
"It's shocking and hurtful to them," said Donna L. Harper, a plaintiffs' lawyer with Sedey Harper P.C. in St. Louis. "It's like being cheated on by a spouse. You find out and you are sick to your stomach. It is such a betrayal for so many of these clients. Your whole world falls apart. A job is like that to people."
There are, however, fewer age bias discrimination claims being reported by the EEOC in recent years, but some believe that these numbers under-represent the problem because many cases go through state administrative processes or settle before being reported. There is also a chance that more claims will be filed with the recognition of disparate impact claims under the Age Discrimination in Employment Act (ADEA) after the 2005 Smith case (although succeeding under such claims is likely to be exceedingly difficult).
In any event, with many in the baby boomer generation at or reaching retirement, expect the number of these types of lawsuits to increase as industries continue to go through growing pains and engage in reduction-in-forces (RIFs).
Hat Tip: Kara Lincoln
New features of this edition include expanded discussion of consumer-directed health care plans; the latest research on participant investment behavior in 401(k) plans; the Department of Labor’s advisory bulletin on the fiduciary duties of directed trustees; the updated presentation of recent developments in ERISA litigations, including the Supreme Court’s decision in Sereboff v. Mid-Atlantic Medical Services, Inc., 2006; and an updated discussion of ERISA preemption of state laws, including state law mandates designed to expand the scope of health care insurance coverage.
This coming Fall semester will mark the third time that I have used Colleen's book, and nothing against the other competitor books out there, but for an employment-type like myself, it is really an easy-to-follow, comprehensive book. I am particular thankful that Colleen has updated this book so quickly with the advent on the Pension Protection Act of 2006 and the Supreme Court's recent decision in Sereboff.
You can find more information about the book here.
- Paul R. Koster (left), Workplace Searches by Public Employers and the Fourth Amendment, 39 Urb. L. 75 (2007).
- Judy Fudge, Fragmenting Work and Fragmenting Organizations: The Contract of Employment and the Scope of Labour Regulation, 44 Osgoode Hall L.J. 609 (2006).
- Christine Neylon O'Brien (second) & Stephanie Greene (third), Employee Threshold on Federal Antidiscrimination Statutes: A Matter of the Merits, 95 Ky. L.J. 429 (2006-07).
- William P. Kratzke (right), The (Im)Balance of Externalities in Employment-Based Exclusions from Gorss Income, 60 Tax Law. 1 (2006).
Comments & Notes
- Hona M. Turner, Sex Stereotyping Per Se: Transgender Employees and Title VII, 95 Calif. L. Rev. 561 (2007).
- Austin Ozawa, Reasonable Accommodation for Those "Regarded As" Disabled: Why Requiring It Will Create Positive Incentives for Employers, 2007 Columbia Bus. L. Rev. 313 (2007).
Sunday, April 29, 2007
Bettinger-Lopez and Sturm on The History of Litigation Alliances and Mobilization to Challenge Fetal Protection Policies
Caroline Bettinger-Lopez (Columbia) and Susan Sturm (Columbia) have posted on SSRN their contribution to Civil Rights Stories: International Union, U.A.W. v. Johnson Controls: The History of Litigation Alliances and Mobilization to Challenge Fetal Protection Policies.
From the abstract:
The Supreme Court's decision in Johnson Controls is the culmination of a long legal campaign by labor, women's rights, and workplace safety advocates to invalidate restrictions on women's employment based on pregnancy. This campaign powerfully demonstrates the use of amicus briefs as opportunities to link the efforts of groups with overlapping agendas and to shape the Supreme Court's understanding of the surrounding empirical, social and political context. But Johnson Controls also provides important lessons about the narrowing effects and fragility of litigation-centered mobilization. The case affirmed an important anti-discrimination principle but ironically left women (and men) with the “right” to work in unsafe workplaces. The national coalition that had organized in support of the Johnson Controls plaintiffs did not stay together to address these complex issues after the case was won. Instead, the coalition disbanded and its members moved on to pursue diverse and separate agendas. . . .
This Law Stories chapter addresses these questions by comparing the national legal mobilization strategy in Johnson Controls with an analogous strategy adopted by advocates in California in the 1980s and 1990s to address reproductive workplace hazards. In contrast to the national coalition's focus on establishing a legal principle, the state strategy embraced a problem-oriented approach to reproductive hazards in the workplace, using litigation and the sex discrimination framework as only one component of a long-term strategy that involved public education and outreach, legislative advocacy, and regulatory reform. As today's federal courts become less available as a site for advancing rights, these problem-oriented approaches to advocacy become more salient and provide important models for public interest lawyers seeking ways to use law to mobilize change.
It is great to see that the editors chose to add an employment discrimination law story, involving the development of the bona fide occupational qualification (bfoq) defense, to the Civil Rights Stories book. This article poses some important questions about how interest groups should go about fashioning their litigation strategies within a larger framework of social justice advocacy.
Saturday, April 28, 2007
The Chronicle of Higher Education (subscription required) has the scoop about how workers at Rutgers University in New Jersey utilized the card-check agreement method to form a union. You may recall that this same card-check method is at the center of the dispute over the pending Employee Free Choice Act (EFCA).
Here's a taste of the article:
Here's a kind of labor story you rarely hear: A group of about 2,000 midlevel administrative workers at Rutgers University has voted to form a union, but the university's leaders opted not to campaign against their organizing effort.
Moreover, the worker's votes were gathered not in a traditional election, with polling places and voting days, but by using the "card check" method, a system in which workers sign union cards -- anywhere, and over an indefinite period of time -- as a show of support for unionization.
And before you think what a great, progressive employer, allowing its employees to organize in this manner, consider this:
New Jersey has had, since 2005, a law that requires public employers to recognize groups of employees that have opted for union representation using the card-check approach. And that statute is a model for proposed legislation that labor advocates have been pushing at the federal level, the Employee Free-Choice Act, which also tries to set the card-check method as the standard for union-certification votes.
It is only speculation, of course, but one wonders what would have been the outcome of this unionization drive if Rutgers was able to actively oppose the union's efforts? Proponents of the EFCA argue that only through these types of organizational tools will unions be able to get back on their feet. The counter-argument: card-checks deprive employees of the free choice to decide whether they want to be in a union because they do not have all the information they need to make an informed choice.
The success of the union at Rutgers will be probably another real-world example both sides of the debate will point to in making their respective arguments about the EFCA.
No, seriously. If the allegations are true, a truly disturbing story for your Saturday from New York (via Lower Hudson Online):
Westchester County is off the hook in a lawsuit filed by a learning-disabled man who says he was tortured by his supervisor at the county Parks Department.
A federal judge has ruled that Anthony Costabile, 24, of Thornwood failed to file a notice of claim with the county in a timely manner.
But U.S. District Judge William Conner refused to dismiss the suit against three Parks Department supervisors, saying that the notice of claim requirement did not extend to them. Conner also ruled that, contrary to the county's assertions, Costabile's allegations of torture and abuse are enough to constitute a claim under the state's human rights law.
"Indeed, in 33 years on the bench, we have never encountered allegations of mistreatment in the workplace so shockingly malicious and sadistic," Conner said in a 20-page decision filed yesterday in U.S. District Court in White Plains. "Plainly, if they are true, plaintiffs' allegations reveal that defendants violated not only minimum standards of human decency but numerous provisions of law."
He names supervisor Roberto Alcantara as his tormentor in several alleged incidents of abuse at the park, many of them involving shrink wrap.
Alcantara shrink-wrapped Costabile to a chair and then set the shrink wrap on fire when Costabile could not free himself, Costabile and his mother, Candida, claim in their lawsuit. In another alleged incident, Alcantara shrink-wrapped Costabile to a chair with wheels, rolled him out to the parking lot at Glen Island and turned a hose on him, dousing him with such force he nearly choked. Alcantara also is accused of shrink-wrapping Costabile to a chair and then dumping buckets of cold water on him, causing Costabile to strain so hard to free himself that he developed a hernia that required surgery. The supervisor was also accused of verbally abusing Alcantara, calling him "retard" and "idiot," according to the Costabiles' complaint.
Truly sickening allegations.
Hat Tip: Above the Law
Currently, there are three different frameworks for litigating disparate treatment cases: one prescribed by the Civil Rights Act of 1991, one prescribed by Price Waterhouse v. Hopkins, and one prescribed by McDonnell Douglas v. Green. Each provides a different causation requirement and burden of proof. The fact that the Supreme Court and Congress have failed to delineate when which framework applies has caused multiple circuit splits and vast amounts of costly litigation. But there is an even more significant cost: Two of the three frameworks (Price Waterhouse and McDonnell Douglas) have significant normative flaws. This Essay articulates those flaws. It then provides a way out of this morass: a way in which the lower courts can stop using the two flawed frameworks and truly unify disparate treatment law under the 1991 Act framework.
The [Americans with Disabilities Act] must ultimately be judged by its material impact in the world. If the ADA succeeds in moving people with disabilities into the workforce, in integrated settings, it will advance their equal citizenship status. If it fails in these efforts, the law's symbolism will (at least in the employment context) be a false promise.
As the years have passed, and disability employment figures have not improved, two competing views about the ADA's efficacy have emerged. The first is the stand-pat view: There is nothing wrong with the ADA's employment provisions, or at least nothing that a more enlightened Supreme Court could not solve. The second is the revolutionary view: The disability employment figures show that the ADA is the latest example of the perverse effects of liberal good intentions, and we should repeal the ADA and stop the bleeding.
This essay disagrees with both views. The standpatters are wrong to think that the ADA has been successful in improving employment for people with disabilities, and they are also wrong to think that the ADA problems are merely the result of restrictive judicial interpretations of the statute. The ADA has not achieved what its advocates expected, and that is because of the inherent limitations of antidiscrimination and accommodation requirements in effecting large-scale changes in employment outcomes. But the revolutionaries are also wrong to assert that the ADA is, on net, counterproductive. The data simply do not support such a broad conclusion. Some reforms are clearly necessary, but repeal of the ADA would likely do far more harm than good. This essay argues for the path of reform, and it attempts to sketch out some of the shapes reform might take.
Friday, April 27, 2007
Howard Bashman over at How Appealing notes that the Eleventh Circuit today released an opinion -- 80 pages worth -- on the issue of whether the existence of a federal claim in an underlying matter to be arbitrated is sufficient, by itself, to give a federal court subject-matter jurisdiction over motions to compel arbitration, or whether instead there must be an independent basis of federal questions jurisdiction such as diversity or admiralty. The court, following prior Eleventh Circuit precedent, held that the existence of a federal claim in the underlying matter to be arbitrated was enough to confer jurisdiction. Two judges (of the three-judge panel) grudgingly followed the precedent, but argued that precedent was wrong.
The case, arising out of a payday loan, is Community State Bank v. Strong, No. 06-11582 (11th Cir. Apr. 27, 2007).
Congratulations to George Rutherglen (Virginia) on the publication of the Second Edition of his Concepts and Insights series title: Employment Discrimination.
Here are some details about the book:
Employment Discrimination Law, Second Edition was recently published and is available for Fall 2007 classes. This Concepts & Insights title is intended as an introduction to the field of employment discrimination law, both at the abstract level of theory and at the concrete level of doctrine. It is as much an introduction for experienced lawyers and scholars as for law students who have just begun their careers. For the latter group, this concise paperback is an ideal source for recommended or required readings.
The Second Edition offers an up-to-date introduction to employment discrimination law: the major statutes, the current cases, the outstanding issues, and the competing policies in this field. The leading decisions of the Supreme Court receive a comprehensive analysis, in terms both of theory and doctrine, putting them in the context of the relevant statutory provisions and other judicial decisions. This book offers three different theoretical perspectives--based on history, economics, and critical social theory--to explain both the complexities and the tensions inherent in existing law.
I know that I have used the previous edition to help me wrap my mind around certain employment discrimination issues that I was researching at the time. I very much look forward to reviewing this new edition.
Teachers interested in reviewing this book can request a copy by emailing their Foundation Press Account Manager.
Kathryn Brady thinks crying at the office is getting a bad rap.
As a corporate finance manager, Ms. Brady has occasionally had bosses who drove her to tears. While they saw crying as a sign of weakness, Ms. Brady says she was actually crying in anger because they were so hard to work with. When you want to do a good job and "you're thwarted in that, you become frustrated," says Ms. Brady, 34, of Atlanta. "The misinterpretation that I'm whiny or weak is just not fair."
Crying at work has long been seen as verboten. But there's evidence that a growing number of workers, especially those in their 20s and 30s, see it differently. Some think it's old-fashioned to hide your emotions. Others are quick to cry over negative feedback. And many find themselves at odds with managers who grew up with a more repressive definition of professional conduct.
Although women still report crying more often than men, it has become more socially acceptable since the 2001 terrorist attacks for both men and women to cry in certain situations, says Stephanie Shields, a psychology professor at Pennsylvania State University and author of a book on emotional expression. Bonnie Sashin, 56, a communications specialist in Boston, says a male co-worker in his 20s fought back tears while telling her about a chewing-out he'd gotten from a colleague. "A guy less in touch with his feelings ... might have expressed anger, outrage or pounded the table," she says.
I agree with Nancy on all of this that, "I wish it were true that crying in frustration and anger were more acceptable at work, but I just don't agree."
So who's the last person you would think would falsify their credentials on their resume? A likely candidate would be someone who for a quarter of a century or more has made a living reading others' resumes. This is why this story is so shocking (via USA Today):
To stressed-out parents and students, MIT admissions dean Marilee Jones [pictured left] was a rare voice of reason in the high-pressure world of college admissions. With colleges demanding kids who play sports, run student government and take the heaviest course load they can, Jones shouted back the opposite: daydream, stay healthy, and don't worry so much about building a resume just to impress an elite college.
Yet it turns out that Jones was susceptible to pressure herself. She falsely bolstered her credentials to get a job with the Massachusetts Institute of Technology, and over the course of her career claimed to have earned degrees from three schools. MIT officials say now they have no evidence she ever graduated from college at all.
The school announced Thursday that Jones had resigned after acknowledging she had misrepresented her education when she started working at the university 28 years ago, and declined to correct multiple incorrect claims since then.
Ms. Jones expressed remorse for her lack of courage in not coming forward with her representations, but I think that MIT is right that, given her own history, she no longer has the credibility required for the position, which occasionally requires her to rescind offers of acceptance to students because of falsified credentials.
All in all, a sad story and further proof that resume fraud in our high-pressured society is endemic. Also proof that all employers must do background checks of their employees, including taking the simple step of verifying claims of past educational and job experience.
The EEOC Fellows Program is a new initiative that will provide a unique opportunity for the successful candidates of federal agencies and educational institutions to be contributing members of an EEOC leadership team that shapes policy and processes impacting all employment sectors. The program will allow federal employees, professors, and graduate students to actively engage in research and projects related to eradicating job discrimination and fostering inclusive workplaces.
The details apparently will be released after the signing ceremony next Tuesday. I'll post 'em as soon as I get 'em.
Thursday, April 26, 2007
This was a foregone conclusion once the courts decided to enjoin the flight attendants' ability to strike against the bankrupt airline. Via the AFL-CIO Weblog:
After a week of intense bargaining, members of the Flight Attendants-CWA (AFA-CWA) and Northwest Airlines reached a tentative agreement today (contract details haven’t been released). If members ratify the agreement, the flight attendants would become eligible for a $182 million bankruptcy equity claim that could mean an additional payment of $15,000 to $18,000 each . . . .
Jay Hong, president of the Northwest Master Executive Council (MEC), said:
A concessionary agreement is never cause to celebrate and is never easy. But this tentative agreement gives our members an opportunity to vote on whether to take the $182 million bankruptcy claim and other improvements before the claim is lost when the airline exits bankruptcy.
Hey, you try fighting with one arm tied behind your back.
The Genetic Information Nondiscrimination Act (H.R. 493) passed the House yesterday. The President immediately issued a statement that he would sign the bill if it passed in the Senate as well. That appears likely, because the Senate has passed similar legislation in previous sessions of Congress.
Hat tip: Jeremy Gruber of the National Workrights Institute.
The Deloitte Washington Bulletin for April 23, 2007 has some interesting figures from the Employee Benefits Security Administration (EBSA) about the current state of American pensions:
Total private pension plan assets reached a record $4.7 trillion in 2004, according to Form 5500 Annual Report data just released by the Department of Labor’s Employee Benefits Security Administration (EBSA). The EBSA’s Private Pension Plan Bulletin and Private Pension Plan Bulletin Historical Tables, both dated March 2007, provide valuable information about trends in the number and types of employer sponsored retirement plans, aggregate rates of return experienced by those plans, and asset allocations. Both documents are available on the EBSA’s Web site.
And this is perhaps the most interesting finding that come from these numbers regarding the continuing shift from the defined benefit plans to defined contribution plans:
Most of this decline in the number of defined benefit plans is due to the loss of plans with fewer than 100 participants. There were 83,311 such plans in 1975 and 149,600 in 1982, but only 35,689 remained in 2004. By comparison, the number of defined benefit plans with 100 or more participants has ranged from 20,035 in 1975 to 25,979 in 1983 to 11,815 in 2004. Thus, defined benefit plans with fewer than 100 participants account for 47,622 of the 55,843 total defined benefit plans lost since 1975. That is why, in spite of the dramatic decline in the number of defined benefit plans since 1975, the number of active participants in such plans has dropped only from 27.2 million to 20.5 million.
So although defined benefit plans are certainly not being utilized in any great number for smaller employer pension plans, they still play a significant role with large employers. This might help explain why there was such great emphasis on helping certain large industries meet their pension funding obligations under the Pension Protection Act of 2006.
Hat Tip: Debra Davis
Julie Suk (Cardozo) has posted on SSRN her forthcoming piece in the American Journal of Comparative Law: Equal by Comparison: Unsettling Assumptions of Antidiscrimination Law.
Here's the abstract:
In Fall 2005, race riots in France drew attention to differences between the French and American legal regimes for remedying racial inequality and discrimination. The riots reacted to the persistence of employment discrimination against people of North African origin. French antidiscrimination law has been unable to solve such problems because of its focus on criminal punishment of racist speech and its uncompromising commitment to race-blindness. These features embody the intersection of two historical forces: the influence of Vichy memories on French legal conceptions of racism and discrimination, and the strong republican resistance to social distinctions.
Understanding this history comparatively brings certain features of U.S. antidiscrimination law into sharper focus: U.S. law imposes civil, rather than criminal liability, and is more tolerant of race-conscious affirmative action, more resistant to regulating racist speech, and more reluctant to extend antidiscrimination law to a wide range of protected characteristics. These distinctive features of U.S. law are explained by the law's reaction to the history of slavery and segregation. The different evolutions of antidiscrimination law reveal how particular forms of racism - anti-Semitism and genocide in France, and the slavery and segregation of African Americans in the United States - gave rise to two very different antidiscrimination regimes. The French contrast challenges the assumptions of American antidiscrimination law, leading to greater precision about the uniquely American commitment to race-blindness in equal protection doctrine. The stricter French model of race-blindness highlights the instability and ambivalence of American race-blindness. Comparative historical inquiry reveals that the goal of eradicating group subordination does more work in U.S. antidiscrimination law than the goal of achieving a truly race-blind society based on individual merit.
Sounds like a fascinating piece and Julie continues to produce first-rate work in both the employment discrimination and comparative law disciplines.
It is also exciting that Julie will be bringing her insights to the 2008 AALS Section on Employment Discrimination Law panel on employment discrimination remedies.