Sunday, December 21, 2008

Friedman Publishes Biography of Judge Wisdom

Friedman2 Wisdom_2 Joel Friedman (Tulane) has just published Champion of Civil Rights: Judge John Minor Wisdom (LSU Press; available at; gift wrapping available).  Here's a description of the book:

One of the least publicly recognized heroes of the civil rights movement in the United States, John Minor Wisdom served as a member of the U.S. Court of Appeals for the Fifth Circuit from 1957 until his death in 1999 and wrote many of the landmark decisions instrumental in desegregating the American South. In this revealing biography, law professor Joel William Friedman explores Judge Wisdom's substantial legal contributions and political work at a critical time in the history of the South.

In 1957, President Eisenhower appointed Wisdom to the Fifth Circuit, which included some of the most deeply segregated southern states: Alabama, Florida, Georgia, Louisiana, Mississippi, and Texas. In the tumultuous two decades following its decision in Brown v. Board of Education, the Supreme Court issued only a few civil rights decisions, preferring instead to affirm Fifth Circuit Court opinions or let them stand without hearing an appeal. Judge Wisdom, therefore, authored many of the decisions that transformed the South and broke down barriers of all kinds for African Americans, including the desegregation of public schools.

In preparing this first full-length biography of Judge Wisdom, Friedman had unrestricted access to Wisdom's voluminous repository of personal and professional papers. In addition, he draws on personal interviews with law clerks who served under Judge Wisdom, resulting in a unique, behind-the-scenes account of some of the nation's most important legal decisions: the admission of the first black student to the University of Mississippi, the initiation of contempt proceedings against Mississippi Governor Ross Barnett, and the destruction of obstacles that had previously kept black Americans from voting. Friedman also explores Wisdom's political life prior to joining the federal bench, including his pivotal role in resurrecting the Louisiana Republican Party and in securing the Republican presidential nomination for Eisenhower.

A compelling account of how a child of privilege from one of America's most socially and racially stratified cities came to serve as the driving force behind the legal effort to end segregation, Champion of Civil Rights offers judicial biography at its best.


December 21, 2008 in Faculty News | Permalink | Comments (0) | TrackBack (0)

Saturday, December 20, 2008

Cintas Settles OSHA Charge

Cintas A year and a half ago, we reported that OSHA had fined Cintas (the country's largest uniform supplier) $2.78M for safety violations in its commercial wash rooms.  Those violations had led to the death of an Oklahoma worker who fell into an industrial dryer.  Cintas challenged the fine, but Thursday settled with OSHA for $2.76M and a promise to make safety improvements.  Here's the OSHA press release.  But UNITE-HERE, which is trying to organize Cintas workers, calls the settlement "nearly toothless."  Today's Cincinnati Enquirer reports:

"Cintas has been cited for these problems time and again," said Eric Frumin, health and safety director for the union UNITE-HERE. "That's why OSHA should be strictly monitoring the company, but there are no plans for follow-up inspections in the agreement."


December 20, 2008 in Workplace Safety | Permalink | Comments (2) | TrackBack (0)

SSRN Top-10 List of Recent Employment & Labor Downloads

Friday, December 19, 2008

Professional Conduct Rules Can Provide Basis for Public Policy Tort

Newjersey Update:  Bill Herbert points out that New York also recognizes an implied-in-law obligation to follow professional conduct rules such a public policy tort in the case of Wieder v. Skala (N.Y. 1992).

And also add: LoPresti v. Rutland Regional Health Services, Inc., 177 Vt. 316 (2004) (accepting medical ethical code as potential source of public policy, but placing on plaintiff the burden of demonstrating that such codes are “clear and compelling” in their mandates to employees who claim that their professional ethical obligations supersede those owed to their employers).

Thanks to Ross Runkel for brining to my attention that public policy tort case of Tartaglia v. UBS PaineWebber (N.J. 12/16/2008).

Ross provides a helpful summary:

Tartaglia sued the employer, asserting (among other things) a common law claim for wrongful discharge in violation of public policy.  The trial court granted summary judgment in favor of the employer on that claim, and the appellate court below affirmed that decision.  The court reversed.

Tartaglia was a staff attorney who expressed concerns that performance of some of her job duties might result in violation of the state bar rules of professional conduct.  More specifically, Tartaglia was concerned that she might violate the conflict of interest rule set forth in RPC 1.7(b).  The court held that the public policy underlying that disciplinary rule was sufficient to provide the basis for a claim of wrongful discharge in violation of public policy.  The court imposed a heightened burden on plaintiff/attorneys proceeding under such a theory, however, stating “[w]e conclude that [a] plaintiff, in order to prevail on this claim, must ...demonstrate that the employer’s behavior about which she complained actually violated RPC 1.7”  The court justified the imposition of this heightened burden based on the observation that attorneys “should be knowledgeable about the RPCs, and … have an independent obligation to report violations to the appropriate authorities …. “

New Jersey is one of just four states (Tennessee, Colorado, and California are the others) that recognizes that violations of professional conduct rules can be the public policy in a claim for wrongful discharge in violation of public policy.  It will be interesting to see if other states adopt this view for staff or in-house counsel in other states.


December 19, 2008 in Employment Common Law | Permalink | Comments (0) | TrackBack (0)

Pension Reform Coming to New York

Newyork Global Pensions reports:

New York has unveiled reforms, including changes to public pension schemes, in a bid to eliminate the largest budget deficit in the state’s history.

One of the key proposals in the executive budget put forward by governor David A. Paterson was the re-raising of the retirement age from 55 back to 62, and the the creation of a new tier of benefits (Tier V) for state and local employees.

Governor Paterson said: "With the State facing a fiscal emergency, we need to look for innovative ways to improve the operations of our government and deliver services more effectively.

I would expect that many states and municipalities will be considering similar reforms as the current recession continues to create difficult financial times for state and local government.


December 19, 2008 in Pension and Benefits | Permalink | Comments (0) | TrackBack (0)

Epstein on EFCA

Epstein Richard Epstein has written an op-ed piece in the Wall Street Journal on EFCA (hint:  he doesn't like it).  Epstein argues that EFCA is unconstitutional, for two reasons that I haven't seen presented very often.  The first is that it violates the First Amendment because it curtails employer speech to promote "unionization that justifies a clandestine organizing campaign which denies all speech rights to the unions' adversaries."  The argument isn't developed much more than that and doesn't seem particular strong to me.  I also have a hard time taking it seriously given that Epstein doesn't even mention the speech restrictions on unions, much less the fact that unions have significantly more restrictions on their speech than do employers (see, e.g., Section 8(b)).  His more interesting argument (and, not surprisingly, more developed) is that there is a Fifth Amendment takings problem:

The mandatory arbitration provisions of the EFCA are also constitutionally suspect. True, the takings clause of the Fifth Amendment today is quite lax when the state just restricts how an owner can use his property. But it imposes a firm duty to compensate someone whose property is occupied pursuant to a government decree. The Supreme Court also has established that any company subject to rate regulation (such as in telecommunications, transportation, insurance, etc.) may raise a judicial challenge to secure a reasonable rate of return on invested capital.

These Fifth Amendment protections apply to labor markets. The NLRA strips employers of basic common law rights, including the right to refuse to deal with the union. It imposes on employers (and unions) a duty to bargain in good faith toward a contract. But this duty does not force agreement. Either side is free to walk away from any deal it does not like. Unions can strike, and firms can lock out workers. Today's law, accordingly, restricts arbitration to interpreting existing agreements, not to making agreements from whole cloth.

The EFCA takes away the employer's right to walk. Now the successful union, backed by direct government power -- i.e., mandatory arbitration -- can force itself on the firm. Yet the proposed law does not let any court block the deal or ensure that the mandated terms offer a reasonable return on its invested capital. (Even modern rent control statutes require that much.)

The government-chosen panel could well impose terms that might cripple the firm competitively. Consider that the takings clause surely prevents the government from forcing any person to buy real estate for twice its market value from a seller. That same principle applies to this labor law: No government should be able to force a firm to hire labor at $50 per hour when the company is not willing to pay half that much.

Worse, the EFCA also permits the government arbitrator to strip the employer of all its standard management prerogatives on everything from subcontracting out to promotion policy. By flatly denying the employer any option to walk away, mandatory arbitration under the EFCA runs smack into the takings clause.

Several points here.  First, I'm not sure what he means by "block" or "ensure," but there is nothing in EFCA stripping courts of the power to review arbitration decisions.  Second, even if certain arbitral awards are so severe that they raise takings concerns, that's a far cry from suggesting that the act is facially unconstitutional (although this may be more of a quibble with the WSJ's headline writer than Epstein himself).  Third, EFCA's arbitration isn't your normal type of takings case.  This is not a situation where the government is directly regulating something or engaging in a physical takings--rather, it's acting to resolve a dispute between parties.  Moreover, Epstein is stretching things by saying that the arbitrator can "strip the employer of all of its standard management prerogatives."  My understanding of how arbitration would work is that it would be limited to mandatory subjects to bargaining, which still allow for significant managerial autonomy.

I'm not a takings expert (and would love to hear from others who are), and I know that a given award could result in a colorable claim, but I'm just not seeing a big takings problem here.  At least I'm not seeing a big problem under the Court's current takings jurisprudence.  This sounds more like an argument for a shift in that policy.  Either way, Epstein's piece serves as a good reminder that the card-check provision may not be the most important part of EFCA. 

I've had misgivings about EFCA, although I think there needs to be some significant changes to rectify the balance in union elections.  I'll also make this prediction:  I don't think EFCA is going to pass (this may be good news to supporters, as my predictions are often wrong).  The opponents have a simple and effective line against the bill--secret ballot v. union boss intimidation--that, while not being accurate or fair, is likely to win.  I think supporters of EFCA should be thinking hard about what they may want as a Plan B in case EFCA goes down or as an alternative to use in place of EFCA at the bargaining table.

Hat Tip:  Barry Hirsch


December 19, 2008 in Labor Law | Permalink | Comments (8) | TrackBack (1)

Thursday, December 18, 2008

Rep. Hilda Solis Said to be Labor Secretary Nominee

Solis_2 The Washington Post is reporting that Rep. Hilda Solis of Los Angeles will be Obama's pick as Secretary of Labor.  According to the Post:

Elected to Congress in 2000, she previously served two years in the California Assembly and six in the State Senate, where she was the first female Hispanic state senator. She attended California State Polytechnic University, Pomona, and earned a Master of Public Administration from the University of Southern California, beginning her career in the Carter White House Office of Hispanic Affairs. She later worked as a management analyst with the Office of Management and Budget.

Solis has pushed in Congress for more training for so-called green-collar jobs -- jobs that advance industries toward greater energy officials. In the California state Senate, she successfully advocated in 1996 to increase the state's minimum wage from $4.25 to $5.75 an hour. She the only member of Congress on the board of American Rights at Work, a pro-labor group helmed by David Bonior.

I don't know much about Rep. Solis, but she sounds more than qualified.  One interesting note in the article is the statement that the Secretary would spend much of her time dealing with the EFCA battle.  I don't doubt the truth of that statement, as the DOL Secretary is the highest-profile political official on labor and employment issues, but it's a bit odd given that EFCA doesn't directly affect anything under the DOL's jurisdiction.


December 18, 2008 in Labor and Employment News | Permalink | Comments (8) | TrackBack (0)

Sharpton Comes Out Against EFCA

Sharpton Somewhat surprising (though not surprising that The National Review picked it up):

This is a transcript [from] the Al Sharpton Radio program earlier [yesterday].

Al Sharpton: Yeah, well, what I don’t understand about it which is why I’m in the campaign is why wouldn’t those of us who support workers being protected, why would we not want their privacy protected.  I mean why would we want them opened up to this kind of possible coercion?

Sylvester [Smith]: Well, and that’s the 50 million dollar question, Rev. Sharpton, it’s a question we’ve been trying to answer but we think that the heart of this issue is not about protecting workers, the heart of this issue is about the decline of union membership that’s been going on in this country for the past thirty years.  The unions at this point are in a death spiral and much of it’s tied to the exportation of production jobs from this country to other countries and the unions…

Al Sharpton: Yeah, the outsourcing, well I’m all for, and as well for those who don’t believe in the right to organizing, clearly I’m for any legislation to give any state the right to organize, but I’m talking about specifically where workers are not protected from coercion, in terms of these card-checks that you talk about, and as arbitration because explain, Charlie King, to me the whole question that you raised, if you have a federal arbitrator who says that this is the deal, even when the union only established out of card-check, is the deal for two years, and there’s nothing you can do about it, I mean, a lot of the business that we afford for the African American community to get contracts and sub contracts and all.  They could face some very serious problems here.

Sharpton appears to worry that the EFCA could circumscribe employee's privacy rights and also first contracts being hoisted upon minority-owned businesses by outside arbitrators.

There is a lot to say in response and I hope that Rev. Sharpton will listen to the other side's explanation about where the real coercion and lack of privacy takes place - in the workplace from the employer. I also hope someone explains to him how interest arbitration works and that arbitrators do not just force employers to agree to onerous collective bargaining agreements. Interest arbitration takes materials and evidence from both sides and then comes up with a compromise that both sides can live with.

My fear is that if Rev. Sharpton is confused about the benefits of EFCA, then unions and their allies have some hard work ahead explaining to legislators - especially Democratic ones - how this law will work and what abuses it will prevent.

Hat Tip:  Justin Keith



December 18, 2008 in Agenda 2009 | Permalink | Comments (16) | TrackBack (1)

Wednesday, December 17, 2008

Nude Labor Protesting

Life_model1_2 Yesterday's The Guardian has a story about Parisian life models posing naked in freezing temperatures to demand better pay.  Here are the details:

The row began when Paris city hall, which runs an array of life-drawing classes, banned the tradition of the "cornet", a piece of art paper rolled into a cone and passed round for tips as a model gets dressed after class. Surviving on the minimum wage with no fixed contracts, holiday pay, security cover or job security, the crash-strapped models said the tips allowed them to survive.

"This is a craft that should be respected, not just anyone can take their clothes off and hold a pose," said Deborah, 28, one of the strike organisers, who has worked as a full-time life model for four years. "It is artistic and physically demanding work."  She had to swim regularly to stay fit enough to hold poses and felt models should be given access to subsidised municipal sports facilities to keep in shape for their jobs, as well as access to museums to do research for their poses.

So -- is this a labor tactic the UAW should adopt?


December 17, 2008 in Labor Law | Permalink | Comments (6) | TrackBack (0)

"Ugly" as a protected class?

Gremlin Researchers, including lawyers and economists, have begun examining ugliness, suggesting that the subject has been marginalized in history and that discrimination against the unattractive is a silent, widespread injustice.  Researchers have tried to measure appearance discrimination or "uglyism" and "looksism," and the impact of what they call the "beauty premium" and the "plainness penalty" on income.  "Beauty and the Labor Market," a study published in the American Economic Review in 1994, estimated that unattractive men and women earn five to ten percent less than those considered attractive or beautiful, and that less attractive women marry men with less money.  Another study conducted by Tanya Rosenblat, an associate professor of economics, said "people who are physically attractive might develop better communication skills because the tendency is that from an early age they get more attention from all their caregivers, including their own mothers onward.  The conclusion: discrimination based on looks occurs across occupations.

Currently, few laws prohibit employment discrimination based on lack of attractiveness, although some cities, have passed ordinances banning discrimination based on looks including San Francisco and Santa Cruz.  Correctly observed, legal actions on behalf of the unattractive can be complicated for at least the following reasons:

1.  Most people in general would want to disclaim membership. It is not likely that "members" will admit "I am an ugly person and let's have a meeting of all ugly people."  Being ugly is unlike being of a particular race or religion.

2.  There is no agreement on what makes someone ugly.  As "beauty is in the eye of the beholder, " the same is true with "ugliness."  So defining ugliness is difficult as is defining beauty. 

These complications, however, have little effect on the persistent research into differential treatment on the basis of looks.  Steadily playing off of insecurities and implications, Dr. Synnott states: "Beautiful people are considered to be more intelligent, sexier, and more trustworthy.  And this implies that ugly people are assumed to be less trustworthy and less intelligent."

One study that looked into the earning power of law students graduating from the same law school during the 70s and 80s determined that five years after graduation, males who ranked one notch above average (on a scale of 1 to 5, with 5 being best looking) earned about 10% more than fellow students who ranked one notch below average. Fifteen years after graduation, the premium for good looks grew to 12%.  The study found that the pay differential was consistent for lawyers working in both the private and public sectors. 

This might explain why I have never been able to negotiate a higher salary as a lawyer.


December 17, 2008 in Worklife Issues | Permalink | Comments (3) | TrackBack (0)

FAA Trumps Arkansas (Anti-) Arbitration Law

Court_building_larger_2 The Arkansas Court of Appeals has just held that an employee must arbitrate a defamation claim against her employer, notwithstanding a contrary provision in the Arkansas Uniform Arbitration Act.  The AUAA contains a provision nearly identical to the FAA, providing that arbitration agreements are enforceable save for the grounds for not enforcing any contract.  Unlike the FAA, however, the AUAA contains an exception clause providing that the general-enforceability clause "shall have no application to personal injury or tort matters, employer-employee disputes, nor to any insured or beneficiary under any insurance policy or annuity contract."  The Arkansas Court of Appeals held that this exception clause is preempted by the FAA.

The case outcome is hardly surprising, but Arkansas's exception clause may provide a model for those seeking to amend the FAA to exclude (or restrict) employment and consumer arbitration agreements.

The case is Terminix Int'l Co. v. Trivitt, Ark. Ct. App., No. CA 08-233 (Dec. 10, 2008).


December 17, 2008 in Arbitration | Permalink | Comments (1) | TrackBack (0)

Tuesday, December 16, 2008

Krueger on Lessons from the Chicago Sit-In and the WARN Act

Kreuger Alan Krueger, the Princeton economist, has this commentary in the New York Times on the recent sit-down strike at the Republic Windows plant in Chicago and the WARN Act:

The sit-in at the Republic Windows & Doors factory in Chicago last week brought the Worker Adjustment and Retraining Notification Act of 1988 — or WARN Act for short – to the forefront of attention. This law requires large employers (those with 100 or more employees) to provide 60 days of written advance notice prior to a plant closing or mass layoff.

The WARN Act was passed after a long-running, rancorous debate. President Ronald Reagan vetoed a trade bill because it included provisions of the WARN Act. The WARN Act was later reintroduced as a stand-alone measure and passed by Congress with enough votes to override a presidential veto in July 1988. The WARN Act became law without President Reagan’s signature, and he issued a statement calling the law “counterproductive." . . . .

The economics of the WARN Act are relatively straightforward. More information usually makes markets work more efficiently. If employees are notified that they will lose their jobs in the future, they can start searching and preparing for a new job sooner. Communities and social-service providers can also prepare for a wave of unemployed workers sooner rather than later.

From a company’s perspective, however, advance notice of a pending shutdown can cause it to lose valued employees and customers before it shutters its doors . . . .

But the bigger picture of this saga should not be missed: companies frequently close without giving their employees the required 60 days of advance notice.

A seminal study by John Addison and McKinley Blackburn found that displaced workers were hardly more likely to receive 60 days’ advance notice of a layoff after the WARN Act took effect than they were before it went into effect . . . . .

Like so much in the labor area, as a practical matter the heated battle over the WARN Act became much ado about nothing. Relatively few additional workers were warned about pending layoffs and plant closings as a result of WARN. Indeed, the available evidence makes one wonder why so many employer groups fought so hard to oppose the law if it ultimately turned out to hardly affect the way employers operated.

This commentary made me somewhat miffed.  I have three preliminary thoughts in reply:

1.  If it is true that WARN is either not applicable to most plant closings and mass layoffs and is violated frequently, does that mean the law was "much ado about nothing."  I more likely conclude that the employee threshold of 100 employees should be reduced to somewhere between 25-50 employees and perhaps the definition of "mass layoff" should be less restrictive.  Also, there might be more enforcement actions if there were better remedies available, including the right to compensatory and punitive damages in appropriate cases.

2.  Like most economists (I feel comfortable making this generalization since he feels comfortable lumping all labor laws together), Kreuger puts most of his emphasis on "efficiency," without thinking much about non-quantifiable matters like justice and fairness.  In a plant closing/mass layoff situation, I tend to be much more concerned about the economic well-being of the workers, as opposed to whether the company in question will lose some additional quantum of profit or productivity in the interim.

3.  And finally, the fact that President Reagan found the law enacted over his veto "counterproductive" (of course, he felt that way strongly about the entire labor movement and crushed the PATCO air traffic controllers strike for good measure), seems alone to recommend its bona fides as a law concerning social justice and one which was rightly fought over.

If Professor Kreuger wishes to explain his dismissive comment that much labor law legislation is "much ado about nothing," I would be happy to have that debate with him.


December 16, 2008 in Commentary | Permalink | Comments (4) | TrackBack (0)

New Sick Pay Ordinance May Lead to Rejuvenation of Milwaukee Equal Rights Commission

Books The Milwaukee Journal-Sentinental has the scoop:

Milwaukee's dormant Equal Rights Commission could be back in business early next year - just in time to enforce the city's controversial new sick pay ordinance.

On Tuesday, the Common Council will consider legislation to reconstitute the body with a focus not only on the sick pay measure, but also on the city's own equal rights performance and on forms of discrimination that aren't covered by state or federal laws. If that measure is approved, Mayor Tom Barrett will nominate a slate of seven panel members for confirmation in January, mayoral aide Leslie Silletti told the council's Judiciary & Legislation Committee last week.

The Equal Rights Commission was founded in 1991 to investigate complaints of discrimination in housing and employment.

But the commission disbanded in 2003, amid complaints that former Mayor John O. Norquist's administration never gave the seven-member panel the resources it needed to do its job. Since then, a single staffer in the city Department of Employee Relations has been carrying out the body's mission, investigating some complaints himself and referring others to state and federal agencies . . . .

The sick leave ordinance, pushed onto the Nov. 4 ballot by a petition drive that bypassed the council, assigns the commission to enforce the measure's provisions. Backers of the ordinance were appalled to learn the panel didn't really exist.

Although there is still a legal challenge outstanding to the new sick leave ordinance, it seems to me that the city's Equal Right Commission could especially help fill the gaps in employment discrimination enforcement that currently exist in federal and state enforcement schemes. In particular, there is a tremendous backload in both federal and state systems, and the availability of a city mechanism to process these disputes might provide additional resources for both employers and employees.


December 16, 2008 in Labor and Employment News | Permalink | Comments (0) | TrackBack (0)

Obesity as Disability: An Imperfect Fit

Pulver Adam Pulver, a 2008 Columbia grad and currently a federal district court clerk in Los Angeles, has just posted on SSRN his article An Imperfect Fit: Obesity, Public Health, and Disability Anti-Discrimination Law.  Here's the abstract:

Over the past several years, "obesity activists," as well as many disability rights and critical legal theorists, have increasingly argued for the inclusion of obesity as a "disability" under anti-discrimination law, particularly the Americans with Disabilities Act (ADA). At the same time, public health leaders, both inside and outside the legal field, continue to promote active interventions to combat the growing prevalence of obesity in America, which they see as a major health problem. These two campaigns are not complementary, and in many ways are antithetical to one another.

This article explores the inherent tensions between a campaign to reduce obesity in the American population and the calls of obesity activists to "normalize" their weight, particularly through the protection of disability anti-discrimination law. After examining how obesity fails to qualify as a disability under existing federal law, the article examines why making obesity a protected class may have negative public health outcomes for the population.


December 16, 2008 in Disability, Scholarship | Permalink | Comments (1) | TrackBack (1)

Monday, December 15, 2008

Commentary on the Pressure on Bank of America in the Republic Windows Strike

EarthmagnetictailOver at Prawfsblawg, there has been an interesting exchange on whether the result in the Republic Windows sit-in is to be applauded or decried. Richard Esenberg originally posted a warning that pressuring Bank of America to extend a loan in this circumstance is dangerous, stating that "neither BOA nor any other bank can survive by making, not merely a poor - but an insane 'loan' in response to political pressure." I'm not sure this considers the whole picture. Here, at least some of the owners are continuing to do business, and they should be able to pay back that loan--and should be liable for it.

Additionally, Patrick S. O'Donnell, a frequent contributor at Ratio Juris challenged Esenberg's view on a number of points. Essentially, he cautioned that this critique was not something that would uniformly be accepted by economists. It fit neoclassical economic theory, but not other branches of economic theory, Neoclassical economic theory often hides moral judgments behind its terms and also hides the fact that these judgments are being made. Finally, economics, at least in its neoclassical form, does not automatically trump other moral considerations, and we need to return to privileging the "good."

My comments can't do it justice; you should read the exchange itself. Particularly interesting is the list of values that have been served by pressuring the Bank.


December 15, 2008 in Commentary | Permalink | Comments (0) | TrackBack (0)

Justices Continue to Consider Cert in Complex Race Discrimination Case

SupctI've blogged a couple of times about Ricci v. DeStefano, a Second Circuit case involving promotions in the New Haven, Connecticut fire department (see here and here). The Department had instituted a new procedure for promotions involving a written test, which would count for 60% and an oral test, which would count for 40% of the score. After the test was administered, nearly all of the top scorers, those who would be likely to get promoted, among those who passed were white. This result was different from the results in prior promotion processes. The City's General Counsel notified the City's Civil Service Board that the use of the scores (at least at the weights each piece was given) might have a disparate impact on applicants of color. He asked the CSB to hold hearings on the test's validity and job relatedness and determine whether there were other methods of promotion that could find the best people but not have a disparate impact on groups of color.

The CSB decided not to certify the results after several days of hearing, and the plaintiffs brought this suit alleging that the decision to not certify the results was race discrimination (disparate treatment). The Second Circuit affirmed per curiam, and that court voted sua sponte on whether to rehear the case. The denial of rehearing was a close vote, with several interesting dissents and a couple of concurrences.

The plaintiffs filed a petition for cert this summer, and the defendants filed their opposition to cert in mid-November. The case was scheduled for conference this last Friday, but the Court did not act on it, which suggests to me that at least a few of the justices are considering granting cert. The Court's next conference is scheduled for January 9.

This case is a very important one, but a really difficult one, too, that goes to the heart of our notions of discrimination and the meaning of Title VII. Essentially, this brings up the usual debate about whether affirmative action is race discrimination, and if so, whether it should be illegal. But this case adds a wrinkle that brings the whole system of Title VII into doubt. Here, the City argues that it believed in good faith that the promotion process would violate Title VII by creating a disparate impact. The plaintiffs dispute that, saying that the City was motivated by politics and race, but they further argue that even if the City did in good faith believe that it was avoiding a disparate impact claim, that should be no defense to a disparate treatment claim.

So, is a decision not to create a disparate impact really race discrimination in disguise? I think the answer to that is complicated. Every decision not to use a particular criteria because it has an impact on a particular group is necessarily considering that group's status. So in one sense, yes, there is a consideration of status in there somewhere. On the other hand, does that mean that employers must continue to use criteria that they know have a disparate impact unless that use is challenged and a court validates some other criterion? That seems an odd result.

The City is in a very difficult position here if these two doctrines really do clash in this way. How can an employer ever be sure that it is not running afoul of Title VII? This clash has even greater potential for difficulties in the public sector. It's not entirely clear whether Title VII embodies the same limitations on race classifications for affirmative action as does the Equal Protection clause, nor is it clear that all distinctions on the basis of race (think so-called reverse discrimination) should be treated like classifications of persons traditionally underrepresented in the workplace. Public employers are bound both by the strict limitations of the Equal Protection clause and by Title VII. If disparate treatment and disparate impact theories really clash in this way, public employers are particularly at risk.

Stuart Taylor at the National Journal Magazine has an essay (hat tip Randy Enochs and Paul Secunda) on why the Court should grant cert, essentially arguing that the decision, and subsequent results in court, have been politically motivated, and that the Supreme Court should make clear that racial politics cannot be used "to violate the civil rights of working-class and middle-class white, Asian, and (at least in this case) Hispanic Americans."

I don't know that the Court is very likely to follow that advice, however. For one thing, I think the case is simply too complex and the issues too controversial. The Court may want some further percolation in the circuits to define the issues more clearly. For another thing, I'm not sure that this case really sets up the issue the way that those supporting these plaintiffs really want. This isn't a situation in which the pass rate is alleged to have a disparate impact--rather several applicants of color passed. So there were a number of qualified minority candidates. They just had lower scores, which meant that the system of how the test results would be interpreted and the limited number of available slots would keep them from being promoted to positions they were qualified for. Finally, I doubt the Court is going to feel strongly about putting public employers in this awkward position of having to decide between committing disparate impact discrimination or disparate treatment discrimination. We'll see next month.


December 15, 2008 in Beltway Developments, Employment Discrimination | Permalink | Comments (0) | TrackBack (0)

Recently Published Scholarship



  • Edwin R. Render, The Rules of Evidence in Labor Arbitration, 54 Loyola L. Rev. 297 (2008).

Student Scholarship

  • Gerard Sinzdak, An Analysis of Current Whistleblower Laws: Defending a More Flexible Approach to Reporting Requirements, 96 Calif. L. Rev. 1633 (2008).


December 15, 2008 in Scholarship | Permalink | Comments (0) | TrackBack (0)

Dannin on the Need for a Coordinated Litigation Strategy

Dannin Ellen Dannin (Penn State) has just posted on SSRN her article Constructing a Litigation Strategy to Take Back the Workers' Law.  Here's an excerpt from the abstract:

[The federal judiciary has repeatedly eviscerated employee rights under the guise of interpretation.  Sometimes Congress manages to undo the damage (Title VII, ADA), but sometimes Congress is unable to muster the political muscle to do so (NLRA, OSHA, FMLA).]

Far better than pursuing this cycle of legislation, judicial rewriting of legislation, and potential restoration by re-legislation would be to stop the process of judicial amendments and to use litigation to reverse those that now exist.  The NAACP legal Defense Fund litigation strategy provides evidence that such a process can be successful and furnished the general outlines for how such a strategy can be constructed.  Among the lessons are that change cannot come from one person's advocating the need for such a strategy or identifying problems with the way judges decide NLRB cases.  Real change requires a group of knowledgeable, thoughtful, and creative people to formulate the outlines of that strategy and adapt it to meet changed circumstances.  To be most effective, such a strategy would be initiated by the NLRB General Counsel; however, Taking Back the Workers' Law - How to Fight the Assault on Labor Rights (2006 Cornell) provides guidance to litigants in pursuing that strategy on their own.

This article briefly reviews ideas relevant to the construction of a litigation strategy before identifying examples of NLRA issues that should among those first addressed.  Finally, the article then discusses ways to build on those ideas in order to strengthen and enforce the rights set out in the NLRA.

Now's the time.


December 15, 2008 in Scholarship | Permalink | Comments (0) | TrackBack (0)

Feuer on AK Steel v. West ERISA Case

Erisa Albert Feuer has been good enough to provide us with his commentary on why the Solicitor General was incorrect in its reasoning for recommending denial of cert. in the ERISA case of AK Steel v. West:

The Solicitor General and Covington & Burling recently displayed confusion between plan documents and plan terms in the briefs they filed with the Supreme Court in AK Steel Corp. Retirement Accumulation Plan v. West that is similar to the confusion that they displayed in the briefs that they had filed in Kennedy v. DuPont Savings Plan Administrator.   In the former they disagreed about whether an ERISA Section 502(a)(1)(B) benefit claim under the terms of a plan is restricted to claims pursuant to the plan documents rather than pursuant to the plan terms.  In the latter, they had agreed that a waiver that violates the terms of a pension plan is not effective even if the plan document permits the wavier.

The Solicitor General correctly asserted in its recently filed amicus brief that the plan terms of an ERISA plan must include the provisions that ERISA mandates that ERISA plan contain. The brief pointed to such a unanimous Supreme Court holding with respect to the ERISA mandate prohibiting pension forfeitures in Central Laborers’ Pension Fund v. Heinz, 541 U.S. 739 (2004). Covington & Burling by contrast implicitly argued that the phrase "plan terms" in ERISA Section 502(a)(1)(B) has the same meaning as the phrase "plan documents"

However, the Solicitor General succumbed in part to the Covington & Burling emphasis on "plan documents" by beginning its argument with a discussion of the ERISA Section 404 requirement that fiduciaries make benefit payments by following Title I of ERISA as well as plan documents.  A more extensive discussion of the significance of the phrase "plan terms" then follows.  The initial plan documents approach has three flaws, even though, as the Solicitor General observed, some Supreme Court decisions used the same approach.

First, the approach has no applicability to plans, such as a top hat plan that is not subject to the cited fiduciary sections. However, ERISA Section 502(a)(1)(B) gives participants and beneficiaries of such a plan the right obtain their benefits under the terms of the plan.

Second, the approach focuses on the wrong fiduciary sections. ERISA Section 503 and the regulations there under impose fiduciary responsibilities on persons who make benefit determinations, whether or not the cited fiduciary provisions are applicable. In particular, all ERISA plans must have claims fiduciaries who decide entitlements under plan terms, which include ERISA mandates, in accord with procedural requirements set forth in 29 C.F.R. § 2560.503-1.

Third, the approach focuses on administrator payment obligations rather than the benefit entitlements at issue. ERISA does not always require plan administrators to pay persons the plan benefits to which they are entitled. For example after a distress termination, benefit payments may be limited to the applicable maximum guarantee benefits.

As normal, Albert appears to be operating on a different level  and understanding than those who appear to merely dabble in this area. Here's hoping that the Supreme Court gets wind of Albert's considered opinion.


December 15, 2008 in Commentary | Permalink | Comments (0) | TrackBack (0)

Sunday, December 14, 2008

Law School Clinic Banned From Representing Workers Trying To Unionize

Tel_aviv_u This story, courtesy of Israel's Haaretz paper (via Legal Ethic Forum) brings in issues of legal ethics, law clinics, and labor law.  Apparently, Tel Aviv University ordered a legal clinic at the school to stop representing workers who were trying to unionize at another school; the clinic ultimately gave the case to other counsel.  According to Haaretz:

The affair began when workers at the Davidson Institute, which is part of Weizmann [Institute], decided to join the Koach La'Ovdim union. The university refused to recognize the union, prompting demonstrations by the workers, at which some were beaten by university guards. One of the demonstrators suffered a broken knee.  Following this incident, the Davidson Institute's chairman, Prof. Haim Harari, wrote to Tel Aviv's rector, Prof. Dan Leviatan, to protest the legal clinic's involvement. . . .
The clinic, which was established to provide hands-on experience for law students, published a notice on its Web site saying it had been "pressured" to stop representing the Weizmann workers. "In our view, this pressure constitutes inappropriate interference in academic freedom, infringement on lawyer-client relationships and infringement on the workers' right to organize," it said.
According to the clinic's deputy director, attorney Dori Spivak, the dean of Tel Aviv's law school, Prof. Hanoch Dagan, had rejected Harari's plea and authorized the clinic to continue representing the workers. However, the clinic decided that it was best to drop the case, lest the spat over its involvement distract attention from the main issue - namely, the workers' right to unionize.

The Legal Ethic Forum suggests that similar situations have happened in the U.S., which I find troubling.  Not only does it show undue interference with clinical decisions, but it does so in a way that makes the universities appear that they are acting together to thwart workers' right to unionize. 

Hat Tip:  Alex Long


December 14, 2008 in Labor Law | Permalink | Comments (0) | TrackBack (0)