Friday, October 30, 2009

OSHA Fines BP a Record $ 87 Million for Unabated Violations

DolThe Department of Labor has announced that OSHA has imposed a record-setting fine against BP, which held the prior record for a fine, stemming from a refinery explosion in 2005. From the press release,

Safety violations at BP’s Texas City, Texas, refinery resulted in a massive explosion — with 15 deaths and 170 people injured – in March of 2005. BP entered into a settlement agreement with OSHA in September of that year, under which the company agreed to corrective actions to eliminate potential hazards similar to those that caused the 2005 tragedy. Today’s announcement comes at the conclusion of a six-month inspection by OSHA, designed to evaluate the extent to which BP has complied with its obligations under the 2005 agreement and OSHA standards.

“When BP signed the OSHA settlement from the March 2005 explosion, it agreed to take comprehensive action to protect employees.  Instead of living up to that commitment, BP has allowed hundreds of potential hazards to continue unabated,” said Secretary of Labor Hilda L. Solis. “Fifteen people lost their lives as a result of the 2005 tragedy, and 170 others were injured.  An $87 million fine won’t restore those lives, but we can’t let this happen again. Workplace safety is more than a slogan.  It’s the law. The U.S. Department of Labor will not tolerate the preventable exposure of workers to hazardous conditions.”

For noncompliance with the terms of the settlement agreement, the BP Texas City Refinery has been issued 270 “notifications of failure to abate” with fines totaling $56.7 million. Each notification represents a penalty of $7,000 times 30 days, the period that the conditions have remained unabated. OSHA also identified 439 new willful violations for failures to follow industry-accepted controls on the pressure relief safety systems and other process safety management violations with penalties totaling $30.7 million.

“BP was given four years to correct the safety issues identified pursuant to the settlement agreement, yet OSHA has found hundreds of violations of the agreement and hundreds of new violations. BP still has a great deal of work to do to assure the safety and health of the employees who work at this refinery,” said acting Assistant Secretary of Labor for OSHA Jordan Barab.

It's good to see OSHA following up on its prior settlement, but very disturbing that BP doesn't seem to have been deterred by the prior accident and fines. Maybe this one will stick.


October 30, 2009 in Workplace Safety | Permalink | Comments (1) | TrackBack (0)

Primus on Disparate Impact After Ricci

PrimusRichard Primus (Michigan), cited by both the majority and dissent in Ricci, has just posted on SSRN his article (forthcoming 108 Michigan L. Rev.) The Future of Disparate Impact After Ricci.  Here's the abstract:

The Supreme Court's decision in Ricci v. DeStefano (i.e., the New Haven firefighters case) foregrounded the question of whether Title VII's disparate impact standard conflicts with equal protection. This Article shows that there are three ways to read Ricci, one of which is likely fatal to disparate impact doctrine but the other two of which are not.

This is a fascinating article, with strategic advice for advocates on both sides of the debate.  Here's an excerpt:

[T]he Supreme Court’s choice among the three readings may be substantially driven by the way the next case to reach the Supreme Court frames the question. The full analysis is complex, but it hinges on a question of visibility. The Court is more likely to sustain disparate impact doctrine if it can do so without appearing indifferent to the situation of innocent third parties who are clearly bearing the cost of race-conscious decisionmaking. Accordingly, the Court is most likely to adopt the general reading and hold disparate impact unconstitutional in a case like Ricci itself, a case featuring visible innocent victims. Given that employer-initiated disparate impact remedies can create such third-party victims but judicially imposed disparate impact remedies do not, disparate impact doctrine is in greatest danger of being held unconstitutional in cases where employers voluntarily seek to comply with Title VII, just as New Haven claimed to be doing. 

* * *

Cause-oriented lawyers who seek the demise of the disparate impact doctrine should be looking for cases with visible victims. Their opposite numbers should try to have the constitutional question resolved in a case involving only a forward-looking judicial remedy, and preferably one where the defendant seems unsympathetic, before a less favorable vehicle can reach the Supreme Court. To be sure, the choice of case might not completely determine the outcome any more than the choice of physical ground need completely determine a battle. But concerned parties are nonetheless well advised to do what they can.


October 30, 2009 in Employment Discrimination, Scholarship | Permalink | Comments (0) | TrackBack (0)

Thursday, October 29, 2009

Expanded FMLA Coverage for Servicemembers

FMLA Today, President Obama signed a new law (the National Defense Authorization Action for Fiscal Year 2010) that expanded FMLA coverage for servicemembers.  This new law builds on an early law signed by President Bush and aims to fill in gaps left by the previous measure.  Among other things, the new law provides exigency leave for active-duty servicemembers on foreign deployment (the previous law provided such coverage only for National Guard or Reserve members).  There is also expanded coverage for those caring for servicemembers.

Hat Tip:  Marcy Karin


October 29, 2009 in Labor and Employment News | Permalink | Comments (0) | TrackBack (0)

Boeing Shifts Dreamliner Plant from WA to SC: Strictly for the Weather?

Boeing This post is copied verbatim from an email Dennis Nolan sent me this evening:

Boeing decided this week to put its new 787 Dreamliner assembly site in North Charleston, SC.  Normally a plant location decision wouldn't be news, but this one was preceded by some interesting developments:

  1. Boeing has had contract problems (not to mention very high labor costs) at its Everett facility.  The company and the Everett IAM local were unable to reach agreement on terms for putting a second Dreamliner assembly line there.
  2. Boeing already had one 787 assembly site in North Charleston.  Last month, employees there voted 3-1 to decertify the IAM.
  3. Just a few weeks after that vote, Boeing announced its decision to put its new plant in SC rather than in Everett.

There are a lot of messages in that chain of events, none very good for the IAM.  Union status was undoubtedly only one factor among many.  Labor costs and taxes in Washington are generally a lot higher than in SC, SC's state government is very well disposed to employer interests, and SC put together a generous package of incentives (the full amount has not yet been disclosed) to entice Boeing.  Nevertheless, Boeing certainly found the prospect of a nonunion plant in a right to work state attractive.  Presumably its labor costs will be reduced (although, like the transplant auto plants, Boeing is likely to pay very attractive wages).  Moreover, the existence of a successful nonunion site will put pressure on Boeing's unionized facilities in future bargaining.


October 29, 2009 in Labor Law | Permalink | Comments (0) | TrackBack (0)

State Law Sex Discrimination Action Filed against Anheuser-Busch: New Trend?

Budweiser This past Monday (as reported by the St. Louis Business Journal and the AmLaw Daily), Francine Katz filed a sex-discrimination action against her former employer Anheuser-Busch, alleging that the company maintained a "frat-party" atmosphere that kept women out of corporate opportunities and that the company paid her less because of her sex.

Katz was the highest-ranking female in the company, vice president of communications and consumer affairs and a member of the company’s Strategy Committee. She raised concerns about her salary and bonuses several times between 2002 and 2007, but according to her complaint was told that her compensation was based on the market rate for her position, that the CEO and Chairman of the Board had no discretion to deviate from the market rate, and that she was "ungrateful" and she could have been paid less. After six years in her final position, Katz was paid only 46% of what her male predecessor had been making six years earlier and had significantly less in stock options. In 2008, Katz learned that the two lowest paid people on the Strategy Committee were both women, that she had been offered fewer stock options than men with less seniority, and that the CEO and Chairman had broad discretion to set compensation and often set it above market rates for male Strategy Committee members. Additionally, as a consequence of her relatively lower pay and stock options, Katz did not receive as much compensation as male colleagues when the company was bought by Belgium-based InBev.

The most surprising part of the lawsuit isn't so much the allegations, although those are pretty awful, but the fact that it was brought in Missouri state court under Missouri law alone, bypassing the EEOC and Title VII completely. Missouri law is more favorable in many ways to a defendant like Katz. Actual and punitive damages are available with no cap, for example, and the state court can award injunctive relief as well. Perhaps more importantly, there may not be the same kind of record in state courts generally as in federal courts of plaintiffs losing on motions to dismiss, summary judgment, or appeal. Does the bypassing of the federal forum represent a new trend? Could be, and if so, employers will want to take notice and take more advantage of pre-dispute arbitration agreements.

In fact, that looks like it will be the first hurdle for Katz. According to AmLaw Daily, a company spokesperson has said,

we believe any challenges she chooses to make about her compensation are subject to the Dispute Resolution Program, which Katz and all other nonunion [A-B] employees agreed to during their employment. . . . As both an attorney and a member of the strategy committee, Katz was familiar with the requirements of the DRP, which is an A-B program that resolves employment disputes without resorting to lawsuits.

Stay tuned.


October 29, 2009 in Employment Discrimination | Permalink | Comments (3) | TrackBack (0)

Thomas: 12(b)(6) is the New 56


Suja Thomas (Illinois) has just posted on SSRN her article The New Summary Judgment Motion: The Motion to Dismiss Under Iqbal and Twombly.  Here's the abstract:

Civil procedure scholars have extensively discussed the new 12(b)(6) standard articulated by the Supreme Court in Ashcroft v. Iqbal and Bell Atlantic Corp. v. Twombly. In this discourse, however, an interesting development has not been explored. The standard for the motion to dismiss has evolved in such a way as to make the motion to dismiss the new summary judgment motion. Despite different words in Federal Rules of Civil Procedure 12(b)(6) and 56 and no discovery before dismissal under 12(b)(6), the new 12(b)(6) dismissal standard now tracks the standard for summary judgment. Moreover, the motion to dismiss under the new summary judgment-like standard may have effects similar to those experienced under summary judgment, including a significant use of the procedure by courts, a related increased role for judges in litigation and a corresponding increased dismissal of employment discrimination cases. This essay describes the similarities between the motion to dismiss and the motion for summary judgment, and also explains how, as a result of these similarities, Swierkiewicz v. Sorema may no longer be good law. This essay further proposes that differences between the motions, including discovery, cost and the role of the courts, call into question the propriety of the changes under Iqbal and Twombly.


October 29, 2009 in Employment Common Law, Employment Discrimination, Scholarship | Permalink | Comments (0) | TrackBack (0)

Wednesday, October 28, 2009

Wiccan Employment Discrimination Case

Pentacle_background_whiteApropos of the season comes this news item from Howard Friedman's Religion Clause. Earlier this month, Gina Uberti filed this complaint in a federal district court in Connecticut against Bath & Body Works, her former employer. According to the complaint, Uberti was hired as a store manager and was promoted to district sales manager a few years later. For at least six years, and with the approval of two regional managers, the plaintiff who was a Wiccan, had taken the week surrounding October 31st off of work. October 31st/November 1st is Samhain one of the 4 main festivals observed in the Wiccan religion, arguably the most important, starting the new year.

Uberti had positive evaluations and bonuses consistently. She had asked for the week off early in the year, as usual, and as usual, the vacation was approved. Then she got a new boss. According to the complaint, in a phone conversation after Uberti returned from vacation, the new boss expressed displeasure at the vacation's timing. The timing conflicted with an important project within the company. Uberti explained that the vacation had been approved well in advance and explained its religious significance for her. In response, according to the complaint, the new manager said she would need a new job in the new year, called her claim of religion ridiculous, and said "I'll be damned if I have a devil-worshipper on my team." Two weeks later, Uberti was fired.

This one should pass a motion to dismiss--the facts as alleged would create an inference that the discharge was because the plaintiff was Wiccan, which the plaintiff identifies as her religion; the vacation was pre-approved, which suggests that the timing wasn't the reason for the termination; and the manager's comments suggest that she was hostile to the plaintiff's religion. It may even survive summary judgment if the issue comes down to what happened during that phone call.


October 28, 2009 in Employment Discrimination | Permalink | Comments (2) | TrackBack (0)

Solicitation for Congressional Whistleblower Letter

Capitoldome From Richard Moberly (Nebraska):

I am writing to ask whether law professor readers of the blog would be willing to add their name to a letter to Congress about whistleblower protections for federal government employees.  Robert Vaughn from American University's Washington College of Law and I have drafted the letter below to address a specific bill currently before Congress. 

Several other labor and employment law professors already have added their names.

The House and the Senate have each passed versions of the same bill, called the Whistleblower Protection Enhancement Act of 2009, which is intended to strengthen the protections of the Whistleblower Protection Act of 1989.  Although the versions are similar in many respects, they contain some important differences.  The bills are now being reconciled by a House-Senate conference committee, and our letter addresses one of the differences between the two versions.

As you may know, the original WPA contained very strong protections that have been eroded by court and administrative decisions over the last 20 years.  One of the changes in the 2009 bill is to provide federal jury trials for whistleblowers, which was not an option in the
1989 bill.  Both the House and the Senate versions of the bill have the typical provision that, in these jury trials, government agencies will have an affirmative defense of proving an independent justification for an adverse employment action against a whistleblower.  The difference between the two bills relates to the burden of proof required for the affirmative defense.  The House bill, like every federal whistleblower law since 1989, requires the government employer to prove this defense by "clear and convincing" evidence. Surprisingly, the Senate bill only requires the burden of proof to be by a "preponderance of the evidence."

We believe that if the Senate version is adopted, the otherwise strong protections of the 2009 bill will be significantly eroded.  Please join us in signing the attached letter to urge the House-Senate Conference to adopt the House version requiring "clear and convincing" 
evidence of the government employer's affirmative defense.

If you would like to join the letter, please send Richard an email ( and he will add your name.  They hope to send the letter by the beginning of next week, so if it is possible, please let him know by this Friday, October 30.


October 28, 2009 in Beltway Developments, Faculty News | Permalink | Comments (0) | TrackBack (0)

Columbia Law Review's Sidebar Features Zatz and Green on Employment Discrimination Law

N_zatz_web Green This month the Columbia Law Review is publishing an article by Professor Noah Zatz (UCLA) in which he exploits the anomaly in Title VII doctrine of employer liability for third-party harassment to develop a new theory of employment discrimination law which relies on the ideas of membership causation and employer responsibility.  We have previously posted on this blog about the relationship between reasonable accommodation and anti-discrimination law. 

Professor Tristin Green (Seton Hall) criticizes Professor Zatz’s discussion of the applicability of his account to employer liability for the bias of a subordinate.  She argues that by failing to distinguish between direct and vicarious liability, Professor Zatz creates a risk that courts will limit employer liability based on considerations of “notice” and “feasibility” even where traditionally strict liability has been imposed.

The piece is available in a PDF version, which can be accessed through a link at the bottom of the response. The piece is also currently featured on the Columbia Law Review home page at

Tristin K. Green, On Macaws and Employer Liability:  A Response to Professor Zatz, 109 Colum. L. Rev. Sidebar 107 (2009),


October 28, 2009 in Employment Discrimination, Scholarship | Permalink | Comments (0) | TrackBack (0)

David Letterman, ESPN, and the Sexual Favoritism Mess

Letterman Image Sexual favoritism has been in the news a lot lately.  Earlier this month, David Letterman admitted to having sexual relationships with more than one female staffer.  On Tuesday, Nell Scovell, a former staff writer for Letterman, wrote a piece for Vanity Fair entitled "Letterman and Me."

In it, Scovell writes:

"Without naming names or digging up decades-old dirt, let’s address the pertinent questions. Did Dave hit on me? No. Did he pay me enough extra attention that it was noted by another writer? Yes. Was I aware of rumors that Dave was having sexual relationships with female staffers? Yes. Was I aware that other high-level male employees were having sexual relationships with female staffers? Yes. Did these female staffers have access to information and wield power disproportionate to their job titles? Yes. Did that create a hostile work environment? Yes. Did I believe these female staffers were benefiting professionally from their personal relationships? Yes. Did that make me feel demeaned? Completely. Did I say anything at the time? Sadly, no."

Instead of complaining, Scovell writes, she felt compelled to quit her job.

A similar story is playing out at ESPN, where baseball analyst and former New York Mets GM Steve Phillips was fired on Sunday after news broke of an affair between Phillips and a 22-year-old production assistant.  Following news of the Steve Phillips affair, a popular sports blog called Deadspin published a list of unverified rumors about other sexual liaisons and sexual harassment at ESPN.

Both of these cases raise questions about sexual favoritism in the workplace.  The EEOC treats sexual favoritism as a subset of sexual harassment law.  According to the EEOC, sexual favoritism can constitute a Title VII violation, but only if it is “widespread.”  The EEOC Policy Guidance on Employer Liability under Title VII for Sexual Favoritism, issued in 1990, provides:

"If favoritism based upon the granting of sexual favors is widespread in a workplace, both male and female colleagues who do not welcome this conduct can establish a hostile work environment in violation of Title VII regardless of whether any objectionable conduct is directed at them and regardless of whether those who were granted favorable treatment willingly bestowed the sexual favors. In these circumstances, a message is implicitly conveyed that the managers view women as 'sexual playthings,' thereby creating an atmosphere that is demeaning to women. Both men and women who find this offensive can establish a violation if the conduct is 'sufficiently severe or pervasive to alter the conditions of [their] employment and create an abusive working environment.’”  (citations omitted).

But the EEOC has taken the position that an isolated instance of a supervisor favoring an individual subordinate employee with whom the supervisor is having a consensual sexual relationship does not constitute a Title VII violation.  The reason for the distinction appears to be that Title VII contains no prohibition against the sort of unfair favorable treatment of an individual paramour that is akin to nepotism.  The EEOC Policy Guidance provides: 

"It is the Commission’s position that Title VII does not prohibit isolated instances of preferential treatment based upon consensual romantic relationships. An isolated instance of favoritism toward a 'paramour' (or a spouse, or a friend) may be unfair, but it does not discriminate against women or men in violation of Title VII, since both are disadvantaged for reasons other than their genders." 

Thus, in the EEOC’s view, a female or male employee given less favorable treatment at World-Wide Pants (Letterman’s company) or at ESPN might be able to bring a Title VII claim if she or he could establish that favoritism based on consensual sexual favors was widespread in the workplace.  It remains to be seen whether the Supreme Court would agree with the EEOC’s interpretation of Title VII.  It has never held that widespread sexual favoritism constitutes sexual harassment in violation of Title VII.

But the EEOC’s position raises this question:  Assuming that sexual favoritism can indeed constitute sexual harassment in violation of Title VII, why does the EEOC require it to be widespread, and what constitutes widespread?  More after the jump.

Continue reading

October 28, 2009 | Permalink | Comments (2) | TrackBack (0)

Crush a Union by Promoting Its Leaders?


Southwestern College, a community college near San Diego, apparently has banned several faculty members, including officers of the faculty union, from campus.  Here's one account of what's happened:

[L]ast Thursday a few hundred students and faculty carried out a peaceful protest against budget cuts at SWC, a southern California community college. That night four professors, including the president of the SWC faculty union, were suspended from their positions and barred from campus. The next morning the college’s president and HR director both left on extended vacations, leaving a low-level administrator behind to insist that the suspensions were “unrelated to the student rally.”

Here's the Chronicle of Higher Education's account, which adds that SWC might press unspecified criminal charges against the faculty members.

Looks like SWC has bungled this on multiple levels. 

Dean Dad, responding to the events at SWC, provides several recommendations on how management can deal with union "agitators" in times of crisis.  I'd like some feedback from Workplace Prof Blog readers on one of his recommendations: promote union leaders into management.  He says:

[One option is to] take the "cut off the head" approach, purge your senior staff, and refill your top admin positions with the union leadership. That way, you deprive the union of its strongest leaders in a way that they can't grieve. ("How dare you promote proven leaders?" won't get them far in court.) You also get the satisfaction of watching the firebrands who used to know everything discover constraints.

Would this be a legal employer response under the NLRA?  Clearly, members of management are not protected by the NLRA.  But wouldn't both the purpose and effect of this strategy be to discourage union membership (8(a)(3)) and to interfere with the employees' exercise of their Section 7 rights (8(a)(1))?

Comments welcome.


October 28, 2009 in Labor and Employment News, Labor Law | Permalink | Comments (4) | TrackBack (0)

New EEOC Poster


The EEOC has issued a new poster, dated November (!) 2009.  This new version reflects current federal employment discrimination law, including the Americans with Disabilities Act Amendments Act of 2008. The poster was revised to add information about the Genetic Information Nondiscrimination Act of 2008, which is effective November 21, 2009. The revised poster also includes updates from the Department of Labor.  Here's the poster and here's the poster request form.


October 28, 2009 in Employment Discrimination | Permalink | Comments (0) | TrackBack (0)

Tuesday, October 27, 2009

The Dangers of the Long Strike

Bach The AP recently had an in-depth story of a three-years and change strike at a Indiana musical instrument maker.  The Bach strike story highlights many of the economic pressures that employees--especially in the manufacturing sector--are all too familiar with.  But it also provides a good look at the difficulties involved with maintaining a strike over a long period of time.  As the Bach workers discovered, employers eventually learn how to make do without strikers, even relatively highly-skilled ones.  And, as the costs to the employer declines, the toll on many strikers mounts.  Thus, it's no surprise that this strike turned out badly, with the union losing a decert. election and the remaining employees working under terms far worse than a deal with the employer that the union pushed early in the strike.  A small taste:

Thanks to a judge's injunction, workers were restricted in the numbers they could deploy to the picket lines. The strike settled into a holding pattern. The peace didn't last.

Replacement workers called the National Labor Relations Board. With the strike entering its 19th month, a vote was set on whether the union would continue to represent plant workers. But the calculus had shifted.

Strikers lined up to vote. But so did replacement workers, inside the plant. When some strikers reached the table they were told their vote might not count because their jobs had been taken.

Workers' anger was also finding another target — the union itself, which they blamed for poor representation and counsel.

At the same time, the company was learning to live without the strikers. Steve Curtis found work at E.K. Blessing Co._ one of a handful of instrument makers left in town — then discovered his new employer had a contract from Bach to make trumpets. He was assigned to other work, but it left him uncomfortable.

Then again, at least he had a job.

Hat Tip:  Dennis Walsh


October 27, 2009 in Labor Law | Permalink | Comments (1) | TrackBack (0)

Request for Information for 2009 Newsletter – AALS Section on Labor Relations and Employment Law

Aals_logo Rachel Arnow-Richman (Denver) and Ann McGinley (UNLV) are currently working on the 2009 newsletter for the AALS Section of Labor Relations and Employment Section.

They are interested in information about the following:

1. Articles, books, etc. published

2. Career information – tenures, promotion, moves, visits, etc.

3. Information about sessions at the annual meeting or meetings that are related to Labor and Employment Law

4. Information about good restaurants, other places to go in New Orleans

5. Whether you would like to write a short article for the newsletter on a recent state of federal court case or a case before the Supreme Court, statutes, etc. Even if you don’t want to write something, let us know about new and interesting developments you would like us to write about.

6. Teaching tips; descriptions of innovative courses

7. Any other news that’s fit to print.

Please send your information or short articles by Friday, November 6 (but the sooner the better) to Rachel Arnow-Richman at or Ann McGinley at


October 27, 2009 in Conferences & Colloquia | Permalink | Comments (0) | TrackBack (0)

Slate Article on Briscoe v. New Haven and Disparate Impact

SlateI posted a couple of weeks ago about Briscoe v. New Haven, the disparate impact suit brought by a New Haven firefighter who would have been first on the list if the oral portion of the exam were was weighted as heavily as is the norm for public safety departments across the country. Richard Thompson Ford (Stanford) has a great article in Slate explaining the case (quoting David Rosen, Briscoe's attorney and a lecturer at Yale) and the importance of disparate impact. I have to say that I love Ford's articles in Slate, and Slate's coverage of these kinds of cases in general because they don't oversimplify the issues, but also don't rely on the jargon that many of us legal types use so reflexively.

Here's a little of the article

Like Frank Ricci, [Michael] Briscoe is a sympathetic plaintiff. He received the highest score of any candidate on the oral portion of the lieutenant's promotion exam. But he isn't eligible for promotion because the city based 60 percent of each candidate's score on the written exam. On this part of the test, Briscoe—like most black candidates for promotion—did comparatively badly.

It's tempting to dismiss Briscoe as a sore loser. But if he's right, New Haven is using an outdated promotion exam that screens out some of the most qualified candidates and locks in the effects of past discrimination. That's precisely what Title VII's disparate-impact prohibition is designed to prevent. And disparate-impact doctrine may be the most important part of civil rights law today, because although fewer and fewer employers openly discriminate on the basis of race, plenty still inadvertently perpetuate the effects of past discrimination by using flawed tests.

Briscoe's claim is a perfect example. Why didn't black candidates do as well as whites on the written exam? Black firefighters argue that because whites are more likely to come from families where firefighting is a legacy (for instance, one New Haven captain's father and grandfather both served as fire chief in New Haven), they are more likely to get help from a network of friends and relatives in studying for the written exam. Few blacks have such family connections—in large part because blacks were deliberately shut out of firefighting jobs until the 1970s, when black firefighters won discrimination suits in New Haven and in many other cities nationwide. (In fact, Briscoe's lawyer, Yale Law School lecturer David Rosen, brought the first discrimination case against the New Haven fire department back then.) So heavy reliance on a written exam, if it gives an advantage to legacy candidates, could perpetuate the evils of past discrimination.

There is a lot more discussion of disparate impact and its importance to preventing institutionalizing discrimination. You should read it if you follow these issues.

Hat tips: Randy Enochs and PS


October 27, 2009 in Employment Discrimination | Permalink | Comments (3) | TrackBack (0)

Monday, October 26, 2009

Insensitive Employer of the Week: Senor Whitten

Workplace-discrimination We all read about employers who seem to have their heads screwed on backwards, but this guy might just take the cake (via MSNBC):

Larry Whitten marched into this northern New Mexico town in late July on a mission: resurrect a failing hotel.

The tough-talking former Marine immediately laid down some new rules. Among them, he forbade the Hispanic workers at the run-down, Southwestern adobe-style hotel from speaking Spanish in his presence (he thought they'd be talking about him), and ordered some to Anglicize their names.

No more Martin (Mahr-TEEN). It was plain-old Martin. No more Marcos. Now it would be Mark . . . .

The 63-year-old Texan, however, wasn't prepared for what followed.

His rules and his firing of several Hispanic employees angered his employees and many in this liberal enclave of 5,000 residents at the base of the Sangre de Cristo mountains, where the most alternative of lifestyles can find a home and where Spanish language, culture and traditions have a long and revered history.

"I came into this landmine of Anglos versus Spanish versus Mexicans versus Indians versus everybody up here. I'm just doing what I've always done," he says.

Of course, it doesn't help to have a mayor that has no idea about what is legal and illegal under employment discrimination law:

Taos Mayor Darren Cordova says Whitten wasn't doing anything illegal. But he says Whitten failed to better familiarize himself with the town and its culture before deciding to buy the hotel for $2 million. "Taos is so unique that you would not do anything in Taos that you would do elsewhere," he says.

That's great Mayor Cordova, but you might want to read up a little on national origin discrimination and limits on English-only rules.

Just a suggestion.

Hat Tip:  Matt Parlow


October 26, 2009 in Employment Discrimination | Permalink | Comments (1) | TrackBack (0)

Ditslear & Brudney on Comparing Supreme Court Approaches in Tax Law and Workplace Law

Brudney Ditslear_2 Cory Ditslear (North Texas) (right) and Jim Brudney (Ohio State) (left) have posted on SSRN their piece in the Duke Law Journal: The Warp and Woof of Statutory Interpretation: Comparing Supreme Court Approaches in Tax Law and Workplace Law.   

From the abstract:

Debates about statutory interpretation - and especially about the role of the canons of construction and legislative history - are generally framed in one-size-fits-all terms. Yet federal judges - including most Supreme Court Justices - have not approached statutory interpretation from a methodologically uniform perspective. This Article presents the first in-depth examination of interpretive approaches taken in two distinct subject areas over an extended period of time. Professors Brudney and Ditslear compare how the Supreme Court has relied on legislative history and the canons of construction when construing tax statutes and workplace statutes from 1969 to 2008.

The authors conclude that the Justices tend to rely on legislative history for importantly different reasons in these two fields. The Court regularly invokes committee reports and floor statements in the workplace law area for the traditional role of identifying and elaborating on the legislative bargain that Congress reached. By contrast, the Justices often rely on the legislative history accompanying tax statutes to borrow expertise from key committee actors. The Court’s use of tax legislative history for expertise borrowing purposes relates to the distinctive nature of how tax legislative history is produced, featuring regular cross-party and interbranch cooperation that is virtually unimaginable in the workplace law setting. Although most Justices have appreciated the special character of tax legislative history, Justice Scalia remains steadfast in his unwillingness to do so . . . .

The evidence that familiar interpretive resources play distinctive roles in the area of tax law contributes to a subtler and richer texture for statutory interpretation than is often captured in scholarly debates. At the same time, the authors’ results also indicate that the Court since the late 1980s has exhibited greater uniformity in its reasoning in tax law and workplace law cases. Brudney and Ditslear wonder whether the philosophical arguments favoring a less flexible approach to statutory interpretation are beginning to trump a pragmatic orientation that is more sensitive to differences among particular subject matter areas of federal law.

Very interesting. Of course, tax law and workplace law especially overlap in employee benefits law cases. I will be curious to see what the authors have to say about statutory interpretation in those cases and whether they resemble more tax law or workplace law cases.


October 26, 2009 in Scholarship | Permalink | Comments (0) | TrackBack (0)

Iqbal's Plausibility Ruling Heading for a Congressional Hearing

Capitoldome Joe Seiner (South Carolina) brings to my attention a very important development in the world of civil procedure and employment discrimination law.

David Ingram of the National Law Journal reports:

Ashcroft v. Iqbal, the 5-month-old U.S. Supreme Court decision that has become a thorn in the side of the plaintiffs bar, will get a Capitol Hill airing on Tuesday.

The House Judiciary Committee is scheduled to hold the first congressional hearing on the far-reaching May ruling, which raised the pleading standard for most civil complaints, making it more difficult to keep cases from being thrown out.

The hearing isn't likely to be the last time Congress weighs in on the matter. Sen. Arlen Specter, D-Pa., has sponsored legislation to return to an earlier pleading standard, and he wields the gavel in a Senate Judiciary subcommittee. 

Because so much is at stake for both trial lawyers and the business community, I would not be surprised if this is the first many salvos on what exactly must be proven to survive a Rule 12(b)(6) motion.  Additionally, because many of the lawsuits involved concern employment discrimination plaintiffs, this goes right to the heart of whether those complaining of discrimination, harassment, or retaliation in the workplace can get their case heard of the merits.


October 26, 2009 in Beltway Developments, Employment Discrimination | Permalink | Comments (0) | TrackBack (0)

GAO Report on Employee Status


The General Accountability Office has issued the report Employee Misclassification on the distinction between employees and independent contractors.  The report is 74 pages long.  Here's a description:

When employers improperly classify workers as independent contractors instead of employees, those workers do not receive protections and benefits to which they are entitled, and the employers may fail to pay some taxes they would otherwise be required to pay. The Department of Labor (DOL) and Internal Revenue Service (IRS) are to ensure that employers comply with several labor and tax laws related to worker classification. GAO was asked to examine the extent of misclassification; actions DOL and IRS have taken to address misclassification, including the extent to which they collaborate with each other, states, and other agencies; and options that could help address misclassification. To meet its objectives, GAO reviewed DOL, IRS, and other studies on misclassification and DOL and IRS policies and activities related to classification; interviewed officials from these agencies as well as other stakeholders; analyzed data from DOL investigations involving misclassification; and surveyed states.

Hat tip: Mitch Rubinstein of Adjunct Prof Blog.


October 26, 2009 in Employment Common Law | Permalink | Comments (0) | TrackBack (0)

Saturday, October 24, 2009

Objections to Kodak's Proposed Race Discrimination Class-Action Settlement

364px-Kodak_logo.svgIn 2004, a group of Black workers of Eastman-Kodak filed a class action against the company, alleging widespread discrimination in pay and a failure to promote on the basis of race. A second class action was filed by another group of workers in 2007. The two classes together consist of about 3000 past and current employees. This past July, the company proposed a $21.4 million dollar settlement with the class--with payouts between $1,000 and $75,000 for individual class members. Magistrate Judge Jonathan Feldman (W. D. N.Y.) held a hearing Friday on the fairness of the proposed settlement, and will hold another on November 5. At Friday's hearing, several class members objected that the payouts were too low, that the attorneys were getting too much of the award, and that class members who left the company before 1999 would be excluded.

Some examples of the unfairness of the award include that one decades-long employee would be awarded $1000 while her daughter, employed for only 11 months, would be awarded $3000. For more details see news reports here and here.

Despite this example, it's hard to predict without knowing more what the judge will likely rule on whether the settlement is fair overall. In addition to the money, the company promised to improve its diversity training for supervisors and hire an industrial psychologist and two labor statisticians to review its pay and promotion policies and to recommend improvements. As Jason Bent recently suggested, having an external monitor to report to the court and some sort of ongoing supervision would be even better.


October 24, 2009 in Employment Discrimination | Permalink | Comments (0) | TrackBack (0)