Tuesday, November 30, 2010
A couple of weeks ago, the House Committee on the Judiciary's Subcommittee on Constitution, Civil Rights, and Civil Liberties held a hearing on the report of the President's Advisory Council on Faith Based Initiatives. The subcommittee had asked the White House and DOJ to send a representative to testify about the recommended reforms, but no one showed up.
Apparently, the committee was a little offended by the no-show. They sent a letter to AG Holder, asking him or his designee to come to a follow-up hearing to be scheduled after the end of this week. In part, the letter asks this:
In particular, we would like to hear from the Department on the issue of whether religious organizations may make religion-based employment decisions while receiving federal funds. As you undoubtedly are aware, the president asked his Advisory Council not to consider this issue, and the administration has said that it is conducting its own evaluation. This is an issue of importance to subcommittee members from both political parties, to many of our constituents and to the American public. It is unacceptable – and flatly inconsistent with the president’s pledge of greater transparency – that the Department of Justice has not made its position clear to the Congress or to agencies and partnering organizations who must understand and comply with the law.
This is a very important issue, but it's also understandable that the administration would not want to touch it with a ten-foot pole at the moment. Coming down on one side risks a potential free exercise problem (although faith based organizations don't have to take federal funds), and coming down on the other risks a different free exercise or establishment clause problem. I'm not a First Amendment expert, but I'm not sure that a principled distinction can be drawn between actions taken as an employer and the delivery of services provided to the community. Presumably it is not controversial that faith based organizations can't discriminate in their delivery of services on the basis of religion if they receive federal funds to deliver those services. Why then might they be allowed to discriminate on the basis of religion in choosing who can deliver those services. At the same time, the organizations shouldn't have to hire people who don't support the mission of the organization, at least in broad terms. I guess it seems to me that support of the mission, phrased neutrally with regard to religion, should be the touchstone.
In any event, we'll have to see if the administration complies with this strongly worded letter.
[Sutton] talks about a study of drug treatment errors in hospital nursing units. The most efficient and safest units reported 10 times more drug errors than the least efficient and unsafe units. Yes, you read that right. Sutton writes: "This tenfold difference in reported errors was due to psychological safety, not the actual error rate. Nurses with good bosses felt safe to admit mistakes, nurses with bad bosses avoided reporting errors because doing so provoked humiliation and retaliation." My take: You can't fix what you don't know is broken, and you won't know what's broken unless an employee tells you. A candid and transparent culture makes a manager stronger, not weaker.
Michael Fox over at Jottings by an Employer's Lawyer has a terrific post on the recent surge in disparate impact claims based on applicants' credit histories, and on the creative use of the web by plantiffs' atorneys to identufy potential clients.
Tuesday, November 23, 2010
As you can see from the attached flyer, they have NLRB Chairman, Wilma B. Liebman; FMCS Director, George H. Cohen; and former NLRB General Counsel, Ronald Meisburg, as our speakers, among others.
Monday, November 22, 2010
- Mark C. Weber, Unreasonable Accommodation and Due Hardship, 62 Florida L. Rev. 1119 (2010).
- Helen Norton, The Supreme Court's Post-Racial Turn Towards a Zero-Sum Understanding of Equality, 52 William & Mary L. Rev. 197 (2010).
Much of the prior two posts would be of only academic interest if tests for legal drugs were job related and consistent with business necessity under § 12113. And, of course, any particular testing regime may well be justified since it’s certainly not implausible that a given employee is unfit for certain tasks while being medicated, and may in fact pose a direct threat to himself or others.
But the question is scarcely a slam-dunk for employers. That's because there's reason to believe that many, perhaps most, people can function well while on medications and subject to doctor supervision. While a testing program can be justified even if it does not perfectly map onto the problem being addressed, there was more than a little concern in the Bates dispute about whether Dura Automotive's program was sufficiently individualized. Arguably, determining the effects of particular drugs might require more focus on the individual case – both the real duties of the position in question and the effects of the medication on the individual employee -- than employers might be inclined to otherwise do.
Further, § 12113(a) requires the employer to show not only the job relation/business necessity but also “that such performance cannot be accomplished by reasonable accommodation, as required by this title.” (The last phrase might limit the accommodation duty to actual disability cases, but we've seen that, post-ADAAA, that is an expanded universe). And § 12113(b), as interpreted by the Supreme Court, permits qualification standards that require that workers not be a "direct threat" to themselves and others.
Thus, the question could be framed either in terms of general qualification standards or, more specifically, in terms of the individual being a direct threat to himself or others. Oddly, the latter may be more difficult for employers than the former. Echazabal read § 12113(b), the direct threat defense, to permit the employer to act when the plaintiff posed a direct threat to himself, but it remanded for an individualized determination in that regard. Other cases have also required employers to document the projected harm to the individual in question. Arguably, a defense that does not rely on the direct threat provision but merely looks to § 12113(a) qualification standard defense might require less individualization, but this is a pretty undeveloped area.
The net result is that, despite Bates, ADA law poses serious challenges for any employer who chooses to test for its employees' use of licit drugs, especially if the employer then acts to exclude such workers without an individualized assessment of their job duties and the effects of such drugs on their capabilities.
Or so it seems to me! Again, thanks to Renee Levine.
Friday, November 19, 2010
In a recent press release, the NLRB has indicated that it might reconsider part of its Register-Guard decision. No, not the more high-profile part dealing with electronic communications. It's the more important part: the Board's significant narrowing of the meaning of "discrimination" in electronic communications and Lechmere cases. According to the release:
The National Labor Relations Board invites interested parties to file briefs in a case involving nonemployee access to Pick’n Save retail locations operated by Roundy’s Inc., in the Milwaukee area.
The Milwaukee Building and Construction Trades Council distributed handbills in the common areas (sidewalks and parking lots) in front of 26 Roundy’s stores asking consumers not to patronize the shops, alleging that Roundy’s employed nonunion contractors that did not pay prevailing wages and benefits to build and renovate its stores. The picketing was peaceful and did not interfere with access to or egress from the stores. Roundy’s contacted the police in an effort to have the handbillers expelled.
The Board reached a decision (356 NLRB 027) on November 12, 2010 adopting an administrative law judge’s supplemental finding that, at 23 of its store locations, Roundy’s possessed only a nonexclusive easement in the areas from which it attempted to expel the handbillers. Accordingly, the Board found that Roundy’s unlawfully prohibited handbilling in front of those stores.
The Board severed allegations involving handbilling at two other store locations (West Bluemound Road in Milwaukee, WI and West Capitol Drive in Brookfield, WI) where the General Counsel conceded that Roundy’s possessed a sufficient property interest in the areas from which it attempted to expel handbillers. The Board retained these allegations for further consideration in order to determine whether Roundy’s prohibition of handbilling by nonemployee union agents at these locations while permitting nonunion solicitations and distribution to occur on the same property was unlawful.
As the formal invitation for briefs implies, there are at least three possible approaches here: apply Register-Guard's discrimination definition to Lechmere cases (which at least one ALJ has done, and which seems an appropriate interpretation of Register-Guard); reverse Register-Guard's discrimination definition; or keep Register-Guard, but don't apply it to Lechmere cases. The three question raised by the invitation are:
1. In cases alleging unlawful employer discrimination in nonemployee access, should the Board continue to apply the standard articulated by the Board majority in Sandusky Mall Co.?
2. If not, what standard should the Board adopt to define discrimination in this context?
3. What bearing, if any, does Register Guard, 351 NLRB 1110 (2007), enf. denied in part 571 F.3d 53 (D.C. Cir. 2009), have on the Board’s standard for finding unlawful discrimination in nonemployee access cases?
As is no surprise given my work arguing for the importance of electronic and other workplace communications (for shameless self-promotion, see here, here, and here), I'd vote for option #2, but it's not clear that the NLRB wants to go that far in this case. We'll just have to see.
Last week, the FLRA issued a major decision that allows TSA security employees to vote on unionization. In the case, U.S. Dept. of Homeland Security, the FLRA (with one dissenter) rejected the National Rights to Work LDF's argument that unionization would pose a threat to national security. The crux of the decision was that although no union, under the Under Secretary for Security's statutory discretion, can collectively bargain for the employees, a union can still serve of representational functions (e.g., pursue grievances or act as a Weingarten representative). Moreover, Congress did not exclude security employees from the FLRA, as it did for CIA, FBI and other workers. Thus, although a union's ability to represent employees is limited, there is nothing completely barring union representation.
This case is a big deal, and not just because it's been a political hot potato for a while. The potential unit, according to the Washington Post, consists of 50,000 employees, which will be the largest federal public election ever. It also involves a vote that's a bit more complex than usual, as two unions--AFGE and NTEU--are both vying to represent the employees. Given the size of the unit, it's no surprise that the two biggest federal unions are working hard to win the vote. Stay tuned as the election proceeds.
Hat Tip: Dennis Walsh
Dave Gregory (St. John's, pictured left) sends word about three major events he is chairing for St. John's Law Center for Labor And Employment Law:
February 2, National Security and Employment (free and open to all).
March 18-19 2011, AFL-CIO President Richard Trumka keynoting The Theology of Work and the Dignity of Workers Conference ($300 conference fee; waivers available) (John Wilhelm, President UNITE HERE! And Prof. Sam Estreicher among the featured speakers). Here is the program.
July 20--22, 2011, Ted St. Antoine keynoting Worlds of Work: Employment Dispute Resolution Systems Across the Globe Conference at Cambridge University ($800 conference fee for panelists, speakers, presenters authoring law review symposium issue articles;$1,200 conference fee for all other attendees; waivers available (Sam Estreicher, Jack Getman, Bill Gould, Sir Bob Hepple, QC and Master Emeritus, Clare College, Cambridge among the featured speakers).
All information regarding calls for participation is on the St. John’s website. There is a January 15, 2011 deadline for both the March and July conferences for submission of 250 word abstracts for consideration for being a speaker or panelist. Here is more information for the Theology conference and the Cambridge conference.
Doesn't the ADA treat drug tests specially? Yes, but those provisions don't seem relevant to this dispute. Thus, a qualified individual with a disability does not include any employee who is “currently engaging in the use of illegal” drugs, §12114(a), but, by hypothesis, the Bates workers aren’t. The statute also prohibits discrimination against certain recovered abusers, and allows employer to test for illegal drugs for such individuals, but, again, this is inapplicable to the Bates employees.
Is the drug test a medical examination? The ADA states that “a test to determine the use of illegal drugs shall not be considered a medical examination.” Which by negative implication suggests that a test for other drugs is a medical examination, and it's not obvious why it shouldn't be treated as one.
Is the drug test a prohibited medical examination? The ADA bars medical examinations for current employees “unless such examination . . . is shown to be job-related and consistent with business necessity.” That pretty much shifts the question from medical examinations per se to the "job-related/ business necessity" inquiry, which takes us to §12113 (a) and (b). I’ll be back to those provisions later.
But the cases generally hold that one doesn’t have to be disabled to claim statutory protection against prohibited medical examinations. Thus, it would seem that, regardless of (actual or regarded as) disability, plaintiffs could challenge the test for legal drugs. The question would then be whether the test was justified. In Bates itself, there was disagreement over whether plaintiffs had raised the prohibited medical examination question. The district court had found no, and the Sixth Circuit had refused to consider the issue because it differered from the question on which appeal had been certified. Had the plaintiffs properly raised the medical examination issue, the "standing" question as to whether they could have asserted a violation of §12112(b)(6) would have been moot.
Bottom Line Re a Prima Facie Violation. The net of all this seems to be that, contrary to the actual result in Bates, should employers today use a similar policy, workers could explicitly challenge a test for licit drugs either as a prohibited medical examination or because they were, post-ADAAA, actually or regarded as disabled.
This renders the question of whether the Sixth Circuit's decision in Bates itself was correct as to the reach of §12112(b)(6) much less important than might first appear. But for the record, I doubt it. It's true that the statute is aimed at protecting individuals with disabilities (in this case from qualification standards that "screen out or tend to screen out" such persons), but it does not follow that only such individuals can challenge violations. In the ADA itself, it could be said that the prohibition on certain medical examinations was intended to protect individuals with disabilities, but that does not preclude nondisabled persons from invoking the statute's protections. And there are scattered examples under the other antidiscrimination laws of standing by parties who are not the primary beneficiaries of the law in question.
Still more later....
Thursday, November 18, 2010
NYLS Symposium on Summary Judgment, NOV, and Pleading Standards in Employment Cases After Iqbal and Twombley
Art Leonard (NYLS) sends us word that New York Law School Law Review, in collaboration with the Employee Rights Advocacy Institute for Law and Policy, is planning a full-day symposium and subsequent symposium issue for April 23, 2012, which will focus on the high failure rates of employee plaintiffs on pre- and post-trial motions and to discuss strategies for getting cases to a jury. For more information, contact New York Law School Law Review Executive Editor Eirik Cheverud.
Thanks to Professor Susan Bisom-Rapp (Thomas Jefferson) who brings to my attention that the Marco Biagi Foundation has set December 13 as the extended deadline for paper abstracts to be presented at the Marco Biagi Conference 2011, which will be held on March 17-19 in Modena, Italy.
The annual comparative labor and employment law conference commemorates the life and work of Marco Biagi, a professor at the University of Modena who was assassinated in 2002 by the Red Brigades. This year’s theme centers around the European Employment Strategy but there are intersections between the EU’s new strategy and the experiences of non-EU countries.
Here is the attached call for papers for further information.
Susan herself will be attending and speaking this year (my 5th in a row) and hope to see some of her US colleagues there. Part of the conference will be set aside for the presentation of PhD work (JSD candidates would qualify). If there are any interested students, please do send in a paper proposal.
Last month, the New York Times had a frontpage article on the increasing use by employers of drug testing to identify workers who are under the influence of prescription drugs. The story used Bates v. Dura Automotive Systems, 2009 U.S. Dist. LEXIS 34764 (M.D. Tenn. Apr. 23 2009), as a lens to examine the problem. In that case, employees were laid off for using drugs medically by their physicians. They worked on the manufacturing floor assembling glass windows for cars, and the company claimed that their jobs were safety-sensitive. Under the company's program, an independent agency tested all employees for twelve drugs, including legally-prescribed drugs, such as Xanax and Oxycodone, that could pose a safety risk in a manufacturing environment. The employees who tested positive for licit drugs and could provide a prescription were given a 30 day period to transition to drugs that did not pose a safety threat or to stop using drugs altogether. If they failed to do so, as revealed by a second test, they were terminated.
The district court held that the plaintiffs had standing to challenge discrimination under § 12112(b)(6), even if they were not disabled. The court reasoned that that provision barred unjustified selection criteria “that screen out or tend to screen out” individuals with disabilities, and that even workers without disabilities could mount an attack on such criteria. But it then certified an appeal on this issue, and the Sixth Circuit just handed down its decision, holding that a claim under §12112(b)(6) could be brought only by disabled workers. The appeals court thought that a plain language interpretation of the statute limited claims under that provision to those brought by disabled individuals.
That issue is important in itself, but Bates arose before the ADAA, so the amended statute did not figure in the court’s analysis. In the wake of the ADAAA, however, the questions such a scenario raises are multitudinous -- even assuming the Sixth Circuit's decision on standing is correct. That's largely because the ADA envisioned testing for illegal drugs but not for ones used legally pursuant to a prescription. Of course, the “direct threat” defense might provide a way out for the employer, regardless of whether a claim would otherwise exist.
The Times article reported calls for other employers to follow Dura Automotive’s lead. If they do so, how will such cases play out in the future? I’ll explore two aspects in this post, and some others later.
Are such workers actually disabled? The use of drugs doesn’t necessarily mean that the underlying condition being treated is disabling, but, of course, the ADAAA has loosened the requirements for actual disability, and it requires individuals to be assessed in their unmitigated state. To the extent that a narcotic is prescribed to treat severe pain, it may well be that the workers are actually disabled under the amended statute. Thus, if the (uncontrolled) pain itself interfered with a major life activity, the workers would appear to be actually disabled -- although the question of whether the disability was "temporary" might exclude some of them from coverage.
Are such workers “regarded as” disabled? The employer in Bates discharged the workers because it believed that persons so medicated could not work safely in the plant. Presumably, they also could not “transition” to other drugs with lesser probable effects on their functioning. Again, the underlying condition may well have been regarded as an impairment in its unmedicated state (although, of course, the employer might not have known about the condition before the drug test). But in any event it seems pretty clear that the company regarded them as impaired in their medicated state. This is a nice twist on the Sutton trilogy, which required courts to take the individual as they find her – in this case, in a medicated state. Of course, assuming such individuals would now be “regarded as” disabled (and not actually disabled), the employer does not have an obligation to reasonable accommodate them, but it does have an obligation not to discriminate against them. For example, by firing them.
More to come....(and thanks to Renee Levine for her help)
Wednesday, November 17, 2010
Scotusblog reports the the Supreme Court will consider Wal-Mart's certiorari petition in Dukes v. Wal-Mart at its upcoming conference on November 23. Factors in favor of taking it: it's a historically large class action involving the largest private employer in the country, it involves employment discrimination, it involves the rules of civil procedure. Factors in favor of denial: the class action has been pending for ten years and this is an interlocutory order, Wal-Mart is essentially relying on the size of the class to suggest that the certification was improper.
We'll likely find out next week what the Court thinks. I wouldn't be surprised if the Court asked for the Solicitor General's views on the matter, considering the EEOC's role in enforcement. That would mean another six-month-or-so delay.
Is It Sexual Harassment to Require Employees to Submit to Pat-Down Searches that Involve Inappropriate Touching?
Is there an argument to be made that jobs requiring airline travel, which necessarily involve either full-body scans or pat-down searches, do just this? See, for example, this thread over at Flyertalk.
Here's NPR's story from this morning on TSA Administrator John Pistole defending current airport screening procedures.
I'm just going to lob this one out and ask for comments.
Hat tip: Mark Lyon.
Congratulations to Susan Grover (William & Mary), Sandra Sperino (Temple, en route to Cincinnati), and Jarod Gonzalez (Texas Tech) on the impending publication of their casebook Employment Discrimination: A Context and Practice Casebook (Carolina Academic Press, forthcoming December 2010). Here are the publisher's notes:
Students will be better prepared for professional life if they leave law school with an ability to conceptualize legal theory, a sensitivity to the contexts in which legal rules operate and a concrete understanding of the lawyer's role as a professional problem solver. While retaining the methods used in traditional legal education, this text uses numerous exercises designed to engage students beyond the realm of traditional legal reasoning and to develop a core skill set crucial to employment discrimination attorneys.
Both the New York Times and the Los Angeles Times have glowing obituaries of epic labor mediator/arbitrator Theodore Kheel, who died Friday at the age of 96. I never had the opportunity to meet Mr. Kheel, but he obviously left an enduring legacy.
Hat tip: Patrick O'Donnell
Tuesday, November 16, 2010
The keynote speaker is Jennifer Gordon of Fordham Law School.
Monday, November 15, 2010
The Washington Post recently reported on the large number of employment discrimination cases that the Supreme Court has decided recently, noting also the cases on tap for this year: Staub v. Proctor Hospital, Kasten v. Saint-Gobain, and Thompson v. North American Stainless. The article discusses how the Court has actually been relatively pro-employee in retaliation cases, quoting among others, Eric Schnapper (U. Washington), who noted that he's been able to argue several such cases before the Court in part because the claim is present in numerous federal acts.
Hat Tip: Barry Hirsch
Sandra also has taught at Illinois and St. Louis. She teaches Employment Discrimination, Disability Law, Remedies, Civil Procedure, and Property.
Prior to her academic career, Sandra clerked for the Hon. Donald J. Stohr of the U.S. District Court, Eastern District of Missouri, and worked in the litigation and labor and employment departments at Lewis, Rice & Fingerish in St. Louis. She is a prolific scholar. Her most recent book is Employment Discrimination: A Context and Practice Casebook (forthcoming 2010) (with S. Grover & J.S. Gonzalez), and her most recent articles are The New Calculus of Punitive Damages in Employment Discrimination Cases, 62 Okla. L. Rev. 701 (2010) and A Modern Theory of Direct Corporate Liability for Title VII, 61 Ala. L. Rev. 773 (2010).
Congratulations all around!