Saturday, January 30, 2016

New Rules on Pay Discrimination

In a highly controversial move, the President announced this week proposed new rules requiring private employers with over 100 employees to provide additional data to the EEOC on worker salary.  The move could help provide more transparency on pay issues, thus reducing the likelihood of pay discrimination.  The New York Times has a great summary of the issue here.  The EEOC has also issued a press release on the rules, which states that:

"This proposal would add aggregate data on pay ranges and hours worked to the information collected, beginning with the September 2017 report. Proposed changes are available for inspection on the Federal Register website and will be officially published in the Federal Register on February 1, 2016. Members of the public have 60 days from that date April 1, 2016, to submit comments. . . The new pay data would provide EEOC and the Office of Federal Contract Compliance Programs (OFCCP) of the Department of Labor with insight into pay disparities across industries and occupations and strengthen federal efforts to combat discrimination. This pay data would allow EEOC to compile and publish aggregated data that will help employers in conducting their own analysis of their pay practices to facilitate voluntary compliance. The agencies would use this pay data to assess complaints of discrimination, focus agency investigations, and identify existing pay disparities that may warrant further examination."

We will certainly follow this proposed rule, which could dramatically impact the field of pay discrimination.

-Joe Seiner

January 30, 2016 | Permalink | Comments (0)

Friday, January 29, 2016

Digging for Dirt

New ImageThe New York Law Journal reports a story about a restaurant group going the extra mile in trying to dig up dirt about a plaintiff in an employment discrimination suit. According to the story, the defendant served third party subpoenas on the plaintiff's former employers, seeking pretty much everything they had on the plaintiff's work record. To add a nice touch, the subpoenas were served on Christmas Eve.

In Henry v. Morgan's Hotel Group, the plaintiff's motion to quash was granted by Magistrate Judge Cott.  First, the defendant failed to serve notice on the plaintiff before serving the subpoenas on the third parties, thus frustrating the plaintiff's opportunity to object before the third parties were notified. This created the real possibility of prejudice -- indeed, one of the former employers had produced the records before the court's decision on the motion to quash. Indeed, the mere service of the subpoena was found to be prejudicial to the plaintiff -- his concern that once and potentially future employers were effectively notified that plaintiff had filed a discrimination suit was legitimate.    

To add insult to injury, the subpoenas were both overbroad as to what was to be produced and sought clearly irrelevant information.  The defendant claimed that it needed the information to challenge plaintiff's credibility in his claim that he was an "exceptional waiter." The court found it not "remotely apparent what difference that would make regarding the allegations of discrimination and retaliation he has made in this case. The issue presented here is whether Defendant's actions directed toward Henry were based on valid considerations or violated the discrimination laws. Henry's prior employment has little if any bearing on that issue."  The court did not that there was no evidence adduced about any misrepresentations that might justify an after acquired evidence defense.

I'm not sure how often tactics like this are used by defense firms, at least where there is no claim of resume fraud or similar after-acquired evidence defense, but the decision may cause defense counsel to think twice about such tactics.
 
For civil procedure buffs, there's a final interesting aspect to the decision: in dealing with the overbreadth argument, the court invoked the new FRCP proportionality standard for discovery, a standard being widely decried as likely to restrict plaintiff's efforts. In Henry, however, it was the defendant who was on the wrong end of the proportionality analysis.
 
CAS

 

 

January 29, 2016 in Employment Discrimination | Permalink | Comments (2)

Saturday, January 23, 2016

Captive Audience Petition

NLRBA few days ago, over 100 law professors (present company included) filed a petition with the NLRB to change its approach to captive audience meetings.  Under the proposed rule, the NLRB would return to its prior policy of providing a union the opportunity to hold a meeting with employees if the employer does the same.  This differs from the current approach, under which employers can hold as many captive audience meetings that it wants (up to 24 hours prior to the vote), without giving the union similar access to employees.

An excerpt of the news release follows.  You can see the full release here and the petition (which was primarily authored by Charlie Morris and Paul Secunda) here

One-hundred and six (106) professors of labor law and employment relations have just filed an “interested person’s” petition with the National Labor Relations Board, the intent of which is to correct an unfair and undemocratic practice that American employers have long used to keep unions from winning NLRB elections. That practice is conducting what has come to be known as “captive-audience” meetings. These are anti-union talk sessions that management stages with employees on company premises during paid working time, with attendance compulsory and the union denied an equal opportunity to address those employees. It is a practice that employers tend to use almost reflexively whenever their employees are engaged in union organizing or seem likely to become so engaged. Such conduct was originally held to be a violation of the National Labor Relations Act, but that was changed in1953 by a Republican dominated Labor Board. Although the Board in 1966 commenced a reconsideration of that ruling, it never completed the process, deliberately leaving the matter open for change sometime in the future— which may now be about to happen. . . .

The petition points out that a similar rule has long prevailed for union elections on the airlines and railroads, which are covered by the Railway Labor Act, a similar yet different statute The National Mediation Board, which administers those elections, invalidates any election where captive-audience meetings have been held and the union loses, whereupon a new election is ordered. That practice has had a noticeable impact, for such meetings almost never occur during union-organizing campaigns on the airlines and railroads, and there have been very few instances of such violations. Petitioners assert that the absence of captive audiences in those industries might even be a significant factor—though certainly not the only factor—that accounts for the high rate of union membership—sixty-two percent—among airline and railroad employees; whereas it is less than seven percent among private-sector employees as a whole, a difference about which the public seems unaware. 

-JH

January 23, 2016 in Labor and Employment News, Labor Law | Permalink | Comments (2)

EEOC Case Law Developments on Mach Mining & Gender Identity

EEOC

image from eeoc.gov

EEOC General Counsel (and guest blogger) David Lopez sends along a couple of recent developments in the case law for the EEOC.  First, following the Supreme Court's recent decision in Mach Mining, the lower court determined that the agency could proceed with its sex discrimination lawsuit against the company in the case.  Second, the EEOC also recently settled a gender identity case that was pending against Deluxe Financial Services Corp. for $115,000 and an agreement that it would change its practices.  From the agency's press release on the gender identity case:

"According to EEOC's complaint, Britney Austin was assigned the male sex at birth and presented as male when hired by the company. Ms. Austin performed her duties satisfactorily in the com­pany's Phoenix offices throughout a lengthy tenure. However, after she informed her supervisor that she was transgender and began to present as a woman at work, Deluxe refused to let her use the women's restroom. According to the suit, supervisors and coworkers subjected Austin to a hostile work environment, including hurtful epithets and intentionally using the wrong gender pro­nouns to refer to her."

We appreciate the general counsel's office keeping us updated on these developments, and we will continue to follow these important issues.

-- Joe Seiner

 

January 23, 2016 | Permalink | Comments (0)

Thursday, January 21, 2016

Huffington Post Now Unionized

There has been a recent trend in the on-line news media of workers starting to organize.  In an interesting development on this front, CNN Money reports that the Huffington Post will join this group as workers there have now unionized as well.  From the CNN report:  "The management of the site voluntarily recognized its employees' union, the Writers Guild of America, East. The bargaining unit will consist of 262 employees."  This on-line media outlet represents the largest such media source to form a union.

-- Joe Seiner

January 21, 2016 | Permalink | Comments (0)

Tuesday, January 19, 2016

Diversity in Higher Ed conference at Thomas Jefferson

Susan Bisom-Rapp (Thomas Jefferson) sends word of a conference at her school that will likely interest some of our readers:

Thomas Jefferson School of Law

Sixteenth Annual Women and the Law Conference

and Ruth Bader Ginsburg Lecture Series

Pursuing Excellence:  Diversity in Higher Education

Friday February 5, 2016 9:00 a.m. – 5:00 p.m.

5.5. hours Elimination of Bias MCLE

Thomas Jefferson School of Law’s 16th Annual Women and the Law Conference, Pursuing Excellence:  Diversity in Higher Education, will be held Friday, February 5, 2016 at Thomas Jefferson School of Law in San Diego, California.

This conference brings together leading academics, educators, institutional leaders, and policy makers to examine how diversity in institutions of higher education affects and is inspired by students, faculty, and leaders. The conference will highlight a number of critically important topics including facilitating educational access for undocumented students, challenges to developing and nurturing a diverse educational environment, the importance of training students in professional programs (including medicine and law) to serve diverse populations, and challenges to affirmative action ranging from Prop 209 to the current U.S. Supreme Court case Fisher v. University of Texas

Professor Bryant Garth, Professor at UC Irvine School of Law and former Dean of Southwestern Law School and Indiana University School of Law, will deliver the Ruth Bader Ginsburg Lecture. He continues in a long line of illustrious speakers who have been honored as the Ruth Bader Ginsburg Lecturer, a lecture series Justice Ginsburg generously established for Thomas Jefferson in 2003.

Other speakers include:  Toni Atkins, Speaker of the California Assembly; Susan Bisom-Rapp, Professor of Law, Thomas Jefferson School of Law; Marisol Clark-Ibáñez, Professor of Sociology, Cal State University San Marcos; Youlonda Copeland-Morgan, Associate Vice Chancellor, Enrollment Management, UCLA; Meera E. Deo, Professor of Law, Thomas Jefferson School of Law; Adrian Gonzales, Interim Superintendent/President and  Vice President  of Student Services, Palomar Community College;  Vallera JohnsonAdministrative Law Judge; Catherine Lucey, Professor and Vice Dean for Education, UCSF School of Medicine; Mary Ann Mason, Professor of Law and Co-Director of the Center on Health, Economic, and Family Security, UC Berkeley; Linda Trinh Vo, Professor of Asian American Studies, UC Irvine;  Shirley Weber,  California Assemblywoman, Chair of the Assembly Select Committees on Higher Education and Campus Climate, former President of the San Diego Unified School District; and Susan Westerberg PragerDean, Southwestern Law School, former Dean UCLA School of Law, former Executive Director and CEO of AALS.

For additional information and registration, visit: http://www.tjsl.edu/conferences/wlc/2016.

MM

January 19, 2016 in Conferences & Colloquia | Permalink | Comments (0)

Monday, January 18, 2016

11th Circuit OKs Mixed-Motive Transgender Case

JTWEISS-copyThe 11th Circuit on Thursday released Chavez v. Credit Nation Auto Sales, reversing a trial court's grant of summary judgment for the employer on a mixed-motive claim. The trial court held that a plaintiff in a mixed-motive case must prove pretext. The 11th Circuit disagreed, finding that mixed-motive analysis is a separate method of proof from the McDonnell Douglas/Burdine analysis, and that a plaintiff need not prove pretext in a mixed-motive case.

Jillian Weiss (photo above), who litigated the case for the plaintiff, writes to us:

As you may recall, I had an appeal before the 11th Circuit on the issue of standards in mixed motive cases. The Court has issued its opinion, and I thought you might be interested.  It's attached.  It was your blog's suggestion that Nassar would be important in making the case on mixed motive causation (from 4/24/14). It was. Here's what the Court said:

From pages 11-12:  More recently, the Supreme Court has told us that “Section 2000e-2(m) is not itself a substantive bar on discrimination. Rather, it is a rule that establishes the causation standard for proving a violation defined elsewhere in Title VII.” Univ. of Tex. Sw. Med. Ctr. v. Nassar, __ U.S. __, at __, 133 S. Ct. 2517, 2530 (2013) (emphasis added). “[B]ut-for causation is not the test”; rather, “[i]t suffices instead to show that the motive to discriminate was one of the employer’s motives, even if the employer also had other, lawful motives that were causative in the employer’s decision.” Id. at 2523.

That quote came from our brief, which I put in there because I read your blog. Thanks! ... We appreciate your blog.

rb

January 18, 2016 in Employment Discrimination | Permalink | Comments (0)

Sunday, January 17, 2016

Another Avenue to Deal with Wage Theft

NewimageA pretty interesting, and pro-employee, case out of the Eighth Circuit. Cuellar-Aguilar v. Deggeller Attractions, Inc. reversed a district court's dismissal of two claims against the employer -- a traveling carnival. One was that it  failed to pay the workers, who were in the country on H-2B visas, the prevailing wage rate and the second was that it misreported on federal tax forms the wages it did pay.

The first claim was treated as a state contract claim and, although the workers lacked a formal contract so providing, federal regulations conditioned issuance of visas on the employer's paying the prevailing US wage rate for the region. For the court, hiring foreign workers was sufficient to find a contract under Arkansas law and the terms of that contract can be influenced by the law in effect at the time of formation, in this case the prevailing wage rate. The court even cited an Arkansas case that suggested that such background laws might trump an express agreement to the contrary, although that seems doubtful from a pure contracts perspective.

Even more interesting -- because potentially more broadly applicable -- was the second claim that the employer had underreported their income, presumably to reduce business and FICA liabilities.

The tax laws, 20 USC 7434, provide a cause of action against "any person willfully files a fraudulent information return with respect to payments purported to be made to any other person," and set liability as " an amount equal to the greater of $ 5,000 or the sum of actual damages," costs and attorneys fees (emphasis added).

While plaintiff apparently did not argue any actual harm, the court found a claim stated for the statutory damages. A little research suggests that this is a growing theory: although the cases asserting such claims are still relatively few, most have arisen in the last few years. And, while the claim in Deggeller was that the employer sought to avoid FICA by reporting less than it in fact paid, other 7434 suits have challenged the employer's issuance of a 1099 instead of a W-2, thus suggesting that the employee/independent contractor distinction can arise in yet another civil liability setting.

CAS

January 17, 2016 in Wage & Hour | Permalink | Comments (0)

Friday, January 15, 2016

Seattle Allows Uber Drivers to Unionize

 Seattle

As we are all aware, there continues to be an enormous amount of controversy (and litigation) on the issue of whether Uber drivers are employees or independent contractors.  While this question has a direct impact on wages under various state laws and the FLSA, there are also important questions regarding unionization under the NLRA.  The Seattle Times reports that the city is the first in this country to expressly allow Uber drivers to unionize.  From the report:

"Under the [city of Seattle's] ordinance, a taxi, for-hire or app-based vehicle-dispatch company will be required to provide the city with a list of its Seattle drivers. Then a nonprofit organization — most likely a union — will use the list to contact the drivers."

This is an important development on this issue and it will be interesting to see if other jurisdictions follow suit.

--Joe Seiner

January 15, 2016 | Permalink | Comments (2)

Tuesday, January 12, 2016

Spitko on Anti-LGBT Bias in Role Model Occupations

SpitkoGary Spitko (Santa Clara) has just posted on SSRN his new article (48 Connecticut Law Review 71-117 (2015)) A Reform Agenda Premised Upon the Reciprocal Relationship Between Anti-LGBT Bias in Role Model Occupations and the Bullying of LGBT Youth. Here's the abstract:

Employment discrimination in role model occupations on the basis of LGBT status has long been used systematically to define negatively the LGBT identity and to reinforce the associations between the non-LGBT majority and certain positive qualities, values, and institutions. This Article argues that a reciprocal relationship exists between such discrimination and the bullying of LGBT youth. This Article then proposes a reform agenda to combat anti-LGBT bias in role model occupations grounded in an understanding of the nature of this reciprocal relationship. Part I demonstrates that anti-LGBT discrimination in role model occupations has been employed systematically to disassociate LGBT people from certain positive qualities and values and to maintain and strengthen the associations between these positive qualities and values and the non-LGBT majority as well as the institutions that the non-LGBT majority holds dear. One effect of such discrimination, as intended, is that known LGBT role models are removed from public visibility. This exclusion makes it more likely that young people will come to devalue LGBT people which, in turn, is likely to increase the prevalence of the bullying of LGBT youth. Part II reviews recent empirical studies that evidence that the bullying of LGBT youth is a widespread problem and that the consequences of this bullying can be profound and tragic. This Part also reviews empirical evidence that bullying in the workplace is a significant problem and that much of this workplace bullying targets LGBT people. This hostile environment, in turn, encourages LGBT workers to conceal their sexual orientation or gender identity. Thus, bullying is not only a consequence of the intentional exclusion of known LGBT people from role model occupations; bullying also furthers this exclusionary project. Finally, Part III considers in greater detail the mutually reinforcing relationship between employment discrimination against known LGBT role models and the bullying of LGBT youth, focusing on their common genesis and effects. This Part then proposes a reform agenda grounded in an understanding of the interconnections between such discrimination and the bullying of LGBT youth.

The article grew out of a book that Gary has forthcoming from the University of Pennsylvania Press later this year:  – “Anti-Gay Bias in Role Model Occupations.”  The book argues that much employment discrimination against gay people is intended to disassociate gay people from certain positive qualities and values and to maintain and strengthen the association between these positive qualities and values and the heterosexual majority as well as the institutions that the heterosexual majority holds dear.  The law review article considers the mutually reinforcing relationship between such employment discrimination against known LGBT role models and the bullying of LGBT youth, focusing on their common genesis and effects. The Article then proposes a reform agenda to combat anti-LGBT bias in role model occupations grounded in an understanding of the nature of this reciprocal relationship.

rb

January 12, 2016 in Employment Discrimination, Scholarship | Permalink | Comments (0)

Not Exactly Employment, But....

A very interesting post on SSRN by Benjamin Edelman, Michael Luca, and Dan Svorsky entitled Racial Discrimination in the Sharing Economy: Evidence from a Field Experiment. Here's the abstract:

Online marketplaces increasingly choose to reduce the anonymity of buyers and sellers in order to facilitate trust. We demonstrate that this common market design choice results in an important unintended consequence: racial discrimination. In a field experiment on Airbnb, we find that requests from guests with distinctively African-American names are roughly 16% less likely to be accepted than identical guests with distinctively White names. The difference persists whether the host is African-American or White, male or female. The difference also persists whether the host shares the property with the guest or not, and whether the property is cheap or expensive. We validate our findings through observational data on hosts’ recent experiences with African-American guests, finding host behavior consistent with some, though not all, hosts discriminating. Finally, we find that discrimination is costly for hosts who indulge in it: hosts who reject African-American guests are able to find a replacement guest only 35% of the time. On the whole, our analysis suggests a need for caution: while information can facilitate transactions, it also facilitates discrimination.

The quantification of the costs of owners for indulging their taste for discrimination is interesting, and suggestive of the difficulties of eradicating bias.  Not only is the article a useful addition to the literature on bias in commercial transactions but it also serves as a caution to those who view internet-based applications as providing an important corrective. As the article suggests, Amazon and Ebay provide anonymity, which should prevent most kinds of discrimination.  Airbnb, in contrast, provides sufficient information for each side in a transaction to know (or at least perceive) the race of the counterparty. It's not so clear to me how this applies -- or doesn't --to more serviced-based transactions, but it's worth keeping an eye on.

CAS  

 

January 12, 2016 in Workplace Trends | Permalink | Comments (0)

Monday, January 11, 2016

4th Circuit on Gender-Normed Physical Fitness Tests

4th cir

From Friend-of-Blog Jon Harkavy:  "Today the Fourth Circuit decided in Bauer v. Lynch that a gender-normed physical fitness test for being a Special Agent of the FBI does not violate Title VII's sex discrimination prohibition. The published decision of the panel is attached and might present a cert-worthy issue but for the likelihood (which I have not researched) that there are no other circuits that have ruled otherwise."

We appreciate Jon sending along this case, which is attached here.  The decision is one that is likely of great interest to readers of this blog, and addresses another question of gender stereotyping that continues to come up in the case law.

- Joe Seiner

January 11, 2016 | Permalink | Comments (1)

Duff on Worker's Compensation

  Prof. Duff2

I recently learned that Friend-of-Blog Michael Duff (Wyoming) has posted on SSRN his wonderful new piece "Worse than Pirates or Prussian Chancellors: A State's Authority to Opt-Out of the Quid Pro Quo.", 17 Marq. Ben. & Soc. Wel. L. Rev (Summer 2016 Forthcoming).  The abstract to the article is below:

Privatization of public law dispute resolution in workplaces has been under intense scrutiny in the context of arbitration. Another kind of workplace dispute privatization is presently underway, or under serious consideration, in several states. In connection with state workers’ compensation statutes, one state has implemented, and others are considering, a dispute resolution model in which employers are explicitly authorized to opt out of coverage. “Alternative benefit plans,” created under such statutes, permit employers to, among other things, unilaterally and without limitation designate private fact-finders, whose conclusions are subject to highly deferential judicial review. This model is arbitration on steroids. While there may be doubts in some quarters about the neutrality of arbitrators, reasonable doubts about the loyalties of an employer-appointed fact-finder are inevitable. Such a design would mark a decisive break with the quid pro quo/Grand Bargain of the early twentieth century, and there is a risk of some states getting caught up in a “race to the bottom,” where states not recognizing a right to a remedy for physical injury become havens of low-cost labor, and thus exert pressure on states that safeguard traditional rights to follow suit. The Supreme Court may be forced to intimate an opinion on the constitutional right to a remedy for personal, and especially physical, injury (whether within or outside of the workplace). The Court has not squarely addressed the issue since 1917, when it decided New York Cent. R. Co. v. White, a case originally upholding the constitutionality of workers’ compensation systems. In White, the Court hinted, but did not clearly establish, that the right to a remedy for physical injury may not be abolished without substitution of a reasonable remedy.

Professor Duff is the go-to expert on Worker's Compensation issues, and I highly recommend taking a look at his new cutting edge piece in this area.

-Joe Seiner

January 11, 2016 | Permalink | Comments (0)

Oral Arguments in Friedrichs

Supreme CourtToday, the Supreme Court heard arguments in the public-sector agency fee case, Friedrichs v. California Teachers Association.  The oral argument transcript hasn't been released yet, but based on news accounts, it didn't sound good for the unions.  In particular,  Justice Scalia's comments seemed to shote down hope that might continue to express skepticism at overruling Abood.  It's, of course, never certain that the oral argument predicts a final decision, but public-sector unions should start making backup plans.

If the Court does overrule Abood it will be interesting if it holds, as some justices suggested at arguments, that all public-sector bargaining over terms and conditions of employment is political.  Does that mean that public-sector employees are entitled to First Amendment protection when they speak out about working conditions?  That hasn't usually been the case, but if that changes, it will be a silver-lining for some employees, especially those working in states without public-sector labor law.  Also, will outlawing agency fees create more of a move toward members-only bargaining?  For instance, will we see public-sector unions argue that free riding is unconstitutional (e.g., a takings?).

Stay tuned.

-JH

January 11, 2016 in Labor and Employment News, Labor Law | Permalink | Comments (0)

Thursday, January 7, 2016

EEOC Appellate Brief on Sexual Orientation

EEOC

Friend-of-blog David Lopez, EEOC General Counsel, sends along the EEOC's appellate brief as amicus curiae in the U.S. Court of Appeals for the Eleventh Circuit in Burrows v. The College of Central Florida, which is available here. In the brief, the EEOC argues for the first time that Title VII's prohibition against sex-discrimination covers discrimination based on sexual orientation.  The brief provides an important look at the agency's official position on the issue, and it is likely important to those of us teaching (and practicing) in this area of the law.  I highly recommend taking a look if you have the chance.

--Joe Seiner

January 7, 2016 | Permalink | Comments (1)

Wednesday, January 6, 2016

Ricci and Affirmative Action: Seeking Cert. in Shea v. Kelly

    Since United Steelworkers of America v. Weber, 443 U.S. 193 (1979), and Johnson v. Transportation Agency, 480 U.S. 616 (1987), judges have had Supreme Court precedent for reading Title VII’s section 703(a) (42 U.S.C. § 2000e-2(a)), to let employers, under certain circumstances, voluntarily consider race or sex pursuant to affirmative action plans when making training, promotion, or other employment decisions.  These precedents are now a target of a recent cert. petition to the US Supreme Court.  Shea v. Kerry involves a challenge under Title VII’s section 717 (42 U.S.C. § 2000e-16(a)) to the US State Department Foreign Service’s Mid-Level Affirmative Action Plan—and with that, whether Weber and Johnson survive Ricci v. Destefano, 557 U.S. 557 (2009).

    In Ricci itself, the (mostly white) plaintiffs hadn’t challenged an affirmative action plan.  Rather, they’d argued that their employer—the City of New Haven— had violated Title VII, section 703(a), by refusing to certify the results of promotion tests.  The City argued that it had feared that, given the race disparity in those test results, certifying them would subject it to Title VII disparate-impact liability. In ruling that the plaintiffs deserved summary judgment, the Ricci Court wrote: “We hold only that, under Title VII, before an employer can engage in intentional discrimination for the asserted purpose of avoiding or remedying an unintentional disparate impact, the employer must have a strong basis in evidence to believe it will be subject to disparate-impact liability if it fails to take the race-conscious, discriminatory action.”

    In Shea, the plaintiff-—represented by lawyers from the Pacific Legal Foundation (PLF) —had argued for reading Ricci to overrule Weber and Johnson and to place the burden on the State Department to justify its affirmative action plan under Ricci’s strong-basis-in-evidence standard.  (For details, see here).  The D.C. Circuit disagreed. Unlike the employer in Ricci,

[t]he employers in Johnson and Weber did not modify the outcomes of personnel processes for the asserted purpose of avoiding disparate-impact liability under Title VII. Nor did the State Department here. The Department, like the employers in Johnson and Weber, instead acted to “expand[ ] job opportunities for minorities and women,” and to “eliminate traditional patterns of racial segregation.”  Ricci does not purport to reach the Department's actions in pursuit of those purposes. Weber and Johnson therefore still control.

Shea v. Kelly, 796 F.3d 42, 55 (D.C. Cir. 2015) (citations omitted).

     Now, in seeking cert., PLF offers, among other arguments, that the D.C. Circuit’s decision in Shea “renders Ricci toothless.” (p. 23)  Ricci had teeth, PLF argues, because Ricci “clarified that race-based employment decisions are generally ‘impermissible’ by government under Title VII. 557 U.S. 557, 563 (2009),”—except where the employer “has a strong basis in evidence of a disparate impact violation,” or “if necessary to remedy the effects of past intentional discrimination.” (p. 22 & n.5).  In describing Ricci’s scope that way, however, PLF plucked the word “impermissible” from this (arguably narrower) sentence in Ricci: “We conclude that race-based action like the City's in this case is impermissible under Title VII unless the employer can demonstrate a strong basis in evidence that, had it not taken the action, it would have been liable under the disparate-impact statute.”  Ricci, 557 U.S. at 563 (emphasis added).

    Will PLF’s argument about Ricci persuade at least four Supreme Court Justices to vote for cert. in Shea?  Even if the Court did strategically write Ricci with an eye to Weber and Johnson (for more, see here), the Court may not see Shea as a suitable vehicle for confirming or extending Ricci’s scope. Shea concerns Title VII’s section 717, not section 703(a).  There’s no real circuit-split yet—the other appellate court to reach how Ricci affects Weber and Johnson ruled the same way as the D.C. Circuit. See United States v. Brennan, 650 F.3d 65, 102–04 (2d Cir. 2011).  In general, the odds of cert. are low: During its October 2014 term, the US Supreme Court docketed 1,544 cases filed by non-in-forma-pauperis parties seeking appellate review, but granted only 60 cert. petitions in such cases—roughly a 4% grant rate.  Sure, maybe the odds are much better for the subset of such cases that are about race-based affirmative-action, given cert. grants for those cases in recent years. What’s unclear is by how much, and thus whether, ultimately, a cert. grant in Shea is likely or a longshot.

 

---Sachin Pandya

January 6, 2016 | Permalink | Comments (0)

Tuesday, January 5, 2016

Employer vigilance needed in the face of workplace tragedy

Every year this country sees almost two million incidents of workplace violence.  Federal data reveals that over a 13-year period, almost 10,000 murders occurred in the workplace.  These numbers are startling, particularly when put in the context of the recent horrific events in San Bernardino, Calif.

While last month’s tragic shootings will be investigated for some time, there already appears to be a strong workplace connection. One of the shooters, Syed Rizwan Farook, was a five-year employee of the San Bernardino County health department, which was holding the holiday party where these events occurred.  Just like the recent high-profile tragedy involving a newscaster in Roanoke, Va., this incident exemplifies how an individual’s employment can sometimes be linked to unthinkable acts of violence.

These tragic events often lead to heated public discussion over gun laws and weapon accessibility. While dialogue over gun control dominates public debate, it only addresses part of the question. An often forgotten facet of this type of violence is the workplace component that is frequently involved. The incidents in Virginia – and now California – emphasize the importance of this workplace connection.

Few things in our lives go more to the core of our identity than our jobs. When people are unsatisfied in the workplace, or feel threatened in their employment security, they may act out in aggressive ways. This is why employers must be more vigilant today than ever before.  We need only to look at the “Five C’s” that span the entire period of employment for answers in preventing workplace violence:

Character Checks.  Background checks are perhaps the most important opportunity employers will have to prevent workplace violence. Employers should carefully investigate the background of any prospective employee for potential aggressive characteristics. This is particularly important where these workers will be put in sensitive situations or in the homes of customers.

Counseling. Employers must make mental health counseling available to all workers when needed. Such employee assistance programs are critical to helping workers get through difficult emotional times. This type of counseling must be kept confidential to encourage workers to avail themselves of this avenue of assistance.

Communication.  Employers must create an environment which promotes an open dialogue of how to respond to active shooters or other violent individuals.  Similarly, employers should establish appropriate complaint mechanisms to allow workers to notify management of potential workplace issues.

Cautious Cutbacks.  When the need to terminate a worker arises, employers must be particularly cautious in conveying the separation.  Far too frequently employers are cavalier about the process, and fail to even acknowledge or recognize the devastating effect a termination can have on an individual’s life and family. 

Community Involvement.  An employer cannot operate in isolation and must become part of the local community. There are many times where an employer will have critical information concerning a worker’s violent propensities, but fail to share this with law enforcement personnel. 

These straightforward reminders help create an important framework for employers to eradicate workplace violence, though the framework is obviously not exhaustive.  The most important lesson here is that employers must be engaged in all aspects of an individual’s working life – assuring that the potential for violence is minimized before, during and after employment.

Workplace violence cannot be completely eliminated. And employers must often balance the privacy rights of individuals battling mental or other health-related problems with the potential risk of workplace danger. Last month’s tragic events serve as an important reminder that employers must try to do more to help prevent this type of horrific violence.

Please feel free to share any additional thoughts on what employers can do to help prevent workplace violence in the comments below.

-- Joe Seiner

January 5, 2016 | Permalink | Comments (0)

Friday, January 1, 2016

Top Posts from 2015