Workplace Prof Blog

Atlanta Fire Chief Suspended for Writing Religious/Homophobic Book

Thanks to Phil Sparkes for sending us a note about this gem. From yesterday's Atlanta Journal-Constitution:

Atlanta Fire Chief Kelvin Cochran has been suspended without pay for one month because of authoring a religious book in which he describes homosexuality as a “sexual perversion” akin to bestiality and pederasty.

Mayor Kasim Reed’s spokeswoman Anne Torres said the administration didn’t know about “Who Told You That You Are Naked?” until employees came forward with complaints last week. In addition to suspending Cochran, Reed’s office has now opened an investigation to determine whether the chief’s actions violated the city policies or discriminated against employees.

Cochran has been ordered to undergo sensitivity training and has been barred from distributing copies of the book on city property after a number of firefighters said they received them in the workplace.

Reed said he was “deeply disturbed” by the sentiments Cochran expressed in his book and will “not tolerate discrimination of any kind” in his administration.

rb

 

SEALS call for participants

The Southeastern Association of Law Schools holds its annual meeting every summer at the end of July/beginning of August, and planning for next year's programming has started. For the past several years, a workshop for labor and employment law has taken place over several of the days. Michael Green (Texas A & M) is helping to organize the workshop for next summer. If you are interested in participating, feel free to get in touch with him: [email protected]. Some suggestions already made include panels or discussion groups on whistleblowing, joint employer issues, termination for off-duty conduct (including recent NFL scandals), disability and UPS v. Young, and a junior scholars workshop.

One additional piece of programming already proposed is a discussion group on attractiveness issues in Employment Discrimination cases. Wendy Greene is helping to organize it, so get in touch with her if you are interested in participating on that topic.

And regardless of whether you get in touch with Michael or Wendy, you should think about proposing programming for the annual meeting if you are at all interested and regardless of the topic. The meeting is surprisingly (because of the lovely environs) substantive, and the environment is very relaxed and is designed to be egalitarian.  Here are the details:

The SEALS website www.sealslawschools.org is accepting proposals for panels or discussion groups for the 2015 meeting which will be held at the Boca Raton Resort & Club http://www.bocaresort.com/  Boca Raton, Florida, from July 27 to Aug. 2.  You can submit a proposal at any time.  However, proposals submitted prior to October 31st are more likely to be accepted.

This document explains how to navigate SEALS, explains the kinds of programs usually offered, and lays out the rules for composition of the different kinds of programming: Download Navigating submission. The most important things the Executive Director emphasizes are these:  First, SEALS strives to be both open and democratic.  As a result, any faculty member at a SEALS member or affiliate school is free to submit a proposal for a panel or discussion group.  In other words, there are no "section chairs" or "insiders" who control the submissions in particular subject areas.  If you wish to do a program on a particular topic, just organize your panelists or discussion group members and submit it through the SEALS website.  There are a few restrictions on the composition of panels (e.g., panels must include a sufficient number of faculty from member schools, and all panels and discussion groups should strive for inclusivity).  Second, there are no "age" or "seniority" restrictions on organizers.  As a result, newer faculty are also free to submit proposals.  Third, if you wish to submit a proposal, but don't know how to reach others who may have an interest in participating in that topic, let Russ Weaver know and he will try to connect you with other scholars in your area.

MM

Supreme Court grants cert in EEOC v. Abercrombie

The Supreme Court granted cert in a number of cases today as a result of its long conference, including EEOC v. Abercrombie & Fitch. The cert question is this:

Whether an employer can be liable under Title VII of the Civil Rights Act of 1964 for refusing to hire an applicant or discharging an employee based on a “religious observance and practice” only if the employer has actual knowledge that a religious accommodation was required and the employer's actual knowledge resulted from direct, explicit notice from the applicant or employee.

The district court had denied A & F's motion for summary judgment and granted the EEOC's, holding that, as a matter of law, A & F had failed to reasonably accommodate the religious practices of an applicant for employment. The Tenth Circuit reversed, remanding and ordering the district court to enter summary judgment for A & F. The applicant, a young Muslim woman, wore a hijab, a head covering, and although the store manager recommended she be hired, a district manager decided that because she wore the hijab, she should not. He determined that the hijab would not comply with the company's "Look Policy." 

The Tenth Circuit held that summary judgment for A & F was proper because the applicant "never informed Abercrombie prior to its hiring decision that she wore her headscarf or 'hijab' for religious reasons and that she needed an accommodation for that practice, due to a conflict between the practice and Abercrombie’s clothing policy." Interestingly, the store manager assumed that the applicant wore her hijab for religious reasons and never raised the issue during the interview. She also did not suggest that there might be a conflict between that practice and the "Look Policy," which the applicant otherwise could easily comply with.

The Court also granted cert in another case that might have implications for employment discrimination. The question in Texas Dep't of Housing and Community Affairs v. The Inclusiveness Project is whether disparate impact claims are cognizable under the Fair Housing Act. The Fifth Circuit did not consider that question in the case. Instead, it followed its prior precedent that they were cognizable, and held that the legal standard to be used should be the regulations adopted by the Department of Housing and Urban Development.

So, overall, this term is shaping up to be another blockbuster for employment and labor. Here is a roundup.

Cases that directly deal with employment and labor questions:

• Department of Homeland Security v. MacLean, a whistleblower/retaliation case
• Integrity Staffing Solutions, Inc. v. Busk, whether time spent in security screenings is compensable under the FLSA as amended by the Portal to Portal Act.
• M&G Polymers v. Tackett, a case about presumptions related to interpretation of CBAs on retiree health benefits under the LMRA.
• Mach Mining v. EEOC, whether and to what extent the courts can enforce the EEOC's duty to conciliate before filing suit.
• Tibble v. Edison, Int'l, an ERISA case involving the duty of prudence and the limitations period for bringing claims.
• Young v. UPS, whether light duty accommodations only for on-the-job injuries violates Title VII as amended by the Pregnancy Discrimination Act.

And there is one additional case that might have implications for religious accommodations in the workplace. Holt v. Hobbs, which concerns whether a department of corrections policy that prohibits beards violates the Religious Land Use and Institutionalized Persons Act insofar as it prohibits a man  from growing a one-half-inch beard in accordance with his religious beliefs.

MM

Bauries, Sutherland, and Legare Amicus in Eleventh Circuit Teacher Evaluation Case

Scott Bauries (Kentucky) writes to tell us about an amicus brief he, Brian Sutherland, and Cheryl Legare (both from the Buckley Law Firm) filed on behalf of Professors of Education Law and Educational Measurement. 

From the abstract on SSRN: 

This appeal, to be decided by the United States Court of Appeals for the 11th Circuit, challenges two egregious misuses of "value-added modeling," a controversial teacher evaluation method that attempts to isolate the affect of one teacher on the learning gains of that teacher's students, as derived from annual standardized test scores. With the approval of the State Appellees, the School District Appellees used the test scores of students who took the Florida Comprehensive Assessment Test in reading and math to evaluate the teaching performance of teachers who either did not teach these students at all, or did not teach them the tested curriculum. Amici, who are experts in education, education law, and educational measurement, file this brief to assist the Court in understanding how irrational these uses of value-added modeling are. The uses challenged here contradict the very purpose of using value-added modeling in the first place. In addition, they completely lack scholarly support, and they undermine, rather than further, the state's avowed purpose in evaluating its teachers -- to incentivize the evaluated teachers to improve their teaching, and thereby improve student achievement.

Or in plainer terms as Scott wrote in an email,

The basic goal of amici was to educate the court about the many problems with value-added modeling as an employee performance evaluation tool, to better illustrate the ridiculousness (and therefore constitutional irrationality) of the uses to which it was put in these districts.  In brief, the districts used the test score data of one teacher’s students on a test in one subject area to judge the performance of teachers who either did not teach the students who took the test at all (e.g. kindergarten teachers, when testing begins in third grade), or did not teach them the tested curriculum (e.g., fourth grade music teachers). 

Very interesting read.

MM

State Voters Allowed to Decide the Fate of Public-Sector Affirmative Action in Shuette

Following up on my last post regarding the latest ruling in Fisher, I’d like to continue the dialogue on the issue of public-sector affirmative action, and its relevance for the public workplace and other public domains, in light of the Supreme Court’s decision in Shuette v. Coalition to Defend Affirmative Action, Integration and Immigrant Rights and Fight for Equality By Any Means Necessary (BAMN) this past Term.  Shuette concerned whether an amendment to a state’s Constitution, prohibiting the consideration of race in all state decisionmaking, including in public employment, public education, and public contracting, violated the federal Equal Protection Clause of the Fourteenth Amendment.  Because the Court held that such an amendment is valid, as a practical matter this case should alert public universities and public employers in other states to keep in mind how they would justify their use of race-conscious programs—potentially both in the public voting arena and in the courtroom.  In addition, the Court’s splintered decision in this case, and the differing interpretations of the relevant case law presented in this case, suggests the difficulty of resolving questions regarding how the courts should review state voter actions that affect the ability of state entities to use or not use race-conscious processes in various areas of public decisionmaking.

Shuette is part of the larger story of affirmative action in Michigan.  In 2003, the Supreme Court decided two cases involving the University of Michigan, Gratz v. Bollinger and Grutter v. Bollinger.  In Gratz, the Court held that the school’s use of race in its undergraduate admissions policy was invalid under the Equal Protection Clause, while in Grutter, the Court held that the Law School’s more confined use of race was constitutionally valid.  After these rulings, the University modified its college admissions program so that an applicant’s race would be considered in a more restricted manner.  After failing to dismantle affirmative action through the courts, anti-affirmative action citizens and groups next turned to the state ballot box.  The State of Michigan then engaged in a public debate and vote on whether to prohibit state actors from using race in any manner in their decisions and actions.  A ballot proposal on this question, referred to as Proposal 2, passed by a 58 to 42 percent vote, resulting in a broad amendment to the State Constitution.  This amendment, now found in Article I, Section 26 of the Michigan Constitution, prohibits all state entities from “grant[ing] preferential treatment to, any individual or group on the basis of race, sex, color, ethnicity, or national origin in the operation of public employment, public education, or public contracting.”

Various interest groups and individuals in support of affirmative action challenged the validity of Section 26 under the Equal Protection Clause in Shuette.  Justice Kennedy wrote the controlling opinion in the case, in which Chief Justice Roberts and Justice Alito joined.  Justice Kennedy very clearly stated in Shuette that the Court’s decision in Fisher is not at all affected by this case, so that race-conscious decisionmaking in university admissions remains constitutionally permissible if strict scrutiny is satisfied.  The different question in Shuette involved whether and in what manner a state’s voters may adopt a prohibition against all consideration of racial preferences in state decisions, with the focus specifically on public university admissions.  Justice Kennedy viewed this case as one that primarily concerned the right of a state’s voters to exercise their electoral power to ban race-conscious affirmative action in the public realm, and upheld the amendment to the Michigan Constitution.  Chief Justice Roberts filed a concurring opinion, as did Justice Breyer, who concurred for narrower reasons.  Justice Scalia also wrote a separate concurrence, in which Justice Thomas joined.  Justice Kagan took no part in the consideration or decision of this case.

Justice Sotomayor wrote in dissent, joined by Justice Ginsburg.  Justice Sotomayor expressed hearty support for democratic voter action, but nonetheless argued that the voters in Michigan restructured the political process in the state so as to burden racial minorities, who would have to amend the State Constitution to pursue their diversity goals in public university admissions.  She pointed out that Michigan citizens who want to pursue non-race-related interests would face less of a hurdle by only needing to influence the governing boards of each state school, who retain the authority to make all other admissions decisions not prohibited by Section 26.  As a result, Justice Sotomayor contended that the electoral majority’s action in this case required strict scrutiny review by the courts under the “political process doctrine” established in the Court’s earlier cases, the last of which was Washington v. Seattle School District No. 1.

Justice Kennedy, however, disagreed with language in Seattle that he believed created an unnecessarily broad rationale, and also rejected the interpretation of Seattle by the court below (the Sixth Circuit en banc), which relied on Seattle to  invalidate the amendment in Shuette.  As Justice Kennedy put it in Shuette:

… Seattle stated that where a government policy “inures primarily to the benefit of the minority” and “minorities … consider” the policy to be “ ‘in their interest,’ ” then any state action that “place[s] effective decisionmaking authority over” that policy “at a different level of government” must be reviewed under strict scrutiny … In essence, according to the broad reading of Seattle, any state action with a “racial focus” that makes it “more difficult for certain racial minorities than for other groups” to “achieve legislation that is in their interest” is subject to strict scrutiny.  It is this reading of Seattle that the Court of Appeals found to be controlling here.  And that reading must be rejected.

… To the extent Seattle is read to require the Court to determine and declare which political policies serve the “interest” of a group defined in racial terms, that rationale was unnecessary to the decision in Seattle; it has no support in precedent; and it raises serious constitutional concerns.  That expansive language does not provide a proper guide for decisions and should not be deemed authoritative or controlling.

Justice Kennedy in Shuette thus stated that the Court was not required to make a racial determination regarding the public university admissions policy changed through the amendment to the Michigan Constitution, and also found that this amendment was not subject to strict scrutiny. 

On the other hand, Justice Sotomayor in her dissent asserted that under stare decisis, Seattle along with an earlier case, Hunter v. Erickson, are the proper precedents, and as such, strict scrutiny was required in Shuette:

Section 26 has a “racial focus”…That is clear from its text … Like desegregation of public schools, race-sensitive admissions policies “inur[e] primarily to the benefit of the minority,” … as they are designed to increase minorities’ access to institutions of higher education.

Justice Sotomayor, in directly applying the language from Seattle and agreeing with the Sixth Circuit’s reading of Seattle, found that the amendment in Shuette focused on race and inured primarily to the benefit of racial minorities, thus triggering strict scrutiny.

But the plurality, as well as Justices Scalia and Thomas, disagreed that the Court can or should properly decide when state action actually inures primarily to the benefit of a racial minority group, and asserted that the judiciary should avoid trying to determine such racial interests and classifications.  They posited that such inquiries would contribute to racial divisiveness, and entrench racial stereotypes.  But, perhaps somewhat ironically, the plurality’s position prompted Justices Sotomayor and Ginsburg to respond with a vigorous and lengthy dissent, maintaining that the Court cannot avoid such questions in the face of a restructured political process that operates to disadvantage racial minorities.

Shuette produced marked divergences on the Court.  But under the plurality’s decision, state employers and universities ought to be prepared to make their case for affirmative action in response to any possible public or legislative challenge, as I point out in a forthcoming paper further examining Shuette.

RKL

On Remand from the Supreme Court, Fisher Decided in the Fifth Circuit in Support of Affirmative Action Plan

Thanks so much to the bloggers at the Workplace Prof Blog for inviting me.  I am excited to join such a great group as a guest blogger.

For my initial post, I’d like to discuss Fisher v. University of Texas at Austin and its analysis of race-conscious affirmative action under strict scrutiny, in light of the Fifth Circuit’s ruling in the case last Tuesday (following the Supreme Court’s remand order last year).  My goal is to provide a starting point for dialogue on the continuing vitality of Fisher in supporting race-conscious affirmative action in various settings, including in the public workplace.

First, to provide some procedural background on the case, it was an open question as to whether the Fifth Circuit would send the case back down to the federal district court for further factfinding on the constitutional question under the Equal Protection Clause.  After additional briefing and oral argument, the federal appellate court denied the University’s motion for remand, stating that while it had the discretion to remand the case to the district court, it found the existing record sufficient since no new factual issues needed to be addressed, and the mistake identified by the Supreme Court was made by the appellate court and the district court alike and in the same fashion.  The Supreme Court, after hearing the case last year, remanded it for proper judicial assessment of the narrow tailoring requirement under strict scrutiny.  Although the Supreme Court found the state university’s use of race in admissions decisions in order to achieve student body diversity a compelling governmental interest, in line with the Court’s decisions in Bakke and Grutter,  the Court nonetheless remanded the case, stating that the reviewing court must independently assess whether UT-Austin’s plan was narrowly tailored to meet its diversity objective rather than defer to the University’s claims on this point. 

On the merits of the case, the Fifth Circuit noted that under the correct strict scrutiny standard, it had to evaluate, without deference to the University, whether the school’s method of achieving student body diversity was narrowly tailored to meet its diversity goal based on the evidence presented.  To satisfy the narrow tailoring requirement, the reviewing court must find that it is necessary for a university to use race for it to achieve the pedagogical benefits that flow from student diversity, and that no workable race-neutral alternatives would bring about these benefits.  In conducting its independent assessment, the appellate court carefully reviewed the record concerning UT-Austin’s use of its race-neutral Top Ten Percent Plan to select over 80% of its Texas students, and the school’s additional use of an individualized, race-conscious holistic review process to select the small remaining percentage of students.  The court noted that UT-Austin also engaged in various race-neutral outreach and scholarship programs to reach under-represented student populations.  In its evaluation, the court of appeals found that the school used a range of race-neutral methods to try to boost minority enrollment and selected the vast majority of its students through the race-neutral Top Ten Percent Plan.  Further, the court explained that the University’s use of a holistic review that took into account the race of the applicants served to complement the pool of students admitted through the Top Ten Percent Plan by bringing in students who have much to contribute to the school’s diversity based on their various skills, achievements, and perspectives but who were overlooked using the Percent Plan alone.  The court determined that this holistic review was a highly individualized and highly competitive process, and not a quota system.  In attentively examining all of these facets of UT-Austin’s admissions program, the court held that the narrow tailoring requirement under strict scrutiny for race-conscious decisionmaking was satisfied, and affirmed the district court’s grant of summary judgment in favor of UT. 

This was a 2-1 decision, with Judge Carolyn King joining Judge Patrick Higginbotham in the majority decision, and Judge Emilio Garza dissenting.  Judge Garza in his dissent took issue with the meaning of a “critical mass” of student diversity, stating that the University framed its diversity objective as achieving a critical mass but was unable to objectively define this term.  Because Judge Garza found that the school failed to clearly explain its goal and what “critical mass” requires, he did not think the court could make an independent determination on whether the school met its narrow tailoring burden.

The Fifth Circuit’s latest decision in Fisher is an important win for UT-Austin, and for affirmative action.  Although Fisher concerns the constitutionality of affirmative action plans using race in the higher education setting, its analysis would apply to affirmative efforts involving race by other state actors and thus has implications for public employers who wish to use race-conscious affirmative action plans to attain a diverse workforce.  As I discussed in a talk I gave at a symposium this past spring and further discuss in a forthcoming piece, the Supreme Court’s decision in Fisher, and now along with the Fifth Circuit’s recent decision on remand, can be used to help demonstrate the constitutional validity of race-conscious affirmative efforts in the public workplace to achieve workforce diversity.  

RKL

Gender and Race Issues in Harris and Hobby Lobby

The analyses here of yesterday's decisions, Jeff's in Harris v. Quinn and Charlie's in Burwell v. Hobby Lobby were spot-on and highlighted many of the legal implications of the cases going forward.  There were some interesting facets that they did not discuss that I would like to think through a bit more.

One of the things that struck me about both decisions is their effect on women and particularly women of color. The workforce at issue in Harris is primarily female and heavily women of color. Similarly, lack of contraceptive access affects women most directly, and has larger impacts on women of color. Nearly half of the pregnancies in this country are unintended (a higher rate than other developed nations), and result in a large number of abortions and poorer health and economic, workplace-related consequences for the women who choose to continue their pregnancies and the children they deliver. The rates of unintended pregnancies among African American and Hispanic women are significantly higher than for white women because of lack of access to low cost, highly reliable contraception. And the health risks of pregnancy are significantly greater for women of color -- African American women are four times more likely to die in childbirth than are white women. Easy access (financially and logistically), reduces these effects significantly. 

Unionization has been good, in general, for the home health care workers in Illinois. These are workers not covered by safety net statutes like the Fair Labor Standards Act and the Occupational Safety and Health Act, nor are most covered by anti-discrimination statutes like Title VII. They are not covered by the National Labor Relations Act, either, which is one reason that these workers have had little luck bargaining for better wages or working conditions. These workers who were allowed to organize in Illinois and to bargain with the state have seen their wages increase significantly, nearly tripling for some (from as low as $3.35 to now over $11 and set to reach $13 by the end of the year). They also have health insurance and other workplace benefits. The result has been good for the majority of those women, although the named plaintiff, a woman who cared for her own son at home, perceived the deduction from her paycheck as a reduction in medicaid benefits for her son. Overall, most people who need in home care, like the elderly -- who again, are disproportionately women, although white women, based on aggregate life expectancy data -- and people with disabilities, also benefitted by being able to retain workers long-term who can be reliable (able to rely on this as their primary income and not look for other or better paying work) and better trained. Those people who need care could remain in their homes and not have to live in institutional settings.

To the extent that the gender pay gap and the racial pay gap (and the racialized gender pay gap) are driven by horizontal labor force segregation, organization seemed the most promising force for change. The decision in Harris seems to minimize the effects of that progress. To the extent that these pay gaps are driven by either horizontal or vertical workplace segregation that results from pregnancy and caregiving responsibilities, or by the higher cost of health care for one sex, easy access to contraception seems a way to reduce those indirect and direct effects. The decision in Hobby Lobby seems to threaten that. If insurers do not continue to agree to absorb the costs of contraceptives, who will? And finally, aside from the effects on individuals (workers, those who need home health care, and the families of both), to the extent that these pay gaps lead to wealth disparities, health outcomes disparities, and an inability to live independently, the states face greater expenses in supporting those who need help.

The Court's opinion in Hobby Lobby contained some additional food for thought on the interaction of RFRA and other federal laws. The Court stated in the early part of its opinion that the decision was confined in a number of ways, including that it was confined to the contraceptive mandate of the ACA. But the logic of the opinion and the language in the bulk of it has few bounds. As Justice Ginsburg's dissent pointed out, the logic of the opinion would allow any corporation, regardless of it's organization or corporate purposes, to challenge any federal law of general applicability, including, for example, Title VII. While the majority explained that Title VII's prohibition on racial discrimination in hiring was the least restrictive means to ensure equal opportunity in employment on the basis of race, the court left its analysis at that. Title VII also prohibits classifying and segregating employees in any way that would tend to deprive them of opportunities based on race. Is that narrowly tailored enough? Is the way that language has been interpreted to include disparate impact narrowly tailored enough?

Moreover, what about the other classes protected by Title VII? Sex is notably absent from that language. Is the Court anticipating the Title VII action brought by Hobby Lobby's female employees or the EEOC itself challenging a lack of access to contraception as sex discrimination? Such a suit could be a ways off if insurers will go along with the accommodation worked out for nonprofit religious entities and religious organizations in this context. However the process to take advantage of that opt-out is also currently being challenged. And based on the Court's decision, the Eleventh Circuit has suggested that it thinks that process will definitely fail. Yesterday, just hours after the Court's decision, the Eleventh Circuit granted the Eternal Word Television Network an injunction against complying with the opt-out because signing or indicating to an insurer or the government in any way that the Network would refuse to comply with the mandate would trigger that coverage to be provided in another way, thus facilitating the Network's employees in possibly engaging in acts the Network finds immoral--including having sex for any reason other than for procreation. Judge Pryor's concurrence quoted the majority's language at length, stating that it was clear the requirement would violate RFRA. It is no real stretch to extend that to for-profit corporations as well.

Moreover, what of the burgeoning case law on sex as including gender identity and sexual orientation at least when what is at issue is gender nonconforming behavior by the employee? Is that cut off at the knees for any company asserting that it finds gender nonconformity immoral for religious reasons? 

These are just some preliminary thoughts of the additional effects of the two cases--and I didn't even get into the government efficiency, corporate law, corporate personhood, or issues of religion also running through the one or the other decisions I'd love to hear thoughts on any of this in the comments or follow-up posts.

MM

 

Court Upholds Right of Public Employees to Testify

The Supreme Court issued its decision in Lane v. Franks, today, holding unanimously that a public employee is entitled to First Amendment protection for testifying in court where testifying is not a part of that employee's regular job duties.  The Court further held that the individual defendant had qualified immunity because circuit court precedent was not clear enough. Here is the syllabus:

1. Lane’s sworn testimony outside the scope of his ordinary job duties is entitled to First Amendment protection. Pp. 6–13.

(a)  Pickering v. Board of Ed. of Township High School Dist. 205, Will Cty., 391 U. S. 563, 568, requires balancing “the interests of the[employee], as a citizen, in commenting upon matters of public concern and the interest of the State, as an employer, in promoting the efficiency of the public services it performs through its employees.” Under the first step of the Pickering analysis, if the speech is made pursuant to the employee’s ordinary job duties, then the employee is not speaking as a citizen for First Amendment purposes, and the inquiry ends. Garcetti v. Ceballos, 547 U. S. 410, 421. But if the “employee spoke as a citizen on a matter of public concern,” the inquiry turns to “whether the relevant government entity had an adequate justification for treating the employee differently from any other member of the general public.” Id., at 418. Pp. 6–8.

(b)  Lane’s testimony is speech as a citizen on a matter of public concern. Pp. 8–12.

(1)  Sworn testimony in judicial proceedings is a quintessential example of citizen speech for the simple reason that anyone who testifies in court bears an obligation, to the court and society at large, to tell the truth. That obligation is distinct and independent from any separate obligations a testifying public employee might have to his employer. The Eleventh Circuit read Garcetti far too broadly in holding that Lane did not speak as a citizen when he testified simply because he learned of the subject matter of that testimony in the course of his employment. Garcetti said nothing about speech that relates to public employment or concerns information learned in the course of that employment. The critical question under Garcetti is whether the speech at issue is itself ordinarily within the scope of an employee’s duties, not whether it merely concerns those duties. Indeed, speech by public employees on subject matter related to their employment holds special value precisely because those employees gain knowledge of matters of public concern through their employment. Pp. 9–11.

(2) Whether speech is a matter of public concern turns on the “content, form, and context” of the speech. Connick v. Myers, 461 U.S. 138, 147–148. Here, corruption in a public program and misuse of state funds obviously involve matters of significant public concern. See Garcetti, 547 U. S., at 425. And the form and context of the speech—sworn testimony in a judicial proceeding—fortify that conclusion. See United States v. Alvarez, 567 U. S. ___, ___. Pp. 11–12.

(c) Turning to Pickering’s second step, the employer’s side of the scale is entirely empty. Respondents do not assert, and cannot demonstrate, any government interest that tips the balance in their favor—for instance, evidence that Lane’s testimony was false or erroneous or that Lane unnecessarily disclosed sensitive, confidential, or privileged information while testifying. Pp. 12–13.

2. Franks is entitled to qualified immunity for the claims against him in his individual capacity. The question here is whether Franks reasonably could have believed that, when he fired Lane, a government employer could fire an employee because of testimony the employee gave, under oath and outside the scope of his ordinary job responsibilities. See Ashcroft v. al-Kidd, 563 U. S. ___, ___. At the relevant time, Eleventh Circuit precedent did not preclude Franks from holding that belief, and no decision of this Court was sufficiently clear to cast doubt on controlling Circuit precedent. Any discrepancies in Eleventh Circuit precedent only serve to highlight the dispositive point that the question was not beyond debate at the time Franks acted. Pp. 13–17.

3. The Eleventh Circuit declined to consider the District Court’s dismissal of the claims against respondent Burrow in her official capacity as CACC’s acting president, and the parties have not asked this Court to consider them here. The judgment of the Eleventh Circuit as to those claims is reversed, and the case is remanded for further proceedings. P. 17.

523 Fed. Appx. 709, affirmed in part, reversed in part, and remanded

Justice Sotomayor wrote the opinion. Justice Thomas wrote a short concurrence that Justices Scalia and Alito concurred in, explaining that because Lane was not testifying as part of his job duties, the case was a straightforward application of Garcetti v. Ceballos, 547 U.S. 410 (2006). Justice Thomas further wrote,

We accordingly have no occasion to address the quite different question whether a public employee speaks “as a citizen” when he testifies in the course of his ordinary job responsibilities. See ante, at 8, n. 4. For some public employees—such as police officers, crime scene technicians, and laboratory analysts—testifying is a routine and critical part of their employment duties. Others may be called to testify in the context of particular litigation as the designated representatives of their employers. See Fed. Rule Civ. Proc. 30(b)(6). The Court properly leaves the constitutional questions raised by these scenarios for another day.

I'll admit that I'm a bit relieved by the decision, and I'm not alone--Paul expressed concern when cert was granted. The decision seemed to track my impressions from the oral argument, but that's not always the way it turns out, and the Court has not ruled in favor of public employees lately on this issue.

It will be interesting to see what the Eleventh Circuit does with the claims against the office of the President of the Community College on remand.

MM 

Ninth Annual Colloquium Registration

Just a friendly reminder from conference organizers, Melissa Hart and Scott Moss at the University of Colorado Law School, that the deadline to register to attend, and/or present a paper at, the 9^th Annual Labor and Employment Scholars Colloquium is Friday, August 1, 2014.  The Colloquium is scheduled in Boulder between September 11-13, 2014.

 You can register and submit a paper proposal at this link:

 https//cuboulder.qualtrics.com/SE/?SID=SV_ehPf2AWQ7ihhqfz.

 Please direct any questions to Melissa Hart ([email protected]) or Scott Moss ([email protected]).

MM

Oral Argument in Lane v. Franks

The Supreme Court heard oral argument today in Lane v. Franks (see here and here) today.  The oral argument transcript is now available. It's a good read. The justices seemed pretty skeptical that the First Amendment would not protect a public employee testifying about information he learned at work, but at the same time, they were concerned that Eleventh Circuit precedent might be murky enough that the right was not clearly established enough at the time Lane was fired to overcome qualified immunity. For reporting on the argument, see here, here, and here.

MM

Registration Open for the 9th Annual Colloquium on Labor and Employment Law at U. of Colorado

From conference organizers Scott Moss and Melissa Hart, at the University of Colorado Law school comes word that registration is open for the Ninth Annual Colloquium on Labor and Employment Law Scholarship. The dates will be September 11th to the 13th in Boulder. 

As many of you already know, this is a terrific opportunity to get to know colleagues in an informal setting and exchange ideas as we discuss works-in-progress. Past participants likely would agree that the friendly, low-key atmosphere and productive sessions, as well as the chance to socialize with our colleagues, make this gathering especially fun and valuable.

The Colloquium will follow the familiar format. We will workshop papers all day Friday through Saturday afternoon. Exact times TBD; check the event webpage for updates as the Colloquium approaches.

To register, click here.

MM

Bauries on Academic Freedom and on Supreme Court Review

Scott Bauries (Kentucky) has posted two new papers on TWEN. the first is Individual Academic Freedom: An Ordinary Concern of the First Amendment, which Scott says he views as Part I of what he sees as a three-part series directed at identifying a better constitutional “home” for academic freedom than the First Amendment.  It is forthcoming in the Mississippi Law Journal, and here is the abstract:

This contribution to the Mississippi Law Journal's symposium on education law makes the case that individual academic freedom is not a "special concern of the First Amendment," as the Supreme Court has often said it is. The article tracks the academic freedom case law in the Court and establishes that, while the Court has often extolled the value and virtues of individual academic freedom in its opinion rhetoric, no case it has ever decided has depended for its resolution on a "special" individual right to speech or association that inheres only in academics. The article then fleshes out the implications of this claim for the speech rights of publicly employeed academics following the Court's decision in Garcetti v. Ceballos, concluding both that the decision is here to stay, and that recent efforts to craft exceptions to it are unavailing due to the underlying doctrinal structure of the First Amendment.

The second article is a short review of the labor and employment cases the Supreme Court decided in the last term that Scott did for the Louisville Law Review as a follow-up to his presentation on the same topic at the Warns Institute at Louisville this past June. It's entitled, Procedural Predictability and the Employer as Litigator: The Supreme Court's 2012-2013 Term, and here is its abstract: 

In this contribution to the University of Louisville Law Review’s Annual Carl A. Warns Labor and Employment Institute issue, I examine the Supreme Court’s labor and employment-related decisions from the October Term 2012 (OT 2012). I argue that the Court’s decisions assisted employers as litigators — as repeat players in the employment dispute resolution system — in two ways. First, the Court established simple contract drafting strategies that employers may use to limit their exposure to employment claims. Second, the Court adopted bright-line interpretations of employment statutes. Both forms of assistance served a formalist interest in what I term “procedural predictability” — enhanced employer predictability and control of both the duration and costs of resolving employment disputes.

Great work, Scott!

MM

Fifth Annual Con Law Colloquium

Friend of the blog, Mike Zimmer (Loyola Chicago) sends along news that Loyola University Chicago School of Law is organizing its fifth annual constitutional law colloquium in Chicago this fall. The dates are Friday, November 7 and Saturday, November 8. Here are the details:

Fifth Annual Constitutional Law Colloquium

Friday, November 7th and Saturday, November 8th

Loyola University Chicago School of Law is organizing a Constitutional Law Colloquium at the Philip H. Corboy Law Center, 25 East Pearson Street, Chicago, IL 60611.

This will be the fifth annual Loyola constitutional law colloquium. Once again, we hope to attract constitutional law scholars at all stages of their professional careers to discuss current projects, doctrinal developments in constitutional law, and future goals. The conference will bring together scholars to discuss their works-in-progress concerning constitutional issues, such as, but not limited to Free Speech, Substantive Due Process, Equal Protection, Suffrage Rights and Campaign Finance, Process Oriented Constitutionalism, Constitutional Interpretation, Constitutional Theory, National Security and Constitutional Rights, Due Process Underpinnings of Criminal Procedure, Judicial Review, Executive Privilege, Suspect Classification, Free Exercise and Establishment of Religion, and Federalism. As in years past, we will provide many opportunities for the vetting of ideas and for informed critiques. Submissions will be liberally considered, but participation is by invitation only. Presentations will be grouped by subject matter.

Erwin Chemerinsky, Dean and Distinguished Professor of Law at the University of California-Irvine School of Law, will be the keynote speaker.

Titles and abstracts of papers should be submitted electronically to [email protected] no later than June 15, 2014.

The Law Center is located on Loyola's Water Tower campus, near Michigan Avenue's Magnificent Mile, Lake Michigan, Millennium Park, the Chicago Art Institute, and Chicago Symphony Center.

Participants’ home institutions are expected to pay for their own travel expenses. Loyola will provide facilities, meals, and support.

There are numerous reasonably priced hotels within walking distance of the Loyola School of Law and Chicago's Magnificent Mile.

Conference Organizers:

Professor Barry Sullivan, Cooney & Conway Chair in Advocacy, [email protected]
Professor Alexander Tsesis, [email protected]
Professor Michael Zimmer, [email protected]

Program Administrator:
Heather Figus, [email protected]

Loyola Constitutional Law Faculty:
Professor Diane Geraghty, A. Kathleen Beazley Chair in Child Law
Professor Barry Sullivan, Cooney & Conway Chair in Advocacy
Professor Juan F. Perea
Professor Alan Raphael
Professor Allen Shoenberger
Professor Alexander Tsesis
Professor Michael Zimmer

Looks likea  great opportunity for those of us doing work at the intersection of labor, employment, and constitutional law.

MM

Secunda, Bauries, and Nahmod Amicus Brief in Lane v. Franks

Paul Secunda (Marquette), Scott Bauries (Kentucky), and Sheldon Nahmod (Chicago-Kent) have posted on SSRN their amicus brief in Lane v. Franks. Joshua Branson of Kellogg, Huber, Hanson, Todd, Evans & Figel also is an attorney of record on the brief, and more than sixty additional law professors signed on. 

The case involves a public employee who was subpoenaed to testify in a fraud prosecution, and who alleged he was fired for truthfully testifying. The matter he testified about was information he had because of his work. The district court granted the defendant summary judgment, reasoning,

Mr. Lane’s testimony did not occur in the workplace, but he learned of the information that he testified about while working as Director at C.I.T.Y. Because he learned the information while performing in his official capacity as Director at C.I.T.Y., the speech can still be considered as part of his official job duties and not made as a citizen on a matter of public concern.

The Eleventh Circuit affirmed. The questions the Court granted cert on are: (1) Whether the government is categorically free under the First Amendment to retaliate against a public employee for truthful sworn testimony that was compelled by subpoena and was not a part of the employee’s ordinary job responsibilities; and (2) whether qualified immunity precludes a claim for damages in such an action.

For more on the case, see ScotusBlog here. 

MM

EEOC seeks comment on proposed directive on federal sector process

The EEOC has asked for public comments to its proposed revised management directive in federal sector proceedings. The EEOC acts as an adjudicator for federal sector claims. From the press release,

The U.S. Equal Employment Opportunity Commission (EEOC) has announced that it is seeking public comment on significant revisions to Management Directive 110 (MD-110), which provides federal agencies with EEO policies, procedures and guidance related to the newly revised 29 C.F.R. Part 1614 (federal sector EEO regulations). The full text of the proposed revisions is available on the Regulation.gov website at http://www.regulations.gov/#!docketDetail;D=EEOC-2014-0001.

These revisions represent the first major changes to MD-110 since 1999; they can be categorized into three areas:

1. Implementation of Revised Regulations:
   • new procedures for agencies to submit, and the EEOC to approve, requests to conduct pilot projects for processing complaints in ways other than those prescribed in Part 1614;
   • revised procedure making an administrative judge's decision on the merits of a class complaint a final decision;
   • a new compliance section;
   • updated retaliation language in the dismissal section;
   • notice to complainant when an agency is untimely in completing an investigation; and
   • information on digital filings of appeals and complaint files.
2. Conflict of Interest:
   • addressing EEO director reporting relationship;
   • EEO and HR conflicts;
   • complaint processing of matters involving EEO officials or high-level agency officials; and
   • conflicts between agency legal and EEO programs.
3. General Updates & Clarification:
   • revisions to the remainder of MD-110 to reflect current policies, procedures, laws and case precedents.

These revisions are a part of the EEOC's ongoing efforts to improve the federal sector process. The agency encourages interested parties to review these proposed changes and provide feedback for EEOC consideration. The agency specifically urges stakeholders to provide feedback on the conflict-of-interest section, as this is the EEOC's first attempt to provide clarity in this area, and stakeholder input will be valuable in determining the final approach.

Public comments on revisions to MD-110 should be provided through Regulation.gov (http://www.regulations.gov/#!docketDetail;D=EEOC-2014-0001) no later than April 25, 2014 for appropriate consideration.

Further information about EEOC is available on its website www.eeoc.gov. The EEOC's Office of Federal Operations also maintains a Twitter handle @EEOC_OFO for general news and information updates.

MM

Teaching Employment and Labor Law

Last spring, the Wefel Center for Employment Law at Saint Louis University held a fantastic symposium on Teaching Employment and Labor Law. I can say that with appropriate modesty because I had very little to do with it. The symposium was organized by Tonie Fitzgibbon, my amazing colleague, who has been the Director of our center for twenty years, and who was the Assistant Director at its inception. I'm pretty sure it was my colleague Miriam Cherry's idea, and Matt Bodie, Elizabeth Pendo, and I all agreed it would be a good topic. In addition to us, Marion Crain and Pauline Kim (Wash. U.), Rachel Arnow-Richman (Denver), Laura Cooper (Minnesota), Marty Malin (Chicago-Kent), Nicole Porter (Toledo), Joe Slater (Toledo), and Kerri Stone (Florida International) all gave presentations.

The Saint Louis University Law Journal has just published the papers connected with the symposium, so now everyone can read about what we who were there got to hear. From the table of contents:

Forward

Teaching Employment and Labor Law Symposium
Susan A. FitzGibbon

Teaching Employment and Labor Law

A Holistic Approach to Teaching Work Law
Marion Crain & Pauline T. Kim

Employment Law Inside Out: Using the Problem Method to Teach Workplace Law
Rachel Arnow-Richman

Collaboration and Community: the Labor Law Group and the Future of Labor Employment Casebooks
Matthew T. Bodie

Teaching Employment Discrimination Law, Virtually
Miriam A. Cherry

The Capstone Course in Labor and Employment Law: A Comprehensive Immersion Simulation Integrating Law, Lawyering Skills, and Professionalism
Laura J. Cooper

Constructing a Comprehensive Curriculum in Labor and Employment Law
Martin H. Malin

From Podcasts to Treasure Hunts—Using Technology to Promote Student Engagement
Marcia L. McCormick

Identifying (with) Disability: Using Film to Teach Employment Discrimination
Elizabeth Pendo

A Proposal to Improve the Workplace Law Curriculum from a Compliance Perspective
Nicole Buonocore Porter

Teaching Private-Sector Labor Law and Public-Sector Labor Law Together
Joseph E. Slater

Teaching the Post-Sex Generation
Kerri Lynn Stone

You should check them out.

MM

Faculty Strike at UIC

Faculty members at the University of Illinois at Chicago have called a 2-day strike, to last today and tomorrow, to help raise awareness of the contract negotiation issues with the trustees. See here for a general description, here for what many of the issues are, here for an opinion piece about the role of public higher education in a city with serious income inequality, and here and here for a description by some faculty members about why they are striking.

The issues sound very similar to issues at lots of universities, although somewhat magnified by the student population UIC serves: lack of sufficient numbers of faculty to serve a group of students at the lower end of the socioeconomic scale, many of whom are immigrants, may be first-generation college students, and may be working their way through school; lack of status, job protection, and sufficient pay for a good chunk of faculty; salary compression, stagnant pay, and a lack of other support for tenured faculty. On the other side are state budgetary pressures and a lack of public support for higher education.

These issues seem inseparable from other employment and wealth trends and whether there are such things any more as public goods. Has higher education always been this much of a mess, and I just didn't know because I didn't work there? 

MM

Stetson Law Review Symposium on Citizens United

Thanks to Jason Bent (Stetson) for bringing to my attention a wonderful law review symposium that is planned at the Stetson Law School for February 28 on the four-year anniversary of Citizens United.

Jason and his crew have some fantastic speakers lined up, including two of our own in the L&E world - Charlotte Garden (Seattle) and Jason himself.  The keynote speaker is Lawrence Lessig, and they have a great lineup of panelists and moderators.  The event is co-sponsored by the Stetson Law Review, the Corporate Reform Coalition, and the ACS. 

A link to the page with the lineup of panelists is here.  Although the symposium topics are broader than just labor law, that will be a big part of the discussion.  So if you are Tampa way that time of the year, check it out.

PS

Shout Out to New Whistleblower Protection Law Blog

As a firm believer and advocate for employee whistleblower rights, I am pleased to welcome to the blogosphere, Whistleblower Protection Law Blog, run by Zuckerman Law (and in particular, Jason Zuckerman).  The blog  focuses on developments in whistleblower law from a whistleblower advocate’s perspective.

Jason has been around whistleblower law practice in a number of different capacities.  He has litigated whistleblower cases in private practice for about a decade and then served as Senior Legal Advisor the Special Counsel at the U.S. Office of Special Counsel, an independent agency charged with protecting whistleblowers in the federal government.  In addition, he was appointed by former Secretary of Labor Solis to serve on the Whistleblower Protection Advisory Committee, which advises and makes recommendations to the Secretary of Labor to improve the fairness, efficiency, effectiveness, and transparency of OSHA's administration of whistleblower protections.  

You can find Jason's bio and publications on his website.  Check out this great new blog!

PS

U.S. Supreme Court to Decide Lane Public Employee Free Speech Case

Thanks to Ross Runkel at RossRunkel.com for bringing to my attention that the U.S. Supreme Court this past Friday accepted cert. in an interesting public employee free speech case: Lane v. Central Alabama Community College (11th Cir 07/24/2013) (unpublished).

In Lane, the public employee claimed that he was fired for testifying truthfully against a state legislator after he had been subpoenaed.   As Ross points out:

It raises an issue left undecided in Garcetti v. Ceballos, 547 US 410 (2006). Garcetti is famous for holding that a public employee who speaks or writes as part of that employee's job duties enjoys no 1st amendment protection. The employer can fire that employee for speaking or writing. The reasoning is that the employee was not speaking or writing as a citizen.

The issue in Lane v. Franks is whether a public employer is free to fire an employee for giving truthful subpoenaed testimony.

Lane, as part of his community college job, uncovered evidence that a legislator was engaged in some corrupt activities. Later, Lane testified under subpoena in a federal criminal trial involving the legislator. When Lane got laid off or terminated from his job, he sued Franks, president of the college, claiming retaliation in violation of the 1st amendment.

Ross is absolutely correct that the crux of the case here is that testifying was not Lane's job duty, but the content of the testimony is all about what Lane discovered as part of his job duties.  I also agree with Ross that this should be an easy case because when an employee is subpoenaed to testify in criminal court, that employee is speaking as a citizen on a matter of public concern and should have the protection of the free speech provisions of the First Amendment.

But we shall see.  I thought Ceballos in the Garcetti case had clear free speech rights in working with the defense attorneys against his superiors, but I turned out to be dead wrong.  The problem is that these fabricated, formalist distinctions between when a public employee acts as a "citizen" or "employee" do not lend themselves to easy definition in various contexts.

PS