Thursday, July 31, 2014

DOJ Sues PA State Police for Fitness Test

The United States Department of Justice (DOJ) filed a lawsuit on Tuesday against the Pennsylvania State Police. You can read the Complaint here.

The police use a fitness test as part of their hiring process. The actual test is not clear from the Complaint, but apparently includes a 300-meter run, sit-ups, push-ups, vertical jump, 1.5-mile run, and "new elements" added in 2009. DOJ alleges that since 2009, 98% of male applicants have passed the fitness test but only 72% of female applicants passed. Thus, the test has a statistically significant disparate impact.

Disparate impact does not require discriminatory animus. In other words, DOJ does not have to establish that the Police are intentionally excluding women. Here's the fly-over view of disparate impact analysis:
Under Title VII's disparate impact theory of liability, plaintiffs establish a prima facie case of disparate impact by demonstrating that application of a facially neutral standard has resulted in a significantly discriminatory hiring pattern. Once the plaintiffs have established a prima facie case, the burden shifts to the employer to show that the employment practice is “job related for the position in question and consistent with business necessity....” 42 U.S.C. § 2000e–2(k). Should the employer meet this burden, the plaintiffs may still prevail if they can show that an alternative employment practice has a less disparate impact and would also serve the employer's legitimate business interest. 
Lanning v. Se. Pennsylvania Transp. Auth. (SEPTA), 181 F.3d 478, 485 (3d Cir. 1999).
I suspect the police can establish a need for some physical fitness requirements. However, DOJ alleges alternatives to the current test exist that "have less disparate impact on women and would serve [their] legitimate interests."

HT: My McQuaide Blasko colleague, Jaime Bumbarger.

Wednesday, July 23, 2014

Obamacare Opinions Galore!

Wow, busy day for Obamacare yesterday. The big story is that a circuit split developed in the span of a few hours.

The gist of the issue is that the Obamacare statute (aka "Affordable Care Act") authorizes the government to subsidize health insurance for individuals who purchase a plan from an exchange "established by the State under section 1311." However, only 14 states (and D.C.) have established their own exchanges. In the remaining states (including Pennsylvania), the federal government has established an exchange under section 1321. The federal government has been subsidizing purchases off of the federal exchanges as well . . . but with no express statutory authority.

The D.C. Circuit yesterday, in a split opinion, stuck to the literal reading of the statute in Halbig v. Burwell. The Court remanded to the trial court to vacate the IRS rule allowing the subsidies for purchases from the federal exchanges. Meanwhile, the Fourth Circuit reached the opposite conclusion in King v. Burwell. The Fourth Circuit emphasized the context of the statute and deferred to the IRS's interpretation, upholding the subsidies to federal exchanges.

Is this issue headed to another SCOTUS Obamacare showdown? We'll see. The parties may opt to seek an en banc rehearing in either court, which could remove the circuit split (one factor the Supreme Court looks to when deciding whether to accept a case).

In yet another opinion on a different issue, a district court tossed Senator Johnson's lawsuit re: congressional health plans.

Unrelated sidenote: I want to emphasize the importance of typography. Look at the D.C. Circuit opinion and then look at the Fourth Circuit opinion. Do you see any differences in how the two documents looks? D.C.'s is beautiful - SCOTUS-esque. The Fourth Circuit's? Not so much.

Monday, July 21, 2014

President Obama Signs Executive Order Re: Sexual Orientation Discrimination

Earlier today, President Obama finally signed the executive order prohibiting workplace sexual orientation discrimination by the federal government and federal contractors. You can read the full text of the executive order here.

Of interest: the order covers sexual orientation and gender identity, and it does not include an express exception/exemption for religious-based objections (something of a hot topic in the wake of Hobby Lobby).

However, the new executive order is merely amending prior executive orders (mostly just adding sexual orientation and gender identity to the list of protected classes). You can read the existing executive order regarding federal employment here (#11478). And, you can read the Executive Order 11246 regarding federal contractors here. Notably, the latter already includes a religious exception:
Section 202 of this Order shall not apply to a Government contractor or subcontractor that is a religious corporation, association, educational institution, or society, with respect to the employment of individuals of a particular religion to perform work connected with the carrying on by such corporation, association, educational institution, or society of its activities. Such contractors and subcontractors are not exempted or excused from complying with the other requirements contained in this Order.
I'm not sure what took President Obama so long - this order was announced over a month ago. Sometimes we get further explanations of the executive orders in a presidential memorandum - but I don't see anything on the Presidential Memoranda website (yet at least).

Tuesday, July 15, 2014

New EEOC Guidance on Pregnancy Discrimination and Accommodation

Yesterday, the EEOC issued a press release: EEOC Issues Updated Enforcement Guidance On Pregnancy Discrimination And Related Issues. We got three new documents:
To the surprise of no one, the EEOC has an extraordinarily broad interpretation of pregnant employees' rights and their employers' obligations. A few highlights:

An employer has a policy or practice of providing light duty, subject to availability, for any employee who cannot perform one or more job duties for up to 90 days due to injury, illness, or a condition that would be a disability under the ADA. An employee requests a light duty assignment for a 20-pound lifting restriction related to her pregnancy. The employer denies the light duty request, claiming that pregnancy itself does not constitute an injury, illness, or disability, and that the employee has not provided any evidence that the restriction is the result of a pregnancy-related impairment that constitutes a disability under the ADA. The employer has violated the PDA because the employer's policy treats pregnant employees differently from other employees similar in their ability or inability to work.
Hmmmm, this sounds familiar - oh right, Young v. UPS, the upcoming Supreme Court case on this issue. The guidance also addressed "forced leave":
An employer may not compel an employee to take leave because she is pregnant, as long as she is able to perform her job. Such an action violates Title VII even if the employer believes it is acting in the employee's best interest.
And, we also got some guidance on leave policies and disparate impact:
A policy that restricts leave might disproportionately impact pregnant women. For example, a 10-day ceiling on sick leave and a policy denying sick leave during the first year of employment have been found to disparately impact pregnant women.
Of course, those are just a few of the issues that I found interesting - employers should read the whole thing. The EEOC's interpretation of the PDA, ADA, and Title VII are not 100% binding (we may find that out sooner rather than later with Young v. UPS). That said, employers who ignore the EEOC's guidance face considerable risk of enforcement actions.

Image: EEOC Seal used in commentary on EEOC - not official use.

Friday, July 11, 2014

If You Ever Loved Me . . . (Annual Blawg 100 Plea)

Please take a moment to recommend Lawffice Space for the ABA Journal's Blawg 100. Just go here, scroll down and complete the form. No co-workers and no family please (the powers that be frown on "in-house" recommendations).

Some readers may recall that Lawffice Space appeared on the 2012 list but I got shut out last year. I'd love to return to glory and get back on the list. Thanks for reading!

Thursday, July 10, 2014

Third Circuit Addresses Three Discrimination Issues in One Predential Opinion

Guess who's back? Sorry for the brief hiatus - I was knocked out of commission for a few days with an assortment of illnesses and various other calamities (probably "minor annoyances" would be a better description) . . . but I'm back! And, I have a doozy of a Third Circuit opinion.

In Hildebrand v. Allegheny County (precedential opinion here), the Third Circuit addressed three different lingering employment discrimination issues. Frankly, each of these is interesting in its own right and could be its own blog post:
1. [A] state or local government employee may not maintain an age discrimination claim under 42 U.S.C. § 1983, but must instead proceed under the ADEA; 
2. [A] plaintiff is not obligated to plead exhaustion of administrative remedies with particularity, but may instead allege in general terms that the required administrative process has been completed.; and 
3. [T]he EEOC Intake Questionnaire, revised in the wake of Federal Express Corp. v. Holowecki, 552 U.S. 389 (2008), when properly completed, constitutes a charge of discrimination.
(each number is a separate but direct quote).

If Number 1 sounds familiar, that's because it was essentially the issue presented in Madigan v. Levin, a 2013 Supreme Court case that was dismissed as improvidently granted (i.e. "DIG'd") shortly after oral arguments.

If Number 2 sounds familiar, that's because the pleading standards have been a battleground ever since Iqbal and Twombly. Under Hildebrand, the Iqbal-Twombly standard does not apply to the pleading of the administrative exhaustion requirement in employment discrimination claims.

And Number 3? Well that's Holowecki fallout. Although the Court adopted a broad definition of "filing a charge" in Holowecki, the Court advised the EEOC to establish a "clearer, more consistent" process. The EEOC revised their intake questionnaire to include "Box 2." A claimant checks Box 2 expressly indicating "I want to file a charge of discrimination, and I authorize the EEOC to look into the discrimination I described above."

Tuesday, July 1, 2014

Breaking: SCOTUS Grants Cert. in Pregnancy Workplace Accommodation Case

Just now, the Supreme Court issued an order granting certiorari in Young v. UPS. The issue presented is:
Whether, and in what circumstances, the Pregnancy Discrimination Act, 42 U.S.C. § 2000e(k), requires an employer that provides work accommodations to non-pregnant employees with work limitations to provide work accommodations to pregnant employees who are “similar in their ability or inability to work.”
The employee alleges that UPS offered light duty work to employees who were injured at work, accommodated under the ADA, or who lost Department of Transportation certification - but not for pregnancy.

The gist is that the Pregnancy Discrimination Act prohibits discrimination - so even if it doesn't require accommodation, the employer must treat pregnant employees like other similarly situated employees. In this case, that means providing light duty work.

I can't wait to see what SCOTUS does with this one! We'll have to wait until next season though.