Tuesday, April 18, 2017

Justice Gorsuch debut at oral arguments on employment law issue

I can sympathize with the mainstream media on this one. Their coverage of Justice Gorsuch's first oral arguments had to address a seemingly simple question: what was the case about? On average, they struggled.

As luck would have it, the case dealt with jurisdictional issues in federal employee "mixed" cases. As someone who represented a USPS employee in such a case, I can assure you that the system is setup to be an unnecessarily convoluted mess with procedural traps for the employee every step of the way. The case at SCOTUS yesterday was Perry v. MSPB (SCOTUSblog page), and SCOTUSblog identifies the issue as:
Whether a Merit Systems Protection Board decision disposing of a “mixed” case (one which challenges certain adverse employment actions and also involves a claim under the federal anti-discrimination laws) on jurisdictional grounds is subject to judicial review in district court or in the U.S. Court of Appeals for the Federal Circuit.
Ahh, clear as mud, right? In any event, here is the SCOTUS transcript, with Justice Gorsuch debuting on page 10 (spoiler alert - this exchanges goes on for a several pages, with the highlight perhaps being Justice Gorsuch apologizing for "taking up so much time"... and then asking another question).

I wouldn't read too much into his questions. I can offer two observations though: (1) He seemed to focus on statutory language (no surprise); and (2) He was pretty talkative (closer to Scalia than Thomas on the participation spectrum).

Wednesday, April 12, 2017

The pharmacist who was afraid of needles and the ADA

Well, here's an interesting ADA case. In Stevens v. Rite Aid, Corp., the Second Circuit analyzed an ADA claim from a pharmacist with tryanophobia - a fear of needles.

A note from his doctor explained that he was "needle phobic and cannot administer immunization by injection." The pharmacist himself explained that this causes "lightheadedness, paleness, and a feeling that I may faint" and therefore he "would never even consider trying to become an immunizing pharmacist."

Generally, the ADA requires employers to reasonably accommodate employees with a disability. However, the employee still must be able to perform the essential functions of his job. Rite Aid requires its pharmacists to perform immunizations, and therefore injections were an essential part of the pharmacist's job. He "failed to present evidence suggesting the existence of a reasonable accommodation" that would have enabled him to do his job - so, he lost.

HT: My co-worker Jon Stepanian emailed me this ABA article: Court Holds That Pharmacist With Fear of Needles Has No Claim Under the ADA.

Monday, April 10, 2017

Tomi Lahren sues Glenn Beck and The Blaze

What happens when a conservative commentator goes on The View and expresses vaguely pro-choice opinions? Lawsuits, apparently. Tomi Lahren sued Glenn Beck and The Blaze last week (Complaint here). She claims that the The Blaze fired her (even this is a little muddled, arguing a de facto termination) because she went on The View (which is apparently somehow still on television) and said:
Tomi Lahren (Twitter profile pic)
I can't sit here and be a hypocrite and say I'm for limited government but I think the government should decide what women do with their bodies.
Her lawsuit makes vague allusions to First Amendment free speech and the right to express her personal views. Generally, such things do not apply to private employers and the lawsuit is technically not arguing that they do. Instead, Lahren argues that her employment contract (attached to the Complaint) requires "cause" to terminate her; and, the contract does not allow for termination based on her comments on The View.

The contract does allow The Blaze to terminate her for "repeated failure to comply with the reasonable directions of senior management" - we have yet to hear their side, so this may be a factor. Also, the contract was set to expire on September 30th of this year anyway, so perhaps they're content to just pay it out. We'll see.

So, what does Lahren want? A full prayer for relief appears in the Complaint, but to touch on some highlights:

  • Damages for wrongfully terminating the contract;
  • A declaration that The Blaze breached the contract and failed to perform other duties (like meeting a specific minimum number of recorded shows); and, therefore, Lahren is free to go out and compete without the restrictions of her contract;
  • Tomi Lahren's Twitter account is alive and well, but her Facebook page lies dormant. Lahren claims she is locked out and she wants it back (she has over 4.2 million page Likes). 
Sidenote: The contract appears to have a typo - stating that Lahren can be terminated in accordance with "Paragraph 9)b_(ii), (iii), or (vii)" . . . but in context this should clearly refer to Paragraph 11, not 9. I somehow imagine celebrities having these infallible airtight contracts . . . and, yet, they have typos and ambiguities just like the non-celebrity contracts I see in my day-to-day practice. 

Thursday, April 6, 2017

Miles on Regime Change in Washington

Straight from the Department of Shameless Self-Promotion, I present to you a recent story in the Pennsylvania Business Central: Change in management - The impact of regime change in Washington on labor law. The article includes extended comments from me, and another local employment law attorney, Amy Marshall.

I suppose now is as good a time as any to also note that Lawffice Space was selected by Feedspot as one of the Top 75 Employment Law Blogs on the web.

Wednesday, April 5, 2017

Lawffice Links - 7th Circuit Holds Title VII Prohibits Sexual Orientation Discrimination

Big news! Title VII of the Civil Rights Act has prohibited workplace sex discrimination since 1964. Yesterday, the Seventh Circuit Court of Appeals issued an opinion: "we conclude today that discrimination on the basis of sexual orientation is a form of sex discrimination." In other words, Title VII prohibits workplace sexual orientation discrimination.

I baked some Lawffice Links for the occasion:

Monday, April 3, 2017

Just in: SCOTUS on standard of review for District Court decisions on EEOC subpoenas

Okay, it's not the most exciting employment law issue, but it was important enough for the Supreme Court to take a look at it.

This morning, the Supreme Court issued its opinion in McLane Co., Inc. v. EEOC. Bonus points to Justice Sotomayor (writing for everyone but Ginsburg, J. who filed a separate opinion concurring in part and dissenting in part) for succinctly explaining the issue and holding in the opening paragraph:
Justice Sotomayor
Title VII of the Civil Rights Act of 1964 permits the Equal Employment Opportunity Commission (EEOC) to issue a subpoena to obtain evidence from an employer that is relevant to a pending investigation. The statute authorizes a district court to issue an order enforcing such a subpoena. The question presented here is whether a court of appeals should review a district court’s decision to enforce or quash an EEOC subpoena de novo or for abuse of discretion. This decision should be reviewed for abuse of discretion.
The decision noted that most courts applied a deferential standard of review to district court decisions regarding administrative agency subpoenas. Also, the inquiry is usually fact-intensive and case-specific, making district courts well-suited to make such determinations.

Justice Ginsburg agreed that abuse of discretion was generally the proper standard of review; but, the lower court had committed an error of law in this case, which was properly reviewed de novo.

Monday, March 27, 2017

3d Cir. on Mixed Motive FMLA claims and Chevron Deference

In Egan v. Delaware River Port Authority, the employee claimed that his employer discriminated against him because of his age and disability, and retaliated against him because he used FMLA leave. He lost a jury trial, and appealed to the Third Circuit on the theory that the trial court erred in refusing to give a mixed-motive jury instruction.* More specifically, whether he needed direct evidence of mixed-motive or merely circumstantial evidence.

As background, the Supreme Court has specifically held that mixed-motive claims are impermissible in the contexts of Title VII retaliation and ADEA age discrimination claims (requiring "but-for" causation). Those cases were based on statutory language. The FMLA is a little trickier...  the statute does not even expressly provide for retaliation claims (it does, however, make it "unlawful for any employer to interfere with . . . the exercise of . . . any right provided" by the FMLA).

Because the statute's language is ambiguous, courts must afford administrative agency regulations addressing the ambiguity "Chevron deference." As the Supreme Court explained in Chevron, "legislative regulations are given controlling weight unless they are arbitrary, capricious, or manifestly contrary to the statute." In other words, it's not up to the Court to interpret ambiguous statutory language; it's up to the agencies (here, DOL), unless they really go off the rails.
Not official use.

Here, the court easily concluded that providing a cause of action for retaliation was reasonable given the statutory language. The trickier part is whether the mixed motive regulations - forbidding employers from treating FMLA leave as a "negative factor" when taking adverse employment actions - are reasonable. Unlike the Title VII retaliation and ADEA age discrimination statutes, which expressly included "but-for" causation language, the FMLA is ambiguous.

Because different statutes utilize different causation standards, and the FMLA does not expressly pick one, the Court held that the DOL's mixed motive regulation for FMLA retaliation claims was reasonable (and therefore entitled to Chevron deference). Therefore, the employee was entitled to a mixed motive jury instruction (which requires only circumstantial evidence).

Egan is noteworthy for its analysis of FMLA mixed motive claims, but it also has a concurring opinion that is well worth the time to read. Judge Jordan goes off on Chevron deference. I'll put part of his opinion here to give you the flavor:
The doctrine of deference deserves another look. Chevron and Auer and their like are, with all respect, contrary to the roles assigned to the separate branches of government; they embed perverse incentives in the operations of government; they spread the spores of the ever-expanding administrative state; they require us at times to lay aside fairness and our own best judgment and instead bow to the nation’s most powerful litigant, the government, for no reason other than that it is the government. The problems they create are serious and ought to be fixed. . . . . Highly specialized or technical matters are far different, however, than the legal matters on which federal courts are now routinely told, in the name of Chevron, to bow down and obey the executive branch.
The opinion addresses separation of powers, The Federalist Papers, and the specific roles of the different branches of government. Of course, Supreme Court opinions are the law, and not one Circuit Judge's concurring opinion. That said, SCOTUS-nominee Judge Gorsuch is a noted anti-Chevroner. so perhaps we'll see some movement on this issue from the high court.

* There was a second issue, not addressed in this post, regarding admissibility of witness testimony on the ADA claim.