Tuesday, June 30, 2009

Ricci - The Majority

On Monday, the Supreme Court issued its opinion in Ricci v. DeStefano... or, as the media calls it, the New Haven white firefighters "reverse discrimination" case. Today, I will provide an objective summary of only the majority opinion. Frankly, there seems to be a dearth of commentary from people who both understand the issues and aren't attempting to make Ricci about Sotomayor's racism/mainstreamism/incompetence/essentialness.

The Background
The New Haven fire department administered a test in order to identify candidates for promotion to officer positions. The City made efforts to ensure the test was race neutral including hiring outside consultants. When the results came back, however, everyone who would have been promoted was white (and two Hispanics).

The Inherent Conflict
Deciding not to promote the pool of candidates because they are "too white" is discriminatory... but only promoting white people and no black candidates is also discriminatory. Either way, the City might violate Title VII.

Why? Title VII prohibits, among other things, racial discrimination that results in "disparate treatment"... it also prohibits "disparate impact." In other words, employers must treat individuals the same way regardless of race. At the same time, employers' policies must not impact races disproportionately.

To some extent, therefore, Title VII requires both equal treatment and equal results. Here, the employer got different results... but the only way to try to get more balanced results is to deny promotions to candidates based on race (aka "treat them differently").

A major technicality here is that the disparate impact is justified where the policy is "job related for the position in question and consistent with business necessity," and the employer has not rejected an alternative that would yield less disproportionate results.

The City's Decision
New Haven chose not to promote the white firefighters. The City hoped it could avoid liability based on its justification that it was avoiding "disparate impact" liability.

This sets up the major issue: Can an employer treat individuals differently because of their race, if the employer's goal is to avoid impacting entire classes of people differently? Can fear of a "disparate impact" claim justify "disparate treatment"?

The Extremes
The Court explicitly rejects two potential holdings, both of which were pretty extreme.

At one end: Attempting to avoid "disparate impact" is never a defense to treating individuals differently.

At the other end: Any time an employer thinks it will be liable for "disparate impact" it can go ahead and discriminate away.

The Middle Ground
For all of the yelling from opposite ends of the political spectrum, the Court actually took a rather middle-of-the-road approach. And remarkably, stated the holding in a rather plain English manner:
"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 even plainer English: You can treat individuals differently, but only if there's really good evidence that you must do it to avoid "disparate impact."

The Court held that there was no evidence, let alone the "substantial evidence" required by their new rule, that the City would face liability for "disparate impact" if it promoted the white firefighters. Although the stats clearly showed a disparate impact, the Court held that the City should have analyzed the "business necessity" justification (and the less-discriminatory-alternative element). Summary judgment for the plaintiffs.

Jay Shepherd, author of Gruntled Employees, tweeted, "The bigger Ricci moral is: you can't discriminate in employment, even if avoiding discrimination is your rationale." I mostly agree but would add the exception: Unless you have "substantial evidence" that you will be liable for "disparate impact."

Sunday, June 28, 2009

Supreme Court Super Nerd in 3 Easy Steps

The Internet has made it possible for anyone with a computer (and, of course, an Internet connection) to become a world class Supreme Court Super Nerd. And who doesn't want to be one of those?

Step 1: Read the Opinions
This is pretty obvious: Read the Supreme Court opinions. The Court is surprisingly tech-savvy. Within minutes of releasing an opinion it will be available online in .pdf format. So visit the Supreme Court opinions page and read the latest developments in the law from the highest court in the land.

Step 2: Track them Day-by-Day
You don't need to check the Court's web site everyday. Subscribe to the Willamette Supreme Court updates to get email notifications of recent developments. Willamette provides same-day updates:
  • When the Court grants certiorari. For those of you who are not yet Super Nerds, that's when the Court announces they will hear a case (they don't hear 'em all, in fact they hear very few).
  • When the Court hears oral arguments - Lawyers show up and argue their side while the Court peppers them with questions (well, everyone except Justice Thomas - he rarely asks any questions at arguments).
  • When the Court issues an opinion - Which you will now go read on the Supreme Court web site!
  • Summaries - Willamette provides concise (but substantive) summaries of the cases
Step 3: Track them Minute-by-Minute
If you are an absolute die-hard, not just a Supreme Court nerd but a Super Nerd, you can track the Court's every move minute-by-minute. Well, not every minute of every day, but the important stuff.

Akin Gump (with help) publishes SCOTUSblog. These people are downright scary... they take Supreme Court Super Nerd to the next level! Along with several other valuable services (case summaries, pending cases, recent cert grants, etc.), they provide the you-must-see-it-to-believe-it SCOTUS live blog.

To see an example, check out 6/25's SCOTUS live blog. Maybe that's a little overkill, but it's perfect when you're awaiting big news... like say, a hugely anticipated employment law decision regarding alleged discrimination against white firefighters in New Haven is expected to be released... like tomorrow.

Hey, what do ya know? The Court's expected to issue the Ricci opinion tomorrow! Perfect opportunity to follow the three easy steps: 1. Find out the exact minute it's released on SCOTUSblog; 2. Read the opinion on the Supreme Court web site; 3. Get the summary from Willamette... which will then supply the email updates for the future decisions. And then it's just a matter of repeating the steps.

Follow these steps and you're on your way to becoming a Supreme Court Super Nerd!

Thursday, June 25, 2009

It's the ENDA the World as we Know It

And I feel fine. Actually, it's not that earth-shattering but I couldn't resist the play on words. Barney Frank introduced the Employment Non-Discrimination Act of 2009 ("ENDA" text) in the House of Representatives.

In short, the proposed law would prohibit employment discrimination based on sexual orientation and gender identity. The gender identity provision may cause a stir as it was not in the last failed version of ENDA. Oh, who am I kidding, the sexual orientation provision will cause a stir too.

Of course, ENDA would also prohibit retaliation. There would be exceptions for any organization exempted from the religious discrimination provisions of Title VII. Military would also be exempted. Browsing through the bill (the number is HR 2981 by the way) it looks like there are about bajillion references to Title VII. That's not an exact count. It looks like the bill seeks to more or less throw sexual orientation and gender identity on to the Title VII pile.

For more information, The Employment Law Post has a nice little article on ENDA. I don't think we've heard the last of this one by a long shot.

Wednesday, June 24, 2009

Top 5 Employer Lawsuit Risks - HR Hero

On Tuesday, July 21, 2009, HR Hero will present the Top 5 Employer Lawsuit Risks, and Protections, for 2009. So what are the top 5 according to HR Hero?

1. Age Discrimination
Talk about your no-brainers! As I showed you in the chart of EEOC stats on Monday, age discrimination claims shot up 29% last year alone. The work force is getting older, claims are on the rise, what more needs said?

2. Retaliation
With claims on the rise there are more and more individuals against whom an employer can retaliate. Combine an increase in the number of people who have filed claims with the drastic increase in "adverse employment actions" resulting from our current economic situation... well, I think you see where this is going.

3. Equal Pay Act Charges
This one surprised me a little. HR Hero cites a dramatic increase in the number of claims and mentions the Ledbetter Fair Pay Act which extends the statute of limitations for bringing claims. The Ledbetter Act applies to Title VII, ADEA, and ADA claims though, so I'm not sure why Equal Pay Act claims stand out.

4. Sex Discrimination (Including Pregnancy)
Sex discrimination is always a biggie. In fact, it's second only to race in number of claims filed. If you include pregnancy (which HR Hero has) then the number of claims is higher than race-based claims.

5. Disability Discrimination
This is another no-brainer. The ADA Amendments Act of 2008 (ADAAA) greatly expanded the definition of "disability" which will have the practical effect of dramatically increasing the number of disabled employees. OK, obviously it is not causing disabilities, I mean it's increasing the number of individuals covered by the ADA.

Noticeably absent from HR Hero's list: Race discrimination! As I just mentioned race is the number one basis for discrimination in terms of number of complaints filed. Aside from that omission, I think it's a great list and it should be an interesting audio conference.

Tuesday, June 23, 2009

Journalists Create "Key Factor" Standard in Gross

Over the weekend I posted analysis of the Supreme Court's latest ADEA decision, Gross v. FBL Financial Services, Inc. Not surprisingly, some publications reacted to the opinion and were quite critical. But are they just making up the holding?

The Denver Post published an editorial, Unjust ruling on age-related suits. The paper states the holding as:
"The decision, which came on a 5-4 vote, means workers have to prove their age was the key reason for the employment decision in question...."
Later in the same piece the holding is:
"The majority held workers must show age was the key factor."
First, when using "the key factor" test, what's the difference between emphasizing the "key" and emphasizing the "the"? Is there a difference between "key factor" and "key reason"? And more importantly, where is this standard coming from?

Writing for the majority, Justice Thomas never uses the phrase "the key reason" (regardless of which word you emphasize). In fact, the word "key" does not appear anywhere. It's not too hard to find the holding... in the last paragraph Thomas states:
"We hold that a plaintiff... must prove... that age was the 'but-for' cause of the challenged adverse employment action."
And there we have the magic words, "but-for." They appear seven times in the majority opinion, yet the Denver Post saw fit to use them zero times.

Is this just a gripe about word choice? First, "but for" is a well-established legal standard so the magic words are important in that respect. Second, and more importantly, I'd argue there's an actual difference.

Let's say hypothetical company, XYZ Inc., decides it needs to fire one of its 10,000 sales associates. Management decides to use sales statistics to make the decision and pulls the personnel files for the two worst sales associates. The worst is Alfred who is 24. The second-worst is Barney who is 68. Management hates old people and decides to fire Barney instead of Alfred (even though Barney has better stats than Alfred).

Barney's poor sales record differentiated him from 9,998 other sales associates. His age only differentiated him from one, namely Alfred. Now you tell me, what's the key factor (or the key reason) Barney got fired? The word "the" implies you can only pick one, right? It must be his sales record. Barney, however, would not have been fired "but for" his age.

Can the same test yield different results? Nope. Therefore, I must conclude that "the key factor" standard was not the test put forth by Thomas in Gross. I know the law can be complicated, but I'm pretty confident the American public is capable of understanding the plain English meaning of "but for."

Monday, June 22, 2009

Chart of EEOC Claims Data

Tonight's entry is a visual one. Using EEOC statistics, I plotted the number of claims from FY 1997 to FY 2008 organized by type of discrimination.

Note: ADA is the Americans with Disabilities Act; and ADEA is the Age Discrimination in Employment Act. Also, the claims may be concurrent (i.e. one person may allege discrimination on, for example, race and sex).

A few things that stick out:
  • Every category trends upward
  • ADEA claims shot up like crazy last year
  • ADEA is the only cateory to "pass" another category (passing ADA in 2000)
A few predictions:
  • The ADA Amendments Act (ADAAA) will lead to a surge in ADA claims
  • The ADEA will continue to rise dramatically
  • 2009 will be a record year

Sunday, June 21, 2009

Gross Point Blank - Supreme Court Nixes ADEA Mixed Motive

In some respects, the Supreme Court's Thursday morning holding in Gross v. FBL Financial Services, Inc. is rather unremarkable: An Age Discrimination in Employment Act (ADEA) plaintiff must establish that age discrimination was the 'but for' cause of an adverse employment action. After all, the text of the ADEA makes it unlawful for employers to take an adverse action against an employee "because of such individual's age." (emphasis added).

Given the express language, it hardly seems surprising the Court held that an ADEA plaintiff must establish that age discrimination was the 'but for' cause of the adverse employment action. That's pretty much the lowest level of causation (compared to say sole cause, primary cause, or proximate cause). Is it shocking to learn that "because" necessitates some showing of cause?

Gross, however, came as quite a shock for two reasons:
  1. As the majority opinion concedes, the question answered in its holding was not the question presented by the parties; and
  2. This is a radical departure from Supreme Court Title VII precedent (Price Waterhouse v. Hopkins, 490 U.S. 228 (1989)). Price Waterhouse held that the burden of persuasion may shift to the employer-defendant in "mixed motive" cases (where an adverse action was taken for both permissible and impermissible reasons). If the employee can show that an impermissible reason was a "motivating factor" for the adverse action then the employer must show that it "would have taken the same action regardless of that impermissible consideration."
Generally, the Supreme Court does not answer questions which it is not asked. Likewise, the Supreme Court (and really all courts) have generally treated discrimination under the various anti-discrimination statutes (Title VII, ADA, and the ADEA being the big ones) more-or-less the same.

Employers will no doubt see Gross as a victory as it saves them from difficult to defend mixed motive ADEA cases by keeping the burden on the plaintiff. The question is, will Congress see this as an invitation to intervene? Other recent "pro-employer" Supreme Court decisions have led to a broader ADA under the Amendments Act of 2008 (or ADAAA) and the statute-of-limitations-extending Ledbetter Act signed earlier this year.

ADEA claims were up 29% in FY 2008. The baby boomers are approaching retirement age and the economy is leading employers to make tough decisions. With that backdrop, and given the current political climate, Congressional action may be just around the corner.

See also - Ross Runkel: Gross will be "the biggest employment law case of 2009" and sharing my view that Congressional action is likely (actually he writes it's "certain").

Saturday, June 20, 2009

Failing Out of Law School

It all started with a simple post about Seva Brodsky failing out of law school and filing an ADA claim based on his "memory and organizational deficits." That post remains one of the most popular Lawffice Space entries to date. My analytics indicate, however, that the people coming here to read that post are not concerned with Brodsky, they're concerned with failing out of law school. That is why I am writing this post. This is my advice for those left wondering what to do after failing out of law school.

Step 1: Keep Your Head Up!
OK, you probably feel a little down and that's understandable. Now is not the time to curl up into a ball and hide from the world. Quite the opposite, now is the time you need to take action! Many prominent people have hit roadblocks along the way, including law-related setbacks. Joe Biden was practically last in his law school class (and failed a course for plagiarism) and he's VP. Hillary Clinton failed the DC bar yet went on to be the first female chair of the Legal Services Corporation and is currently the Secretary of State! Failing out of law school is a hurdle not the end of the road.

Step 2: Soul Searching
Why are you in law school? If you don't love it, get out now. I viewed law school (and now practicing law) as a lifestyle. I loved law school, love the work I do now, love reading new Supreme Court cases in my spare time, and love writing this blog. If you are in law school because you think it will lead to money, your parents made you, or you're avoiding the "real world" with more school... I'm afraid you are heading for misery. If you are dedicated to a legal profession, then move on to Step 3.

Step 3: Stay in School
If you decide you want to dedicate yourself to the pursuit of a JD then don't go down without a fight! A friend of mine thought she'd failed out of law school (technically, I think she did). She begged, pleaded, and talked to every person who would listen (records office, professors, deans, and local judges). She volunteered for some research assistant work, and an internship, and agreed to some kind of academic probation. Sure enough, the school let her stay so long as she performed well in her internship/assistant duties and hit a certain GPA the rest of her time in school. She went on to graduate on schedule and even earned some kind of award for her volunteer activities. You could be that person!

Alternatively, if that doesn't work or you decide you want a fresh start, you might want to look into a different school. Don't worry about rankings. Unless you want to be a Supreme Court Justice or Harvard Law Prof you can build a nice practice with a degree from any accredited school.

There's a popular law school saying that goes something like: 'A' students become professors, 'B' students become judges, and 'C' students become millionaires. There's probably some truth to that.

Step 4: Legal Work
In addition to getting a legal education, you may also wish to look into alternative careers that are law-related. There are several career opportunities for people interested in the law but who are not attorneys. You could be a paralegal, a legal assistant, work in a court, research for a public interest firm, write about the law for a publication... I could go on forever. You could also combine a passion of yours with a legal career. There are computer folks making a killing in e-discovery right now.

If you still have your heart set on being an attorney then perhaps getting some alternative legal experience will help you get back into law school.

Failing out of law school is not the end of the world. Pick yourself up and decide what you want to do with your life. If it's a career in law then you're gonna have to work. Talk to everyone in your school about ways to stay in school. Talk to everyone you know in the legal community about opportunities to demonstrate your passion for the law. Failing out of law school is just like any other challenge you face in your life. It's up to you to decide whether you want to work past the obstacle or if it's a sign to take another road. I hope my advice has been helpful, please feel free to drop a comment if you have any questions.

Wednesday, June 17, 2009

EEOC Votes to Adopt Rules Change to ADA

The EEOC voted 2-1 today to revise its Americans with Disabilities Act (ADA) regulations to comply with the ADA Amendments Act of 2008 (ADAAA).

In an EEOC press release, issued today, Vice Chair Christine Griffin provided some vague indication of the pending changes:
“Today’s vote is historic. These regulations will serve to shift the focus of the courts from further narrowing the definition of disability and putting it back to where Congress intended when the ADA was enacted in 1990. Courts should now focus on whether discrimination based on disability is occurring in the workplace. The protections afforded by the ADA AA and these new regulations are important for all workers including our returning wounded warriors who certainly deserve the right to re-enter a workforce free of discrimination.”
Well, this is really just a restatement of the purpose for which the ADAAA was passed in the first place.

The ADAAA expressly authorizes the EEOC to pass regulations in accordance with the Act. The EEOC's definition of "substantially limits" is of particular interest. The ADA defines a disability, in part, as an "impairment that substantially limits [a] major life activit[y]".

The current EEOC regulations define substantially limits as "significantly restricted." The ADAAA tells the EEOC that this definition is "inconsistent with congressional intent, by expressing too high a standard." And Congress also expressed its expectation that the EEOC will "revise that portion of its current regulations."

A few months ago I attended a webinar on the ADAAA where the new definition was rumored to be "materially restricts" which appeared in some House reports. I'm waiting to see if that will in fact be the final definition. Even if it is, what the heck does "materially restricts" mean?

I expect the new regulations will provide some answers, but as with any new law or regulation it may provide just as many new questions!

Notice: For some unknown reason, Feedburner decided not to send out the email featuring yesterday's entry. Click here to read about the classification of exotic dancers under the FLSA.

Tuesday, June 16, 2009

Are Topless Dancers "Employees" Under the FLSA?

A recent National Law Journal article, Strippers Sue to be Classified as Employees, not Independent Contractors, details a recent lawsuit filed against the King of Diamonds club by its adult entertainers. The suit alleges the Minneapolis club intentionally misclassified its entertainers as independent contractors, requiring them to pay fees to perform ("pay for the pole") and denying them wages (tips only).

After reading about these exotic dancers, I just had to run to the nearest... laptop to research the case law (what did you think I was gonna say?). And I wonder why people call me a nerd. The article identified Reich v. Priba, 890 F.Supp. 586 (N.D. Tex. 1995) as the seminal case on the subject so let's examine its analysis.

Reich v. Priba Analysis

The Court briefly analyzed five areas: control; skill and initiative; investment; profit and loss; and permanency. Touching on just the highlight:

Control - The club set show times, issued conduct guidelines for the entertainers, and required a signed agreement written solely by the club. The club also controlled the advertising, atmosphere, and surroundings.

Skill and Initiative - "There was no evidence that any specialized skills were a requirement to perform at the club." I must interject my own opinion here that I highly doubt that in fact there were no special skills required. But hey, I didn't see the evidence.

Investment - "All investment and risk capital is provided by defendants."

Profit and Loss - "Any profit to the entertainers is more analogous to earned wages than to a return for risk on capital investment."

Permanency - The Court noted that the job of dancing is clearly impermanent. The Court did, however, note that "courts must make allowances for those operational characteristics that are unique or intrinsic to the particular business or industry."

In case it's not obvious at this point, the Court held that the dancers were employees, not independent contractors.


The Reich analysis seems pretty one-sided, and the King of Diamonds club should be worried. The National Law Journal article also mentions similar holdings in Alaska, California, and Oregon. Of course, each club has its own unique set of circumstances so maybe they have an argument. The National Law Journal could not obtain comments from the owner or manager of the club.

Monday, June 15, 2009

Ryan's "Family" Steakhouse Perhaps a Misnomer

The EEOC issued a press release today, June 15, 2009 detailing a $500,000 settlement with Ryan's Family Steakhouse. So, what landed Ryan's in hot water with the EEOC? Ohhh, let's see, according to the EEOC:
  • Black employees were terminated because of their race;
  • Managers referred to white employees who associated with black coworkers and family members as "n----r lovers" and "race traitors"; and
  • Male managers physically intimidated women, made sexual advances at them, and called them gender-based epithets, like "b-----s";
OK, finding out that this behavior is frowned upon by the EEOC is probably not earth-shattering news to you. I think it helps, however, to see the price tag that's associated with this kind of conduct. $500,000 is a pretty serious hit... especially for a "family" restaurant!

Thursday, June 11, 2009

What You're Searching For! 6/11/2009

It's time for another installment of "What You're Searching For!"... the sporadically published recurring blog entry generated by you, the faithful readers (or more accurately, the random people Google sent here by mistake).

Sonia Sotomayor Current Employment
Sonia Sotomayor is currently a judge on the United States Court of Appeals for the Second Circuit.

Now, a quick civil procedure lesson for those unfamiliar with our court structure. We have state and federal courts. The federal courts break down as District Courts (generally the trial court) and Circuit Courts (appellate courts). And then, of course, the Supreme Court which actually hears very few cases, making the Circuit Courts the last stop for many cases. The 2nd Circuit covers New York, Connecticut, Rhode Island and Vermont (see Circuit Court map).

GINA Final Rule
Title II of the Genetic Information Non-Discrimination Act (GINA) goes into effect on November 21, 2009. The EEOC just filed a notice of proposed rulemaking for GINA on May 19, 2009 with a comment period ending on July 20, 2009.

Please note that there was a previous notice of proposed rulemaking for GINA filed on February 27, 2009. The comment period was scheduled to end on May 1, 2009.

I'll keep an eye out for the Final Rule.

Failing Out of Law School
Quite a variety of searches for this topic! To answer some of your questions: Yes, you can fail out of law school; and I don't know why you'd want to intentionally fail out of law school... but how hard can it be to tank a final?

One person wanted to know what to do if you fail out of law school. I guess just keep your head up and decide if you want to persevere or pursue other options.

Phillip Miles, Pennsylvania
Attracted By: Ummm, me I guess.
To improve your cyber-stalking results you should spell my name correctly. It's "Philip" with only one 'L'.

Also, if you look to the right you will see a number of widgets, gadgets, and goodies. The last one is "Directories and Profiles". There you will find links to some of my profiles, my Twitter account, and directories listing Lawffice Space.

Wednesday, June 10, 2009

Fire the Fiancé - Third Party Retaliation Claims

If an employee files an employment discrimination complaint with the EEOC, employers are prohibited from retaliating against the employee... but the statute doesn't say anything about firing the employee's fiancé!

Thompson v. North American Stainless, LP, __ F.3d ___, 2009 WL 1563443 (6th Cir. 2009). The Sixth Circuit, sitting en banc (16 judges!), delivered the opinion on June 5, 2009.

Does Title VII create "a cause of action for third-party retaliation for persons who have not personally engaged in protected activity?"

  • Plaintiff, Eric Thompson, worked for Defendant, North American Stainless ("Stainless"), from 1997-2003.
  • Stainless hired Miriam Regalado in 2000.
  • Regalado filed a gender-based discrimination charge with the EEOC against her supervisors in 2002.
  • February 13, 2003, the EEOC notified Stainless of Regalado's charge.
  • March 7, 2003 (3 weeks after learning of the charge), Stainless fires Thompson... oh yeah, I should probably mention that he was engaged to Regalado at the time.
  • Thompson brings suit against Stainless under Title Vii, alleging retaliation.
Title VII Anti-Retaliation Text
"It shall be an unlawful employment practice for an employer to discriminate against any of his employees or applicants for employment ... because he has opposed any practice made an unlawful employment practice by this subchapter, or because he has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this subchapter."
Title VII of the Civil Rights Act of 1964, § 704(a), 42 U.S.C. § 2000e-3(a) (emphasis added by the court).

Court's Analysis
  • "In our view, the text of § 704(a) is plain in its protection of a limited class of persons who are afforded the right to sue for retaliation."
  • "Significantly, Thompson does not claim that he engaged in any statutorily protected activity, either on his own behalf or on behalf of Miriam Regalado."
  • "By application of the plain language of the statute, Thompson is not included in the class of persons for whom Congress created a retaliation cause of action because he personally did not oppose an unlawful employment practice, make a charge, testify, assist, or participate in an investigation."
  • "In essence, plaintiff and the EEOC request that we become the first circuit court to hold that Title VII creates a cause of action for third-party retaliation on behalf of friends and family members who have not engaged in protected activity. However, we decline the invitation to rewrite the law."
How about that last bullet? Zing! Take that EEOC.

Other Circuits
The Court was kind enough to summarize some other cases from other circuits that have addressed this issue.

Third Circuit: Fogleman v. Mercy Hosp., Inc., 283 F.3d 561 (3d Cir. 2002).

Fifth Circuit: Holt v. JTM Industries, 89 F.3d 1224 (5th Cir. 1996).

Eighth Circuit: Smith v. Riceland Foods, Inc., 151 F.3d 813 (8th Cir. 1998).

Plus Sixth Circuit makes four circuits that have addressed the issue and all of them have ruled the same way.

Reason #4,682,092 not to be in an interoffice relationship. Oh, and there's no cause of action for retaliation against a third party under Title VII.
UPDATE: The Sixth Circuit stated that it does not wish to be the "first circuit court to hold that Title VII creates a cause of action for third-party retaliation...." However, a National Law Journal article on Thompson v. North American Stainless reports that "The 7th and 11th circuits, meanwhile, have concluded that third parties are entitled to protection from retaliation." I'll see if I can dig up those cases and let you know the rationale behind those decisions.

Monday, June 8, 2009

United Airlines and the ADA Again

The U.S. Equal Employment Opportunity Commission (EEOC) issued a press release last week announcing that it sued United Airlines, alleging disability discrimination under the ADA.  This time 'round, United Airlines is accused of failing to provide a class of workers with "job transfers to vacant positions, despite their qualifications, as a reasonable accommodation."

You've probably already picked up that this is not United Airlines' first experience with the ADA. Just a couple of months ago, United settled an ADA claim for $850,000!  United Airlines was also involved in a major (some may say infamous) ADA case that provoked one of the biggest employment discrimination statutory amendments ever: the ADA Amendments Act of 2008 (ADAAA) (Full text here).

In Sutton v. United Air Lines, 527 U.S. 471 (1999), the Supreme Court held that two severely myopic twin sisters applying for pilot positions with United were not disabled under the ADA. Their eye sight was quite poor (20/200) and failed to satisfy United's requirements for commercial pilots.  

The Supreme Court held the sisters did not meet the ADA's definition of "disabled" because they could see just fine with corrective lenses.  In other words, the Supreme Court told every federal court in the country to assess ADA plaintiffs' disabilities by taking into account the effects of mitigating measures.

This decision did not go over well in some circles, most notably Congress.  In 2008, the ADA was amended to, in part:
reject the requirement enunciated by the Supreme Court in Sutton v. United Air Lines... that whether an impairment substantially limits a major life activity is to be determined with reference to the ameliorative effects of mitigating measures;
That's about as straightforward as it gets.  The ultimate irony here is that the ADAAA contains an explicit exception to this rule.  You don't count mitigating measures when determining whether an employee is disabled under the ADAAA... with an exception for corrective lenses, the exact issue in Sutton!

Here we are ten years after the Sutton decision and United is in the ADA spotlight again.  It's doubtful this new ADA suit will have the same historic impact as Sutton but you never know. The historic cases don't usually start out historic.  If nothing else, it provided an opportunity to reflect on a case that prompted a major revision to one of our nation's most prominent anti-discrimination statutes.

Saturday, June 6, 2009

E-Verify Basics and Yet Another Delay

The Department of Homeland Security (DHS) and the Social Security Administration (SSA) have teamed up to offer employers E-Verify.  Basically, employers can go online (enrollment here) and compare information from their new employee's I-9 forms against a massive database to check their work status (immigration status).  DHS reports that so far over 87,000 employers have run over 6.5 million queries!

George Bush amended Executive Order 12989 on June 6, 2008 to require employers who receive federal contracts to electronically verify that they have a legal workforce.  This new mandate goes into effect on September 8, 2009... at least that's what the government is saying today.  The new push-back marks the fourth time the program has been delayed this year!  

The mandatory verification for federal contractors has proved controversial, instigating multiple law suits.  As The National Law Journal reported earlier this year:
It drew a lawsuit from the U.S Chamber of Commerce, which challenged the mandatory nature of the executive order and ensuing proposed regulations and the requirement to reverify existing workers -- something barred by the legislation, according to Lawrence Lorber of the Washington office of New York's Proskauer Rose, who represents the Chamber.

"The executive order was illegal and violates the statute," said Lorber.
That case is Chamber of Commerce of the U.S. v. Napolitano, No. 08-cv-3444AW (D. Md.). The latest news on the case (via National Law Journal) is that:
Department of Justice attorneys recently moved to stay the litigation, stating that more time is needed to review the rule. The judge signed the request on Tuesday.
Sounds like E-Verify is gonna be optional for a while. At least until September 8, 2009!

Wednesday, June 3, 2009

Minimum Wage on the Rise

The Fair Labor Standards Act (FLSA) establishes the minimum wage, among other things.  And guess what?  The federal minimum wage is set to rise.  Starting July 24, 2009 the minimum wage will rise to $7.25 per hour.  

This is just the latest in a series of increases starting in 2007.  From 1997-2006 the minimum wage stood at $5.15.  Then $5.85 in 2007, and $6.55 in 2008.  Time for some fun with numbers:
  • The new minimum wage is 10.7% higher than the current rate
  • An employee earning minimum wage since 2006 will now make 40.8% more than just three years ago
  • Percentage-wise, this year's increase will actually be the lowest since 2007 (the dollar increase has remained constant at $0.70 per year).
For historical minimum wage rates (including figures adjusted for inflation) check InfoPlease here.  For compliance assistance with the FLSA visit the Department of Labor web site here.  Of course, don't forget to check state and local laws!

Tuesday, June 2, 2009

FELA Fear of Cancer Standard

In a per curiam opinion dated June 1, 2009, the Supreme Court reversed the Tennessee Court of Appeals which had affirmed a $5,000,000 award under the Federal Employers' Liability Act.  CSX Transportation Inc. v. Hensley, 556 U.S. ___ (2009).  The Plaintiff, Thurston Hensley, sought "pain-and-suffering damages from CSX based on, among other things, fear of developing lung cancer in the future."  Considering Hensley contracted asbestosis, his fear was not unfounded.

At trial, CSX had requested a jury instruction, based on a previous Supreme Court opinion, explaining that for a fear of cancer to be recoverable the Plaintiff must establish that the fear is "genuine and serious."  See Norfolk & Western. R. Co. v. Ayers, 538 U.S. 135 (2003).  The trial court denied the request.  The jury returned a $5,000,000 judgment for the Plaintiff but, according to the Supreme Court, the damage was done.

Those two words: "genuine" and "serious" instruct the jury as to the legal standard for recovery of fear of cancer claims under FELA.  Per Monday's opinion, failure to provide the standard to the jury is "clear error."