Tuesday, July 28, 2009

Three Employee Benefits of Marriage

I got married this past weekend. I write an employment law blog. Is anyone really surprised that I would combine the two?

There are countless legal benefits to marriage ranging from automatic inheritance to joint tax filing to enhanced property rights to the ability to sue for wrongful death to... look, I could go on for awhile. Instead, I'll jump into three specific benefits of marriage in the employment context:

1. Health Insurance
Healthcare reform efforts notwithstanding, employer-provided healthcare remains the most common form of coverage in the United States. Often employers will provide or subsidize some form of health insurance for employees' spouses as well. Good luck finding one that covers your girlfriend (or boyfriend)!

2. Family and Medical Leave Act (FMLA)
I'm in the midst of reading a 500-page book on the FMLA right now, but in one really oversimplified sentence: You can take up to 12 weeks of unpaid leave a year to care for a spouse with a serious health condition. Hopefully you won't need this but if such a situation arises you'll be happy you're covered. Your significant other is not covered unless you are married (with a few notable state law exceptions).

3. Spousal Privilege
As an employment lawyer, I am all too aware that the employment relationship often leads to litigation. Without getting too deep into the nerdery that is evidentiary privilege, the marital communication privilege applies in civil cases. In other words, conversations between husband and wife are privileged. If you are the one in litigation then you can actually prevent your spouse from testifying against you and/or your spouse may refuse to testify.

Monday, July 27, 2009

Announcing Guest Blogger: Kristina Duncan

Lawffice Space readers,

I am proud to present special guest blogger, Kristina Duncan! She will provide a few guest posts for Lawffice Space next week. She has kindly provided me with a brief bio:

Kristina Duncan is President and Owner of Paralegal Associates, providing freelance and virtual paralegal services to law firms. Previously, Ms. Duncan worked as the sole assistant for two attorneys in personal injury and employment law. While working full-time, Ms. Duncan attended the University of San Diego’s Paralegal Program. She graduated in June, 2008 with Honors.

A Southern California native, Ms. Duncan attended the University of California, Irvine where she studied dance and psychology. In 2003, she earned a Bachelor of Arts degree. Before turning to a career in law, Ms. Duncan was a professional ballet dancer, performed in many musicals, taught dance, trained in and taught gymnastics, played on several soccer teams (including being team captain for a season), was on a swim team, and was a competitive ice skater for 6.5 years. She is currently preparing to apply to law school this fall with the idea of attending law school in fall of 2010.

You can follow Paralegal Associates at:





Wednesday, July 22, 2009

Lawfully Wed

I have some good news and some bad news... the good news is that I am getting married this weekend! The bad news? This will cut into my Lawffice Space time in the next couple weeks. Between family and friends, the festivities, and the honeymoon, Lawffice Space will be updated a little less frequently for the next 2-3 weeks.

I'll try to sneak a couple posts in though...

I will do 1-2 entries next week. I am coordinating with a special guest blogger for 1-2 entries the following week. Stay tuned for details.

Vacation Time - Use it or USE IT!

When employees don't use their vacation time, everybody loses... at least that's the theory behind employment lawyers recommending mandatory vacation time. Yeah, you read that right. It's in a new National Law Journal article from yesterday.

Apparently the economic downturn has made employees skip vacation due to lack of funds and anxiety. And "overworked employees are more prone to exhaustion and sickness, and are less productive at work." Not to mention the "administrative and payroll nightmare" that may ensue when employers are forced to pay out the unused vacation time.

One of the proposed solutions to this problem struck me as a bit odd:
"As a safeguard, every employer should have a provision in its vacation policy to the effect that the employer can schedule employees' vacations."
I've heard of "use-it-or-lose-it" vacation time, but this is "use-it-or-USE-IT!" As an employee, I'd be slightly offended if my employer deemed it necessary to dictate when I need a time out. It's all a little babysitter-ish for my taste.

That said, state mandates that employers pay out unused vacation time may make it a necessary evil in parts of the country.

Monday, July 20, 2009

Did Ricci Change the Game?

I was sitting around reading a past issue of The Chronicle of Higher Education (no seriously, all the cool kids do this) when I came across Considering Layoffs? Tips for Avoiding Legal Problems (paid subscription required). I like avoiding legal problems, so I read this Q&A piece directed toward college and university employers. It included the following:
"Q: How can colleges protect themselves from discrimination claims?
A: The college's general counsel or another employment expert should examine a list of all the employees who may be laid off to make sure that a disproportionate number of affected workers are not racial minorities [or other protected class]."
Wait a second, I think I've heard this one... isn't this Ricci v. DeStefano? The New Haven Fire Department identified individuals to promote but then never followed through with the promotions because the racial statistics were "disproportionate." The result? Title VII disparate treatment liability.

Oh sure, different adverse actions: failure to promote in Ricci; layoffs in the Chronicle article. But either way, it's deciding who gets hit with the adverse employment action based on race in an effort to balance the stats.

Imagine, an employee finds out he wasn't on the original "layoff list" but then some employment lawyer (said with utter contempt) told the employer the list wasn't "white enough." The employer adds the employee to make the stats proportionate.

Terminated because of his race? Yup. Is balancing the stats a defense? I think Ricci tells us the answer is no... unless there's a strong basis in evidence that disparate impact liability existed. The article was published June 26th. Ricci was published June 28th. Did the game change in those two days? When it comes to playing the numbers game, I think it did.

Saturday, July 18, 2009

EFCA Only Part-Dead

In a front page New York Times story from Friday, Democrats Drop Key Part of Bill to Assist Unions (free registration required), the public received the news: Card Check is dead. Card Check would have allowed workers to form a union whenever 50% +1 of the workforce signed cards. Currently, secret ballot elections are used.

Though the Employee Free Choice Act (EFCA) is often thought of as synonymous with "card check" the truth is that key provisions remain, including the arbitration clause. As a Denver Post editorial espousing the dangers of EFCA puts it:
"By far, the most economically destructive provision in EFCA is one that imposes binding arbitration if the parties fail to reach a contract agreement within 90 days.

This, in effect, means unions have zero incentive to bargain in good faith. They do have an incentive to make over-the-top demands, knowing they would be the starting point in arbitration hearings."
There are also enhanced penalty provisions for employers retaliating against employees attempting to organize.

While it appears that the secret ballot will rule the day (and the future), Congress continues to consider new procedures. After workers express interest in a union, a secret ballot election is held. The NYT article states that Senators are looking at a revised version of EFCA that would "require shorter unionization campaigns and faster elections" (5 to 10 days down from campaigns often extending 2 months).

As the Denver Post editorial demonstrates, the death of card check is not the death of EFCA nor is it the death of the intense debate taking place over the controversial legislation.

UPDATE (7/20/2009): This entry was mentioned in the Ohio Employer's Law Blog entry: Is "card check" really dead, along with further analysis and links to seven other blogs on this topic (it's quite popular).

Thursday, July 16, 2009

Gross on the EEOC Radar

Last month I wrote a summary of Gross v. FBL Financial Services, Inc, the case that eliminated "mixed motive" burden-shifting in age discrimination suits. At the time, Ross Runkel, editor of Law Memo, wrote that it would be the "biggest employment law case of 2009."

Then a funny thing happened... it kinda fell off the radar. This is no doubt a combination of the public's limited interest in the technicalities of employment law and the media's love affair with the Ricci decision. Another blogger has likewise noted the limited media coverage of Gross.

While the case may be off the media's radar, it is most definitely not off the EEOC's radar! The EEOC held a meeting yesterday to highlight the "devastating impact" of age discrimination and "recent developments under the Age Discrimination in Employment Act (ADEA)." And by "recent developments" they mean "controversial" and "adverse" judicial decisions, including... you guessed it! Gross v. FBL.

The highlights of the EEOC meeting do not indicate any specific action taken but the EEOC promised "to take steps to provide additional regulatory and policy guidance." The EEOC further expressed that "legislative action was essential to ensure that the ADEA was a meaningful enforcement tool."

So while Gross may be off the media radar, I'm pretty sure the employment law powers that be have not forgotten. That is not to say, however, that Gross is their only concern. I think we'll see some new regulations, and at least some effort in Congress, to generally expand the power of the ADEA.

As a sidenote, the EEOC also issued guidance on Understanding Waivers of Discrimination Claims in Employee Severance Agreements. It specifically addresses the Older Workers Benefit Protection Act (OWBPA), an employee checklist for assessing severance agreements, and a sample waiver to help employers comply with OWBPA.

Wednesday, July 15, 2009

Text Message Harassment - No LOLing Matter

In yesterday's post, Internet Under Attack!, I explained that employment lawyers are attacking various web-based activities. Ultimately, however, the employer (and employee) problems simply presented the same old problems amplified in a new forum. First thing this morning, I get an email update from the National Law Journal with an article, Text Messages Increasingly Bolster Sexual Harassment Claims (free registration required).

As the article explains:
"Perhaps the biggest culprits... are male bosses who are sending scandalous text messages to female employees, asking them out on dates or promising promotions in exchange for sexual favors. These texts are explosive evidence in lawsuits... and pretty tough to dispute."
Once again: old problems, new medium. We all know managers can't condition promotions on sexual favors. It doesn't matter if he whispers in her ear, hands her a note, calls her, emails her, IMs her, text messages her, or dispatches his droid R2-D2 to display a holographic image of himself explaining sexual favors are her "only hope."

Now, I hope I don't sound like I'm disparaging these warnings, they have a point. Maybe they're the same problems in a new environment but its important to understand the new environment. The latest trends, the methods of harassment, the extent of the problem... all present knowledge that employers should possess.

And at the end of the article, we're reminded that there may be some new rules involved too:
"[T]here are privacy issues that employers need to consider before reviewing text messages. For example, if the employer owns the device, it has the right to review it. But, if the employee owns the device and is reimbursed for the service, 'the employer doesn't have an unfettered right to review,' [David Walton - Cozen O'Connor] said."
Ahh yes, employee privacy in our increasingly gadget-driven world is a new frontier for another day.

Tuesday, July 14, 2009

Internet Under Attack!

Comrades, it is worse than I ever imagined. You may recall my recent report that LinkedIn is under attack by lawyers. I have come to discover that it's not just LinkedIn... it's the entire Internet!

As a refresher, LinkedIn is a problem because recommendations from employers on that site may conflict with official performance reviews, creating a gold mine for plaintiffs' attorneys in future lawsuits. Guess what? It turns out you can post the same thing on Facebook! And while it would have to be an extremely brief (140 characters or less) review, you can even run into this problem on Twitter!

Employment lawyers aren't just raining on the Internet for employers, but for employees as well! There was the Savannah firefighter terminated after posting risque photos on her MySpace page (she lost her First Amendment and discrimination case). And if risque pictures are bad, imagine the trouble you can get into on YouTube!

And of course, employment lawyers are also trying to kill blogging. A recent 9th Circuit case held that the First Amendment doesn't protect a teacher from demotion where she calls her co-worker a "smug know-it-all creep" and "Mighty White Boy."

Is that the whole Internet that we've torn down yet? In case my sarcasm doesn't translate to the web, this whole post was written with tongue firmly planted in cheek. I don't see these as developments in "Internet Law"... it's just the same old law applied to the Internet. The Internet contributed to these situations because:
  • Anyone can publish
  • Anyone can read (barring some privacy settings on some sites)
  • There's a permanent record
If I wrote a letter to the editor in my local newspaper: "Dear editor, my boss is a big dummy and he smells like an orangutan. Love, Phil" I would dare say that I could be demoted (even if I worked for a public employer). But what paper would publish this (not to mention publishing risque photos of me!)!

And those LinkedIn recommendations? Inconsistent feedback is often a problem for employers (for legal as well as managerial reasons). It's particularly bad online though because it's right there for anyone to read; no legal discovery needed. Further, it doesn't get lost or forgotten because it stays there.

In short, they're the same problems amplified through the forum. Before everyone gets worked up over the new rules for web 2.0, worry about following the old rules.

Other areas of the law seem to translate so simply. Of course you can't threaten to kill Judge Posner on your blog. Of course you can't violate a court order on your blog. That's obvious. It should be equally obvious that employer/employee problems offline readily translate into problems online.

Monday, July 13, 2009

Retaliation: Sharing Confidential Documents with Attorney Not Protected

A tough part of blogging is succinctly describing complex legal holdings in a sentence or less. Today's title may be a tad misleading. In Johnson v. Portfolio Recovery Associates, LLC, the Eastern District Court of Virginia held that Plaintiff sharing confidential documents with his attorney was not a protected activity... in this situation.

Mark Johnson was terminated from his job for violating his confidentiality agreement. He disclosed a confidential document... to his attorney. He then filed a charge of race discrimination with the EEOC but only after he was terminated. He included claims of retaliation based on his termination.

Obviously, retaliation claims are tough when you are fired before your employer knows of your discrimination claims! It is possible, however, to have a retaliation claim for employer-conduct before you file a formal charge. Johnson claimed sharing the confidential docs with his attorney was a protected activity, but the Court ultimately disagreed.

The Court relied on a 6-prong analysis enunciated in Niswander v. Cincinnati Ins. Co., a 2008 Sixth Circuit case:

(1) how the documents were obtained,
(2) to whom the documents were produced,
(3) the contents of the documents, both in terms of the need to keep the information confidential and its relevance to the employee's claim of unlawful conduct,
(4) why the documents were produced, including whether the production was in direct response to a discovery request,
(5) the scope of the employer's privacy policy, and
(6) the ability of the employee to preserve the evidence in a manner that does not violate the employer's privacy policy.

The Court clearly relied most heavily on the sixth prong, finding that Johnson could have preserved the evidence without disclosing the document to his attorney. The Court also notes that Johnson could have provided the information in a synopsis form without full disclosure. Conclusion: sharing confidential documents with his attorney was not protected in this instance.

This presents a dangerous trap for employees (and their attorneys!). Employees should think long and hard before divulging confidential documents, even if its to their attorneys. In this case, the Sixth prong was almost solely determinative. If there's a way to proceed without full disclosure of the document, that may be the safest route.

Sunday, July 12, 2009

Frank Ricci and Ben Vargas to Testify at Sotomayor Hearing

On Monday, the Senate will kick off the confirmation hearings for President Barack Obama's first Supreme Court nominee, Sonia Sotomayor. Per the Constitution:
"[The President] shall nominate, and by and with the Advice and Consent of the Senate, shall appoint... Judges of the supreme Court...."
I don't know about the "consent" part but it appears the Republicans are poised to provide plenty of advice!

Expect employment law to figure prominently in the hearings (although the Republicans have lined up several Second Amendment heavyweights as well). The media coverage of the Ricci case (white New Haven firefighters case) has been everywhere.

On top of the media blitz, none other than Frank Ricci himself is listed as a witness to testify at the hearings. Mr. Ricci (in case this wasn't obvious from the name) is the lead Plaintiff (aka a white New Haven firefighter) in the Ricci case. To quote a friend of mine upon hearing the news: "Wow! A real person!"

I would also like to note that two professors from my beloved alma mater, George Mason, are also set to testify: Neomi Rao (teaches Constitutional Law... not sure what she's testifying on), and Ilya Somin (I suspect he'll discuss property rights/eminent domain).

CBS News has published the full list of the witnesses released by the Senate Judiciary Committee (Democrats and Republicans).

UPDATE 7/12/2009: Upon closer examination, Lieutenant Ben Vargas of the New Haven Fire Department is also on the list. Although Ricci is often thought of as the white firefighters case (or a case of reverse discrimination), Mr. Vargas is actually Hispanic. His situation was discussed briefly in Justice Alito's concurring opinion.

Friday, July 10, 2009

Ricci - Alito, the Reverend, and Sotomayor

Fear not, I have not forgotten about the two remaining opinions in Ricci v. DeStefano (the white New Haven firefighters case). Tonight, I address Justice Alito's concurring opinion. Previous entries addressed:
Which leaves Justice Ginsburg's dissent for another day. Justice Alito's opinion is fascinating in that it reads almost like a newspaper article. There is barely any discussion of the law which, needless to say, is extremely unusual in a judicial opinion.

The Facts
At the risk of oversimplifying, Alito's fact-based opinion attempts to show that regardless of the test you use, the City just plain didn't really think it was going to be liable under a disparate impact theory (their proffered defense for discriminating against the white firefighters who passed the test):
"Almost as soon as the City disclosed the racial makeup of the list of firefighters who scored the highest on the exam, the City administration was lobbied by an influential community leader to scrap the test results, and the City administration decided on that course of action before making any real assessment of the possibility of a disparate-impact violation."
Alito takes particular aim at the "influential community leader," Reverend Boise Kimber.

The Reverend
Alito notes that Rev. Kimber is a "self-professed 'kingmaker'" who "threatened a race riot" during an earlier murder trial of an African-American. Rev. Kimber had a decade of ties to the mayor of New Haven, including a stint as Chairman of the City's Board of Fire Commissioners "despite the fact that he had no experience in the profession." And for good measure, Alito reminds us that "Rev. Kimber told firefighters that certain new recruits would not be hired because ‘they just have too many vowels in their name[s].’"

Maybe Justice Alito went through this exercise because it really undercuts the City's argument that it had either "good cause" (advocated by the dissent) or a "strong basis in evidence" (the majority test) to believe it would be held liable under a disparate impact claim if it certified the test results. Maybe Alito really wanted to highlight the actions of Rev. Kimber. In fact, I suspect both. I think there's also some evidence, however, that Alito was offering a subtle critique of Supreme Court nominee Sonia Sotomayor who was part of the Second Circuit panel that heard the case before it came to the Supreme Court.

The last sentence before Alito launches into his account of the facts reads:
"[T]he decision below, which sustained the entry of summary judgment for respondents, cannot be affirmed unless no reasonable jury could find that the City’s asserted reason for scrapping its test... was a pretext and that the City’s real reason was illegitimate..."
In short, Alito's detailed discussion of the facts is really meant to show that the "decision below" was wrong... whether you use the Supreme Court majority's test or Justice Ginsburg's dissent's test.

The other portion of Alito's opinion that arguably addresses Sotomayor is the conclusion. First, recall that Obama selected Sotomayor following his announcement of the controversial "empathy" standard. Then read the very last words of Alito's opinion:
"The dissent grants that petitioners’ situation... 'understandably attract[s] this Court’s sympathy.' But 'sympathy' is not what petitioners have a right to demand. What they have a right to demand is evenhanded enforcement of the law.... And that is what, until today’s decision, has been denied them."
OK, I get that "sympathy" and "empathy" are different words... but given the controversy surrounding "empathy" it seems believable that Alito was trying to weigh in without being too obvious. Or maybe I'm searching for hidden messages that aren't really there. That's for you to decide.

Wednesday, July 8, 2009

LinkedIn is Under Attack!

The first attack I have on record came when Daniel Alexander, author of Outhouse General Counsel, posted The Do's and Don'ts of Online Employer-Employee Recommendations. Then the National Law Journal followed suit with Lawyers warn employers against giving glowing reviews on LinkedIn. Yesterday, Jon Hyman launched the latest salvo with Is LinkedIn a risk for employers?

When do we declare this an epidemic? More importantly, why are all of these lawyers attacking LinkedIn? Their logic is actually pretty sound: An employee's (read: plaintiff's) online recommendations from his/her manager can be viewed by the public (read: dastardly plaintiffs' attorneys) and it may conflict with the employee's official performance reviews (read: evidence of discrimination).

OK, I've done my employment-blawgitty duty and warned you about the evils of LinkedIn reviews from a lawyer's perspective. Now let me tell you what I think as a manager when I read a potential employee's online review from his/her current manager (Note: I was a project manager before I was an attorney):
  • I don't know the person who wrote this, why should I trust her?
  • If this employee's so great (or a "self-motivated proactive joy to work with" in flowery LinkedIn terms) then why is the manager recommending him to other employers?
  • He must be awful and she's just trying to pawn her problem employee off on me!
  • Or maybe she's recommending him so he sounds more attractive to potential customers... she's just making him sound great to drum up business!
  • Nah, I know, she's just being nice or avoiding conflict by writing him a recommendation in response to his request.
Then somewhere way way WAY back in the back of my mind is, "hey, maybe all of this obnoxiously over-selling language is an honest assessment." Naaaah!

Look, I love LinkedIn... I'm on LinkedIn! I'm just saying I find recommendations from current managers nearly worthless and they do present potential evidence problems so be careful.

Tuesday, July 7, 2009

Drink, Drank, Drunk - Words Matter

The moral of today's story is simple: When drafting work policies, say what you mean. In a Pennsylvania unemployment compensation case from the 80s, the Pennsylvania Commonwealth Court (appellate court below PA Supreme Court) drew a line between drank and drunk. Keay v. UCBR, 551 A.2d 391 (Pa. Commw. 1988).

The Court had to determine if Gary Keay had been terminated for "willful misconduct" for violating the employer's rule:
"Performing work or driving or riding in a company vehicle while under the influence of alcoholic beverages, or being intoxicated or narcotics. A breathalyzer test can be administered by the company personnel. If the employee fails, he will be terminated. If the employee refuses to take the test, he will be terminated."
One day Mr. Keay and some of his co-workers went to lunch, and you guessed it... had some beer! So does this violate the rule? The Court found that
"[T]he Employer proved only that Keay had consumed alcoholic beverages during his lunch break; no evidence was introduced to indicate that his ability to perform his duties was in any way impaired. Consequently, the Employer failed to prove that Keay violated the rule against intoxication or working while under the influence."
The Court then reversed the Unemployment Compensation Board of Review's finding that Mr. Keay had engaged in willful misconduct. In other words, the employee drank but he was not necessarily drunk. It's a minor distinction but like I said in the title: words matter.

Just a note of warning... if your work policy says you cannot drink at work, I would most certainly not show up hammered tomorrow and say, "but the policy doesn't say anything about drinking before work!" I'm pretty sure that doesn't fly.

Sunday, July 5, 2009

REALLY Casual Fridays - Naked Office

A British design and marketing company called in business psychologist David Taylor to help boost office morale. His recommendation was a little unconventional: naked office (as in nobody wears clothes at work).

This sounds like a script for an episode of The Office. You can just picture Michael Scott explaining to Toby, the HR rep, that he has instructed Pam to come in naked tomorrow... "but don't worry, I told her I'd be naked too!" Soft spoken Toby sits there with a look on his face like his head's gonna explode.

My first reaction to this story was that this is a sexual harassment suit in the making. Under U.S. law, Title VII prohibits quid pro quo sexual harassment and hostile work environment harassment.

Quid pro quo, literally translated, means "something for something," and is often interpreted as "this for that." Generally speaking, employers cannot condition job benefits or job detriments upon an employee's response to unwelcome sexual advances. A naked office employee assures us, however, that:
"We weren't put under pressure. If we wanted to come in clothed or in our underwear, we could."
Hmmm, maybe the naked office would be safe from a Title VII quid pro quo claim in America.

What about a hostile work environment harassment claim? There are several considerations for such a claim, including: harassment was pervasive and regular, detrimental impact to plaintiff, would have a detrimental impact on a reasonable person, frequency of harassment, severity of harassment, whether harassment was physically threatening or humiliating, and interference with plaintiff's work performance.

Well, I would certainly knock off a number of the items on that checklist. Ultimately, I would need more facts for a full analysis and even then it may be a judgment call. One thing's for certain, even if the nudity is not itself harassment it's pretty easy to see how it could lead to hostile work environment harassment.

Whether you're an attorney analyzing Title VII claims, an HR manager analyzing employee satisfaction, or a business manager analyzing operations, one of your primary goals should be ensuring the employees are comfortable in their work environment. Employees who feel humiliated, discriminated against, or just awkward will under perform, become dissatisfied, and ultimately may file a lawsuit.

I would question how comfortable employees at any business would be with a naked office. The staff in the article linked above seem to have embraced the idea. Of course, maybe it's just a marketing gimmick to get bloggers to write about them... and oh yeah, the TV show airs this week in the UK.

Saturday, July 4, 2009

America's First Employment Law

On July 4th, we celebrate the birthday of the United State of America. The date commemorates the signing of the Declaration of Independence in 1776 by the Continental Congress. Thomas Jefferson (borrowing from ideas previously espoused by, among others, John Locke and George Mason) declared:
"We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness."
The historic significance and the importance of the ideals cannot be overstated. A new country was born on the principle of freedom.

While the language of the declaration is sweeping, I would like to call attention to what I believe to be America's first employment law. First, the declaration emphasizes equality, the notion that individuals are born with equal opportunity under the law. Second, and more directly on point in the employment context, is the enumeration of a natural right to the "pursuit of happiness."

In the 1884 Supreme Court case, Butchers' Union Co. v. Crescent City Co., Justice Field explained that portion of the Declaration in a concurring opinion:
"Among these inalienable rights, as proclaimed in that great document, is the right of men to pursue their happiness, by which is meant the right to pursue any lawful business or vocation, in any manner not inconsistent with the equal rights of others, which may increase their prosperity or develop their faculties, so as to give to them their highest enjoyment."
To this day we recognize America as the land of opportunity where individuals have the ability, the right, to pursue their occupational goals. We tell our children, "when you grow up you can be whatever you want." This inherent right, as described in the Declaration that gave birth to our nation, is America's very first employment law.

Thursday, July 2, 2009

Ricci, Scalia, Equal Protection and the Future of Disparate Impact

Earlier this week, the Supreme Court issued its opinion in Ricci v. DeStefano, the case in which white New Haven firefighters alleged "reverse discrimination." I covered the Ricci majority opinion on Tuesday. Today I will address Scalia's concurring opinion.

Scalia agreed with the majority opinion "in full" but wrote separately to opine on an issue left unresolved by the majority, the Constitution's equal protection mandate. After the majority decided that the City lost under the Court's Title VII analysis, there was no reason to address the equal protection issue. The Court avoids Constitutional issues whenever possible as they did here.

The Conflict
Justice Scalia framed the unresolved Constitutional question as:
"Whether, or to what extent, are the disparate-impact provisions of Title VII of the Civil Rights Act of 1964 consistent with the Constitution’s guarantee of equal protection?"
The underlying inherent conflict is similar to that presented by competing provisions of Title VII: If equal treatment yields different outcomes, requiring an equal outcome necessitates unequal treatment.

The Opinion
Scalia all but tells us the disparate impact provisions of Title VII violate the equal protection clause calling them "a racial thumb on the scales." He writes that policies designed to produce equal results are no different from an absolute quota, "Intentional discrimination is still occurring, just one step up the chain."And he reminds us, "The Government must treat citizens as individuals, not as simply components of a racial, religious, sexual, or national class." (quoting Miller v. Johnson, 515 U.S. 900 (1995)).

Scalia ends, however, by offering an olive branch. Perhaps disparate impact can be used as an evidentiary tool to "smoke out" discriminatory treatment. He then closes with the line:
"But the war between disparate impact and equal protection will be waged sooner or later, and it behooves us to begin thinking about how—and on what terms—to make peace between them."
Thus concludes Scalia's brief (3-page) but extremely important opinion.

What it Means
I once took a seminar course from Justice Scalia and I can assure you he is a crafty guy who uses his opinions to plant seeds for future cases. This opinion was written for a reason and it's not just that Scalia loves to tell us his thoughts on the Constitution (though I can assure you he does!). I cannot read his mind but I have a few thoughts on why he may have issued this opinion.

First, I think he's telling one of the other Justices (if I had to guess, Kennedy), "you can't run forever!" I suspect there were a few votes to knock down disparate impact as unconstitutional but the Title VII-based decision allowed the more tentative Justice(s) to duck the issue... for now.

Second, I think Scalia's planting the seed in the public's mind. When that "evil day" comes, get ready for disparate impact to drop. Start preparing from the day they grant certiorari.

Finally, I think it's a warning to Congress. As my previous Ricci post explained, the majority took a middle of the road approach. Employers can still engage in disparate treatment in order to obtain equal results... but only where there is a "strong basis in evidence" that the employer faces disparate impact liability.

In the field of employment law, Congress has repeatedly denounced Supreme Court decisions by enacting legislation to essentially "reverse" the Court. Recent examples include the Ledbetter Act and the ADA Amendments Act of 2008. I think Scalia is trying to say (I emphasize that this is my take and not his words):
"Look, we compromised and let disparate impact prevail in very limited circumstances. If you try to cram this down our throats by enacting legislation to expand those circumstances... we still have the nuclear option: the equal protection clause. Once the disparate impact provision is ruled unconstitutional, the game's over. You can't legislate around that."
Maybe I'm reading too much into it. Maybe he just meant to say, "boy, I guess we're gonna have to do that equal protection analysis someday." I think, however, there's more to his opinion than that.

Wednesday, July 1, 2009

Interior Design "Titling" Law Unconstitutional

I have a rather unconventional employment law topic today: "titling" laws. Across the U.S. many states require licenses for any number of professions. I happen to hold such a position as a licensed attorney. Sometimes, a state legislature won't commit to enacting a full fledged licensing law, however, so they enact a title law.

For example, under Connecticut law, individuals do not need a license to practice interior design, but they do need a license to call themselves "interior designers." In other words, if you don't have a license you can still be an interior designer but shhhhh, don't tell anyone!

The practical effect of such laws is to prohibit unlicensed interior designers from telling their clients 100% truthful information: they are interior designers! Therein lies the legal issue. The first amendment (applicable to states through the fourteenth amendment) protects the right to free speech. On Tuesday, the Connecticut federal district court struck down the state's interior design titling law as unconstitutional. Roberts v. Farrell (June 30, 2009).

Unlicensed interior designers seeking to protect their first amendment rights accept a certain risk in bringing such suits. The legislature may abandon its efforts and the unlicensed designers can finally shout from the rooftops, "I am an Interior Designer!" The legislature may, however, cure the defect by going the opposite direction and requiring a license to practice interior design.

NOTE: Lawffice Space had its 1000th hit today! Thank you so much for reading.