Saturday, October 31, 2009

Happy Halloween from the Fun Police


Happy Halloween! This time of year is filled with pumpkin carving, candy, and costumes. Occasionally these traditions come to the office in the form of an office Halloween party. You'll often see the standard witches and ghosts... wait, who are those people in suits in the corner, what are they supposed to be? That's no costume, that's the fun police (aka employment lawyers).

In the National Law Journal, lawyers warn Please don't come as Letterman to the office Halloween party.

"[Fisher & Phillips' Steve] Miller advised employers to ban anything that is sexually provocative, carries a political or social message, or is simply inappropriate for interacting with colleagues and clientele. And don't be afraid to punish the employee who goes too far."
Sounds like a bit of a downer. Then again, sounds like common sense and a pretty solid suggestion too.

In defense of employment lawyers, we don't hate fun we just advise against it.

Image courtesy of PublicDomainPictures.Net: Petr Kratochvil - Jack O Lantern

Friday, October 30, 2009

New EEOC Poster for GINA

The law generally requires "employers" (as that term is defined) to post notices (aka posters) describing Federal laws prohibiting job discrimination. Well, there's a new anti-discrimination law on the block called GINA (don't say I didn't warn you). Title II of GINA specifically addresses employment discrimination and goes into effect on November 21, 2009. And what do new laws mean? New poster!


The EEOC officially released the new version of the "EEO is the Law" poster. It includes a section on GINA:
"GENETICS
Title II of the Genetic Information Nondiscrimination Act of 2008 protects applicants and employees from discrimination based on genetic information in hiring, promotion, discharge, pay, fringe benefits, job training, classification, referral, and other aspects of employment. GINA also restricts employers’ acquisition of genetic information and strictly limits disclosure of genetic information. Genetic information includes information about genetic tests of applicants, employees, or their family members; the manifestation of diseases or disorders in family members (family medical history); and requests for or receipt of genetic services by applicants, employees, or their family members."
There are other revisions as well. For details read the "EEO is the Law" Poster Supplement. And to request up to 10 copies of the poster, fill out the EEOC Poster Request Form.

Wednesday, October 28, 2009

Title IX and Women Coaches

In SuperFreakonomics, authors Steven Levitt and Stephen Dubner return to examine more surprising phenomenon in their sequel to the bestseller, Freakonomics. They mix in a number of employment (law) related tidbits. I'll pass on the interesting ones via Lawffice Space.

Tonight's surprising tidbit involves a correlation between Title IX and coaches in women's sports. Title IX generally prohibits sex-based discrimination in educational settings, including athletic programs. Levitt and Dubner first acknowledge the positive impact Title IX has had on female athletes but then note that "Title IX also brought some bad news for women."

In short, college women's sports teams were primarily coached by women until Title IX came around. Now women are the minority. The authors opine:
"Title IX boosted the appeal of such jobs: salaries rose and there was more exposure and excitement. Like the lowly peasant food that is 'discovered' by the culinary elite and promptly migrates from roadside shacks into high-end restaurants, these jobs were soon snapped up by a new set of customers: men."
One of the sources they cite is Women in Intercollegiate Sport: A Longitudinal, National Study Twenty Seven Year Update (1977-2004) by Linda Carpenter and R. Vivian Acosta. The study found that "When Title IX was enacted in 1972, more than 90% of women's teams were coached by women." In 2004, only "44.1% of the coaches of women's teams [was] female."

Well there's certainly a correlation. But as we all know (or at least should know!), correlation does not equal causation. Levitt and Dubner offer one explanation, specifically that Title IX enhanced women's sports programs which enticed men into the market. More SuperFreakonomics tidbits forthcoming!

Monday, October 26, 2009

New Female Majority

"Now for the first time in our nation's history, women are half of all U.S. workers . . . ." - The Shriver Report
That's huge news... right? According to the Shriver Report, published by the Center for American Progress and Maria Shriver, "women as half of all workers changes everything."

Not everyone is that impressed, however. In an NYT op-ed, The Mismeasure of Woman, Joanne Lipman cites the fact that "women make up half the workforce" (and other supposed breakthroughs) only to announce it's "not exactly" great news but rather "spectacularly misleading."

The whole piece is an interesting, albeit somewhat meandering, read. She jumps around from good stats to bad stats; personal anecdotes to observed media screeds; and even works in some personal advice for young girls and adult women.


One stat that grabbed my attention:
"According to the American Bar Association, women in 2008 made up almost half of all associates, but only 18.3 percent of partners."
I suspect that's a stat that builds upon itself... in other words, more women partners will:
  • Result in more women voting on partnership decisions;
  • Change the culture/perceptions at "men's clubs" firms that partner=man;
  • Provide role models for young women entering the profession (trickling down to small children considering career options); and
  • Change client perceptions
There's also some lag because it takes time to become a partner. All that said, it's clear that there's still progress to be made in the legal profession and the workforce generally. Whether the 50% mark is truly a tipping point to a new female majority that "changes everything" or "not exactly" great news remains to be seen.

UPDATE (10/27/2009) - I have two updates today: First, the link to the op-ed, Mismeasure of Woman, was not working. It has been updated and should work now. Second, I originally stated that Lipman cites the "new majority" when in fact it is merely that "women make up half the workforce" (and if you read the report it is actually 49.9% which is not a majority).

Friday, October 23, 2009

Heard any Good Jokes Lately?

Every new judicial opinion is a new adventure; you never know what you're going to read. Earlier this month, the federal court for the Eastern District of Pennsylvania issued an opinion containing the following:

For instance, Mr. Marchand’s alleged comment about going "down deep into the chocolate [dessert] with your berry" presumably could be likened to . . . a photograph of an elderly man wearing only a Santa hat and boots, resting on his stomach, with the caption, "Just Roll Me Over Darlin . . . ‘cause I’m Layin On Yer Present."
WHAT!? Perhaps a little context will explain this quote from Seybert v. International Group Inc. (October 13, 2009).

Susan Seybert is the Plaintiff in a sexual harassment suit against her employer, IGI. She claims her supervisor, Brett Marchand (yes, the aforementioned "Mr. Marchand") subjected her to harassment (yes, like the "berry" comment). It turns out Ms. Seybert had previously exchanged some saucy emails herself... like the rather disturbing Santa pic described above.

So what's the legal issue? Ms. Seybert filed a motion to exclude her emails from trial, arguing the emails are irrelevant and possibly barred by Federal Rule of Evidence 412 (which generally prohibits evidence of an alleged victim's sexual behavior or predisposition). The Court had to decide whether to exclude the emails from trial.

To bring a sexual harassment claim for a hostile work environment, the Plaintiff "must prove that she was subjectively offended." The emails could be relevant to whether she personally would be offended by the supervisor's crass comments. Even then, they may still be inadmissible under Rule 412. In short, the Court concludes:
"[The emails] do not bear on Mrs. Seybert’s own sexual history or personal sexual conduct, but only on the issue of whether she appreciates or is offended by possibly crass sexual humor in the workplace."
The Court then concludes that the emails are not "inadmissible at this time." The Court leaves open the possibility for subsequent objections to the emails at trial.

Though the Plaintiff's racy emails appear to be fair game in this sexual harassment case, the ruling is fairly narrow. For example, the Court differentiated this case from instances where the alleged harassment includes touching and advances. In those cases the emails are less likely to be admissible.

Wednesday, October 21, 2009

Measuring Success in Fighting Discrimination

I was reading the Pennsylvania Human Relations Commission Annual Report 2007-2008 (.pdf) tonight and it had plenty of facts and figures. At the risk of oversimplification, the PHRC is pretty much the Pennsylvania state equivalent of the Federal EEOC.



The report included a statement from Homer C. Floyd, Executive Director, in which he explains the need for the PHRC and details some of its accomplishments. Take note of his focus in describing the PHRC's success:
"Our successes this year include processing and closing 4,339 cases, providing 7,895,543 Pennsylvanians with $10,384,666 in lost wages, damages and other compensation for illegal discrimination. Our average case settlement rate of 36 percent exceeded the federal rate of 19.5 percent and the national average for peer agencies of 21.6 percent for the federal fiscal year."
It's interesting to see how an agency tasked with fighting discrimination measures its own success.


Measuring success in combating discrimination is a daunting task, however, and metrics can be flawed. For example, is a high number of cases processed a success? It does demonstrate a certain amount of work completed. But if we're trying to end illegal discrimination, wouldn't it be great if a really low number of claims were filed (and therefore a low number processed... ignoring any backlog)?


The agency also states that almost 8 million individuals recovered over $10 million in lost wages, damages, and other compensation. Again, this measures workload and provides some indication of the number of people helped by the PHRC. It relies, however, on counting only those matters in which an individual recovers. If, for example, the PHRC investigated a claim and found that the employer had a legitimate explanation for its actions, wouldn't that also demonstrate the PHRC's value as an investigatory agency? Yet that would seemingly not register at all.


Finally, the agency cites its above average case settlement rate. That sounds like an appealing statistic as it indicates satisfaction on both sides of the dispute.


Perhaps in future posts I'll discuss what I think agencies should be measuring or examine what other agencies are measuring. For now, I just wanted to make a note of the numbers used in my home state of PA and raise some of the difficulties in measuring success. I appreciate the PHRC providing an annual report filled with statistics. Hopefully other states provide similar reports to generate some ideas on measuring success.


Other Point of Interest
The report opened with an advocacy statement from Chairperson Stephen A. Glassman that "The time is long overdue to include 'sexual orientation and gender identity or expression' in our state nondiscrimination statutes." This appears to be happening at the federal level with ENDA and is already happening in parts of Pennsylvania with a few local ordinances.

Monday, October 19, 2009

EEOC Issues Two ADA Notices

In the last ten days, the EEOC has issued two important notices relating to the Americans with Disabilities Act ("ADA").

1. ADA and H1N1
First, the EEOC issued Pandemic Preparedness in the Workplace and the Americans with Disabilities Act. This document includes specific guidance on preparedness and even provides a sample "ADA-Compliant Pre-Pandemic Employee Survey." Additionally, the EEOC provides guidance for during an influenza pandemic and following a pandemic.

2. ADA Amendments Act of 2008 ("ADAAA") Town Halls
Second, the EEOC issued a schedule for its ADAAA Town Hall Meetings. The EEOC is seeking "direct input from the business/employer community" on its proposed new ADAAA regs. The EEOC even provided a nice little Summary of Key Provisions. The actual Notice of Proposed Rulemaking can be a dry read (OK, that's an understatement) so the summary is a welcome addition. The Town Halls, or "Listening Seesions," will be held on October 26th in Oakland, October 30th in Philadelphia, November 17th in Chicago and November 20th in New Orleans.

Saturday, October 17, 2009

Ricci II - Disparate Impact

I'm sure you remember Ricci v. DeStefano, the New Haven white firefighters case. In that case, the white firefighters filed a Title VII disparate treatment claim when the fire department refused to certify the results of a promotion test. The City argued it was afraid of a disparate impact claim because the results were statistically skewed against the black firefighters that took the test.


The Court held that skewed stats were no reason to ignore the results of the announced process for promotion. Instead the City needed a "strong basis in evidence to believe it will be subject to disparate-impact liability." The Court found that no such "strong basis in evidence existed" and granted summary judgment for the white firefighters. Well, guess what? Now, one of the black firefighters filed a lawsuit. Wanna guess his theory? Yup, disparate impact.

According to the New York Times, Michael Briscoe alleges the test was "was unfair because it undervalued the oral portion of the test, on which he did better." The promotion test was 60% written and 40% oral. Due to the high profile of the original case, I'm sure this one will get significant media attention if it gets any traction in Court.

UPDATE (10/17/09): A copy of the Complaint is available online (via Law Professor Blogs Network).

Additional Resources
Lawffice Space Coverage of Ricci v. DeStefano

Tuesday, October 13, 2009

Perspectives on Pre-Dispute Arbitration Agreements

There exists an ongoing controversy in the field of employment law regarding the use of arbitration clauses in employment contracts. In short, employers make employees sign contracts when they begin employment indicating disputes will go to arbitration instead of court. There's legislation brewing in the Senate right now called the Arbitration Fairness Act of 2009. The key provision is pretty straightforward:
"no predispute arbitration agreement shall be valid or enforceable if it requires arbitration of an employment, consumer, franchise, or civil rights dispute."
So what's the problem with arbitration?

The proposed Act cites several reasons including the general lack of understanding on the part of employees/consumers (as compared to big employers), the lack of transparency, the lack of judicial review, and allegedly "unfair provisions" in the contracts. Or as The Consumerist describes it:
"mandatory binding arbitration is patently unfair to consumers. It is a joke of justice; a fake tribunal where injured consumers will almost always lose to corporations at the hands of a biased arbitrator."
Well, OK then.

So, what's right with arbitration? Or is it just a way for big business to suppress the little guy? In testimony before the Senate Judiciary Committee last week, Michael W.(not J.) Fox from Ogletree, Deakins, Nash, Smoak & Stewart, P.C. cited some positive statistics:
  • Plaintiffs prevailed 46% of the time in arbitration versus 34% in the Courts;
  • Median monetary awards were approximately equal ($100,000 in arbitration versus $95,554 in litigation); and
  • Arbitration results were 33% faster.
Opponents are no doubt thinking, "There are three kinds of lies: lies, damned lies, and statistics." I think both sides would agree, however, that arbitration is faster and cheaper. That doesn't really address the problems identified above though.

While the debate rages on, the pre-dispute arbitration clauses are generally enforceable for the time being. Congress has at least started the process of changing the game.

Additional Resources
  • One of the main cases behind the controversy is Circuit City v. Adams, 532 U.S. 105 (2001).
  • Fellow employment law blogger, Joseph C. Markowitz has written some nice blog posts on this topic.

Sunday, October 11, 2009

Natural Light an ADA Accommodation for SAD?

Business Insurance Magazine reports:
"failure to accommodate an employee suffering from seasonal affective disorder with natural light could run afoul of the Americans with Disabilities Act."
The operative word in that sentence, as is often the case in the world of ADA opinions, is "could." The case in question is Renae Ekstrand v. School District of Somerset, No. 08 C 193 (7th Cir. Oct. 6, 2009). The Seventh Circuit held that a school's failure to put a teacher with Seasonal Affective Disorder ("SAD") in a classroom with natural light could violate the ADA. The case was remanded to the lower court.

ADA claims frequently involve fact-intensive inquiries. For example, is SAD a disability? Well, it was here but that does not necessarily make it a disability in the future. Each case will have to determine whether the specific instance of SAD "substantially limits one or more major life activities." In this case, the Plaintiff produced evidence that she:
"experienced hypersomnia, racing thoughts, panic attacks, uncontrollable crying, inability to eat, and thoughts of suicide."
All of that was on top of "fatigue, anxiety, hypervigilance, tearfulness, racing thoughts, and trouble organizing tasks." This was not just a case of feeling a little tired in the winter.

Assuming SAD is a disability, can we at least draw from this case that natural light is a reasonable accommodation? Again, depends on the facts. Here, another teacher offered to switch classrooms and another classroom sat empty (but was reserved for a possible new 3rd grade class). It probably wouldn't have been an "undue hardship" to simply switch the rooms. It may have been a little different if the employee worked in a windowless warehouse or a coal mine where natural light is simply not an option.

So do employers have to provide natural light for employees with SAD? It's still not clear. The employer in this case might not even have to provide such an accommodation! It will likely head to a jury (assuming no settlement or subsequent motions). Such are the troubles with drawing precedent from ADA cases.

Sidenote: The author of this opinion, Judge Bauer, and another judge on this panel, Chief Judge Easterbrook, were both in the news recently when a blogger allegedly threatened to kill them.

Wednesday, October 7, 2009

Protecting Older Workers Against Discrimination Act

The Congressional response to Gross v. FBL is officially underway:
  • There was a Senate Judiciary Committee hearing this morning. You can follow the link and click "Webcast" to watch video of the hearing... although it seems to begin with 21 min. 15 sec. of silence so FF to 21:15. See also, Lawffice Space preview.
  • Rep. George Miller (D-CA), and others, introduced a bill yesterday proposing the Protecting Older Workers Against Discrimination Act.
  • Sen. Leahy (D-VT), and others, introduced similar (identical?) legislation in the Senate. I'm working on tracking down a copy but it's not in Thomas yet.
A few of my initial reactions to the legislation:
  • The Gross majority dropped a footnote to note "the Court has not definitively decided whether the evidentiary framework of McDonnell Douglas... utilized in Title VII cases is appropriate in the ADEA context." This legislation would definitively explain, yes, it is appropriate in the ADEA context.
  • The new legislative framework for "mixed motive" ADEA cases would apply to "any federal law forbidding employment discrimination." This takes it out of the Court's hands (for better or worse) in all contexts for all time (assuming no Constitutional problems).
  • The legislation states that a mixed motive may be established through direct or circumstantial evidence. Supreme Court watchers will note that this was the question actually presented, argued, and briefed in Gross v. FBL. It came as a shock to many that the Court decided to just junk mixed motive ADEA cases period.
Those are just my initial thoughts. I'm sure I'll have more on this topic in the future. Something tells me this legislation will get some traction.

Monday, October 5, 2009

Blacked Out Drunk and the ADA

Two women accused Sgt. Clinton Knowles of engaging in what he himself labels "inappropriate and obnoxious behavior." One woman says he "smacked her on the butt" and the other claims he was grabbing her arms and thighs. Not surprisingly, this incident is at the center of a lawsuit... amazingly though, it's Sgt. Knowles who is the plaintiff!

10 Connects reports that Knowles is suing his employer under the ADA. You see, he has a perfectly umm, good (or awful) explanation for his behavior... he was "suffering from alcohol related black-outs." Knowles was terminated in part because of the groping incident of which he claims he has no recollection. Knowles alleges his employer failed to accommodate his disability, alcoholism, by delaying his entry into the "Employee Assistance Program" prior to the incident and his termination.

The employer's decision to terminate Knowles is likely protected by the ADA which provides:
"[Employers] may hold an employee... who is an alcoholic to the same qualification standards for employment or job performance and behavior that such entity holds other employees, even if any unsatisfactory performance or behavior is related to... alcoholism."
42 U.S.C. sec. 12114(c)(4). Knowles' Complaint seems to rely on the employer's failure to accommodate his alcoholism, however, rather than its decision to terminate. Some courts have also relied on the quoted statute for the premise that "employers need not make any reasonable accommodations for employees who are... alcoholics." Den Hartog v. Wasatch Academy, 129 F.3d 1076 (10th Cir. 1997); and earlier this year in Nanos v. City of Stamford, 609 F.Supp. 2d 260 (D.Conn. 2009).

Regardless of how this case turns out, it may already have a happy ending. The Complaint alleges that for the last year and a half, Sgt. Knowles "has remained sober and in faith-based counseling."

Hat Tip to Overlawyered, where I first heard of this case.

Saturday, October 3, 2009

Gun Case or Employment Law Blockbuster?

Last summer, the Supreme Court recognized an individual right to bear arms, striking down the federal government's D.C. gun ban in Heller. Now, the Supreme Court has decided to hear a case, McDonald v. Chicago, that will determine whether the Second Amendment applies to state and local governments. It even has it's own web site! So, what's a Chicago gun ban case got to do with employment law?


First, a brief history lesson...

1. Fourteenth Amendment Privileges or Immunities Clause Comes and Goes
Following the Civil War, the federal government decided that it needed to protect individual rights from state infringement. Hence, the Fourteenth Amendment was born in 1868. It reads, in part:
"No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States;"
For such a broad proclamation of liberty, you hear almost nothing about this clause for some reason.

That reason, is the Slaughterhouses Cases from 1873 (multiple cases were combined into one Supreme Court opinion, hence the odd singular-plural thing here). The Supreme Court interpreted the privileges or immunities clause extremely narrowly to apply only to privileges of United States citizenship (national citizenship; ex. the right to travel). According to Justice Thomas, "the Court all but read the Privileges or Immunities Clause out of the Constitution." After only five years, the Privileges or Immunities clause was all but dead.

2. The B-R-O-A-D Interpretation
Though they disagree on the details of the Privileges or Immunities clause (and nearly everything else involving Constitutional interpretation), both progressives and libertarians agree that the Slaughterhouse Cases were wrongly decided, inhibiting individual liberty in the United States. Libertarian publication, Reason magazine, describes the Privileges or Immunities clause as an attempt:
"to enshrine the free labor philosophy of the anti-slavery movement, which was based on an individualistic and market-oriented form of self-ownership.... specifically designed and ratified to protect a sweepingly libertarian idea of self-ownership. That idea includes the right to acquire property, run a business, and buy and sell labor without unnecessary or improper interference by the government."
In other words, if the Supreme Court hadn't written out the Privileges or Immunities clause in Slaughterhouse, then the Constitution could be used as a weapon to strike down (what they see) as unnecessary, overly burdensome regulations. This could include occupational licensing and governmental contract restrictions (wage and hour laws, for example).

3. Incorporation Doctrine
The Bill of Rights does not apply directly to the states. This is probably shocking news to many people. The most obvious example is the First Amendment which begins, "Congress shall make no law...." Your state is not Congress is it?

But wait, you have freedom of speech (and other 1st Amendment rights) even against state laws don't you? Yes, through a process called "incorporation." The Supreme Court has used the Fourteenth Amendment's Due Process clause, which protects "life, liberty, and property," to apply most of the Bill of Rights to the states. And when I say "most," guess which amendment hasn't been incorporated? The Second Amendment right to bear arms.

4. The Tie-In
OK, back to the McDonald v. Chicago case. The mainstream media version goes something like, "the Supreme Court will decide if the Second Amendment applies to the states." But it's how the Supreme Court might apply the Second Amendment to the states that has Con Law nerds out of breath (Note: the linked blogger, Josh Blackman, was a classmate of mine at Mason Law and I feel confident he would be content to be labeled a "Con Law nerd"). The Supreme Court framed the issue as:
"Whether the Second Amendment is incorporated into the Due Process Clause or the Privileges or Immunities Clause of the Fourteenth Amendment so as to be applicable to the States, thereby invalidating ordinances prohibiting possession of handguns in the home."
So maybe, just maybe, the Supreme Court will bring the Privileges or Immunities clause back from the dead.

5. I Said "MAYBE"
This case could come out a lot of ways. Maybe the Court will simply use the Due Process clause again. Maybe they'll find that the Chicago gun ban wouldn't violate the Second Amendment even if it was incorporated (and so there's no reason to even address incorporation). Or maybe they'll find that the Privileges or Immunities clause is the ink blot the Slaughterhouse Cases said it was.

Maybe though, the clause will be back in full effect like it's 1869. In that case, expect an onslaught of lawsuits seeking to strike down numerous labor and employment laws as unconstitutional. Then we'll have another set of "maybes." Like maybe the Privileges or Immunities clause will protect some liberties but not the economic liberties and freedom of contract envisioned by the libertarian movement.

If the stars align and all of those "maybes" come out in just the right combination though... McDonald v. Chicago could be the biggest employment law case of all time.