Friday, July 1, 2022

SCOTUS: No state sovereign immunity for USERRA claims

Justice Breyer issued his final Supreme Court opinion in Torres v. Texas Dept. of Public Safety. Torres served in the United States Army Reserve in Iraq, where he was exposed to toxic burn pits. He returned with constrictive bronchitis, which prevented him from returning to his employment as a state trooper. So, he sought to enforce his rights under USERRA by asking his employer to accommodate him by reemploying him in a new role. His employer refused. He sued.

Justice Breyer
Now, his employer was the state of Texas. This matters because generally states have sovereign immunity and, as the dissent describes it, the Federal Government does not have the "power to subject nonconsenting States to private suits" in their own courts. In Torres, however, the Court held that the federal government did have that power in the context of its war powers - specifically, the powers to raise an army and a navy found in Art. I, §8, cls. 1, 12-13 of the Constitution. 

Congress enacted USERRA pursuant to those powers and therefore the states are not immune from lawsuits under USERRA. 

Sidenote: I made this same argument on a motion to dismiss in one of my cases about 10 years ago... and lost. The Court noted the lack of precedent supporting my position. Now, we have the ultimate precedent on the issue, a Supreme Court opinion. The case ultimately resolved without the need to revisit the issue on appeal, but I remember thinking it was a fascinating one. 

Tuesday, June 28, 2022

SCOTUS on Establishment Clause, Free Speech, Free Exercise, and prayer on the 50-yard line

Yesterday, the Supreme Court issued its opinion in Kennedy v. Bremerton Sch. Dist. This case has a long and convoluted fact pattern, including a high school football coach leading locker room prayers and post-game religious talks. The school told him to knock that off, and he did. 

He would later pray on the 50 yard line, and the school suspended the coach for three specific incidents, which the Court described as "praying quietly without his players." He did so during a time when coaches were generally permitted to have private conversation, make phone calls, and other secular non-work-related activities. There appears to be some disagreement about the underlying facts. While that is surely important to the parties in this case, it is irrelevant to the precedent this case establishes.

Justice Gorsuch
Obviously, terminating a public employee for praying raises significant free speech and  free exercise concerns. The school raised its own concerns though that allowing the prayer would create Establishment Clause concerns - i.e., the coach's prayers could be viewed as school-sponsored or coercive prayer. 

Ultimately, the Court sided with the coach, and the free exercise/speech concerns. When public employees are on their free time, even if they are only on the field due to their employment, their religious prayers cannot be disfavored in comparison to their non-religious activities:

Naturally, Mr. Kennedy’s proposal to pray quietly by himself on the field would have meant some people would have seen his religious exercise. Those close at hand might have heard him too. But learning how to tolerate speech or prayer of all kinds is “part of learning how to live in a pluralistic society,” a trait of character essential to “a tolerant citizenry.” This Court has long recognized as well that “secondary school students are mature enough . . . to understand that a school does not endorse,” let alone coerce them to participate in, “speech that it merely permits on a nondiscriminatory basis.” Of course, some will take offense to certain forms of speech or prayer they are sure to encounter in a society where those activities enjoy such robust constitutional protection. But “[o]ffense . . . does not equate to coercion.”

(Internal citations omitted).  

Monday, June 27, 2022

Abortion and Employment Law in Pennsylvania

For obvious reasons, I'm revisiting some posts about abortion-related employment issues. First, in 2010, I noted a Pennsylvania employment law that addresses abortion and unlawful discriminatory practices. The Pennsylvania Human Relations Act (PHRA), includes the following provision:

It shall be an unlawful discriminatory practice . . . . For any public or private agency . . . [to] impose any burdens in terms of conditions of employment upon, or otherwise discriminate against any applicant . . . or any physician, nurse, staff member, student or employe thereof, on account of the willingness or refusal . . . to perform or participate in, abortion or sterilization by reason of objection thereto on moral, religious or professional grounds, or because of any statement or other manifestation of attitude by such person with respect to abortion or sterilization.

43 P.S. §955.1. There is, however, a carveout for clinics that operate "exclusively for the performance of abortion or sterilization or directly related procedures."

I also addressed some federal protection under Title VII. The Pregnancy Discrimination Act provisions under Title VII prohibit discrimination "on the basis of pregnancy . . . or related medical conditions." The Third Circuit has held that "related medical conditions" includes abortion:

Clearly, the plain language of the statute, together with the legislative history and the EEOC guidelines, support a conclusion that an employer may not discriminate against a woman employee because she has exercised her right to have an abortion.  

Doe v. C.A.R.S. Prot. Plus, 527 F.3d 358, 364 (3d Cir. 2008). 

Thursday, June 2, 2022

Third Circuit on religious accommodations and undue hardship analysis

A fascinating precedential split opinion from the Third Circuit in Groff v. DeJoy.  


A mail carrier for the U.S. Postal Service ("USPS") was also a Sunday Sabbath observer who believed that Sunday was a day for worship and rest. The USPS, however, believes that Sunday is a day for delivering packages under a contract with Amazon. So, we have a conflict between the employee's religious beliefs and the employer's work requirements. It's time to bring in the Title VII reasonable accommodations analysis! 

The USPS allowed the employee to swap shifts with his coworkers. There was just one problem: the coworkers wouldn't swap. The employee was unable to find someone to swap on 24 Sundays over a 60-week period. The employee faced discipline for missing shifts, and ultimately resigned citing the lack of "accommodating employment atmosphere" that would "honor [his] personal religious beliefs."

Two fascinating questions with close calls:

1. Did the employer offer a reasonable accommodation? 

Here, the majority concluded that the employer did not provide a reasonable accommodation. In line with prior Third Circuit precedent, the Court held that the accommodation must eliminate the conflict between the employee's religious beliefs and the job requirement. Here, the swapping simply did not resolve the conflict because the employee could not find anyone to swap. Other circuits, however, have concluded that the word "reasonable" means that the accommodation need not totally eliminate the conflict. 

2. Did the employer establish an undue hardship defense?

Okay, the swapping option was not a reasonable accommodation, but that does not mean the employer violated Title VII. The employer can still prevail by showing that it would incur an "undue hardship," which in the context of religious accommodation merely means more than a "de minimis" cost. The Court held:

Exempting Groff from working on Sundays caused more than a de minimis cost on USPS because it actually imposed on his cowork
Not official use.

ers, disrupted the workplace and workflow, and diminished employee morale at both [locations where he worked].

In dissent, Judge Hardiman disagreed noting that:

[N]either our Court nor the Supreme Court has held that impact on coworkers alone—without showing business harm—establishes undue hardship.

Judge Hardiman essentially tees this up as a novel issue of whether damage to employee morale is sufficient to establish undue hardship.  

SCOTUS Review?

Just me speculating here - but we have a precedential circuit court decision that addresses two issues. The first issue - whether a reasonable accommodation must totally eliminate the conflict between the religious belief and the job requirement - is a circuit split. The second issue - whether damage to employee morale for coworkers having to pick up shifts on Sundays is an undue hardship - is (at least as portrayed by Judge Hardiman) a novel issue, which I suspect the current SCOTUS would like to take a look at. This could be an interesting case for SCOTUS review...

Tuesday, May 24, 2022

SCOTUS: The regular rules apply to waiver of arbitration

Yesterday, a unanimous Supreme Court issued an opinion in Morgan v. Sundance, Inc. The plaintiff filed a Fair Labor Standards Act (FLSA), nationwide, collective action, wage and hour claim against her employer, a Taco Bell franchise, in federal court. But, wait! She signed an arbitration agreement as part of her the employment application process.

Justice Kagan authored
the opinion.
Ordinarily, under the Federal Arbitration Act (FAA), the employer could get the suit tossed from federal court and sent to arbitration. Here, the employer first litigated the case for a bit. It filed a motion to dismiss, answered the complaint (without raising arbitration as an affirmative defense), mediated, discussed settlement . . . and only then, after eight months of litigation, did the employer move to stay the litigation and compel arbitration. 

The Eighth Circuit analyzed whether the employer had waived its right to arbitration by looking at two factors:

  • Did the party know of the right and act inconsistently with that right?; and
  • Was the other party prejudiced by the inconsistent actions?
The first factor is just standard federal waiver analysis for issues other than arbitration. But the second factor was an extra proverbial thumb on the scale that the court only applied to waiver of arbitration. The Eighth Circuit justified this extra factor base on the FAA's "policy favoring arbitration."

Well, SCOTUS disagrees. "the FAA’s 'policy favoring arbitration' does not authorize federal courts to invent special, arbitration-preferring procedural rules." Courts must instead strip away the arbitration-only prejudice requirement and instead focus on the conduct of the party that has potentially waived its right to arbitration. In other words - apply the regular waiver rules, not arbitration-specific rules. 

Monday, May 23, 2022

Third Circuit to NLRB: You can investigate complaints from random people... but take a joke!

Remember this one? The National Labor Relations Board (NLRB) concluded that an executive officer of The Federalist violated the National Labor Relations Act (NLRA) with the following joke tweet:

"FYI @fdrlst first one of you tries to unionize I swear I'll send you back to the salt mine." On Friday, the Third Circuit (my home circuit!) reversed in a precedential opinion in FDRLST Media, LLC v. NLRB

Notably, "the record does not show that any employee expressed concern over [the tweet's] message," but some guy named Joel Fleming in Massachusetts with no connection to the employer filed an unfair labor practice charge (apparently based on ideological opposition to the publication). The first part of the Court's ruling is important:

We reaffirm today that [the NLRA] places no limitations on who may file an actionable unfair labor practice charge. So the Board had statutory authority to address Fleming’s charge.

So, even though nobody with any connection to The Federalist (let alone an aggrieved party) filed a complaint - the NLRB could still pursue it. 

Not official use.
The Court went on to provide about 17 pages of analysis to conclude that the tweet seemed more like a joke about a recent current event (here, the Vox walkout that had just occurred) than an actual threat. The Court noted several contextual clues: the farcical nature of a "salt mines" reference, the forum (Twitter) and the fact that it was a personal tweet, the nature of The Federalist as a small employer that provides commentary on such issues, the subjective interpretation of the tweet by the employees, etc. 

Judge Matey authored an opinion concurring in the judgment that the tweet was not a violation of the NLRA, but parting ways with the majority on the jurisdictional issue:

[T]he National Labor Relations Act cabins charging authority to those who suffered some adverse effect in the workplace. Not, as here, someone who took offense to something seen while scrolling Twitter. As the filer was not aggrieved under the NLRA, the Board lacked jurisdiction to launch this case . . . . the best reading of the NLRA trims the NLRB’s jurisdiction and prevents unaffiliated parties from searching the internet for wisecracks to transform into workplace violations that unleash the NLRB’s sweeping power.

Fleming's response to this ruling seems to only confirm the problem: 

lulz. It took me less than fifteen minutes to file the charge and the action was litigated exclusively by the NLRB after that.
To him: "less than fifteen minutes." To The Federalist: Nearly three years of litigation. 

Tuesday, May 17, 2022

EEOC publishes technical assistance document on artificial intelligence and the ADA

Not official use.
What if an employer uses a "chatbot" to screen applicants? And, let's say the chatbot is programmed to screen out applicants who have a gap in their resumes. But, wait! What if the gap was caused by the applicant having a disability and needing time off for treatment? That could raise some ADA issues!

That's just one of the examples provided by the EEOC in its latest technical assistance document: The ADA and AI: Applicants and Employees. Employers who use software, algorithms, and AI to assess job applicants and employees should check out this document. It's mostly a high-level overview, but some good food for thought.