Some Thoughts on ENDA

Suddenly, the Employee Non-Discrimination Act (ENDA - text here) is a hot topic again. ENDA would prohibit employment discrimination based on sexual orientation and gender identity. President Obama endorsed the legislation via HuffPo op-ed, and the Senate voted to move forward with debate - a full vote is expected later this week.

I have a few observations about ENDA:

1. "Because of" is key language. The proposed legislation prohibits discrimination "because of" an employee's real or perceived sexual orientation or gender identity. The retaliation provision is similarly based on the word "because." What does that mean? Well, based on Gross v. FBL and UTSMC v. Nassar it almost certainly means that sexual orientation and gender identity claims would have to meet the higher "but for" standard, as opposed to the mixed motive (or "motivating factor") analysis applied to Title VII discrimination cases.

2. Don't get hung up on "gender identity". I have seen a lot of Internet banter over the inclusion of gender identity as a protected class. However, this is most likely a non-issue. The EEOC already treats gender identity discrimination as unlawful sex discrimination under Title VII. And, the District of DC and the Eleventh Circuit treat gender identity discrimination as sex discrimination as well. I wouldn't go so far as to say this is settled law all over the country . . . but the writing is on the wall.

3. The religious exception battleground. If this thing gets close to passing, I expect the religious exemption to be a huge battleground. ENDA includes an exemption for religious organizations excluded from Title VII (EEOC guidance on the topic here). However, Senator Toomey and others have already stated that they will introduce amendments to strengthen protections for religious organizations. Religious freedom for employers and corporations has been something of a hot topic itself lately. The Supreme Court weighed in on the ministerial exception to employment discrimination laws in Hosanna-Tabor v. EEOC. The Supreme Court is also expected to address corporate religious freedom in the context of the ACA's ("Obamacare's") contraceptive mandate.

ENDA still has a long way to go. John Boehner has already indicated it will have a tough time in the House of Representatives. Between the presidential push, and the (admittedly limited) bi-partisan support in the Senate, this may be the year.

Image: Capitol Building photograph from http://www.visitthecapitol.gov/about-the-capitol (work of federal government).

Proposed PA Legislation Would Make Online-Only Job Applications Unlawful

The Pennsylvania Human Relations Act (PHRA) is Pennsylvania's employment discrimination statute. A new House Bill, HB 579, would amend the PHRA to define unlawful discriminatory practices to include employers that:

Print, publish or advertise in any way a job opportunity in this Commonwealth that exclusively utilizes an Internet-based application for employment.

It's not clear whether it has any chance of passing.

HT: PBA Labor & Employment Law Section on LinkedIn.

McDonnell Douglas Lives on in ADEA Cases Post-Gross

A Third Circuit decision released last week (Smith v. City of Allentown) applied the McDonnell Douglas burden shifting framework to an ADEA claim. A few months ago this would not have been news. Now it garners attention (from among others Workplace Prof Blog and now, Lawffice Space).

Why the sudden interest? Simple. Gross v. FBL. In a previous entry, I explained that the Supreme Court's Gross decision nixed the Price Waterhouse burden (of persuasion) shifting framework in ADEA mixed motive cases. The Supreme Court also dropped a footnote, however, stating that:

"the Court has not definitively decided whether the evidentiary framework of McDonnell Douglas Corp. v. Green, 411 U. S. 792 (1973), utilized in Title VII cases is appropriate in the ADEA context."

This led to fears that McDonnell Douglas (a burden of production shifting framework utilized in circumstantial evidence discrimination cases) was dead in ADEA cases. I dropped a comment on the entry linked in the previous sentence describing what I saw as a distinction between shifting the burden of persuasion (done away with in ADEA cases) and shifting the burden of production (which I thought, and still think, remains the recognized framework post-Gross).

The Third Circuit recognized this distinction in Smith:

"Appellees argue that Gross renders McDonnell Douglas’s burden-shifting inapplicable to ADEA cases and that we should dispose of the instant appeal solely by inquiring whether Smith would have retained his job but for the alleged age discrimination. However, we may not depart from our prior decisions applying McDonnell Douglas to age discrimination cases unless those decisions are irreconcilable with Gross.
. . . .
Gross stands for the proposition that it is improper to shift the burden of persuasion to the defendant in an age discrimination case. McDonnell Douglas, however, imposes no shift in that particular burden.
. . . .
Hence, Gross, which prohibits shifting the burden of persuasion to an ADEA defendant, does not forbid our adherence to precedent applying McDonnell Douglas to age discrimination claims."

The Second and Sixth Circuits agree that McDonnell Douglas still applies in the world of ADEA. How other Circuits will rule remains to be seen.

So, why did the Supreme Court even bother with the note? If it was an attempt to get Circuits to drop McDonnell Douglas in ADEA cases, then it has thus far proven a failure. I find the more likely explanation to be two-fold:

1. Foreshadowing: If this issue is presented to SCOTUS in the future, the Court might hold that McDonnell Douglas does not apply in ADEA cases; and/or
2. A note to Congress: The Gross decision was based largely on differences between the ADEA statutory language and language found in Title VII. Perhaps it's a not-so-subtle note, "Hey, if you don't like this holding, all you have to do is change the ADEA statute... and while you're at it, you might want to decide if McDonnell Douglas applies so we don't have to decide it for you."

Support for the latter may already be in the proposed Protecting Older Workers Against Discrimination Act which reads in part:

"Every method for proving either such violation, including the evidentiary framework set forth in McDonnell-Douglas Corp. v. Green, 411 U.S. 792 (1973), shall be available to the plaintiff."

Congress seems to be preemptively answering the question before the Supreme Court answers for them.

Fears of the death of McDonnell Douglas in ADEA claims were not unfounded. Gross cast a serious shadow of doubt but thus far the fears have not come to fruition. Realization of these fears is just one Supreme Court opinion away, however... unless Congress heads them off at the pass.

Omnibus Legislative Update

There’s been no shortage of news on the legislative front of the world of employment law. There’s so much that I’m doing a brief omnibus blog entry to close out the work week.

- Congress passed a bill (98-0 in the Senate and 403-12 in the House) to extend unemployment benefits (incidentally, it also extends the first-time homebuyer’s credit). AFP reports:

“The legislation allows workers in all 50 US states to get 14 more weeks of unemployment benefits, while those in states with jobless rates over 8.5 percent would be able to draw an additional six weeks for a total of 20.”

News breaking that Obama just signed it today.

- George Miller (D-CA) introduced a bill that would direct “employers to pay for up to five days' sick leave for workers they send home because they have contracted the H1N1 virus.” WSJ reports that it's not clear whether the bill has the "support of House leadership or Senate Democrats."

- And then there’s some health care bill floating around that you haven’t really heard much about… unless you have television, radio, or access to the Internet. A vote on the health care bill appears imminent.

All of this is set against a backdrop of just-announced 10.2% unemployment with nearly 16 million unemployed.

Sidenote: My sources today are AFP, CBSNews, WSJ, and FoxNews... how's that for media diversity?

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.

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.

Senate to Examine Gross v. FBL

The Senate Committee on the Judiciary has scheduled a hearing on, and I quote, "Workplace Fairness: Has the Supreme Court Been Misinterpreting Laws Designed to Protect American Workers from Discrimination?" The witness list includes:

• Jamie Leigh Jones of the Jamie Leigh Foundation, an organization dedicated to victims of crime working overseas for government contractors and subs;
• Prof. Michael Foreman from my undergrad alma mater, Penn State, where he directs the Civil Rights Appellate Clinic at the law school; and
• Jack Gross, plaintiff in Gross v. FBL Financial.

That last name's the biggie. I have covered the Gross case fairly extensively on this blog, including a summary of the Supreme Court's opinion. The Supreme Court case places a higher burden on Age Discrimination plaintiffs (as compared to Title VII plaintiffs) in "mixed motive" cases. I'll point out that I predicted Congressional action was likely in the end of that summary. Before I get too self-congratulatory I should note that it's just a hearing and to my knowledge no precise action has been proposed.

Senate Judiciary Committee Chairman, Patrick Leahy (D-VT), issued a statement expressly stating that the hearing will focus on Gross (and Circuit City v. Adams, applying the Federal Arbitration Act to employment contracts). Leahy describes Gross as a decision that makes it "more difficult for victims to prove workplace discrimination." The hearing is scheduled for Wednesday, October 7, at 10:00 am and will be webcast live online (presumably here - then click "Webcast"). Will the Senate drop Gross like they did Ledbetter? Stay tuned...

UPDATE (10/8/09): New legislation introduced in the House and Senate - Protecting Older Workers Against Discrimination Act.

Paid Vacation Act and its Fun "Facts"

Over the summer (I can't believe summer's over, what happened?), I posted an entry Vacation Time - Use it or USE IT! That post described a proposal by employment lawyers for employers to force employees to take vacations. Congress had its own idea this summer: force employers to provide paid vacation time.

On May 21, 2009, Reps. Grayson, Lewis and Hinchey introduced the Paid Vacation Act of 2009 (.pdf)(HR 111-2654). The gist of the Act is that employers with more than 50 employees will be required to provide one week of paid vacation while those with 100 or more employees must provide two weeks of paid vacation. The GovTrack report on HR 111-2654 shows that it is in committee now with only four co-sponsors so we'll see if this thing gets any traction.

In the meantime, the bill contains a number of interesting findings. As you can tell by the use of quotes around the word "Facts" in the title, I'm not sure I'd take all of these as gospel. I found some of them fascinating nonetheless.

(1) according to the Bureau of Labor Statistics, each year the average American works one month (160 hours) more today than in 1976;
(2) job-related stress costs business $344 billion a year in absenteeism, lost productivity, and health costs;
(3) some 75 percent of visits to primary care physicians come from stress-induced problems;
(4) 147 countries require paid vacation leave, and the United States is the only industrialized Nation without a minimum annual leave law;
(5) one of the fastest growing economies in the world, China, requires 3 weeks off for employees, which they call ‘‘Golden Weeks’’;
....
(9) men who don’t take regular vacations are 32 percent more likely to die of heart attacks, and 21 percent more likely to die early of all causes;
(10) women who don’t take regular vacations have a 50 percent greater risk of heart attack, and are twice as likely to be depressed as those who do;
....
(12) vacations allow workers and businesses to increase productivity, decrease stress-related health costs, and provide time for family strengthening and bonding.

If this act is passed and employers follow the advice of some employment law attorneys to mandate employees take vacation then you have an interesting scenario: Congress makes employers give vacation time; and employers make employees take vacation time. The only question that remains is "Who will force Congress to take vacation time?" As a near-decade resident of the DC area I assure you that won't be necessary!