Adjunct Law Prof Blog

GINA Requires Employers to Post Notice, Review Policies and Procedures

GINA became effective November 21, 2009. It bans discrimination on the basis of genetic information and requires employers to post a notice informing employees of their rights under this statute. A nice summary of the statute is provided by the World of Work.

Mitchell H. Rubinstein

Most State Judges Face Mandatory Retirement Rules

Most State Judges in U.S. Must Retire At 70 is an interesting Oct. 24, 2009 AP article. Judges are exempt from the ADEA. As the article states:

Washington state is among the majority of states that require state judges to step down once they reach a certain age, varying between 70 and 75, depending on the state. Vermont has the highest age limit, at 90. Washington state's age limit was enacted in 1952, after voters overwhelmingly approved a constitutional amendment referred to them by the Legislature.

Alexander said that while he feels he could do the job for another decade, being forced to step down "doesn't bother me too much."

"I think 75 is reasonable," he said, though he did say he wished he could finish his term. Alexander will have to retire after completing five years of his six-year term.

Mitchell H. Rubinstein

Another New Law School Belmont University

Belmont University's College of Law is expected to be the first new law school in Middle Tennessee in nearly 100 years.Classes are scheduled to begin in the fall of 2011.This school hopes to obtain ABA accreditation. Their web site provides:

In 2010, Belmont University will notify the Southern Association of Colleges and Schools-Commission on Colleges (SACS-COC) that it intends to open a law school.  Initiation of the J.D. degree program is dependent upon SACS-COC approval.


In 2010-11, Belmont University College of Law will seek approval from the Tennessee Board of Law Examiners.  We hope to receive TBLE approval by the spring of 2011.  If granted, TBLE approval would permit our graduates to sit for the Tennessee bar examination.

Belmont University College of Law also will seek accreditation from the American Bar Association as soon as possible.  ABA accreditation is a two-step process.  The first step for all new law schools is provisional approval.  Under ABA rules, no new law school may be considered for accreditation until it is in its second year of operation.  It is our intention to apply for provisional approval in our second year (fall 2012), and our hope is to be provisionally accredited at the end of that academic year (spring/summer 2013).

The second-step is full approval, which requires full compliance with all ABA standards after having been provisionally approved for at least two years.  The earliest Belmont University College of Law may apply for full approval is 2015. 

Belmont University officials have met with representatives of the ABA’s Section of Legal Education and Admissions to the Bar, and it is important to note that:

The Dean is fully informed as to the Standards and Rules of Procedure for the Approval of Law Schools by the American Bar Association. The Administration and the Dean are determined to devote all necessary resources and in other respects to take all necessary steps to present a program of legal education that will qualify for approval by the American Bar Association. The Law School makes no representation to any applicant that it will be approved by the American Bar Association prior to the graduation of any matriculating student.

Mitchell H. Rubinstein

AALS Newsletter on Employment Discrimination

As some readers may know, each AALS Section publishes newsletter. The Employment Discrimination Newsletter summarizes recent case law and scholarship. It is worth a read and available here Download Newsletter2009_FINAL

Mitchell H. Rubinstein

Solis Pushes Agenda to Bolster Labor is an interesting Dec. 8, 2009 Wall Street Journal article which quotes my college buddy Deputy Secretary of Labor Seth Harris. It is about how the U.S. Department of Labor plans to enact new rules which will give more power to both organized labor and workers. As the article states:

Ms. Solis's agenda will promote rules requiring employers to increase disclosure to workers on how their pay is computed, strengthening affirmative action requirements for federal contractors, and compelling greater disclosure from employers about their dealings with consultants who advise the companies on how to deal with workplace unions or unionization attempts.

Currently employers and consultants are not required to report "advice" they get from consultants, but the Labor Department said in a statement that this filing exception should be narrowed so employees will have a more transparent view into what employers are doing in response to union matters.

The agency "is going to explore that exception and try to more accurately define what advice means," Deputy Labor Secretary Seth Harris said in an interview. More broadly, "Our goal is that through greater openness and transparency, we increase compliance without having to send an investigator into the workplace."

Mitchell H. Rubinstein

Triable issues of fact in internal investigation reprisal case remanded by Supreme Court

Crawford v Metropolitan Gov of Nashville/Davidson County, Tenn, (E.D. Tenn. October 15, 2009), was decided on remand from the Supremes. The court held that a payroll coordinator raised triable issues as to whether her county employer discharged her in retaliation for cooperating in an internal investigation of sexual harassment. Even though the Supreme Court earlier held that Title VII's "opposition clause" protects employees who speak out about discrimination, not of their own accord, but when answering questions during an employer-ordered internal investigation, the county asserted that the coordinator could not establish that the decision maker who discharged her even knew she engaged in protected activity before making the adverse action or that a causal connection existed between the adverse action and the protected activity.

However, the court held that the plaintiff presented evidence that the decisionmaker knew, at the time of her disciplinary hearing, that she made statements in response to the county's internal investigation. "Whether, when and to what extent [the decisionmaker] was aware of [the coordinator's] protected activity is a question of fact which must be determined by a jury." As to the causal connection, the coordinator was investigated for payroll irregularities less than two months after making her statements to the county about the director's alleged sexual harassment. "Although temporal proximity alone rarely is sufficient to establish a causal connection, where an adverse employment action occurs very close in time after an employer learns of protected activity, such temporal proximity between the events is significant enough to constitute evidence of a causal connection for the purposes of satisfying a prima facie case." Causal connection was also evidenced by the fact that three individuals who gave statements during the investigation were all investigated and then discharged.

Mitchell H. Rubinstein

ROTC Programs At Ivy League Colleges

Since the anti-war protests of the 1960's ROTC programs have been banned at some of this nations most well known institutions. This may be changing, however, Details are in this NY Times article, here.

Mitchell H. Rubinstein

Supremes Decide Major RLA Arbitration Case

Union Pacific v. Brotherhood of Locomotive Engineers, 558 U.S. ___(Dec. 8, 2009), is an important RLitA case. It concerns the jurisdiction of the National Railroad Adjustment Board (or NRAB) which adjudicates grievances which are known in the railroad industry as minor disputes. Unlike the NLRA, Congress in the RLA mandates arbitration of minor disputes.

The decision contains and excellent review of the RLA. The technical issue before the Court was whether pre-arbitration conference was a jurisdictional requirement. The Court held that this was not a jurisdictional requirement. The Court reached this result by examining the nature of the RLA language at issue.

Though an important RLA case, I do not believe that this case will have any effect on NLRA arbitration or commercial arbitration.

Mitchell H. Rubinstein

2010 Princeton Review Law School Rankings

Princeton Review's 2010 Law School Rankings were released on December 2, 2009. The "winners" in each of the 11 categories are:

Best Career Prospects -- Northwestern University School of Law

Best Classroom Experience -- University of Texas at Austin School of Law

Best Environment for Minority Students -- University of Hawaii at Manoa William S. Richardson School of Law

Best Quality of Life -- University of Virginia School of Law

Most Liberal Students -- City University of New York--Queens College CUNY School of Law

Most Conservative Students -- Brigham Young University J. Reuben Clark Law School

Most Competitive Students -- Baylor University School of Law

Most Diverse Faculty -- Florida International University College of Law

Most Chosen By Older Students -- City University of New York

Best Professors -- University of Chicago Law School

Toughest To Get Into -- Yale University Law School

Mitchell H. Rubinstein

School Takes a Back Seat in Tuscaloosa

Adam Jones, Tuscaloosa News, reports that University of Alabama administrators have delayed the Tuscaloosa, Alabama's spring semester start date from January 6 to January 11 due to Alabama's participation in the BCS championship football game in Pasadena, California on January 7, 2010.

“Given the number of students who have to be in Pasadena, Calif., to represent the University of Alabama on Jan. 7 and the number of faculty, staff and students who want to be there, we are dismissing classes on Jan. 6-8,” Bonner wrote. “Students should expect additional assignments to make up for the lost class time.”

UA spokeswoman Cathy Andreen said the three canceled class days will not be made up elsewhere on the calendar.

Craig Estlinbaum

 

Khalid Shaikh Mohammed's lawyer

For 9/11 Cases, Calling on a Short List of Lawyers is an interesting December 7, 2009 New York Times article. It questions who Khalid Shikh Mohammed's lawyer might be. It discusses and describes some New York lawyers who are on the SDNY Capitol panel. As the article states:

One lawyer calls it the “death list” — a cadre of about 20 veteran defense lawyers in New York who have broad experience in death penalty and other complex criminal cases. They have represented defendants in terrorist bombings in East Africa, a drug killing in Manhattan, police killings in Brooklyn and Staten Island, and a racketeering murder in the Bronx.

They are not all household names, and the list is closely held. But every day in Federal District Court in Manhattan, a lawyer from the list is on call, ready to be appointed in a capital case.

And it is from this short list that lawyers are expected to be initially chosen to defend Khalid Shaikh Mohammed and others accused in the Sept. 11 terror attacks when they arrive in the courthouse early next year.

Of course, there is uncertainty about whether Mr. Mohammed and his co-defendants will even want lawyers or a trial. But if the court follows its own practice, the list, or “capital panel” as it is formally called, will be the source of lawyers as the defendants begin their journey through the civilian system.

Mitchell H. Rubinstein

Number of NLRB "R" Cases Drops

Workplace Prof Blog reported on December 4, 2009 that the number of NLRB R cases declined by 14.4%. R cases are representation petitions. Most cases involve petitions by unions seeking certification and an election. Query whether the decline is due to the decreased manpower at the NLRB or because of the decease in the amount of union organizing? On the other hand ULP's have increased.

This data provides strong support for the enactment of EFCA into law.

Mitchell H. Rubinstein

Continuing violations doctrine could not save employee's sex harassment claim

Stewart v Mississippi Trans Comm'n, ___F.3d___(5th Cir. October 21, 2009), is an interesting case. The 5th held that a female employee who alleged she was sexually harassed by her male supervisor, the same supervisor she was reassigned away from by her employer more than a year earlier, only to once again be placed under his control, failed to make out a Title VII hostile work environment claim. The almost 16-month period while she was reassigned, during which she was not harassed, constituted an "intervening action" cutting off her employer's liability for the earlier harassment, and the supervisor's alleged harassment that occurred after the reassignment was not sufficiently severe or pervasive to create a hostile work environment affecting the terms, conditions or privileges of her employment. Nor was she retaliated against for reporting the harassment, held the court, because she was not subjected to a "materially adverse action."

While the continuing violation doctrine allows courts to consider acts of harassment occurring outside the 300-day limitations period when those separate acts are part of the same unlawful practice, it did not save the employee's claim. The employer's response to the earlier harassment was prompt and effective and she experienced no harassment during the sixteen months that she worked for the other supervisor. Thus, the two periods of alleged harassment were severed by the intervening acts of the employer. "To hold otherwise would cast doubt on the safe harbor of prompt remedial action."

Mitchell H. Rubinstein

Non-disabled teacher had stand standing to sue for retaliation under disability laws

Barker v Riverside County Office of Educ, ___F.3d____(9th Cir. October 23, 2009), is an interesting case. Reviving her claims, the Ninth Circuit held that a non-disabled teacher had standing under Title II of the ADA and Section 504 of the Rehab Act to sue for retaliation after she was allegedly subjected to a hostile work environment and constructively discharged for filing a complaint with the US Department of Education's Office of Civil Rights, which asserted that her employer denied the students a free appropriate public education as required by federal and state law.

The employer argued that Title II and Section 504 are not intended to provide redress of employment claims for persons who are neither disabled themselves, nor have any close relationship to persons with disabilities. The court reasoned that Section 504 incorporates Title VII's anti-retaliation provision, which forbids discrimination against "any individual" because that individual made a complaint under the Act. The statutes do not include language requiring such individuals to have disabilities in order to have standing, nor do they require the individual to have any close relationship to the person with a disability. Therefore, held the Ninth Circuit, Section 504 grants standing to non-disabled people who are retaliated against for attempting to protect the rights of the disabled, even if they themselves are not disabled or closely related to a person with a disability. Similarly, Title II of the ADA forbids discrimination against "any individual" because "that individual" made a charge under the Act.

This is an important decision.

Mitchell H. Rubinstein

Sexually Explicit E-Mails Admissible In Sexual Harassment Case

Seybert v International Group, Inc, ___F.Supp.2d____(E.D. Pa.October 15, 2009), is an interesting case. Plaintiff, a female employee who alleged she was subjected to sexual harassment by her male supervisor was unable to exclude certain sexually explicit email exchanges found on her workplace computer that her employer sought to use at trial. The court rejected the employee's motion in limine asking that the emails be deemed inadmissible under Federal Rule of Evidence 412, which calls for an in camera hearing to evaluate admissibility.

The emails were exchanged between the employee and other individuals, most of whom were company personnel, using the employer's hardware and software, during the employee's regular hours of employment at the office. Most of the emails consisted of various stories, jokes, photographs, cartoons and the like, along with occasional commentary from the employee or others along the specific email chain. While the emails included sexual content and used sexual words, metaphors, puns, and other innuendo in an attempt to amuse, the employee's sexual history was not at play here, as none of the emails expressly discussed the sexual "behavior" or "predisposition" of the employee or anyone else involved in this case, nor did any of the emails have a bearing on the employee's sexual reputation or involve her actual or alleged personal sexual activity. Rather, the emails involved sexual banter between coworkers. Because sexual harassment plaintiffs must show that their work environment was both objectively and subjective hostile, the company was "entitled to pursue the argument that the emails were relevant to employee's "possible appreciation of this type of humor, and specifically, whether she was subjectively offended by [her supervisor's] comment[s]."

Mitchell H. Rubinstein

Changes to GRE in Store

The December 5, 2009 New York Times, here,  reported that changes are coming to the GRE. It is going to be longer and the grading scale will change as well. The article describes some of the changes as follows:

Although the exam will still include sections on verbal reasoning, quantitative reasoning and analytical writing, each section is being revised. The new verbal section, for example, will eliminate questions on antonyms and analogies. On the quantitative section, the biggest change will be the addition of an online calculator. The writing section will still have two parts, one asking for a logical analysis and the other seeking an expression of the student’s own views.

“The biggest difference is that the prompts the students will receive will be more focused, meaning that our human raters will know unambiguously that the answer was written in response to the question, not memorized,” said David G. Payne, who heads the G.R.E. program for the testing service.

For security reasons, he said, new content would be introduced and the sequence of questions scrambled every two hours. The new test will be three and a half hours.

Michell H. Rubinstein

Contract non-renewal was an adverse employment action under the ADEA, Title VII

Leibowitz v Cornell Univ, ___F.3d___(2d Cir. October 23, 2009), is a lengthly ADEA case involving a discrimination action filed by Peggy Leibowitz against the ILR School at Cornell. In a nutshell, the 2d held that the non-renewal of a female professor's employment contract itself was an adverse employment action under the ADEA, Title VII and New York state and local law. The fact that the decision to renew was discretionary does not mean that it is not an adverse employment action. Therefore, regardless of whether the professor was "laid off," "terminated" or her employment was "not renewed," she suffered an adverse employment action because "'she was denied the requested continued employment.'"

The 2nd also found that the professor presented sufficient facts to establish an inference of discrimination to meet her burden of establishing a prima facie case of age and sex bias; among other things, she presented evidence that the university laid off six women at least 50 years of age, reassigned her duties to male instructors and did not consider her for any vacant positions. She also raised triable issues as to pretext, presenting evidence that the budgetary exigencies cited by university were not so dire as to warrant her contract non-renewal.

This is a lengthly decision which is an excellent primer on employment discrimination law.

Mitchell H. Rubinstein

Hospital plan paying nurses working 12-hour shifts lower hourly rate than those working 8-hour shifts did not violate FLSA.

PARTH V POMONA VALLEY, ___F.3d___(9th Cir. Oct. 22, 2009), is an interesting case.As matter of first impression, the Ninth Circuit held that a pay plan instituted by a hospital subject to the FLSA, which paid nurses working 12-hour shifts a lower base hourly rate than nurses working 8-hour shifts in an attempt to keep overall pay revenue-neutral, did not violate the Fair Labor Standards Act (FLSA) by denying the nurses overtime pay. The plan was first initiated at the nurses' request to accommodate their scheduling desires and was subsequently memorialized in a collective bargaining agreement, and wages paid under the plan were more than the minimum wages under federal law.

Mitchell H. Rubinstein

District’s policy prohibiting the performance of religious music at school events is constitutional

Stratechuk v. Board of Educ. South Orange-Maplewood Sch. Dist., ___F.3d___ (3d Cir. Nov. 24, 2009), is an interesting case. The Third Circuit held that a Pennsylvania school district’s interpretation of its “Religion in the Schools” policy as prohibiting the performing of celebratory religious holiday music at school concerts and programs does not violate the First Amendment’s Establishment Clause.

The Third Circuit rejected the argument that the school district’s interpretation of Policy 2270 violated the Establishment Clause under both the Lemon and endorsement tests because it disfavored religion. The appeals court pointed out that plaintiff had failed to offered any “persuasive authority that the First Amendment prevents South Orange-Maplewood School District from formulating a policy that precludes performance of religious holiday music.” It agreed with the district court that even if the Establishment Clause does not require banning the performance of religious music in schools, a school district’s decision to prohibit performance of such music does not run afoul of Lemon’s secular purpose prong because such a ban does not have a religious purpose.

The Third Circuit also addressed the First Amendment claim, which the district court characterized as the right to receive information and ideas. It concluded the claim was without merit because, even assuming the validity of the claim, the policy does not restrict students’ access to ideas by banning the performance of religious celebratory music at concerts and assemblies because access such music” is permitted “in the classroom within the framework of the curriculum.”

Mitchell H. Rubinstein

Stamps and Judges

I do not recall seeing judges on stamps. However, it is coming to a post office near you according to an article in the December 2009 ABA Journal.  The article is very short and does not explain who picked the judges or when exactly this is to occur. The article implies its for the holiday season.

Mitchell H. Rubinstein