Workplace Prof Blog

Targeting Employers Instead of Employees

The Obama administration has begun moving away from the well-publicized Bush administration criminal raids of undocumented workers.  The enforcement emphasis is shifting instead to going after the employers who hire these workers--through civil sanctions, not criminal charges--in an acknowledgment that as long as employers are seeking out undocumented labor, the supply will be there (not that the current efforts will do much to change the equation either).  According to the New York Times:

Federal agents will concentrate on businesses employing large numbers of workers suspected of being illegal immigrants, the officials said, and will reserve tough criminal charges mostly for employers who serially hire illegal immigrants and engage in wage and labor violations. . . .

On Wednesday, Immigration and Customs Enforcement, the federal agency known as ICE, said it had sent notices announcing audits of hiring records, like the one it conducted at American Apparel, to 652 other companies across the country. Officials said they were picking up the pace of such audits, after performing 503 of them in 2008. . . .

The Obama administration’s new approach, unveiled in April, seems to be moving away from the raids that advocates for immigrants said had split families, disrupted businesses and traumatized communities. But the outcome will still be difficult for illegal workers, who will lose their jobs and could face deportation, the advocates said.  Immigration officials have not made clear how they intend to deal with workers who are unable to prove their legal immigration status in the course of inspections, but they said there was no moratorium on deportations.

Check out the full story for more details on the American Apparel case, which is entertaining as usual.

-JH

The Conscience Rule Survives

Despite some earlier suggestions that the Obama administration may implement a substantial roll-back of the "conscious rule" for health care workers, recent comments by the President suggest a more limited retreat from the recent Bush expansion of the right to refuse to perform procedures workers object to.  As even the earlier reports noted may be the case, Obama appears to be heading for a move to keep a conscious objection for abortion and some other services--which had existed for a while--but roll-back a Bush rule that drastically expanded the objection to all violations of an employee's "personal, moral or religious beliefs."

It's not clear what the new rule will look like, as Health and Human Services is still reviewing the situation. 

Stay tuned.

-JH

June Unemployment Data

The June unemployment numbers are in and they're bad.  Although May gave some hope because the job losses had begun to slow down, they picked again in June.  The overall trend the last three months is still an improvement over the previous period, but the job situation will clearly remain bleak for a while. Among the low-lights:

• The overall unemployment rate is now 9.5% (up from 9.4%)
• Job losses in June were 467,000 (up from 322,000 in May)
• The average workweek is 33 hours, the lowest since it began to be tracked in 1964
• Average hourly wages have gone up 2.7% over the last year, but weekly earnings have only gone up 1% (see previous bullet point for part of the explanation).
• Underemployment rate is 16.5%
• Average length of unemployment is 24.5 weeks, the lowest since it began to be tracked in 1948
• New unemployment benefit claims declined by 16,000 in June

-JH

Public Employee Bloggers Beware? For Now

In mid-June of this year, the Ninth Circuit Court of Appeals decided the Richerson v. Beckon case, involving a First Amendment claim by a public school teacher after she was demoted for comments she posted on her personal blog (article in the National Law Journal can be found here (subscription required)).

As it happens, I included an analysis of this case at the district court level in my recent paper, Blogging While (Publicly) Employed: Some First Amendment Implications, 47 U. Louisville L. Rev. (forthcoming 2009).  There, I wrote in part:

In Richerson, the Central Kitsap School District initially employed Tara Richerson as the Director of Curriculum. She then was in line for a voluntary transfer to a new position that would permit her to work half time as a curriculum specialist and half time with a new instructional coaching model. Importantly, the instructional coach component of her prospective job required her to follow a model which emphasizes the sensitive and confidential relationship between her coaching position and the teachers that she would be mentoring.

Before being transferred, the school district became aware that Richerson was using a personal blog to be critical of her replacement in the Director position. Language is everything in these public employee free speech cases, so here is the entire blog posting in question:

      Save us White Boy!

      I met with the new me today: the person who will take my summer work and make it a full-time            year-round position. I was on the interview committee for this job and this guy was my third choice ... and a reluctant one at that. I truly hope that I have to eat my words about this guy.... But after spending time with this guy today, I think Boss Lady 2.0 made the wrong call in hiring him ... He comes  across as a smug know-it-all creep. And that's probably the nicest way I can describe him.... He has a reputation of crapping on secretaries and not being able to finish tasks on his own.... And he's white. And male. I know he can't help that, but I think the District would have done well to recruit someone who has other connections to the community.... Mighty White Boy looks like he's going to crash and burn.

Although the school district did not terminate Richerson for this conduct, she was officially reprimanded for violating the professional standards associated with the interview process. Richerson, however, did not appear to learn her lesson and later commented about a co-employee and chief union negotiator on her blog: “What I wouldn't give to draw a little Hitler mustache on the chief negotiator.” After receiving a complaint from this co-employee, the district involuntarily reassigned Richerson to the position of classroom teacher, though they did not ask her to stop blogging.

Based on this record, the court granted summary judgment to the school district on the claim that Richerson‟s blogging deserved First Amendment protection. Specifically, the court found that the language did not qualify as speech on a matter of public concern under Connick.

The Ninth Circuit agreed, concluding that the Richerson blog containd "several highly personal and vituperative comments" that justified the demotion.  In short, under the Pickering balancing test for First Amendment speech protection for public employees, her disruptive speech eroded work relationships and thus, the school district employer won the balancing test as far as the various interests involved.

I want to suggest that the Ninth Circuit is right on the current state of public employee speech law, but also want to point out that the most disruptive public employee speech gets the least amount of protection under the Pickering framework.  It is almost like we have constitutionalized the heckler's veto in this area of the law and that doesn't make a whole lot of sense.

So what would I do instead, you ask?  I would prefer a test which places a heavier thumb on the balance on the side of the employee, as long as the employee is talking upon a matter of public concern, which involves the heart of the First Amendment's protection in the first place.   Under this balance, I would let Richerson yap away and let other employees drown her out with their own more sensible counter-arguments.

In the meantime, "vituperative comments" on employee blogs concerning the workplace will have to be muted.

PS

In Praise of Legal Layoffs

Dan Slater--former author of the Wall Street Journal Legal Blog--has a piece in the New York Times singing the praises of law firm layoffs.  Because I've personally witnessed too many students fail to get jobs or had offers withdrawn, my soul can't let me agree with his premise (and I'm guessing that the lawyers still employed aren't feeling too liberated):

The legal media, in its rush to side with the fallen, has often cast the layoff wave as the result of endemic firm mismanagement finally coming home to roost. Perhaps. But make no mistake: These layoffs, ­ which in many cases have been paired with salary freezes or cuts and significant reductions in law school recruiting, ­ are the best thing to happen to the legal industry in years. Call it a blessing amid recession.

Start with the benefit to cost-conscious corporate counsel, who for too long have been bilked by a law firm compensation model that leads lawyers to prioritize their “hourly quotas,” which determine year-end bonuses, over quality service. Unfortunately, the same bar presidents and law firm managing partners who are in a position to do away with the billable-hour format are happy to write op-eds decrying the miserable tradition, yet are unwilling to lead the pack when it comes to taking action.

So the billable hour remains entrenched, a vestige of law firm insularity and lawyer self-regulation. In the downturn, however, the common practice of “staffing up” a matter to increase billings has finally found its proper comeuppance. The economy for Wall Street legal services is no longer willing or able to support unnecessarily huge armies of six-figure paperweights.

And what about all those 20- and 30-something associates who can no longer formulate excuses — ­ But I’m paying off my law school debt while I figure out what I want to do! — ­ to remain in the kinds of jobs that so many of my law firm friends describe as “soul-crushing”? For many lawyers at law firms, particularly those who spent the early part of their careers toiling in structured finance departments and contributing, in the end, nothing to nothing, this recession may be the thing that delivers them from more 3,000-hour years of such drudgery as changing the dates on securitization documents and shuffling them from one side of the desk to the other.

Like a relationship gone bad, clearly hopeless to everyone but the imprisoned, it often takes a forced exit to break the leash of inertia that collars so many smart law graduates to mind-numbing work. So don’t pity these people. What they needed all along was liberation. Now they have it.

-JH

Bar Rejection Because of Excessive Student Loans

The New York Times is reporting on someone rejected from the bar because of excessive student loans.  The story is complicated--involving tragic injuries, accusations of excessive fees, and his failure to make any payments--so you be the judge. 

My only thought is that more explanation is needed for the decision, which overruled a committee recommendation to approve him.  Decisions like this--whether justified or not--start raising questions about the propriety, or even legality, of letting bar associations restrict who can work as an attorney.

-JH

EREPJ Call for Papers

Marty Malin writes about a special call for papers in the Employee Rights & Employment Policy Journal:

Employee Rights & Employment Policy Journal is planning a special issue honoring Clyde Summers, the Jefferson Fordham Professor of Law Emeritus at the University of Pennsylvania.  Clyde was a founding member of the Journal’s editorial board and served actively on the Board until he suffered a stroke.  The special issue is slated for volume 14, issue 1, the first issue of 2010.

Articles in the issue should focus on areas in which Clyde produced path-breaking scholarship.  These include: employment at will, international and comparative labor and employment law, the rights of public employees, and the rights of employees vis-à-vis their unions.  Scholars who have committed to write for the issue include Matthew Finkin (Illinois), Michael Goldberg (Widener) and Lea VanderVelde (Iowa).  

Employee Rights & Employment Policy Journal is a faculty-edited, peer-reviewed journal.  Our authors never deal with student editors.  Instead of wrestling with student editors who often do more harm than good, our authors receive comments from their peers who have expertise in the subject of the article, to use at their discretion.  Our authors generally have praised our editorial process as a breath of fresh air after dealing with the typical student-run law review.

If you are interested in contributing to this special issue, please contact Journal co-editor Marty Malin at mmalin@kentlaw.edu.  Those who commit to writing for the issue will be asked to commit to submitting the final versions of their articles on or before December 1, 2009.

A well-deserved subject for a special issue.

-JH

D.C. Circuit Denies En Banc in Laurel Baye

The D.C. Circuit just announced that it is denying the NLRB's petition for rehearing en banc in Laurel Baye.  The order also noted that there was no request for a vote among the judges [Download Laurel Baye Denial of En Banc].  That doesn't mean that no judge would've voted for en banc, but it at least indicates that there was a pretty strong majority against it.

Next stop, the Supreme Court? 

Hat Tip:  Patrick Kavanaugh, Jeff Wilson, and Dennis Walsh

-JH

Supreme Court Grants Cert in Employment Cases

Ross Runkel (Employment Law Memo) has a round-up of three employment-related cases granted by the Supreme Court the last couple of weeks.  The cases involve the LMRDA, ERISA and the False Claims Act.  Here's a sample of Ross' summaries of the cases (click on the case names for his more detailed descriptions):

Granite Rock v. Teamsters:  The US Supreme Court has granted certiorari in an LMRA Section 301 case that raises issues on (1) whether an employer can state a claim of tortious interference against a union that was not a signatory to a collective bargaining agreement, and (2) the scope of the duty to arbitrate.

Conkright v. Frommert:  The US Supreme Court has granted certiorari in an ERISA case that raises issues on (1) the extent to which a district court must defer to the views of an ERISA plan administrator and (2) the appropriate scope of appellate review.

Graham Coutry Soil & Water Conservation District v. United States ex rel Wilson:  The issue in this case is the scope of the "public disclosure" jurisdictional bar contained in the False Claims Act, 31 USC §§ 3729-33.

Hat Tip:  Paul Secunda

-JH

Secunda on the Proposed Restatement

The Wisconsin Law Journal recently had an article looking at the proposed Restatement of Employment Law and the Labor Law Group's opposition to the project.  The article features comments from people on both sides, including blogger emeritus Paul Secunda (Marquette) and Chief Reporter Sam Estreicher (NYU):

Last month, three chapters were adopted, covering the definition of an employment relationship, the employment at-will doctrine and the tort of wrongful discharge in violation of public policy. Several more chapters will be presented to an advisory group this month, but it is likely to take three to four more years before a complete draft is presented for a vote of ALI’s members, said Samuel Estreicher, chief reporter for the Restatement, who teaches employment law at New York University School of Law and is of counsel to Jones Day.

The Labor Law Group, a group of mostly employment law professors, opposes the Restatement and held its own conference presenting its criticisms. . . . Although he is not a member of the Labor Law Group, Marquette law professor Paul M. Secunda was asked to co-chair the group critiquing the chapter on wrongful discharge in violation of public policy.

Secunda said there are a number of reasons why creating a Restatement for employment law is a bad idea. “A lot of the employment law that we’re talking about is state law, and states vary widely in things such as the employment-at-will doctrine, privacy protection, covenants not to compete, and the list goes on,” Secunda said.

He noted that the law is still evolving quickly and has many different aspects to it, drawing from federal law, the federal constitution, state law and state constitutions, as well as state common law. “It is one of the most dynamic areas in the law right now. Trying to stop it at this point in time is troublesome, because who knows what the law is going to look like five years from now?” Secunda said. “Do we want judges who generally see a Restatement project as being influential to be stuck on what our thoughts are on the various issues today?” . . .

The most contentious area of the Restatement is its endorsement of the at-will doctrine as the default rule.  Estreicher defends that position, contending that “no doctrine is more firmly established in American employment law” and noting that the draft provides an appendix citing the 49 states that adhere to it as the default rule. (Montana requires “good cause” for termination.)

But [Cliff Palefsky, an advisor to the Restatement and a plaintiffs’ attorney at McGuinn Hillsman & Palefsky in San Francisco] said calling the at-will doctrine the default rule is “misleading.” He said that while “at-will” employment used to mean a worker could be terminated for any reason at all, in the past 20 years, Congress and state legislatures have passed so many statutes barring discriminatory discharge, based on age, race, jury duty, whistleblowing, disability, family leave and others, that the doctrine no longer carries the same meaning. “In fact, the at-will doctrine as it existed is dead. This draft [of the Restatement] is not only trying to keep it alive, but doesn’t recognize that the exceptions dwarf the rule,” Palefsky claimed.

Many more comments both defending and criticizing the project in the full article, so check it out.

-JH

"Perfectly Clear" Successor Doctrine

The D.C. Circuit recently reversed the NLRB in a "perfectly clear" successor case, S&F Market Street Healthcare.  The perfectly clear successor doctrine states that a successor employer is bound by the terms of a collective-bargaining agreement when it is "perfectly clear" that the successor will retain all employees in the bargaining unit and teh successor did not indicate that it would change employment terms.  This situation differs from a normal successor employer, which must only bargain with the union--it need not comply with a pre-existing CBA.

In S&F, the ALJ did not find a perfectly clear successor because the new employer told employees that they would be on a probationary or temporary status for 90 days, which was a signal to employees that the terms and conditions of employment would be different.  The NLRB disagreed, emphasizing that the successor didn't inform employees of intended changes before it invited the predecessor employees to accept employment.  The court, however, reversed.  It noted that the CBA had a just cause provision; thus, the successor's statement that employees would be at will for 90 days was a clear indication that the initial terms of employment would be changed.  Basically, the court applied a very strict perfectly clear successor rule, in which virtually any indication of any change in terms and conditions will knock out the doctrine.  The broader question is whether that strict rule really captures the reason for the doctrine, which is that an employer should not be allowed to lead employees to believe that work conditions will remain the same, but then change them.

Hat Tip:  Justin Keith

-JH

More Thoughts On Ricci

If you haven't gotten your fill of comments on Ricci, check out the New York Times' Opinionator column devoted to the case.  Included are comments and links from the Volokh Conspiracy, SCOTUSblog, and our very own Marcia McCormick.

Marcia was also a guest on Wisconsin Public Radio this morning discussing Ricci.  You can catch the show here.

-JH

EBRI: Retirement Expenses Going Up; Funds Going Down

A pair of EBRI studies delivers sobering news on the retirement front:

• First, on the retirement savings side, employers are having to rob Peter to pay Paul.  More specifically, the decline in financial markets is requiring employers to make larger-than-anticipated contributions to defined-benefit plans (traditional pensions). Employers are making up this shortfall by reducing or eliminating their matching contributions to 401Ks.  See Dallas L. Salisbury & Elisabeth Buser, Many 401(k) Sponsors Suspending Matching Contributions Are Funding Defined Benefit Pension Plans.
• Second, on the expense side, the savings needed to cover health insurance to supplement Medicare and out-of-pocket expenses for health care services in retirement are up 9-16% from just a year ago.  Men retiring at age 65 in 2009 will need anywhere from $68,000 to $173,000 in savings to cover health insurance premiums and out-of-pocket expenses in retirement if they want a 50-50 chance of being able to have enough money, and $134,000 to $378,000 if they prefer a 90 percent chance. With their greater longevity, women will need more: a woman retiring at age 65 in 2009 will need anywhere from $98,000 to $242,000 in savings to cover health insurance premiums and out-of-pocket expenses in retirement for a 50-50 chance of having enough money, and $164,000 to $450,000 for a 90 percent chance.  See Paul Fronstin, Dallas L. Salisbury, & Jack VanDerhei, Savings Needed for Health Expenses in Retirement: An Examination of Persons Ages 55 and 65 in 2009.

rb

Hyde Honored by Univ.

Congratulations to Alan Hyde (Rutgers - Newark), who has been promoted to the rank of Professor II. Conferred by the Rutgers University Board of Governors, the Professor II designation "is reserved for faculty who have achieved national and international recognition in their field."

Alan's recent work includes the books Legal Rights and Interests in the Workplace: Cases and Materials on Employment and Labor Law (with C.W. Summers and K.G. Dau-Schmidt, 2007), Working in Silicon Valley: Economic and Legal Analysis of a High-Velocity Labor Market (2003), and Bodies of Law (1997). He's been on the Rutgers faculty since 1978.

rb

Zimmer on Ricci

Mike Zimmer (Loyola), co-author of the leading casebook on employment discrimination and friend of the blog has provided these thoughts on the Supreme Court's Ricci decision from yesterday.

1. The Holding. The defendants’ decision to not use test results because their use would have meant that no African-American and only two Hispanics, who made up over half of the testtakers, would be promoted was intentional disparate treatment discrimination against the white testtakers who would have been promoted if the test results had been used. That the adverse impact of the test results amounted to a prima facie case of disparate impact discrimination was not a defense to a disparate treatment case unless the employer has a strong basis in evidence to believe that it will be liable for disparate impact discrimination.

2. A Procedurally Unusual Decision. The district court, affirmed by the court of appeals, had granted summary judgment for the defendants. Not only did the Supreme Court reject the summary judgment for the defendants but found that plaintiffs were entitled to summary judgment. That means that the Court found that no material facts existed that would justify a trial. The four slip opinions run a total of 89 pages; 31 pages – 38% of the total -- deal with relatively straight forward recitation of facts, most of which are quite constested.  Many more deal with application of facts to law, again with most applications hotly contested. Reading this suggests that the Supreme Court has taken upon itself the role of a trial court.

3. Acting When the Race of Those Affected is Intentional Discrimination. The key factual finding of the Court is that: “All the evidence demonstrates that the City chose not to certify the examination results because of the statistical disparity based on race – i.e., how minority candidates had performed compared to white candidates. . . . Without some other justification, this express, race-based decisionmaking violates Title VII’s command that employers cannot take adverse employment actions because of an individual’s race. . . . [T]he city made its employment decision because of race. The City rejected the test results solely because the higher scoring candidates were white.”

Justice Kennedy takes an enormous leap from the first conclusion – that the City acted because it knew the “statistical disparity based on race”—to his second – that it rejected the test “solely because the higher scoring candidates were white.”  In all the pages of factual recitation and application, there is simply no reference to any evidence that the sole cause of the decision was because using the test results would benefit whites. Is there no difference between intending not to disadvantage African-American and Hispanic candidates and intending to discriminate against the white candidates?

When the Civil Service Board made its decision, it only knew what the racial distribution and therefore the potential disparate impact if the test results were used. It did not know the identity of any of the testtakers. Therefore, it appears that an employer conscious knowledge of the race of those affected by its decisions suffices to make out intentional disparate treatment discrimination. This appears to be a tremendous change in the law.  For example, in Justice O’Connor’s concurrence in Price v. Waterhouse, she indicated that, “Race and gender always ‘play a role’ in an employment decision in the benign sense that these are human characteristics of which decisionmakers are aware and may comment on in a perfectly neutral and nondiscriminatory fashion.”

Justice Alito is convinced that, because an important participant in the political process was an African-American preacher, the decision of the CSB was “because of race” as a matter of law. Justice Ginsburg argues that the decision may have been made “because of politics” and not race since the white firefighters and their union were vociferous advocates for using the test. The decision may have been because of race or because of politics or because of some of each. Doesn’t this suggest a factual question that deserves a trial?

4. Should the African-American and Hispanic Testakers Claim Disparate Treatment Discrimination? Suppose that New Haven now uses the results of the tests and promotes some white firefighters. Because the City knew the race of those promoted, was that intentional discrimination against minority testakers who were not promoted? If not, why not? Is using the test results to promote people different from deciding not to use them?

The Supreme Court has been edging toward establishing a color-blind standard for equal protection, see Parents Involved in Community Schools v. Seattle School Dist. No. 1, 127 S.Ct. 2738 (2007) (plurality opinion), and Ricci appears to import that into Title VII. These decisions involve challenges by whites to the use of race in a way that gives advantages to minority group members or, as here, removes an absolute impediment to the advancement of African-Americans and Hispanics. If a color-blind standard can be used by white plaintiffs, why can’t these minority firefighters rely on it?

5. Is Proof of Intent to Discriminate Reduced to Proving the Defendant Knew the Race of the Affected Individuals? Is racial consciousness, when acted upon, the same as acting with an intent to discriminate? If so, Ricci revolutionizes discrimination law. Assume an African-American applies but is rejected for a job after an interview. Does she establish defendant’s liability by getting the defendant’s interviewer to admit that she was conscious of the fact that the plaintiff is black?

6. The Strong Basis in Evidence Justification. In United States v. Board of Educ. of the Township of Piscataway, 91 F.3d 1547 (3rd Cir. 1996) (en banc), cert. dismissed, 522 U.S. 1010 (1997), the court had imported equal protection analysis into Title VII’s treatment of affirmative action. Does the Court’s adoption of the strong basis in evidence test effectively implement that importation?  Only Justice Ginsburg in dissent puts this decision into context with the Title VII affirmative action decisions to criticize this decision. Are these affirmative action decisions in jeopardy now?

7. The “Q” Word Strikes Again. Is the fear that employers would have an incentive to use racial quotas what drives this decision?

8. Why Isn’t There Strong Support for Disparate Impact Liability? The Court concluded that, “The racial adverse impact here was signicant, and . . the City was faced with a prima facie case of disparate-impact liability.” The Court then minimizes what that means: “[A] prima facie case of disparate-impact liability – essentially a threshold showing of a significant statistical disparity and nothing more – is far from a strong basis in evidence that the City would have been liable under Title VII had it certified the results.”  Does this undermine the significance that this prima facie showing shifts both  the burden of proof and of persuasion to the defendant?  Is the Court attempting to reinstate Wards Cove?

9. Was the Test Job-Related and Consistent with Business Necessity as a Matter of Law?  The written examination part of the test asked questions based on the testtakers ability to memorize extensive documents. Under the approach of the EEOC Uniform Test Guidelines as well as professional test standards, what IOS did was to construct a test that was supposedly content validated, i.e., that it was a sample of the job. While IOS supposedly did a job analysis, neither taking written or oral exams were involved in the jobs of lieutenant or captain in the fire department.  Nor is there any indication that memorization and recall of documents played any role at all in the jobs for which the test was to be used. The use of “assessment centers” where testtakers play the role that replicates the actual job can be content validated as job samples. Isn’t there at least a question of fact whether the test that was used was not job-related and not consistent with business necessity?

10. Was Section 703(h) Test Provision Superseded by the 1991 Civil Rights Act? The Court does not address the jurisprudence associated with the test exception in original §703(h). Has the Court decided sub silentio that this provision and its underlying jurisprudence has been repealed when Congress codified disparate impact law in new § 703(k)?

11. Were There No Less Discriminatory Alternatives as a Matter of Law? The record showed alternatives that were less discriminatory – simply altering the ratio of written to oral scores appeared to have reduced discriminatory impact in Bridgeport, using “assessment centers” or altering the “rule of three” to a banding approach – all were alternatives that could have been adopted instead of the test that was used.  The Court appears to assume that, because it was too late to adopt any of these alternatives to resuscitate this test, they could not count as alternatives. But, in fact, the City could consider these precisely because it had decided not to use the results of this test.

12. Should the Minority Testtakers Claim Disparate Impact Discrimination? Assuming the City would now use the test results, should the African-American and Hispanic testtakers bring a disparate impact claim? With the Supreme Court deciding as a matter of law that the test was job-related and consistent with business necessity and that there were no less discriminatory alternatives available, is there anything left to contest?

13. Empathy for Whom? With the statement by President Obama that he seeks to appoint Justices who have empathy, what does Ricci suggest about empathy? Justice Kennedy concluded that, “Examinations like those administered by the City create legitimate expectations on the part of those who took the tests. As is the case with any promotion exam, some of the firefighters here invested substantial time, money, and personal commitment in preparing for the tests. . . . [O]nce [the test process] has been established and employers have made clear their selection criteris, they may not then invalidate the test results, thus upsetting an employee’s legitimate expectation not to be judged on the basis of race.” Nothing in any of the opinions suggest that the employer had committed itself in advance to use the test results no matter what they might be. Is the Court suggesting that the testtakers had some sort of contractual based right to have the test results used? The last part – about expectations concerning race – would appear to undermine such a contractual claim. However, what about the expectations that employers would not use employment practices that cause a disparate impact? Justice Ginsburg puts the context of this case into the larger frame of the longstanding discrimination minority firefighters have faced and the use of the disparate impact theory to attack their exclusion. Doesn’t this decision defeat their expectations in order to satisfy the expectations of the white testtakers?

14. Is This 1989 Redux? It has been twenty years, but has a new conservative majority in the Roberts Court been able to undermine Title VII just as the Rehnquist Court majority did then? Will Justice Ginsburg’s prediction that this decision will not last prove true?  Will this new majority take the step argued by Justice Scalia to embed Ricci in the Constitution by striking down disparate impact analysis as unconstitutional?

Thanks for the expert analysis, Mike!

MM

Limiting Access to Union Websites

The D.C. Circuit recently issued an LMRDA case addressing access to union websites.  Quigley v. Giblin involved a union rule requiring candidates for union offices to password protect access to their campaign websites.  Several union members challenged the rule as a violation the LMRDA Section 101(a)(2), which gives members the right to communicate with other members.  The court, however, rejected that challenge, emphasizing that even if the rule affected Section 101(a)(2) rights, the effects would not be substantial.  Moreover, the court held that the rule was reasonably related to protecting the union--a defensive under the section--because it limited outside influence and let the union manage its own internal affairs.

Much more detail fleshing out the holding in the full opinion, so check it out.

Hat Tip:  Bill Herbert

-JH

Cohen To Be Nominated To FMCS

The White House has just announced its intent to nominate George Cohen as Director of the FMCS.  Many readers will know him from his many years at the D.C. firm, Bredhoff & Kaiser.  Here's the White House press release:

George Cohen has had an extensive and distinguished career as a labor lawyer, negotiator, and mediator. During the period 1966-2005 he was a senior partner at Bredhoff & Kaiser, a Washington, D.C. law firm with a national practice, specializing in representing private and public sector labor organizations in collective bargaining involving a wide variety of industries and government entities. Prior to entering into private practice, Mr. Cohen served as an appellate court attorney with the National Labor Relations Board. He is a graduate of Cornell University and its Law School and earned a LLM degree from Georgetown Law. In the past three years he has been engaged in a solo practice as a mediator. He is a member of the prestigious Mediation Panel of the U.S. Circuit Court of Appeals for the D.C. Circuit and has successfully mediated numerous complex, high profile disputes. From the mid 1970's thru 2005, Mr. Cohen was an Adjunct Professor at Georgetown Law School where he taught the Art of Collective Bargaining and other labor courses.

-JH

Ricci Analysis Part 1

As a preliminary matter, I would welcome other people's thoughts on this case and the Court's decision. There's a lot there, and some of it, I confess, confuses me. There is so much to the opinion, in fact, that I've decided to break up the analysis. In this post, I'll analyze the majority's opinion alone, and try to tease out what it means for the parties and for employees and employers more generally. In future posts, I'll tackle Scalia's concurrence, suggesting that disparate impact legislation is unconstitutional. And in a third post, I'll tackle the Alito concurrence and Ginsburg dissent, although I may separate those out into separate posts.

The majority's legal analysis starts from this premise: The City chose not to certify the examination results because of the statistical disparity based on race, and that this was express race based decisionmaking which Title VII prohibits. Considering the race-based effects of the testing and rejecting the test on that ground was taking an adverse action because of an individual's race.

The second step in the analysis, which attempts to harmonize the conflict this premise sets up, is that good faith fear of a disparate impact lawsuit cannot be enough to justify acting because of an individual's race. That would allow employers to maintain some sort of racial quota or balance because it's too easy to claim and to difficult to disprove good faith belief.

In the third step, the majority looked to the affirmative action cases under the Equal Protection clause for an analogy, reasoning that affirmative action created the same kind of conflict in Equal Protection doctrine that this collision of disparate impact and disparate treatment created. Under the Equal Protection cases, a government employer can engage in race-based decisions where there is a strong basis in evidence that it is warranted to remedy past discrimination by that government employer.

So, the end result is a compromise: Once a hiring or promotional process has begun, an employer may not deviate from that process over concerns that the process discriminates unless there is a strong basis in evidence to believe that the practice would not survive a disparate impact lawsuit. Employers can act before there is a "provable, actual violation," but only if there is this strong basis in evidence to believe that there is a provable violation.

Importantly, there is no restriction on what employers can do to try to design a process for making employment decisions that are fair for all regardless of race before any process is put into effect. "But once that process has been established and employers have made clear their selection criteria, they may not then invalidate the test results, thus upsetting an employee's legitimate expectation not to be judged on the basis of race."

Applying the standard, the majority found that the City did not have a strong basis in evidence to believe that the test created an illegal disparate impact. The Court agreed that the results demonstrated a severe statistical disparate impact, which warranted the hearings the City held, but disagreed that there was any evidence:  1. that the test was not job related and consistent with a business necessity or 2. that there were other methods the city could have used that would have been just as legitimate without the disparate effect.

As a doctrinal matter, I think that the initial premise is troubling. To say that concern over the possibility of a discriminatory effect is itself a discriminatory motive seems to create a terrible theory of discrimination, a moral equivalence, that automatically pits groups against one another in competition for jobs. It's also an implicit rejection of the basis for the Court's early decisions on Title VII, that discrimination in employment was common, that absent some other good explanation for an adverse action, discrimination was a reasonable explanation for it, and that without incentives, employers would not have to look critically at what was really required to perform a job and whether this individual could do that. Instead, they could rely on old proxies for fitness without examining them critically. Now it seems that the Court is concluding that discrimination is rare and assertions of discrimination are suspect, and that the continued lack of attainment by people of color (and women, likely) is because of limitations in those people, not obstacles in the system.

The result is also going to make it difficult for employers to navigate Title VII, although maybe not more than it was before this decision. Employers will likely do nothing to evaluate their hiring or promotional processes until those processes have run their courses. There is very little incentive for employers to try avoid disparate impact liability any more than they would have before this decision, and more incentive not to change anything, just in case that change is itself discrimination.

The majority insisted that this decision did not affect a decision by an employer to make changes to its hiring and promotional processes before beginning those processes, but if a desire to avoid discrimination is a discriminatory motive, then wouldn't creating a process designed to avoid racial effects also be intentional discrimination? That process is designed and implemented because of the races of applicants. Maybe the difference is that it doesn't consider any particular individual's race because there are no individual applicants until the process is begun.

The last piece of the opinion that I am continuing to puzzle over is the second to last paragraph, where the Court makes this cryptic (to me) statement, providing the City with a defense to the disparate impact lawsuit it was afraid of:

If, after it certifies the test results, the City faces a disparate-impact suit, then in light of our holding today it should be clear that the City would avoid disparate-impact liability based on the strong basis in evidence that, had it not certified the results, it would have been subject to disparate-treatment liability.

I'm not sure what to make of that statement, frankly. The City will be in a very different position defending a disparate impact lawsuit. For one thing, the job-relatedness and alternative process issues will be subject to a full evidentiary battle, and so as a factual matter the plaintiffs might succeed. Secondly, in some ways, disparate impact is harder to defend against because motive is irrelevant. The questions will simply boil down to whether there are equally valid less discriminatory alternatives. I don't understand how the City's inability to throw out the test will be a defense. And if it is, then when will there ever be disparate impact liability? There's no adverse action until the process has run its course (or at least begun). I understand that the African American firefighters are thinking seriously of filing their lawsuit now, so maybe this will wind its way back up and we can get an answer.

One thing is likely, this case is not over (unless there's some sort of miraculous settlement), and it won't be over for a long time.

MM

A Hoffman Exception?

The Ninth Circuit recently enforced an NLRB order approving a settlement that required an employer to pay liquidated damages to undocumented workers fired in violation of the NLRA--notwithstanding Hoffman Plastic's prohibition against NLRA backpay awards to undocumented workers. In NLRB v. C&C Roofing Supply, the NLRB issued a complaint alleging, among other things, that the employer unlawfully terminated 20 workers.  The parties entered into a settlement in which the employer agreed to reinstate the fired workers and pay them liquidated damages.  Later, the employer said that it had evidence that many of the workers were undocumented and refused to comply with the agreement.   There was no real issue with reinstatement; if the employer can show the workers were undocumented, it can't reinstate them without violated IRCA, the federal immigration law.  More interesting was the liquidated damages question.

The court, agreeing with the Board, held that liquidated damages were different from backpay because the former damages were not predicated on a worker's ability to gain lawful employment; thus, liquidated damages pose no conflict with IRCA, as was the case in Hoffman.  In short, according to the court:

Unlike reinstatement and backpay, liquidated damages do not pose an irreconcilable conflict with ICRA, because they are not predicated on an employee’s availability for work. Rather, they are based on the company’s assessment that paying these sums was preferable to further litigation.

C&C can adhere to the terms of its bargained-for agreement without violating federal or state immigration laws. The Board has a procedure for just this situation: upon receiving proper proof of a person’s unauthorized status, the Board will absolve C&C of the obligation to rehire that person, in accordance the Board’s obligation to take into account the requirements of federal immigration law. See Sure-Tan, 467 U.S. at 902-03. Although C&C therefore cannot be ordered to reinstate workers who may not lawfully be employed in the United States, it must still comply with the Settlement in all other respects, including the requirements that it cease further NLRA violations and that it pay the liquidated sums to which it agreed. Having agreed to these sums and waived its opportunity to dispute the amounts owed to each individual, C&C cannot now escape the existing regulatory process for the settlement’s enforcement.

The court also rejected a silly Laurel Baye-like argument that the Board improperly delegated to the General Counsel the responsibility to seek enforcement in federal appellate court.  As the court noted, the Board did this originally in 1955--not in the 2007 memo delegating other responsibilities on the eve of the Board losing all but two members.

-JH

Supreme Court Reverses in Ricci

In a 5-4 decision, the Supreme Court holds that throwing out test results based on the racial distribution is disparate treatment and that fear of a disparate impact lawsuit is not a valid defense to it under Title VII. Here is the opinion, and here is the syllabus:

Held: The City’s action in discarding the tests violated Title VII. Pp. 16–34.

(a) Title VII prohibits intentional acts of employment discrimination based on race, color, religion, sex, and national origin, 42 U. S. C. §2000e–2(a)(1) (disparate treatment), as well as policies or practices that are not intended to discriminate but in fact have a disproportionately adverse effect on minorities, §2000e–2(k)(1)(A)(i) (disparate impact). Once a plaintiff has established a prima facie case of disparate impact, the employer may defend by demonstrating that its policy or practice is “job related for the position in question and consistent with business necessity.” Ibid. If the employer meets that burden, the plaintiff may still succeed by showing that the employer refuses to adopt an available alternative practice that has less disparate impact and serves the employer’s legitimate needs. §§2000e–2(k)(1)(A)(ii) and (C). Pp. 17–19.

(b) Under Title VII, before an employer can engage in intentional discrimination for the asserted purpose of avoiding or remedying an unintentional, disparate impact, the employer must have a strong basis in evidence to believe it will be subject to disparate-impact liability if it fails to take the race-conscious, discriminatory action. The Court’s analysis begins with the premise that the City’s actions would violate Title VII’s disparate-treatment prohibition absent some valid defense. All the evidence demonstrates that the City rejected the test results because the higher scoring candidates were white. Without some other justification, this express, race-based decisionmaking is prohibited. The question, therefore, is whether the purpose to avoid disparate-impact liability excuses what otherwise would be prohibited disparate-treatment discrimination. The Court has considered cases similar to the present litigation, but in the context of the Fourteenth Amendment’s Equal Protection Clause. Such cases can provide helpful guidance in this statutory context. See Watson v. Fort Worth Bank & Trust, 487 U. S. 977, 993. In those cases, the Court held that certain government actions to remedy past racial discrimination—actions that are themselves based on race—are constitutional only where there is a “strong basis in evidence” that the remedial actions were necessary. Richmond v. J. A. Croson Co., 488
U. S. 469, 500; see also Wygant v. Jackson Bd. of Ed., 476 U. S. 267, 277. In announcing the strong-basis-in-evidence standard, the Wygant plurality recognized the tension between eliminating segregation and discrimination on the one hand and doing away with all governmentally imposed discrimination based on race on the other. 476 U. S., at 277. It reasoned that “[e]videntiary support for the conclusion that remedial action is warranted becomes crucial when the remedial program is challenged in court by nonminority employees.” Ibid. The same interests are at work in the interplay between TitleVII’s disparate-treatment and disparate-impact provisions. Applying the strong-basis-in-evidence standard to Title VII gives effect to both provisions, allowing violations of one in the name of compliance with the other only in certain, narrow circumstances. It also allows the disparate-impact prohibition to work in a manner that is consistent with other Title VII provisions, including the prohibition on adjusting employment-related test scores based on race, see §2000e– 2(l), and the section that expressly protects bona fide promotional exams, see §2000e–2(h). Thus, the Court adopts the strong-basis-in evidence standard as a matter of statutory construction in order to resolve any conflict between Title VII’s disparate-treatment and disparate-impact provisions. Pp. 19–26.

(c) The City’s race-based rejection of the test results cannot satisfy the strong-basis-in-evidence standard. Pp. 26–34.

(i) The racial adverse impact in this litigation was significant, and petitioners do not dispute that the City was faced with a prima facie case of disparate-impact liability. The problem for respondents is that such a prima facie case—essentially, a threshold showing of a significant statistical disparity, Connecticut v. Teal, 457 U. S. 440, 446, and nothing more—is far from a strong basis in evidence that the City would have been liable under Title VII had it certified the test results. That is because the City could be liable for disparate impact discrimination only if the exams at issue were not job related and consistent with business necessity, or if there existed an equally valid, less discriminatory alternative that served the City’s needs but that the City refused to adopt. §§2000e–2(k)(1)(A), (C). Based on the record the parties developed through discovery, there is no substantial basis in evidence that the test was deficient in either respect. Pp. 26–28.

(ii) The City’s assertions that the exams at issue were not job related and consistent with business necessity are blatantly contradicted by the record, which demonstrates the detailed steps taken to develop and administer the tests and the painstaking analyses of the questions asked to assure their relevance to the captain and lieutenant positions. The testimony also shows that complaints that certain examination questions were contradictory or did not specifically apply to firefighting practices in the City were fully addressed, and that the City turned a blind eye to evidence supporting the exams’ validity. Pp. 28–29.

(iii) Respondents also lack a strong basis in evidence showing an equally valid, less discriminatory testing alternative that the City, by certifying the test results, would necessarily have refused to adopt .Respondents’ three arguments to the contrary all fail. First, respondents refer to testimony that a different composite-score calculation would have allowed the City to consider black candidates for then open positions, but they have produced no evidence to show that the candidate weighting actually used was indeed arbitrary, or that the different weighting would be an equally valid way to determine whether candidates are qualified for promotions. Second, respondents argue that the City could have adopted a different interpretation of its charter provision limiting promotions to the highest scoring applicants, and that the interpretation would have produced less discriminatory results; but respondents’ approach would have violated Title VII’s prohibition of race-based adjustment of test results,§2000e–2(l). Third, testimony asserting that the use of an assessment center to evaluate candidates’ behavior in typical job tasks would have had less adverse impact than written exams does not aid respondents, as it is contradicted by other statements in the record indicating that the City could not have used assessment centers for the exams at issue. Especially when it is noted that the strong-basisin-evidence standard applies to this case, respondents cannot create a genuine issue of fact based on a few stray (and contradictory) statements in the record. Pp. 29–33.

(iv) Fear of litigation alone cannot justify the City’s reliance on race to the detriment of individuals who passed the examinations and qualified for promotions. Discarding the test results was impermissible under Title VII, and summary judgment is appropriate for petitioners on their disparate-treatment claim. If, after it certifies the test results, the City faces a disparate-impact suit, then in light of today’s holding the City can avoid disparate-impact liability based on the strong basis in evidence that, had it not certified the results, it would have been subject to disparate-treatment liability. Pp. 33–34. 530 F. 3d 87, reversed and remanded.

KENNEDY, J., delivered the opinion of the Court, in which ROBERTS, C.J., and SCALIA, THOMAS, and ALITO, JJ., joined. SCALIA, J., filed a concurring opinion. ALITO, J., filed a concurring opinion, in which SCALIA and THOMAS, JJ., joined. GINSBURG, J., filed a dissenting opinion, in which STEVENS, SOUTER, and BREYER, JJ., joined.

I'll give it a closer read and provide more analysis after bit. At the time I'm posting, Justice Ginsburg is still reading her dissent, so I anticipate that it's a zinger.

At first glance, I think there are some doctrinal problems with the majority analysis, but it would have been far worse if the Court had decided this as a matter of Equal Protection, directly.

UPDATE: Scalia's concurrence does go into that and suggests that the disparate impact provisions may be unconstitutional applied to public employers.

MM