Archive for the ‘Employment Law’ Category
Ok, You Asked For It: A Bit More About Wal-Mart v Dukes
posted by Michael Zimmer
I have been asked why I am so fearful that the Supreme Court’s decision in Wal-Mart v. Dukes foreshadows the demise of systemic theories challenging patterns or practices of discrimination. After all, the case is about class actions. My fear is that, has it done in other areas, the lower courts and the Supreme Court itself will look back and declare that systemic antidiscriminaiton law is as it was described in Wal-Mart. My fear is based on articles by Barry Friedman in the Georgetown Law Review, The Wages of Stealth Overruling (With Particular Attention to Miranda v. Arizona), http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1647745, and Margaret Moses’ article, Beyond Judicial Activism: When the Supreme Court is No Longer a Court, 14 U. Penn. J. of Const. L. 161, http://papers.ssrn.com/sol3/papers.cfm?abstract _1781243. Friedman analyzes recoent decisions by the Robert Court that do not expressly overrule precedent but interpet so that nothing but hollow shells are left. Moses shows how the Robert Court reaches out to decide issues to impose the majority’s public policy predilections, thereby underminng precedent, even where the parties did not bring those issues to the Court or where those issues were never decided by lower courts or sometimes even briefed by the parties.
Wal-Mart itself is an exmple of the Court looking back to precedent but in doing so radically distorting it. General Telephone Co. v. Falcon was an earlier class action case in which the Court rejected the “across the board” theory of class actions. The “across the board” theory had approved class actions where a plaintiff, claiming one type of discrimination, could being a class action challenging every kind of discrimination of the employer. Falcon claimed he was a victim of defendant’s hiring discrimination but he tried to bring a class action challenging the employer’s promotion discrimination. After deciding such “across the board” class actions could not generally be brought under Rule 23, the Falcon Court, in a footnote, described two exceptions where a plaintiff could still bring a class action claiming more than one type of discrimination: 1. If the employer used a common test in more than one context, for example if in Falcon General Telephone used the same employment test for both hiring and promotion decisions and 2. if the employer had a “general policy” of discrimination.
The plaintiffs in Wal-Mart did not try to bring an “across the board” class action challenging all the ways that Wal-Mart discriminated. Instead, their action focused on Wal-Mart’s discriminatory pay and promotion practices at its stores. Since the level of pay was significantly influenced by whether an employee had been promoted or not, pay and promotion were closely interwined, unlike the hiring and promotion claims in Falcon. Falcon was inapposite Wal-Mart, yet the Court relied on it to reject plaintiffs class action. The Court turned the two exceptions from Falcon which would allow a plaintiff to bring a class action that reached more than one type of employer discriminaiton into a limit on the scope of class actions involving a single type of discriminatioin. Thus, it now appears that class actions challenging a single type of employer discrimination will be denied unless the employer uses either an employment test or has a general policy of discrimination. Since the Wal-Mart majority was unable to conceptualize the operation of Wal-Mart’s policy granting unchecked discretion to store managers on pay and promotions as a pattern or practice of discriminaiton, my fear is that lower courts and the Supreme Court itself will decide that systemic disparate treatment claims are limited to situations challenging the employer’s use of an employment test or where the employer has a formal, i.e., general, policy of discrimination. That would mean that Teamsters, Hazelwood and Bazemore, which interpreted Title VII to prohibit systemic patterns or practices of discriminaiton, are victim of stealth overruling.
Because the Wal-Mart majority hollowed out class action precedent to truncate class actions, that misuse of precedent forewhadows the use of the language in Wal-Mart to truncate the substance of the systemic theories of discrimination.
November 17, 2011 at 12:40 pm
Posted in: Civil Rights, Employment Law, Supreme Court, Uncategorized
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Duking It Out With Wal-Mart
posted by Michael Zimmer
Thanks for inviting me back to Concurring Opinions. Last visit, I spent much of my month ranting about Ricci v. DeStefano – the New Haven firefighters case. This year I will try to avoid doing the same about Wal-Mart v. Dukes but I do want to say something. The decision is a major procedural decision limiting the availability of class actions for employment discrimination claims but also for class actions generally. To reach its decision, the Court indicated that it had to address the underlying substantive law which involved claims of systemic disparate treatment and disparate impact. The discussion of substance was in the context of deciding whether there were common questions of law and fact needed to satisfy Rule 23(a) and that is certainly not the same as discussing the substantive law directly. Nevertheless, I think the way the substantive law was discussed may well be a foreshadowing, a grim foreshadowing, of how the lower courts and the Supreme Court will treat the two systemic theories of discrimination in the future. The hope is that Wal-Mart will be treated “only” as a procedural class action case.
The plaintiffs’ claim was that Wal-Mart had a policy of granting unfettered discretion to its store managers to make pay and promotion decisions and it operated as a pattern of pay and promotion discrimination . The discretion policy is in sharp contrast to the general way in which Wal-Mart operates. Wal- art has been heralded as having developed the most sophisticated systems yet for collecting, analyzing and acting upon data flowing to its Bentonville headquarters in real time in all aspects and all locations of its business. If, for example, a freezer unit in a Wal-Mart location in Shanghai starts drawing electricity beyond established parameters, that information is transmitted to Bentonville, analyzed and the local facility is notified and ordered to deal with whatever problems that heightened power usage reveals. Like the rest of the data generated in the operation of the business generally, the pay and promotion data is collected in the Bentonville. The difference is that nothing is done about what were concededly dramaticshortfalls in pay and promotion of women working at Wal-Mart stores.
The evidence, which was unchallenged, showed that women filled 70% of the hourly jobs but only 33% of management jobs, with most promotions coming from the pool of hourly workers. Further, it took women longer than men to rise into the management ranks and the higher in the management hierarchy the fewer the women. Finally, women were paid less than men in every region and that salary gap widened over time, even for men and women hired into the same jobs at thesame time. Based on that basic statistical evidence, plaintiffs claimed that this system of making pay and promotions was a pattern of systemic disparate treatment discrimination and the discretion policy operated as an employment practice that resulted in disparate impact to women. This post will deal with one aspect of the systemic disparate treatment claim – the failure of the Court to confront the statistical evidence of discrimination that plaintiffs presented. Read the rest of this post »
November 1, 2011 at 10:04 pm
Posted in: Civil Rights, Employment Law, Uncategorized
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Reforming the NCAA
posted by Gerard Magliocca
The NCAA’s national headquarters is across the street from my office, and some lawyers at the NCAA teach as adjunct professors at my school. Notwithstanding that relationship, I think that the organization desperately needs reform. Taylor Branch wrote a piece in the Atlantic not that long ago attacking the NCAA as corrupt and calling for the payment of student athletes (at least in revenue-generating sports like football and men’s basketball), and I generally agree with his reasoning.
Non-profit monopolies or credential associations pose a tough regulatory problem. The International Olympic Committee, FIFA, the NCAA, and (it must be said) the ABA all tend to be unresponsive or worse. Of course, this is because they have no competitors and face no significant government oversight. So what should be done? Get Congress involved? Unlikely to happen. Pursue litigation? It’s been tried before and hasn’t worked. There is a case pending on the NCAA’s use of the publicity rights of former players (the O’Bannon litigation), but I’m not sure that will be successful.
Professional sports provide an answer–unions. That solution can be messy sometimes (the NBA lockout, for example), but it does lead to a more equitable sharing of revenue. Forming a union of college athletes, though, faces all sorts of hurdles. Is there a shortcut?
Sure there is. Suppose that on the eve of the BCS Championship Game, one of the teams announces that they won’t play unless they get a fair share of the TV money. The NCAA and the relevant TV network might just declare a forfeit, but would they really want to give up millions of dollars? I think that they might well cave and establish a precedent that the athletes deserve some of the money.
Now this kind of strike would not be easy. Most of a team would have to agree and risk expulsion from school and the loss of a once-in-a-lifetime chance to play for the national championship. They would be called all sorts of nasty names by fans and alumni. On the other hand, Curt Flood went through something like that to create free agency for professional athletes. Who will be the Curt Flood of college sports?
October 25, 2011 at 8:53 am
Posted in: Employment Law
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Reviewing The Oral Argument in Hosanna-Tabor (Part Three)
posted by Leslie Griffin
JUSTICE SCALIA: Let’s assume that a Catholic priest is removed from his duties because he married, okay? And, and he claims: No, that’s not the real reason; the real reason is because I threatened to sue the church. Okay? So that reason is just pretextual. Would you allow the government to go into the dismissal of the Catholic priest to see whether indeed it was pretextual?
Assistant Solicitor General Leondra Kruger answered no, apparently because a priest’s employment relationship with his church cannot be outweighed by any government interest. Kruger should have said yes.
Kruger correctly said yes later in the argument when pressed by Justice Samuel Alito about the case of a nun, a canon law professor, who alleged gender discrimination in her denial of tenure. Alito suggested that the case inevitably involved the courts in theological doctrines of canon law. Kruger disagreed:
If on the other hand the plaintiff has evidence that no one ever raised any objections to the quality of her scholarship, but they raised objections to women serving in certain roles in the school, and those roles were not ones that were required to be filled by persons of a particular gender, consistent with religious beliefs, then that’s a case in which a judge can instruct a jury that its job is not to inquire as to the validity of the subjective judgment, just as juries are often instructed that their job is not to determine whether an employer’s business judgment was fair or correct, but only whether the employer was motivated by discrimination or retaliation.
Kruger’s two answers illustrate the confusion about pretext that has bedeviled lawsuits involving employees of religious organizations.
October 11, 2011 at 9:59 pm
Tags: Constitutional Law, discrimination, First Amendment, Supreme Court
Posted in: Constitutional Law, Employment Law, First Amendment, Religion, Uncategorized
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Reviewing The Oral Argument in Hosanna-Tabor (Part Two)
posted by Leslie Griffin
Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC is the first ministerial exception case to make it to the Supreme Court, even though the Fifth Circuit first recognized the exception in 1972. The ministerial exception is a court-created doctrine that requires the dismissal of lawsuits by ministerial employees against religious organizations. At last Wednesday’s oral argument in Hosanna-Tabor, Justice Samuel Alito asked the church’s lawyer, University of Virginia law professor Douglas Laycock, how the exception has worked since its inception.
Justice Alito’s question arose soon after Justice Sonia Sotomayor had asked Laycock whether the ministerial exception should apply to “a teacher who reports sexual abuse to the government and is fired because of that reporting.” Justice Sotomayor’s question was probably based on Weishuhn v. Catholic Diocese of Lansing, which has a cert. petition pending before the Court. Weishuhn, a teacher at a Catholic elementary school, alleged violations of the Michigan Civil Rights Act and Whistleblowers’ Protection Act in being fired because she reported possible sexual abuse of a student’s friend to the authorities without first informing her principal. Justice Alito asked if there have been “a great many cases, a significant number of cases, involving the kinds of things that Justice Sotomayor is certainly rightly concerned about, instances in which ministers have been fired for reporting criminal violations and that sort of thing?”
Laycock gave a confusing answer by suggesting that Weishuhn would lose her case on the facts. He said there is a “cert. petition pending [undoubtedly Weishuhn] in which a teacher with a long series of problems in her school called the police about an allegation of sexual abuse that did not happen at the school, did not involve a student of the school, did not involve a parent at the school, someplace else; and — and called the police and had them come interview a student without any communication with — with her principal. And the Respondents tried to spin that as a case of discharge for reporting sexual abuse. But if you look at the facts it’s really quite different.”
October 10, 2011 at 4:07 pm
Tags: Civil Rights, Constitutional Law, discrimination, First Amendment, Supreme Court
Posted in: Constitutional Law, Employment Law, First Amendment, Religion, Uncategorized
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Pregnancy and Disability
posted by Jennifer Hendricks
Yesterday I posted about a dilemma in parental leave policies: The desire for formal sex equality leads to equal “caretaking” leave for men and women; when this leave is paid by the employer, it is typically quite short. The reality of biological differences is dealt with by providing separately for “disability” leave for pregnant and birthing women, often for a much longer period. In practice, that means that a woman who gives birth has an extended opportunity to bond with and care for a new child, while people who become parents in other ways do not. This creates an early discrepancy in caretaking between birthing and non-birthing parents. When children are adopted, the family as a whole suffers from not having that extra leeway for caretaking.
A woman in New York has filed a suit challenging these inequities in a novel way: Kara Krill received 13 weeks of paid maternity leave when she gave birth to her first child. Krill was unable to bear another child, and she and her husband hired a gestational surrogate, who gave birth to twins. This time, Krill was allowed only 5 days of leave, under the company’s policy for adoptive parents. Her suit alleges disability discrimination, saying that if it weren’t for her disability, which required her to have her children through a surrogate, she would have given birth and been entitled to the full 13 weeks of leave.
Krill faces an uphill battle under current law. I’m drawn, however, to the idea of designing parental leave policy around the idea that the inability to give birth is a disability that should be accommodated—and not just for women. Read the rest of this post »
October 5, 2011 at 4:31 pm
Posted in: Employment Law, Family Law, Feminism and Gender
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Sex Equity in Parental Leave
posted by Jennifer Hendricks
Many thanks to Solangel, Dan, and the rest of Co-Op for inviting me to blog here this month. I’ll start out with a few posts about parental leave policies, inspired by this story about a woman named Kara Krill. (H/T Family Law Prof Blog) Krill had children through a surrogate mother. When her employer refused to give her the same maternity leave that is available to employees who give birth, she sued for disability discrimination. But first some background on the core dilemma of U.S. equality law when it comes to parental leave:
U.S. law aspires to formal equality for women and men in the workplace. When it comes to parental leave, that has meant maintaining a sharp theoretical separation between pregnancy leave and caretaking leave. Under the Pregnancy Discrimination Act, pregnancy leave is treated as disability leave and is supposed to cover the period of time in which pregnancy and birth disable a woman from doing her job. Caretaking leave—time to bond with and care for a new baby—is supposed to be available on a sex-neutral basis. In Nevada v. Hibbs, when the Supreme Court upheld the Family and Medical Leave Act as applied to the states, it said that Congress could legitimately force employers to give (unpaid) caretaking leave to everyone, in order to address the problem of many employers giving such leave to women only, by calling it “pregnancy leave” even when it was much longer than necessary for physical recovery from birth.
The distinction between pregnancy/disability leave and caretaking leave is neat in theory but breaks down immediately in practice. Read the rest of this post »
October 4, 2011 at 6:10 pm
Posted in: Employment Law, Family Law, Feminism and Gender, Uncategorized
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Labor Day Links
posted by Frank Pasquale
Just a few points of interest on Labor Day:
1) Alan Hyde, The Idea of the Idea of Labour Law: A Parable.
2) Yves Smith, The Decline of Manufacturing in America: A Case Study.
3) Mark E. Anderson, $500 a Month Less.
4) John Bowe, Nobodies: Modern American Slave Labor and the Dark Side of the New Global Economy.
5) Liza Featherstone, Selling Women Short: The Landmark Battle for Worker’s Rights at Wal-Mart.
6) Robert Reich on the great regression.
7) Kyle Leighton, Less Fruits Of More Labor.
8. Andrew Leonard, The Big Squeeze on Labor.
9) Washington Post, Breakaway Wealth.
10) But don’t worry, CEOs are doing something to stanch the flow of such disheartening news:
Here’s one financial figure some big U.S. companies would rather keep secret: how much more their chief executive makes than the typical worker. Now a group backed by 81 major companies — including McDonald’s, Lowe’s, General Dynamics, American Airlines, IBM and General Mills — is lobbying against new rules that would force disclosure of that comparison.
The lobbying effort began more than a year ago. It involved some of the biggest names in corporate America and meetings with members of both parties on the House Financial Services Committee and Senate banking committee. The companies and their Republican allies in Congress call comparisons between the chief and everyone else in the company “useless.”
But some Democrats and investors say the information should be issued to highlight the growing income disparity in the United States. They add that opponents of disclosure merely want to hide the outrageous scale of executive pay packages.
Opaque pay is a big problem in the UK, too. In pay-without-performance world of corporate titans, expect a lasting war against disclosure.
September 5, 2011 at 5:07 pm
Posted in: Corporate Law, Corruption, Employment Law
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UCLA Law Review Vol. 58, Issue 4 (April 2011)
posted by UCLA Law Review
Volume 58, Issue 4 (April 2011)
Articles
| Digital Exhaustion | Aaron Perzanowski & Jason Schultz | 889 |
| Fixing Inconsistent Paternalism Under Federal Employment Discrimination Law | Craig Robert Senn | 947 |
| Awakening the Press Clause | Sonja R. West | 1025 |
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April 27, 2011 at 12:00 pm
Posted in: Amazon, Employment Law, First Amendment, Google & Search Engines, Intellectual Property, Law Rev (UCLA), Media Law
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The Ministerial Exception Part III
posted by Caroline Mala Corbin
In my previous blogs, I explained the basics of this judicially-created doctrine, and argued that the ministerial exception can’t really be justified by either the Free Exercise or the Establishment Clause. The main Establishment Clause justification for the ministerial exception is the fear that in adjudicating discrimination claims, courts will become entangled with theological questions or endorse one religious vision over another. In this last post, I want to argue that application of the ministerial exception can entangle a court in religious doctrine more than application of anti-discrimination law.
For the ministerial exception to apply, the plaintiff in a discrimination suit must be a “ministerial” employee. Who counts as a ministerial employee? That is the question before the Supreme Court in Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC: is a teacher at a religious school who mostly teaches secular subjects but also leads students in prayer and teaches a religion class a ministerial employee? Courts do not simply defer to a religious organization’s characterization of a position, as it could insist that all its employees were ministers. Instead, courts have taken a functional approach, looking at the main duties of the employee, and essentially asking whether plaintiff’s job “is important to the spiritual and pastoral mission of the church.”
In order to decide whether a position is “important to the spiritual and pastoral mission of the church,” however, a court might have to delve into the religious beliefs of a particular religion. In ruling that a church’s music director was a minister, for example, the Fourth Circuit analyzed the religious significance of music. The plaintiff argued that she was not a ministerial employee because she merely taught people to sing and perform music. The court disagreed, noting that “music serves a unique function in worship” and concluding that the music director’s job was “an integral part of Catholic worship and belief.” In reaching this determination, the court did exactly what the Establishment Clause forbids: choose between competing religious visions. In the plaintiff’s vision of the Roman Catholic faith, music’s significance did not rise to the level of ministry, such that teaching it made her a minister. In the defendant’s vision, it did. The court essentially resolved a religious dispute about the role of music. Hosanna-Tabor potentially presents a similar risk. In determining whether Perich is a minister or not, the Supreme Court may end up resolving a religious dispute about the role of school teachers in Evangelical Lutheran Church schools.
April 12, 2011 at 4:53 pm
Posted in: Civil Rights, Constitutional Law, Employment Law, Feminism and Gender, First Amendment, Race, Religion
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Ministerial Exception Part II
posted by Caroline Mala Corbin
In my previous blog on the ministerial exception, I explained the basics of this judicially-created exception. In this blog, I take a more partisan view, and argue that the religion clauses do not justify the ministerial exception. To the extent that church-clergy relations are protected, they should be protected under the freedom of association guaranteed by the Free Speech Clause.
Does the Free Exercise Clause require the ministerial exception?
The simple answer is: not after Employment Division v. Smith. Employment Division v. Smith held that as long as a law is neutral and generally applicable, it does not violate the Free Exercise Clause even if it imposes a substantial burden on religion. Smith itself upheld a law that made illegal a religious sacrament. Since few would dispute that anti-discrimination laws such as the Americans with Disabilities Act are both neutral and generally applicable, Smith should defeat any free exercise justification.
Nonetheless, lower courts have uniformly argued that Smith only applies to individual free exercise claims and not institutional free exercise claims. The arguments for this distinction are not persuasive, and they can be understood as the lower courts’ attempt to limit the impact of the unpopular Smith decision. For example, courts cite to a line of Supreme Court cases addressing church property disputes as precedent for church autonomy. Yet they overlook the Supreme Court’s most recent church property case, Jones v. Wolf, which actually applies a “neutral principles of law” approach more in line with Smith than the older cases that deferred to church hierarchies.
Doesn’t the potential entanglement with religion mean the Establishment Clause requires the ministerial exception?
The Establishment Clause may be violated if a court were to independently evaluate a minister’s spiritual or theological qualifications. For example, the court would act beyond its competence if it were to hold that a church was wrong to fire a choir director for her choice of music because the music chosen was in fact perfectly suitable for Sunday services. However, it is a mistake to assume that resolving anti-discrimination cases will lead courts to substitute their judgment for that of the religious institution on spiritual and theological matters. To start, many discrimination suits do not present any religious questions. In addition, this fear overlooks a substantial body of anti-discrimination law that ensures that courts assess only matters well within their competence. In other words, when evaluating a claim that a professor was wrongfully denied tenure, courts will consider objective data, but they will not second-guess the employer about subjective professional qualifications.
Take the retaliation claim at issue in Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC. In terminating Cheryl Perich, Hosanna-Tabor cited issues related to her health and its disability leave policy. No mention was made of any spiritual shortcomings. Therefore, as the Sixth Circuit concluded: “a trial would focus on issues such as whether Perich was disabled within the meaning of the ADA, whether Perich opposed a practice that was unlawful under the ADA, and whether Hosanna-Tabor violated the ADA in its treatment of Perich.”
Are churches never immune from anti-discrimination suits?
Even though the religion clauses may not justify the ministerial exception, the freedom of association might shield religious organizations from some anti-discrimination claims brought by ministers. Proponents of the ministerial exception argue that religious organizations must be able to freely select their ministers and religious leaders. The freedom of association protects that choice: especially after Boy Scouts of American v. Dale, the freedom of association protects the right of all associations, religious and nonreligious, to choose leaders who will properly represent and convey the association’s message, even if it means violating anti-discrimination law. In Dale, the Supreme Court allowed the Boy Scouts to discriminate on the basis of sexual orientation on the grounds that gay Scoutmasters would undermine the Boy Scouts’ anti-homosexuality message.
At the same time, Dale makes clear that an association seeking immunity from a discrimination claim must have a message that would in some way be impaired by compliance with that anti-discrimination law. Thus, a church may assert immunity from a minister’s discrimination suit only if it first argues that its religious tenets require that discrimination. Religious organizations whose beliefs are consistent with anti-discrimination law cannot complain that compliance interferes with their expression. Unless Tabor-Hosanna argues that a disabled minister will undermine its religious message, Perich should be able to sue the religious school for violating the American with Disabilities Act.
April 6, 2011 at 6:02 pm
Posted in: Civil Rights, Constitutional Law, Employment Law, First Amendment, Race, Religion
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Corbin on The Ministerial Exception, Part I
posted by Danielle Citron
Professor Caroline Mala Corbin has kindly agreed to 
shed light on the ministerial exception raised by an upcoming Supreme Court case. She brings significant expertise to the issue: see her excellent Fordham Law Review article Above the Law? The Constitutionality of the Ministerial Exemption from Antidiscrimination Law. Her insights will appear in three parts; the first appears below. Our readers know Professor Corbin from her enlightening guest visit, and we are grateful to her for sharing her thoughts with us.
Earlier this week, the Supreme Court granted certiorari in Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC, a case involving the ministerial exception (also known as the ministerial exemption). In this blog, I thought I would answer some basic questions about the ministerial exemption. In later blogs, I want to suggest that the religion clauses don’t really justify it, and that furthermore, application of the ministerial exception can cause more Establishment Clause problems than resolution of a discrimination claim.
What is the ministerial exception?
The ministerial exception is a judicially-created doctrine that grants religious employers immunity from discrimination claims brought by their ministers. While anti-discrimination laws like Title VII and the Americans with Disabilities Act allow religious employers to discriminate on the basis of religion in employment decisions, these statutes make it illegal for religious employers to discriminate on the basis of race, sex (Title VII), or disability (ADA). In other words, under these statutes, a Lutheran school may refuse to hire someone because she is not Lutheran, but it cannot refuse to hire her because of her disability.
Lower courts, however, have held that it would violate the religion clauses to allow ministers to sue their religious employers, and therefore created the “ministerial exception” to antidiscrimination laws. Notably, the ministerial exception applies regardless of whether or not the alleged discrimination was religiously motivated. As a result, a minister cannot sue for race, sex, or disability discrimination even if her employers’ own religious tenets forbid discrimination on these grounds.
When does it apply?
The ministerial exception does not preclude all employees of religious organizations from bring employment discrimination claims, only employees who are considered “ministers.” “Ministers” are not limited to ordained clergy. Instead, the courts have taken a functional approach to determining who counts as a minister. If an employee’s “primary duties consist of teaching, spreading the faith, church governance, supervision of a religious order, or supervision or participation in religious ritual and worship, he or she should be considered clergy.” Under this test, courts have found that school principals, schoolteachers, music teachers, choir directors and press secretaries, among others, are ministers.
The plaintiff in Hosanna-Tabor Evangelical Church and School v. EEOC was a teacher at a religious school who brought an ADA retaliation claim. At issue in the case is whether she should be considered a minister or not. While she spent most of her day teaching secular subjects, including math, language arts, social studies, science, gym, art, and music, she also taught a religious class and led her class in daily prayers.
What justifies the ministerial exception?
Courts have variously identified the Free Exercise Clause, the Establishment Clause, church autonomy or the religion clauses together as necessitating the ministerial exception. In deciding EEOC v. Hosanna-Tabor Evangelical Church and School, for example, the Sixth Circuit wrote that “the ministerial exception is rooted in the First Amendment’s guarantees of religious freedom.” Read the rest of this post »
March 30, 2011 at 5:49 pm
Posted in: Employment Law, First Amendment, Religion
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Wal-Mart and the Future of Antidiscrimination Law
posted by Solangel Maldonado
Today the Supreme Court will hear argument in Wal-Mart Stores v. Dukes, potentially the largest employment class action case in U.S. history. The plaintiffs allege that Wal-Mart paid male employees more and promoted them over women with more seniority and that it maintained a culture of gender stereotyping where women were called “Janie Q’s,” told to wear make-up and “doll-up,” and meetings were held at Hooters. They also rely on statistical data to establish discrimination. They claim that women comprise 80% of hourly supervisors, but only one-third of store managers. The percentage of women in higher positions is even lower.
Unfortunately, we won’t learn for a while whether Wal-Mart actually discriminated against its female employees. The issue before the Court is one that civil procedure, specifically class action, junkies should find titillating—whether the six plaintiffs should have been certified to bring a class-action that could potentially include 1.5 million employees in thousands of stores across the country. Wal-Mart claims that there is no commonality among the plaintiffs’ claims and that the “named plaintiffs’ claims cannot conceivably be typical of the claims of the strangers they seek to represent.” If the term “class-action certification” is making you yawn, you might be missing the potential impact of this issue for employment discrimination plaintiffs going forward. If the Supreme Court adopts the view of the dissenters in the Ninth Circuit opinion and requires plaintiffs seeking class certification to show “significant proof that an employer operated under a general policy of discrimination,” plaintiffs (including the EEOC) are also likely to find it much more difficult to prove that the entity should be held liable when the case is heard on its merits. I didn’t understand these implications until I read Professor Tristin Green’s article exposing the impact of Dukes for the future of systemic disparate treatment law. She also argues that the current individualistic model of disparate treatment (one bad actor or as one Wal-Mart executive put it, “some bosses may have gone astray”) has made it difficult for scholars to think critically about entity responsibility for systemic disparate treatment in the workplace. You can read the abstract and article here.
March 29, 2011 at 12:42 pm
Posted in: Civil Rights, Employment Law, Feminism and Gender
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Holding Unemployment Against the Unemployed
posted by Danielle Citron
Employers increasingly send the message to job applicants that the unemployed need not apply. At recent E.E.O.C. hearings on the subject, guest blogger (and deputy chief of Justice’s Civil Rights Division under President Clinton) Professor Helen Norton explained:
this is not an isolated practice, as a sampling of recent job announcements reveals that employers have required applicants for a wide range of jobs to be currently employed as a condition of further consideration. These jobs include freight handlers, restaurant managers, sales representatives and other salespersons, litigation associates, mortgage underwriters, electrical engineers, apartment maintenance technicians, and executive assistants.
Assistant Secretary of Labor for Policy William Spriggs presented national employment statistics indicating that minorities, particularly African Americans and Hispanics, are overrepresented in the unemployed population. As a result, using current employment as a selection criteria, in turn, adversely impacts women, minorities, and individuals with disabilities
.
Given this likelihood, the question for the E.E.O.C. is “whether it is acceptable for employers to use current employment as a proxy for relevant experience or as an expedient to screen applicants.” As the New York Times editorial page highlighted, Professor Norton ably “rebutted those and other possible justifications.” At the hearing, Norton explained that current employment is not relevant to jobs that provide on-the-job training and even for jobs that demand up-to-date skills, an interview or a test would be a more accurate and less discriminatory way to evaluable a candidate’s qualifications. Applauding the E.E.O.C. for taking on the issue, the New York Times editorial urged the agency to “make clear to employers that discriminating against the jobless could be illegal.” It concluded that: “As Ms. Norton rightly noted in her testimony, the law must seek ‘to ensure that access to job opportunities is free from discrimination in tough economic times as well as good.”
Thanks to Wikimedia Commons Image
February 21, 2011 at 3:10 pm
Posted in: Employment Law
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Creating Disposable People
posted by Frank Pasquale
Those with criminal records have long faced devastating collateral consequences for their convictions. Those with “preexisting conditions” should also keep worrying, especially if the big plan to repeal the ACA goes ahead. Consider this story on one person’s quest to obtain insurance:
Most employees assume that if they lose their job and the health coverage that comes along with it, they’ll be able to purchase insurance somewhere. . . .My husband, teenage daughter and I were all active and healthy, and I naïvely thought getting health insurance would be simple. . . .
Then the first letter arrived — denied. . . .What were these pre-existing conditions that put us into high-risk categories? For me, it was a corn on my toe for which my podiatrist had recommended an in-office procedure. My daughter was denied because she takes regular medication for a common teenage issue. My husband was denied because his ophthalmologist had identified a slow-growing cataract. Basically, if there is any possible procedure in your future, insurers will deny you. . . .
February 20, 2011 at 11:07 am
Posted in: Economic Analysis of Law, Employment Law, Health Law, Insurance Law, Law and Inequality
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NASA v. Nelson
posted by Daniel Solove
The U.S. Supreme Court has decided NASA v. Nelson, reversing the 9th Circuit 8-0. My thoughts about the case are here and here, and as I predicted, the Court rejected the 9th Circuit holding that the government employment background check questionnaires violated the constitutional right to information privacy. Fortunately, the Court kept its opinion narrow and didn’t use it as an opportunity to wipe out the constitutional right to information privacy, a right that the Court mentioned just a few times but that has taken on more of a life in the circuit courts. According to the Court:
We assume, without deciding, that the Constitution protects a privacy right of the sort mentioned in Whalen and Nixon. We hold, however, that the challenged portions of the Government’s background check do not violate this right in the present case. The Government’s interests as employer and proprietor in managing its internal operations, combined with the protections against public dissemination provided by the Privacy Act of 1974, 5 U. S. C. §552a, satisfy any “interest in avoiding disclosure” that may “arguably ha[ve] its roots in the Constitution.” Whalen, supra, at 599, 605.
Concurring in the judgment, Justice Scalia (joined by Justice Thomas) would have happily axed the right:
I would simply hold that there is no constitutional right to “informational privacy.” . . . . The Court’s sole justification for its decision to “assume, without deciding” is that the Court made the same mistake before—in two 33-year-old cases, Whalen v. Roe, 429 U. S. 589 (1977), and Nixon v. Administrator of General Services, 433 U. S. 425 (1977). . . . It is unfathomable why these cases’ passing, barely explained reference to a right separate from the Fourth Amendment—an unenumerated right that they held to be not applicable—should be afforded stare decisis weight.
I have little else to say about the case that I haven’t already said in my previous posts other than to reiterate my relief the Court kept its decision narrow. I believed from the beginning that this case was doomed because the constitutional right to information privacy focuses on preventing unwarranted disclosures not on restricting the collection of information via questionnaires.
January 20, 2011 at 1:30 am
Posted in: Constitutional Law, Employment Law, Privacy, Privacy (National Security)
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Outsourcing & Tracking the Service Sector
posted by Frank Pasquale
A recent article on Kinect hackers mentions the ease with which the new Microsoft game platform can drive real world devices:
When Kinect appeared on store shelves, Adafruit Industries, an online seller of DIY electronics kits, offered $1,000, then $3,000, to the first person who could analyze Kinect’s innards and share the information with developers at large. It took all of six days before the Kinect’s secrets were cracked. . . . Geeks around the world set to work. One strapped a Kinect to a Roomba, letting him steer the robot vacuum cleaner by waving his hand. Others used Kinect to control World Of Warcraft characters with their bodies rather than keyboards.
Cool, right? Well, perhaps not so much. A website based on the film “Sleep Dealer” spells out a business model for using technology to further stratify the labor force:
The 20th century generated the tools to globalize and maximize production. Computers simplified tasks, the Internet connected every human being, robots climbed stairs, vacuumed carpets and pumped hearts. There was only one missing piece, a link that could tie them all together, and Cybracero Systems discovered it: We call it THE NODE®. Through basic nodes implanted in the wrists, ankles and eyes of workers, they are able to connect to and control human-like machines in the first world. In this way, any job, even manual labor, can be accomplished.
Some call it “unbelievable”. We call it “Telepresence”. Through Telepresence, a chauffer in Tijuana nodes up and drives a cab through the streets of London. A nanny in Tijuana babysits a toddler in Beverly Hills. A crew from Tijuana raise a skyscraper in Chicago. Soon, Telepresence will be globalized.
January 18, 2011 at 11:00 am
Posted in: Current Events, Cyber Civil Rights, Cyberlaw, Employment Law, Privacy (Electronic Surveillance), Technology
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Online Employment Discrimination and Sexual Harrassment Training
posted by Sarah Waldeck
I recently received an email from my employer warning that I might be ineligible for coverage under its legal defense and indemnification policy unless I went online and completed two tutorials: one on sexual harassment and the other on employment discrimination. I duly complied with this directive and then passed the online “mastery test” at the end of each tutorial. This achievement is nothing to crow about, however, because my 10-year-old daughter passed the test without even taking the tutorial.
I could use this directive from my employer as a leaping off point for several discussions, including (1) whether my institution should be shielded from vicarious liability because it took reasonable care to prevent harassing or discriminatory behavior, and (2) whether the tutorial I completed may have sought to “overcorrect” by describing as illegal behavior that is merely questionable. But I will leave these weighty questions to colleagues who actually teach and write about employment discrimination. Instead, I want to ask a more general question about whether we can reasonably expect much good to come from these online tutorials. My own experience suggests no, primarily because the online format allowed me to dramatically disengage from the material.
CURSORY is the word that summarizes my approach to the tutorials. The sexual harassment tutorial was supposed to take 30 minutes; I completed it in less than 10. The employment discrimination tutorial was supposed to take 60 – 90 minutes, but in less than 25 I flew through web pages that summarized (hang onto your hats): Title VII, the Equal Pay Act, The Age Discrimination in Employment Act, the Americans With Disability Act, the Fair Labor Standards Acts, the Family Medical Leave Act, Executive Order 11246, the Genetic Information Non-Discrimination Act, the Uniformed Services Employment & Re-employment Rights Act of 1994, the Jobs for Veterans Act, the New Jersey Division on Civil Rights, plus more. I skimmed each individual page only long enough to insure that I wasn’t going to make an error that would send me back to the beginning. Read the rest of this post »
September 22, 2010 at 5:34 pm
Posted in: Employment Law
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Anonymous Employee Dirt, Soon Available on You?
posted by Danielle Citron
On Sunday, I posted about laws that prohibit employers from consulting certain information about job applicants, from credit reports to Facebook pages and Google search results. These laws seek to forestall unwarranted assumptions and bias. They proceed on the notion that credit history and Facebook postings have little to tell us about trustworthiness and smarts.
Much like credit ratings and Facebook posts, anonymous online reviews of people may do little more than misinform employers and ruin reputations. For instance, the site GetUnvarnished.com explains that it provides “inside scoop” on business professionals, including “candid assessments of coworkers, potential hires, business partners, and more.” On GetUnvarnished.com, people can comment on others’ reputations anonymously. Although the site uses Facebook to verify its users, it does not reveal their identities to readers. Unlike Facebook or LinkedIn, GetUnvarnished.com isn’t interested in a real-name culture. It seems highly unlikely that we can rely on people to rate others’ professional skills in a fair and balanced way. People aren’t restaurants, hotels, or books in whom we have, for the most part, little personal stake. Give a competitor a bad review and you may find yourself rich with work. As Evelyn Rusli of TechCrunch notes, GetUnvarnished may become a “nicely indexed digital burn book.” Germany should include sites like GetUnvarnished on its employer-ban list too.
August 30, 2010 at 9:54 pm
Posted in: Anonymity, Employment Law, Privacy
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Thoughts on City of Ontario v. Quon: The Fourth Amendment and Privacy of Electronic Communications in the Workplace
posted by Daniel Solove
The Supreme Court will soon hear arguments in City of Ontario v. Quon, an important Fourth Amendment case involving the privacy of electronic communications in the workplace.
The case is on appeal from the 9th Circuit. The opinion there — Quon v. Arch Wireless Operating Co., Inc., 529 F.3d 892 (9th Cir. 2008) — involved a police department of the City of Ontario, California which provided pages to its employees. The department “had no official policy directed to text-messaging by use of the pagers.” It only had a general policy that computer use was not to be for “personal benefit,” that it reserved the right to monitor all network activity, and that “[u]sers should have no expectation of privacy or confidentiality when using these resources.”
When officers exceeded text message limits, they were billed personally for overages. Jeff Quon did so many times, and always paid, but the city finally obtained transcripts of Quon’s text messages.
Quon and others sued the City of Ontario and Arch Wireless (which handled the text messaging service) under the Stored Communications Act (SCA) and the Fourth Amendment. The court concluded that Arch Wireless violated the SCA when it disclosed the messages to the city as well as violated the Fourth Amendment.
Only the Fourth Amendment issues are before the Supreme Court, which granted cert. on these issues but denied cert. on the appeal of Arch Wireless on the SCA issues.
Here are some thoughts about the case:
The Fourth Amendment in the Workplace. The Fourth Amendment applies differently in the context of a government workplace. In O’Connor v. Ortega, 480 U.S. 709 (1987), the Supreme Court concluded that government employees had Fourth Amendment rights and a reasonable expectation of privacy in the workplace. However, the Fourth Amendment would apply a little differently than normal. First, the Court noted that employees’ reasonable expectation of privacy in the workplace is diminished to some degree and must be understood contextually. Second, the Court held that the “special needs” doctrine applies, and the government employer doesn’t need a warrant or probable cause to conduct a searches so long as the searches involve a workplace-related purpose and are “reasonable.”
April 15, 2010 at 12:04 pm
Posted in: Constitutional Law, Criminal Procedure, Employment Law, Privacy, Privacy (Electronic Surveillance), Privacy (Law Enforcement)
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