Archive for the ‘Employment Law’ Category
NASA v. Nelson: The Merits of the Case
posted by Daniel Solove
As I wrote in a previous post, the U.S. Supreme Court granted cert. on NASA v. Nelson, 512 F.3d 1134 (9th Cir. 2008), a case where NASA required employees to answer questions about very private matters. The U.S. Court of Appeals for the 9th Circuit granted a preliminary injunction because the questions violated the constitutional right to information privacy.
I believe the Supreme Court will reverse. As I argued in my previous post, I hope it will not reverse based on a conclusion that the constitutional right to information privacy doesn’t exist. Instead, the 9th Circuit’s opinion expands the constitutional right to information privacy far beyond its current contours.
I. The Constitutional Right to Information Privacy
In Whalen v. Roe, 429 U.S. 589 (1977), the Supreme Court held that the right to privacy protects not only “independence in making certain kinds of important decisions” but also the “individual interest in avoiding disclosure of personal matters.” This latter interest has become known as the constitutional right to information privacy.
Whalen involved a challenge to a reporting requirement to the government of certain prescription drugs (many of which were considered controlled substances if not properly prescribed). The Supreme Court concluded that because the records would be kept confidential and highly secure (the storage facility had many security safeguards), the plaintiffs’ rights weren’t violated.
The focus of the constitutional right to information privacy is a duty to avoid disclosure. The right allows disclosure if the government has a compelling interest that outweighs the privacy interest. So the way courts address the constitutional right to information privacy is to balance the government’s interest in disclosure against the plaintiffs’ interest in privacy.
But NASA v. Nelson didn’t involve disclosure. It involved collection. The constitutional right to information privacy isn’t focused around questioning people or gathering information — it is about protecting against unwarranted disclosure. The only other case I’m aware of where a court has used the constitutional right to information privacy to bar information gathering is another 9th Circuit case — Norman-Bloodsaw v. Lawrence Berkeley Laboratory, 135 F.3d 1269 (9th Cir. 1998). There, a government lab tested prospective employees blood and urine for syphilis, sickle cell anemia, and pregnancy without their knowledge and consent. The 9th Circuit held that the testing violated the constitutional right to information privacy, concluding: “Although cases defining the privacy interest in medical information have typically involved its disclosure to ‘third’ parties, rather than the collection of information by illicit means, it goes without saying that the most basic violation possible involves the performance of unauthorized tests.”
But the 9th Circuit’s expansion of the constitutional right to information privacy, however normatively desirable, is not consistent with the bulk of the caselaw.
The only way I see a potential violation of the constitutional right to information privacy based on the probing questions NASA asked is if the information wasn’t protected with adequate security after being collected or if there was an indication by NASA that it would disclose the information.
The cert. questions, it is explicitly noted that the information is “protected under the Privacy Act, 5 U.S.C. 552a.”
My sense is that if the Supreme Court wants to rule narrowly in this case, it can do so as follows:
1. The constitutional right to information privacy protects against unwarranted disclosure of personal information. It doesn’t protect against the collection of data.
2. The government is under a legal obligation pursuant to the Privacy Act to avoid disclosing the data.
3. The plaintiffs can prevail only if they show that the government fails to provide adequate security to the information.
II. The First Amendment
There is one potential theory that could protect plaintiffs — the First Amendment. The Supreme Court’s grant of cert. focuses on the constitutional right to information privacy, so I doubt the Court will reach the First Amendment issues. But in Shelton v. Tucker, 364 U.S. 479 (1960), the Court held that the First Amendment right to free association was violated by asking overly broad questions for state employment as teachers.
March 9, 2010 at 12:56 pm
Posted in: Constitutional Law, Employment Law, First Amendment, Privacy, Privacy (Medical), Supreme Court
Print This Post
One Comment
NASA v. Nelson: Is There a Constitutional Right to Information Privacy?
posted by Daniel Solove
The U.S. Supreme Court has just granted cert. on NASA v. Nelson, 512 F.3d 1134 (9th Cir. 2008). In this case, NASA required employees to undergo background checks and answer questions about very private matters,including “any adverse information” about financial integrity, alcohol and drug abuse, and mental and emotional stability. Plaintiffs, a group of “low risk” contract employees, sought a preliminary injunction that the investigation violated their constitutional rights. The U.S. Court of Appeals for the 9th Circuit granted the injunction.
There is a lot at stake in this case, for it potentially involves whether or not a constitutional right exists — the little-known constitutional right to information privacy. Despite its obscurity, this right is recognized by the vast majority of federal circuit courts and there are scores of decisions involving this right.
Here are the issues cert. was granted on:
1. Whether the government violates a federal contract employee’s constitutional right to informational privacy when it asks in the course of a background investigation whether the employee has received counseling or treatment for illegal drug use that has occurred within the past year, and the employee’s response is used only for employment purposes and is protected under the Privacy Act, 5 U.S.C. 552a.
2. Whether the government violates a federal contract employee’s constitutional right to informational privacy when it asks the employee’s designated references for any adverse information that may have a bearing on the employee’s suitability for employment at a federal facility, the reference’s response is used only for employment purposes, and the information obtained is protected under the Privacy Act, 5 U.S.C. 552a.
The cert. questions are narrowly posed, so there’s hope the Supreme Court will not eliminate the right. But I see it as a possibility. Ultimately, I believe the following:
1. The constitutional right to information privacy does (and should) exist.
2. The court’s holding in NASA v. Nelson constitutes a big expansion of the constitutional right to information privacy. It doesn’t follow from most of the cases interpreting that right.
3. There may be a First Amendment argument to support the plaintiffs.
I will address the first contention in this post, and the other two in a subsequent post.
The constitutional right at issue is a little-known spinoff right to the constitutional right to privacy, most famously declared in Griswold v. Connecticut, 381 U.S. 478 (1965) and Roe v. Wade, 410 U.S. 113 (1973). In these cases, the Supreme Court recognized that the Constitution protects a “right to privacy” grounded in the First, Third, Fourth, Fifth, and Ninth Amendments. The Supreme Court issued an extensive line of cases involving the constitutional right to privacy, and these cases have generally involved freedom from government interference in making certain kinds of private decisions about one’s health, contraception, child-rearing, and abortion.
The constitutional right to information privacy emerged in a case called Whalen v. Roe, 429 U.S. 589 (1977). The case involved a government record system of people taking prescriptions for certain medications. Although the government promised that the information was confidential and secure, the plaintiffs feared the possibility of the information leaking out.
March 9, 2010 at 12:16 pm
Posted in: Constitutional Law, Employment Law, Privacy, Privacy (Medical), Supreme Court
Print This Post
5 Comments
DU Process: Cyber Civil Rights Symposium Papers
posted by Danielle Citron
Denver University Law Review recently rolled out its online companion, DU Process, which focuses on three areas. First, the forum extends the Law Review’s annual 10th Circuit Survey issue by posting detailed summaries of recent 10th Circuit decisions. Second, it periodically hosts online symposia discussing pressing legal issues. And finally, it previews the forthcoming print issues by posting summaries of our upcoming articles
In connection with the DU Law Review’s Cyber Civil Rights symposium, participants published short, engrossing pieces, which are now posted at DU Process. Here is an overview of the papers and layout:
Part I: Contextualizing Online Harassment
Danielle Keats Citron, Cyber Civil Rights: Looking Forward; Mary Anne Franks, The Banality of Cyber Discrimination, or, the Eternal Recurrence of September; Helen Norton, Regulating Cyberharassment: Some Thoughts on Sexual Harassment 2.0; Nancy Ehrenreich, Cyber Sexual Harassment: Thoughts on Citron and Franks.
James Grimmelmann, The Unmasking Option; Christopher Wolff, Accountability for Online Hate Speech: What Are the Lessons from “Unmasking Laws?”; Jacqueline D. Lipton, Online Social Networks and Global Online Privacy; John Soma, Perspectives on Online Privacy: Comments on Lipton, Grimmelmann, and Wolff
Paul Ohm, Breaking Felten’s Third Law: How Not to Fix the Internet; Viva Moffat, Who to Sue?: A Brief Comment on the Cyber Civil Rights Agenda; Eric Goldman, Unregulating Online Harassment
March 3, 2010 at 10:16 am
Posted in: Cyber Civil Rights, Cyberlaw, Employment Law, Feminism and Gender, Privacy, Privacy (Gossip & Shaming)
Print This Post
One Comment
The surprisingly weak justifications for employee non-competition agreements
posted by Viva Moffat
As I said in my first post, I am working on an article about employee non-competition agreements. As you might infer from the title of this post — * spoiler alert * — I don’t think much of them. When I practiced law, employee non-competes nearly always struck me as unfair and often unnecessary (and I worked on the both the employee and the employer side). Many of the employee-side arguments concerning the problems with non-competition agreements cover fairly well-trod ground: restrictions on employee mobility, unequal bargaining power, little if any negotiation of terms, nominal consideration, difficulties of enforcement, and so on.
What has really struck me in working on the piece is the weakness of the arguments put forth to justify the imposition of non-competition agreements. Those arguments fall roughly into three categories: (1) freedom of contract; (2) general references to “business necessity” or some variation on that; (3) the need to protect intellectual property or IP-like assets, such as trade secrets or “confidential information.” To my mind, each of these justifications is problematic.
January 26, 2010 at 7:56 pm
Posted in: Employment Law, Intellectual Property
Print This Post
7 Comments
The Academic Destiny of Educated, Irreligious, Jewish, Tolerant Non-Capitalists
posted by Dave Hoffman
A sure-to-be-blogged article from the NYT hypes the purported findings from the paper “Why Are Professors Liberal.” According to the Times, the paper (by Fosse/Gross), the paper uses
“data from the General Social Survey of opinions and social behaviors and compare professors with the rest of Americans . . . to [link] … to the broader question of why some occupations — just like ethnic groups or religions — have a clear political hue. Using an econometric technique, they were then able to test which of the theories frequently bandied about were supported by evidence and which were not . . . The academic profession ‘has acquired such a strong reputation for liberalism and secularism that over the last 35 years few politically or religiously conservative students, but many liberal and secular ones, have formed the aspiration to become professors’.”
The theory is plausible — indeed, it is often advanced by those who deny that intentional discrimination has caused the political inbalance in the faculty lounge. But as the paper admits, and the Times neglects to mention, the data collected – “provide[s] no direct evidence that [the] theory of professorial liberalism is correct.” (p. 50). Rather, it draws on other studies, which used surveys to argue that conservatives students did not want to emulate their professors (while liberals did). That, combined with the clustered cultural characteristics strongly associated with being an academic, lends some support to the selection hypothesis. But it’s not a true test of the hypothesis. Indeed, I don’t know how you could test such a selection hypothesis cleanly with observational data.
Moreover, I think the paper understates the role that intentional selection plays: the more time I’ve spent in as an academic, the less sure I am that high education’s anti-conservative tilt is benign or situational. (That said, I continue to think that conservative scholarship by pre-hiring candidates places over its weight.)
January 18, 2010 at 11:53 am
Posted in: Education, Empirical Analysis of Law, Employment Law, Law School (Hiring & Laterals)
Print This Post
One Comment
The Tort of Privacy’s Racist Past
posted by Danielle Citron
As New York Times v. Sullivan made clear, defamation has a bigoted past. There, Montgomery, Alabama’s police commissioner brought a defamation suit against The New York Times after it published an advertisement, “Heed Their Rising Voices,” which suggested law enforcement’s interference with civil rights protests. Sullivan based his defamation suit on this premise: accusations of racism hurt my reputation in Montgomery, Alabama. At the time, it was a truly laughable proposition given the racial hatred so prevalent in the white community there. No matter, Sullivan and others after him tried to use the law of defamation to silence mostly Northern papers writing about Southern bigotry and officially sanctioned violence against civil rights leaders and others.
In writing a piece entitled Mainstreaming the Tort of Privacy (forthcoming Cal. L. Rev.), I stumbled across Afro-American Publishing v. Jaffe, 366 F.2d 649 (D.C. Cir. 1966), a case that told a Sullivan-esque story but with a privacy twist. A white drug store owner sued the Washington Afro-American (the “Afro”), a D.C.-based, bi-weekly paper, for invasion of privacy and libel. The plaintiff sold the Afro in his drugstore, and canceled it because the paper “spread racial hatred and distrust.” In the October 14, 1961 edition of the Afro, the paper covered plaintiff’s cancellation of the Afro, noting that plaintiff had told Afro’s editor that his black customers had a “low level of intelligence” and were ignorant. Plaintiff prevailed at trial on the privacy and libel claims.
The D.C. Circuit, writing en banc, recognized the common law right to privacy in the District of Columbia based on the Warren and Brandeis formulation of a person’s “right of private personality,” the “right to be let alone.” The court noted that much like in 1890 when Warren and Brandeis wrote The Right to Privacy, the “communications explosion” and “mechanical and electronic devices for snooping” of the 1960s imperiled privacy. Although the D.C. Circuit noted that the right of privacy stands on “high ground, cognate to the values and concerns protected by constitutional guarantees,” it is not absolute and must permit the press to publish discussions vital to democracy. As the court held, “[w]hen a proprietor of a news vending outlet in a predominantly Negro neighborhood discontinues the handling of a newspaper oriented to Negro readers, the matter is appropriate for newspaper discussion . . . without fear of an overhanging action for invasion of privacy.”
This case reminds us that just as batterers invoked the mantle of privacy to hide domestic violence, some used the tort of privacy to silence media attention to bigotry. (There are no doubt better cases for the point, but I use this one just because I found it seredipitiously). This case brings to mind Lior Strahelivitz’s important work in Reputation Nation: Law in an Era of Ubiquitous Personal Information, 102 Northwestern L. Rev. 1667 (2008), where he explores how information privacy protections can undermine antidiscrimination law and how government can in certain circumstances reduce the prevalence of unlawful discrimination by publicizing previously private information about individuals. A fascinating read on the promise of sunlight.
December 21, 2009 at 4:51 pm
Posted in: Civil Rights, Employment Law, Feminism and Gender, First Amendment, Media Law, Privacy
Print This Post
One Comment
14 Penn Plaza v. Pyett and the Fairness in Arbitration Act
posted by Michael Zimmer
Thanks to Dan, Sarah and all for inviting me to continue as a guest for awhile. They did not even require me to promise not to say any more about Ricci!
I finished my Labor Law class with 14 Penn Plaza v. Pyett. My position is that the case represented dysfunctional litigation in a number of ways. First, and foremost, Justice Thomas’ opinion appears to fail to understand anything about how collective bargaining arbitration works. The provision pouring statutory discrimination claims into arbitration is the basis for his conclusion that this “requires union members to submit all claims of employment discrimination claims to binding arbitration.” Collective bargaining agreements, including arbitration provisions, have only two parties to them – the union and the employer. The employees covered by the collective bargaining agreement are decidedly not parties to the agreement and nothing in the provision Justice Thomas quotes does anything to make them parties to the collective bargaining agreement, the arbitration agreement, or the particular grievance of any individual employee. One wonders if any Justice or any clerk of any Justice has actually taken labor law. A problem was that the union was not a party to the case and did not weigh in until it filed an amicus brief at the Supreme Court.
Second, the fig leaf of “consent” or voluntary agreement to arbitrate employment claims in individual employment contracts that are contracts of adhesion has been ripped away in 14 Penn Plaza. There is simply no basis for finding that the employees whose discrimination claims now can only go to arbitration ever agreed to that. So, arbitration has been deprived of any claims to being voluntary as to the employees whose claims are being determined. Finding that a union can waive the statutory right of employees simply does not make the resultant arbitration voluntary as to the employee.
Third, once the union withdrew the grievance from arbitration because it claimed that it had agreed to the change that disadvantaged the employees, the employees should have filed a discrimination claim against the union in addition to the claim it had filed against the employer. With the two parties to the arbitration agreement now both respondents to discrimination claims, it seems hard to conclude that the arbitration process, controlled by these two parties, could be found to be fair. The conflict between the employees on one side and the employer and union on the other should have allowed the employees to seek a neutral forum in the courts.
Fourth, the opinion references the union’s duty of fair representation but the standards of proof for that are so high that a straight discrimination claim might work better for the employees. The employees should, however, have filed duty of fair representation charges with the NLRB on the chance that it would have pursued their claims on their behalf. In sum, it is my position that 14 Penn Plaza is another, in a long line of cases that is transforming voluntary arbitration into a private justice system that is inconsistent with the idea that we follow a rule of law.
The students raised some interesting points that did not necessarily agree with my position. Read the rest of this post »
December 2, 2009 at 5:49 pm
Posted in: Civil Procedure, Civil Rights, Employment Law, Supreme Court, Uncategorized
Print This Post
No Comments
Ricci: The Equal Protection Implications
posted by Michael Zimmer
The question presented for decision in Ricci had two elements, a Title VII aspect and an Equal Protection one:
“When a content-valid civil-service examination and race-neutral selection process yield unintended racially disproportionate results, do a municipality and its officials racially discriminate in violation of the Equal Protection Clause or Title VII when they reject the results and the successful candidates to achieve racial proportionality in candidates selected?”
By deciding the Title VII question, that the City had engaged in disparate treatment discrimination that violated Title VII, the Court said it had avoided deciding the equal protection question: “In light of our ruling under the statutes, we need not reach the question whether respondents’ actions may have violated the Equal Protection Clause.”
The Court went further to emphasize that it was leaving the constitutional claim for another day and that its decision in Ricci on Title VII grounds was not in fact deciding any equal protection claim:
“Our statutory holding does not address the constitutionality of the measures taken here in purported compliance with Title VII. We also do not hold that meeting the strong-basis-in-evidence standard would satisfy the Equal Protection Clause in a future case. As we explain below, because respondents have not met their burden under Title VII, we need not decide whether a legitimate fear of disparate impact is ever sufficient to justify discriminatory treatment under the Constitution.”
Based on what the Court said about the constitution in Ricci, this would be the end of the post. But equal protection doctrine is a powerful background issue in Ricci. See, Richard Primus, in The Future of Disparate Impact, http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1495870, for a further development of this argument. Read the rest of this post »
November 28, 2009 at 11:40 am
Posted in: Civil Rights, Constitutional Law, Employment Law, Supreme Court, Uncategorized
Print This Post
2 Comments
Ricci: The Interaction of Disparate Treatment and Impact Discrimination
posted by Michael Zimmer
Until Ricci, the interrelation between intentional disparate treatment discrimination and unintentional disparate impact discrimination had not been worked out very thoroughly by the courts. Nevertheless, as Justice Ginsburg put it in her dissent, no conflict existed between the two theories:
“Neither Congress’ enactments nor this Court’s Title VII precedents (including the now-discredited decision in Wards Cove) offer even a hint of “conflict” between an employer’s obligations under the statute’s disparate treatment and disparate-impact provisions. Standing on an equal footing, these twin pillars of Title VII advance the same objectives: ending work place discrimination and promoting genuinely equal opportunity.”
In the pre-Ricci period, employers were tasked with not making employment decisions with an intent to discriminate. Acting based on knowing the race of the individuals affected by the decision, however, was not sufficient proof that the employer acted with an intent to discriminate. At the same time, the employer was also tasked with avoiding using employment practices that had a disproportionate impact on members of minority groups unless that practice was job related and consistent with business necessity. Knowing the racial consequences of the use of an employment practice was the first, and necessary, step toward avoiding disparate impact liability. But an employer, acting with that knowledge did not trigger disparate treatment liability without more. So, as long as the employer did not act with an intent to discriminate against anyone on the basis of race, it avoided disparate treatment liability and, if it acted on the known racial consequences of its employer practices to avoid disparate impact liability, that was not disparate treatment discrimination.
What created the conflict between the two concepts that emerged in Ricci is the new notion that acting with knowledge of the racial consequences of the decision is acting with an intent to discriminate, at least in certain circumstances. In Justice Kennedy’s view, the employer does not act with an intent to discriminate, if, before a practice is used, the employer undertakes to review its likely racial consequences in order to shield itself from disparate impact liability. If, however, the employer has used the practice and its use has created reliance interests in others, it is too late to abandon the outcomes of that practice because that is disparate treatment discrimination unless the employer has a “strong basis in the evidence” of its disparate impact liability if it went ahead and use the practice. Read the rest of this post »
November 22, 2009 at 11:55 am
Posted in: Civil Rights, Employment Law, Supreme Court, Uncategorized
Print This Post
7 Comments
Ricci: Color-Blind Standards in a Race Conscious Society?
posted by Michael Zimmer
While the Court’s decision in Ricci v. DeStefano focused mostly on disparate impact law, much of the subsequent discussion has focused on the threshold finding that the City of New Haven’s decision not to use the test scores to promote firefighters was, as a matter of law, disparate treatment discrimination against some white firefighters who would be promoted if the test scores were used. Recent events suggest that the issues raised in those discussion may have to be decided since African-American testtakers have now challenged the use of the test scores as both disparate treatment and disparate impact discrimination.
The Court described the factual basis for finding that the City’s decision not to use the test scores was disparate treatment discrimination against those testtakers — the 17 whites and two Hispanic who would have been promoted if the test scores were used:
“When the examination results showed that white candidates had outperformed minority candidates, the mayor and other local politicians opened a public debate that turned rancorous. Some firefighters argued the tests should be discarded because the results showed the tests to be discriminatory. They threatened a discrimination lawsuit if the City made promotions based on the tests. Other firefighters said the exams were neutral and fair. And they, in turn, threatened a discrimination lawsuit if the City, relying on the statistical racial disparity, ignored the test results and denied promotions to the candidates who had performed well. In the end the City took the side of those who protested the test results. It threw out the examinations.”
The Court later describes why those facts support, as a matter of law, a finding of disparate treatment discrimination:
“The City’s actions would violate the disparate-treatment prohibition of Title VII absent some valid defense. 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 when compared to white candidates. . . . Whatever the City’s ultimate aim—however well intentioned or benevolent it might have seemed—the City made its employment decision because of race. The City rejected the test results solely because the higher scoring candidates were white.”
In sum, because the City knew the distribution by race of the test scores and knew that if the scores were used to promote firefighters to lieutenant and captain positions, no African American testtakers and all but two Hispanic testtakers would not get promoted to fill the openings that then existed. (Over the two year lifetime of the test, three African Americans might be considered for promotion to lieutenant if there were new openings.) While the Court appeared to focus on two racial groups of testtakers – whites and African-Americans — in fact there were six different groups based on three racial groups members which were represented in two groups — those affected favorably by the decision not to use the test scores and those affected unfavorably. Read the rest of this post »
November 20, 2009 at 8:49 am
Posted in: Civil Rights, Constitutional Law, Employment Law, Supreme Court
Print This Post
10 Comments
Ricci and Briscoe as Disparate Impact Cases
posted by Michael Zimmer
UPDATE: Seven African-American testtakers in Ricci have moved to intervene in Ricci, which is back at the district court for implementation of the Supreme Court decision. Also, African-American testtakers have filed disparate treatment and disparate impact discrimination charges with the EEOC. All this reported in the Connecticut Employment Law Blog, www.ctemploymentlawblog.com/2009/11/articles/decisions-and-rulings/black-firefighters.
The main thrust of Ricci focused on the disparate impact issue and its implications will likely be worked out in Briscoe v. City of New Haven, a disparate impact case brought against the City because it has now used the test scores challenged in Ricci. In Ricci, the City argued that its decision not to use the test scores was made to avoid the risk of disparate impact liability to the African-American testtakers who would not be promoted if the test scores were used. The Court conceded, as did all the parties, that the use of the test scores would have resulted in a disparate impact on African-American testtakers. Using the “pass rate,” or cutoff score that was set for the test, less than 80% of the minority testtakers passed. More important, the actual use of the test among those who passed would have excluded from immediate promotion all the African Americans and all but two of the 22 Hispanic testtakers. (Three African Americans might have some chance for promotion if new openings occurred in the future during the life cycle of the test.) With that prima facie case of disparate impact discrimination conceded, the focus moved to the business necessity and job relatedness affirmative defense and the plaintiff’s surrebuttal possibility of showing that an alternative was available that served the interests of the City but resulted in less impact.
Given the posture of the case – using the risk of disparate impact liability as a defense to a disparate treatment claim – the City had the burden to prove that it would not be likely to carry its burden of proving the test’s business necessity and job relatedness or that disparate impact plaintiffs would likely be able to prove an alternative way promote to promote firefighters that had less impact. The Court rejected the arguments that the City had to prove it would actually lose such a disparate impact case or that its good faith belief sufficed. Instead, the City had to have a “strong basis in evidence” for believing it would be liable for disparate impact discrimination. In other words, it should be somewhat easier for the City to win the issue of its potential risk of disparate impact liability than it would be if disparate impact plaintiffs actually had to prove the City liable for disparate impact discrimination.
November 17, 2009 at 4:58 pm
Posted in: Civil Rights, Employment Law, Race, Supreme Court
Print This Post
11 Comments
Is Ricci a Significant Procedural Case?
posted by Michael Zimmer
Much of the buzz about Ricci v. DeStefano before it was decided was that it raised an important equal protection question of the validity of Title VII’s disparate impact definition of discrimination because it requires employers to know and act on the racial consequences of its use of employment practices, such as employment tests. The Supreme Court, in a 5-4 decision, did not reach the question, though Justice Scalia, in his concurring opinion, said that the day is coming when the Court will have to address the question. In that regard, Ricci may be the Title VII analog to Northwester Austin Municipal Utility District No. One (NAMUDO) v. Holder. In NAMUDO, the Court avoided the question of the constitutionality of §5 of the Voting Rights Act by its interpretation of the statute. Richard Primus has an article coming out in the Michigan Law Review, The Future of Disparate Impact, http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1495870, that discusses that issue. But, even without that issue, Ricci presents some significant questions. I will start with its procedural aspects. They will likely be worked out in Briscoe v. City of New Haven, a disparate impact case brought by an African-American testtaker who has been disadvantaged because New Haven has now used the test scores at issue in Ricci.
Proceduralists might see Ricci as of interest for two reasons. The first is that the Supreme Court reversed summary judgment for the defendants but, rather than remanding, the Court went ahead to grant summary judgment for the plaintiffs. How often does that happen? With 93 pages of slip opinions of which about two-thirds involved recitation of facts and the application of law to those facts, one would think at least on material issue of fact could be found. Is it that the Court lacked trust in the lower courts to ever get it right?
Some support for my hunch is based on the second procedural issue raised by a somewhat inscrutable sentence in the second last paragraph of Justice Kennedy’s opinion for the Court:
“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.”
Why this is inscrutable is that in Ricci, white plaintiffs ultimately prevailed by claiming they were victims of intentional disparate treatment when the defendant decided not to use the results of a promotion test. The City’s defense was that using the test scores would cause a disparate impact on minority testtakers. But the African-American, Hispanic and white testtakers who were benefited by the City’s decision not to use the test scores were not party to Ricci. How can their rights have been decided in that case?
November 15, 2009 at 9:42 am
Posted in: Civil Procedure, Civil Rights, Constitutional Law, Employment Law
Print This Post
7 Comments
The War is Over But What Impact Will the Restatement of Employment Law Have?
posted by Michael Zimmer
When, a number of years ago, the Council and the Director of the American Law Institute announced that the Institute was undertaking a project in the area of labor and employment law, it followed its long tradition of deciding the project’s subject, its type and who would be the Reporters without input from the membership at large. That the topic was employment law was not a surprise. After all, Lance Liebman, the ALI’s Director, is a well known teacher and scholar of employment law. The nature of the project, a Restatement, was, however, somewhat of a surprise. Restatement projects look to the common law in a particular area. A problem with a Restatement of the common law of employment is that the common law plays a small role in a large, ungainly, some would say, disorganized jumble of state and federal laws, statutes and common law covering a wide range of issues that bear on employment. There is little apparent coherence to it. So, in the admittedly small world of labor and employment academics, it was no surprise that the idea of a Restatement provoked widespread protest. Some feared that a Restatement of Employment Law would “cement” in place law that was woefully inadequate for present much less future times. For some, that fear was exacerbated by the choice of the Reporters and the initial Advisory Group. I liked the idea of an ALI project but, given the mishmash that is labor and employment law, hoped for a Principles project to develop a policy basis that could be used to develop a coherent body of labor and employment law.
In face of the protests, the project moved slowly at first as some Reporters left and others joined the project. Once three chapters had been completed and approved by the ALI Council, the opposition got organized to try to stop those chapters, and indeed the whole project, from proceeding any further. Many of those opposed undertook the unusual move toorganize and hold a well- attended meeting at Hastings to present and to develop critiques that argued that the Restatement project should be abandoned. The work of 18 employment law academics was presented at the meeting. The results of that meeting and the critiques prepared for it were sent to all ALI members for their consideration before last May’s annual meeting that had the first three chapters on the agenda for adoption. The critiques were also published in a special issue, volume 13, issue #1 of the Employment Rights and Employment Policy Journal, http://www.kentlaw.edu/ilw/erepj/abstracts/v13n1/index.html.
Given the heated nature the whole issue had become, it should be no surprise that the dispute became personal. The lines were drawn with the ALI on one side and the Labor Law Group on the other. While the debate at the ALI meeting this past May was heated, the membership, as it generally does, accepted the recommendation of the Council and approved the first three chapters more or less intact. Read the rest of this post »
November 11, 2009 at 9:09 pm
Posted in: Civil Rights, Employment Law, International & Comparative Law, Uncategorized
Print This Post
No Comments
Doe v. Wal-Mart: Must Common Law be Reformed to Protect Workers?
posted by Michael Zimmer
Outsourcing, with or without offshoring, through extended supply chains of goods and services has come to be a common way to organize a business. Using contract law to divide and subdivide what was once a single enterprise (or start one from scratch) into separate legal entities is ever more useful to businesses as they try to cut their costs to become ever more competitive. If vertical integration was once the norm – e.g., Ford’s River Rouge plant where iron ore, coal, sand, rubber came in one end and Ford cars came out the other – the norm is now to have flat and horizontal relation-based groups of legally independent entities that can stretch around the world. The business entities farthest from the core of the enterprise frequently are almost ephemeral in to their organization, ownership and even life span. These frequently operate at the fringe of the formal economy and often in the informal economy where they escape coverage by the domestic labor and employment laws of the place where the work is performed. “Middlemen” operated as a bridge between the core enterprise and the far end of the supply chain where the productive work is actually performed.
The common law generally favors this type of private ordering in part because it looks at so many issues through a lens that sees only the two parties immediately involved in the transaction. The common law does not generally take too much account of the effects on third parties, including workers participating in the full enterprise from one end of the supply chain to the other. What is becoming ever more clear is that the common law leaves labor and employment interests in the dust, unable to keep up, incapable of protecting workers.
A recent common law case demonstrates the freedom enterprise has to organize its affairs to its own interests while escaping any obligation to workers down line in the supply chain. In Doe v. Wal-Mart Stores, Inc., plaintiffs were employees of enterprises located around the world that make and sell goods to Wal-Mart. Wal-Mart’s contracts with plaintiff’s employers all incorporate Wal-Mart’s Code of Conduct obliging these suppliers to provide basic labor standard protections to their employees and allowing Wal-Mart to monitor compliance including canceling contracts if the suppler “fails or refuses to comply” with the Code. Requiring suppliers to agree to the Code shields Wal-Mart from attack, including consumer boycotts, for selling goods made by child labor or under other sweatshop conditions. Nevertheless, the workers at the ends of the supply chain were in fact not provided the labor protections the Code claimed to mandate. Claiming injury from their employers’ mistreatment, plaintiffs sued Wal-Mart because it failed to either monitor or enforce compliance with its Code. The Ninth Circuit, applying traditional common law, rejected all four of plaintiffs’ claims. First, plaintiffs were not third party beneficiaries of the contracts between plaintiffs’ employers and Wal-Mart. Second, Wal-Mart was not a joint employer of these employees with their employers. Third, Wal-Mart owned no duty to plaintiffs and so it could not to be held to be negligent. Fourth, Wal-Mart was not unjustly enriched by the employers’ mistreatment of the plaintiffs. In short, independent contractor law allows Wal-Mart to arrange its legal relationship with its supplier to their mutual advantage while also cutting off the claims of the employees of the suppliers. As has been true from the earliest sweatshop days in the garment business, the actual producers are completely contingent, ready to disappear and to reappear in a new format at a new location at a moment’s notice in order to avoid any obligations owed the workers. Sweatshop conditions have grown far beyond the garment industry to include electronics and many other labor intensive businesses.
So, ironically, those interested in workers’ rights might need to start thinking about reforming the common law, at least as it applies to employees, if law is to be relevant to worker protections. For the purposes of worker protection, enterprises may have to be reconceptualized so that the Wal-Marts of this world are viewed as a single enterprise from the beginning to the end of the supply chains, without regard to the private ordering they engage in to divide the whole into many parts. In fact, if not law, they do form a functional whole, despite the present law that separates them into many independent legal entities. The normative basis for such a new approach is that, if the Wal-Marts of this world are not responsible for labor standards to workers to the very end of the supply chain, then no one is.
If enacting the Employee Free Choice Act and the various civil rights bills pending in Congress face tremendous challenges to be enacted, the question is whether legislation to reconceptualize workers’ rights in these subdivided enterprises has any chance at passage. In the recent era, the common law courts have also retreated from the advances made when what we call “employment law” was just beginning to blossom.
November 7, 2009 at 3:08 pm
Posted in: Civil Rights, Contract Law & Beyond, Employment Law
Print This Post
2 Comments
The Employer’s Strategy in Gross v. FBL Financials
posted by Michael Zimmer
Last Term in Gross v. FBL Financials, a 5-4 decision written by Justice Thomas, the Court decided that a plaintiff bringing a claim of individual disparate treatment age discrimination — an ADEA action — must prove, by a preponderance of evidence, that age was the “but-for” cause of defendant’s treatment of plaintiff. Thus, unlike Title VII, the burden of persuasion never shifts on the issue of linking what happened to plaintiff— “an adverse employment action” — to defendant’s intent to discriminate, even if plaintiff had produced evidence that age was “a motivating factor” of the defendant. This is an important discrimination case since the Court appears to be adding age cases to discrimination cases under the ADA (before its recent amendments) that deserve lesser enforcement than the Title VII claims of race, color, sex, national origin and religion discrimination. It will have ramifications in other areas of discrimination law, including retaliation cases and cases brought under 42 U.S.C. 1981. It even raises the question whether the iconic McDonnell Douglas v. Green approach to proving defendant’s intent to discriminate applies in age act cases. (So far, the two circuits deciding that question continue to apply McDonnell Douglas).
For those not interested in employment discrimination law, of which I suppose there may be a few, this may not seem a startling decision. But for those attuned to discrimination litigation and to Court watchers generally, the decision came as a quite a surprise. Most surprising is that the Court answered a question not presented to it for decision. In most situations when the Court determines that some question other than the one presented has come to the fore, certiorari is dismissed as improvidently granted or the case is remanded to the lower courts to decide this new question.
The question originally presented in Gross was: “Must a plaintiff present direct evidence of discrimination in order to obtain a mixed-motive instruction in a non-Title VII discrimination case?” What this referred to was Title VII authority that allowed burden shifting to the defendant of the issue of linkage between defendant’s intent to discriminate – the employer’s motivation for its action — and plaintiff’s harm and how that burden shifting might apply in age discrimination cases. Long story short, the Justice O’Connor’s concurring opinion back in a 1989 Title VII sex discrimination case, Price Waterhouse v. Hopkins, came to be viewed by the lower courts as the holding since her opinion was seen as the narrowest basis for the decision in which there was no majority. She required plaintiff to introduce “direct” evidence of discrimination in order to rely on a “substantial factor” test of linkage that shifted the burden of persuasion to the defendant to prove a same-decision defense. The 1991 Civil Rights Act then amended Title VII so that plaintiffs established liability by showing defendant’s intent to discriminate was only “a motivating factor,” with the burden then shifting to the defendant to prove the same-decision defense to full remedies, not to liability. The new provisions did not mention “direct” evidence and so Title VII was interpreted in Desert Palace v. Costa as not requiring any “direct” evidence threshold to the use of the new “a motivating factor” standard.
The question presented in Gross was how that all worked out in an age discrimination case. Up until the employer filed its reply brief, the case proceeded on the assumption that burden shifting applied, with the question being whether or not the plaintiff needed to point out “direct” evidence to take advantage of that shift in the burden of persuasion. Raised for the first time in its reply brief to plaintiff’s brief on the substance, the employer argued that a prior question needed to be answered before that question could be decided: Was burden shifting ever available in an ADEA case? The Court agreed that it should answer that question instead of the one presented and answered it in favor of defendant. Thus, the original question presented was mooted out.
For Court watchers, the more interesting question is why the employer decided so late in the game to try to shift the focus of the case.
November 4, 2009 at 10:43 am
Posted in: Civil Procedure, Civil Rights, Employment Law, Uncategorized
Print This Post
6 Comments
Flagrant Age Discrimination at Indiana University
posted by Gerard Magliocca
I am not in the habit of criticizing my employer, but here goes. Indiana University has a policy holding that the deans of individual schools on campus must retire at 65. In the past, this policy was rarely enforced, but the current President — Michael McRobbie — has decided to enforce the policy strictly. This mindless age discrimination now threatens to force out my dean (who is doing a fine job) despite assurances given when he was hired three years ago that he would not be subject to this age limit.
I think that a serious inquiry should be undertaken to determine whether President McRobbie and IU are in violation of the ADEA. Even if that is not the case, I think the President’s behavior is shameful and sends a clear message to campus that senior faculty are not welcome.
October 28, 2009 at 6:30 pm
Posted in: Employment Law
Print This Post
7 Comments
Employers Researching Applicants Online
posted by Daniel Solove
Over at the New York Times Bits Blog, Jenna Wortham writes:
According to a new study conducted by Harris Interactive for CareerBuilder.com, 45 percent of employers questioned are using social networks to screen job candidates — more than double from a year earlier, when a similar survey found that just 22 percent of supervisors were researching potential hires on social networking sites like Facebook, MySpace, Twitter and LinkedIn.
The study, which questioned 2,667 managers and human resource workers, found that 35 percent of employers decided not to offer a job to a candidate based on the content uncovered on a social networking site. (The survey has no margin of sampling error because it was not drawn from a representative nationwide sample but rather from volunteer participants.)
According to the report, most employers did their research on applicants by using Facebook. I wonder whether they respected the applicants’ privacy settings. If the applicants limited the access of their profile to a select group of friends, and the employer accessed that profile, then the employer might find themselves at odds with the Computer Fraud and Abuse Act — with possible criminal penalties!
What leads to job rejections? Photos! Photos involving nudity, drink, and drugs are the most frequent job killers.
As I discuss in The Future of Reputation: Gossip, Rumor, and Privacy on the Internet, people must learn to be more careful about what they post about themselves and others or else they will face serious consequences and lost opportunities.
In an earlier post regarding college admissions officers researching applicants online, I argued that most lack guidelines for how they conduct such research and for how they use the information they find. These questions also pertain to employers:
* Should such information be used? When?
* How heavily should it be relied upon?
* What kinds of things should negatively impact an applicant? Information about sex life? Drug use? Drinking? Bad behavior?
* What steps should be taken to make sure that the information was accurate?
* Should a distinction be made between information that people post about themselves and information that others have posted about them, perhaps invading their privacy without their consent?
* What steps should be taken to make sure that the information used in fact relates to the applicant and not to somebody else with the same name?
* Should people be notified that information online was used against them and be given an opportunity to be heard to explain it?
August 20, 2009 at 6:37 pm
Posted in: Employment Law, Privacy, Privacy (Gossip & Shaming), Social Network Websites, Web 2.0
Print This Post
No Comments
Minding the Gap
posted by Chimene Keitner
While the U.S. Congress moves towards enacting the Lilly Ledbetter Fair Pay Act and the Paycheck Fairness Act, which Tristin recently blogged about here, a U.K. think tank has released a report aimed at debunking the notion that discrimination accounts for gender disparities in pay. The Institute for Economic Affairs, whose mission is to find “ways of reducing the government’s role in our lives,” reports that differences in earnings can be accounted for most centrally by the fact that “[m]ales and females make different choices in the labor market, in terms of the trade-off between pay and other job characteristics, choice of education, choice of occupation and attitudes to work.” As stated in the Foreword, “the free choice of men and women who are seeking employment—as well as earlier educational choices and the choices they make regarding their domestic arrangements—are at the heart of differences in pay levels.” This account echoes the argument often deployed by employers facing claims of race discrimination, namely, that minorities simply aren’t interested in higher-paying, more secure jobs.
Why does this argument, which seems so easy to dismiss in the context of race discrimination, strike some as more plausible when it comes to women’s labor market “choices”? Enter Jill Lepore, who recently published an article in The New Yorker about the role of breast pumps in addressing the “Human Milk Gap.” Lepore reports:
One big reason so many women stop breast-feeding is that more than half of mothers of infants under six months old go to work. The 1993 Family and Medical Leave Act guarantees only twelve weeks of (unpaid) maternity leave and, in marked contrast to established practice in other industrial nations, neither the government nor the typical employer offers much more. To follow a doctor’s orders, a woman who returns to work twelve weeks after childbirth has to find a way to feed her baby her own milk for another nine months. The nation suffers, in short, from a Human Milk Gap.
There are three ways to bridge that gap: longer maternity leaves, on-site infant child care, and pumps. Much effort has been spent implementing option No. 3, the cheap way out.
Lepore asks, “is it the mother, or her milk, that matters more to the baby?” She suggests that pumps allow us to avoid addressing this important social question and its policy implications.
Juxtaposing these perspectives suggests that, in a variety of contexts, it can be useful to reflect on what we mean when we talk about women’s “choices,” and how we fail to recognize the ways in which many women’s choices are constrained.
January 18, 2009 at 9:01 pm
Posted in: Current Events, Employment Law, Feminism and Gender
Print This Post
7 Comments
Science and Technology Workplace, A Predominately Male Face
posted by Danielle Citron
Recent studies suggest that fewer girls and women are pursuing, or staying in, careers in science and technology. Six years ago, 28 percent of the undergraduate degrees in computer science went to women. That number, however, dropped to 22 percent in 2005 and now reportedly sits at 10 percent. At the same time, women in the technical community are increasingly leaving their jobs. A recent study published by the Harvard Business Review found that while women made up 41% of newly qualified technical staff, more than half dropped out by the time they reached their late thirties.
Surely, a variety of reasons contribute to the male dominance of science and technology fields. Some blame our “cultural software”: young girls are not taught to enjoy computers. As the director of Northwestern University’s Center for Technology & Social Behavior Justine Cassell explains, “the girls game movement failed to dislodge the sense among both boys and girls that computers were ‘boys toys’ and that true girls didn’t play with computers.” Others suggest that women leave computer science careers to stay at home, in much the same way that women do in any other careers.
But the Harvard Business Review study offers a less benign explanation for women’s departure from careers in computer science, one that arguably accords with our Internet culture: the majority of women working in science and technology leave their jobs for alternative careers or the home to avoid struggling with sexual harassment, the macho “lab coat culture,” and the old boys’ network that excluded them. Nearly two-thirds of the women surveyed for the study said that they had been victims of sexual harassment in the workplace. A total of 43 percent of female engineers said that they had encountered an “inherently sexist culture” in which it was assumed that only men had the skills to succeed in the most advanced posts. Sylvia Ann Hewlett, an economist at the Center for Work-Life Policy and author of the study, explained that although the “predatory” and “condescending culture” towards women has declined in most workplaces in the past 20 years, it has “survived in the engineering, science, and technology context.” This seems consistent with what commentators call the “culture of misogyny” that pervades many social networking sites, blogs, and other Web 2.0 platforms.
December 16, 2008 at 6:07 pm
Posted in: Culture, Employment Law
Print This Post
8 Comments
Wearing One’s Heart on One’s “Sleeve”
posted by Miriam Cherry
Recently I read this quick little “work manners” piece about tattoos in the workplace. I’ve read a few other things that seem to indicate that a number of employers are asking workers to cover up their tattoos – obviously a difficult or impossible task if the tattoos are on the worker’s face or hands. Seems inevitable that some of this will result in dismissals, and then the following litigation.
I suppose this fits into the literature developing about employers and evolving standards of dress and grooming in the workplace. Courts have tended to defer to employers on these standards, (even though some of the rationale of those cases is difficult to justify). Given that, and the at will rule, I have a feeling that many claims may end up being couched as discrimination in order to show a congnizable claim. In other words, someone will try to argue that this is discrimination against skin color – if it’s wrong to discriminate against someone who has a particular color of skin overall, isn’t it also wrong to discriminate against someone who has many different colors of skin, based on his/her tattoo?
November 19, 2008 at 3:28 pm
Posted in: Employment Law
Print This Post
4 Comments
