Concurring Opinions » Employment Law

Ok, You Asked For It: A Bit More About Wal-Mart v Dukes

Michael Zimmer — Thu, 17 Nov 2011 17:40:37 +0000

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.

Duking It Out With Wal-Mart

Michael Zimmer — Wed, 02 Nov 2011 02:04:27 +0000

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.

Reading the transcript of the oral argument as well as the resulting opinion for the Court makes it clear that the majority appears not to be able to get their minds around the concept that the thrust of the case was aimed at the way Wal-Mart operated as to pay and promotion and was not looking only at a series of individual pay and promotion decisions made by individual store managers. By looking only at these individual decisions, and not ever looking at the aggregation of all the decisions, the Court found itself able to conclude that there were no common question of law or fact since not each and every pay and promotion decision was discriminatory. The majority just could not see plaintiffs’ claim: Because all the store managers each had this unfettered discretion all the women workers faced the risk that the discretion would be exercised in a discriminatory way and the existence of that risk was the common question of act underlying plaintiffs class action claim. The aggregated data that Wal-Mart collected reveals that there is an extreme shortfall for women in pay and promotions. Plaintiffs do not claim that all the individual managers discriminated all the time. But plaintiffs do claim that this statistical evidence at least raises a strong suspicion that Wal-Mart’s policy of store manager discretion allows a considerable amount of discrimination to occur. Plaintiffs pointed to significant additional evidence that supports drawing the inference that the operation of the policy amounts to systemic disparate treatment.

Writing for the Court, Justice Scalia describes how he thinks the discretion policy operates: He intuits that most managers, knowing that Wal-Mart has promulgated a formal policy prohibiting discrimination, do not discriminate, others discriminate intentionally and others discriminate by relying on stereotypes or unconscious bias. Accepting his unsubstantiated hunch about how this works, supports, rather than undermines, the inference that all the women working in the Wal-Mart stores faced the real risk of pay and promotion discrimination.

The Court did not put the policy together with the results of its operation because it does not even mention the statistical evidence that makes the connection. After an unexplained detour from the structure of a previously accepted systemic disparate pattern or practice case to essentially trash the use of “social framework” expert testimony, Justice Scalia then does discuss the sophisticated statistical evidence plaintiffs relied on. The plaintiffs’ experts concluded, at a statistically significant level, that pay and promotions were related to the sex of employees in every region and across all regions of the company. Justice Scalia rejected the probative value of that evidence because it was “insufficient to establish that [plaintiffs’] theory can be proved on a classwide basis. . . A regional pay disparity, for example, may be attributable to only a small set of Wal-Mart stores, and cannot by itself establish the uniform, store-by-store disparity upon with the plaintiffs’ theory of commonality depends.” Again plaintiffs’ claim is not that there was uniform store-by-store disparity. What was uniform across all the stores that all the women faced was the risk of pay and promotion discrimination when their managers make pay and promotion decisions.

Why the Courtfails to be able to understand a fairly straightforward systemic disparate treatment claim is hard to understand. The precedent established back in United States v. Teamsters, Hazelwood School District and Bazemore v. Friday has not been formally overruled. But the question for the future is whether or not those cases will not be viewed as undermined by the decision in Wal-Mart. Consistent with its failure to look at how the statistical evidence was connected to the discretion policy, the majority appears to understand discrimination as only occurring at the individual decision making level — the “few bad apples” perspective on the perpetrator that disregards the victims rather completely.

Further support for the Court’s narrow vision of how discrimination can occur can be seen by juxtaposing Wal-Mart’s failure to understand a straightforward systemic claim with the Court’s individual disparate treatment and retaliation decisions that are more favorable to plaintiffs than the lower courts’ approaches suggests that the Court really thinks discrimination only occurs at the individual decisionmaking level. While the antidiscrimination statutes are generally tort like in their structure, even tort law has escaped the straightjacket limiting tort claims to individual occurrences. Would that the Supreme Court majority raise its eyes a bit higher.

Having refused to certify plaintiffs’ class claim, the Court remanded to determine plaintiffs’ individual claims. It would be interesting to see if the Wal-Mart plaintiffs will continue to assert their systemic claims, even in absence of a class action. If they would, it would be interesting if Wal-Mart had to explain its general obsession with data collection, analysis and centralized action as to all of its operations but its failure to do anything once the collected and analyzed data revealed such a dramatic impact on the pay and promotion of women workers at its stores.

Reforming the NCAA

Gerard Magliocca — Tue, 25 Oct 2011 12:53:02 +0000

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?

Reviewing The Oral Argument in Hosanna-Tabor (Part Three)

Leslie Griffin — Wed, 12 Oct 2011 01:59:09 +0000

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.

Both the priest’s and the nun’s lawsuits depend on whether they were fired for discriminatory or nondiscriminatory reasons. As Judge Posner has explained, “the question in a discrimination case is not whether the employer’s stated nondiscriminatory ground for the action of which the plaintiff is complaining is correct but whether it is the true ground of the employer’s action rather than being a pretext for a decision based on some other, undisclosed ground. … If it is the true ground and not a pretext, the case is over.”

A similar distinction between what is true and what the individual believes to be true is also a crucial component of First Amendment analysis. Under a long line of Supreme Court cases beginning with Ballard v. United States, courts and juries are free to decide whether an individual’s religious beliefs are sincerely held but not whether they are true. Soldiers are routinely subjected to court analysis of whether their religious beliefs are sincerely held before they receive conscientious objector status. Unemployment compensation benefits may be withheld or granted based on whether an applicant’s religion is sincerely held. Prisoners’ religious beliefs are regularly subjected to sincerity review when they request accommodations of their religious practices. Plaintiffs must hold a sincere religious belief in order to win a religious discrimination lawsuit under Title VII. Legislators are usually subjected to a court determination whether they acted with a secular purpose; the Establishment Clause invalidates their legislation if they acted with a religious purpose or a sham secular purpose.

In the employment discrimination context, it should be appropriate for courts to ascertain whether the ascribed religious-based reason was in fact the reason for the discharge, i.e., whether the priest was fired in retaliation and the nun denied tenure on the basis of gender. Courts should be able to determine the sincerity of the employer’s motivation without intruding upon religious truth. Was it disabilities or religion that motivated the firing? Race or religion? Gender or religion? Age or religion? And so forth.

Justice Antonin Scalia parsed pretexts when he asked the church’s lawyer if a sham is different from a pretext. Scalia asked if the church’s position

would allow the government courts to probe behind the church’s assertion that this person is a minister? You would allow that, right? But once it is determined that the person is a minister, you would not allow the government to decide whether the firing was a pretext?”

The church’s lawyer, Douglas Laycock, said yes to probing the church’s sham assertion that this person is a minister and no to deciding whether the firing was a pretext.

But the question of who is a minister is much more theological than determining whether a firing was pretextual. Perhaps it is the justifications for the ministerial exception that are a sham?

Reviewing The Oral Argument in Hosanna-Tabor (Part Two)

Leslie Griffin — Mon, 10 Oct 2011 20:07:57 +0000

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.”

The serious problem with Alito’s question and Laycock’s answer is that we do not know the facts of Weishuhn or most cases dismissed under the ministerial exception. Ministerial exception cases are dismissed without trial; the facts are never developed. In Weishuhn the Michigan Court of Appeals spent the bulk of its opinion reviewing the facts of the workplace that determined whether schoolteacher Weishuhn was a minister. Indeed, the Michigan opinions merely record that Weishuhn was fired “[a]fter a series of employment-related incidents, none of which involved the subject of religion.” To find more facts about the case, you have to search other court documents and Michigan news accounts.

Like any plaintiff, Weishuhn could lose her case on the facts. But the ministerial exception doesn’t allow her a day in court to win or lose her lawsuit. It dismisses her lawsuit before it can be litigated.

What is the answer to Justice Alito’s question? Justice Alito should be “rightly concerned about” the numerous retaliation cases similar to Hosanna-Tabor in which ministers alleged they were fired or demoted for registering employment complaints with the EEOC. Or the hostile work environment, sexual harassment and disabilities lawsuits that did not make it to court. Other cases are factually closer to Alito’s question. State and federal courts have relied on the ministerial exception to dismiss cases in which a Catholic school principal lost her job after complaining to church authorities that her priest-supervisor had assaulted and battered her; a minister reported his bishops’ conversion of church funds and failure to pay income taxes to state authorities; two church staff members consulted with an attorney about their employer’s possible violations of sex discrimination laws; a university chaplain complained about her school’s sexual harassment policy; another university chaplain reported student complaints of faculty sexual harassment to administrators; and a minister told church authorities that her stepfather, a fellow minister, had sexually abused her as a child.

In each case we do not know who would win or lose. What we do know is that the ministerial exception kept the plaintiffs from having their day in court, or as Justice Kennedy said soon after Laycock answered Alito’s question, “you’re asking for an exemption so these issues can’t even be tried.”

That is how the ministerial exception has worked since its inception.

__________________________________________

Leslie Griffin holds the Larry & Joanne Doherty Chair in Legal Ethics at the University of Houston Law Center and is author of Law and Religion: Cases and Materials (Foundation 2d ed. 2010).

Pregnancy and Disability

Jennifer Hendricks — Wed, 05 Oct 2011 20:31:27 +0000

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.

Laws like the Pregnancy Discrimination Act aim to promote sex equality in the workplace by allowing women time to recover from birth. But as a result, non-birthing parents are made unequal in the home by having less time to bond with and care for their children. I would prefer a policy in which all new parents receive the same amount of leave. The length of the leave would have to be at least long enough to allow for recovery from birth (and could be supplemented by regular sick/disability leave in cases of complications and prolonged recovery). But the policy would recognize and embrace the fact that the leave also provides time for bonding and caretaking. The law already makes up (partially) for the fact that pregnant women are temporarily disabled from working, but it could also make up for the fact that other people are biologically disadvantaged in forming early relationships with their children.

If it sounds strange to say that a man is “disabled” because he can’t give birth, keep in mind that we already deem the healthy functioning of the female reproductive body to be a disability when it interferes with how we have chosen to structure the workplace. Laws like the Pregnancy Discrimination Act and the FMLA have nudged employment policy away from the assumption that all workers’ lives should conform to that of a stereotypical, traditional male who is only minimally involved in family caretaking. My proposal comes closer to taking the traditionally female case as the norm, making accommodations for the special needs of men.

Sex Equity in Parental Leave

Jennifer Hendricks — Tue, 04 Oct 2011 22:10:13 +0000

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. Although unpaid FMLA leave can be used for either purpose, for employees who are lucky enough to have paid leave, pregnancy disability leaves are often much longer than caretaking leaves. Moreover, the presumptive length of disability leave related to pregnancy is often independent of either the individual woman’s condition or the physical demands of her job. For example, in the Krill case, Kara Krill was allowed 13 weeks of paid maternity leave when she gave birth to her first child. When her second and third children (twins) were born by a surrogate, she was allowed only five days of caretaking leave, under the company’s policy for adoptive parents.By drawing a sharp distinction between pregnancy leave and caretaking leave, the law is trying to treat men and women similarly when they are similar (becoming parents) and differently, in an appropriate way, when they are different (giving birth, or not). The problem is that the physical facts of pregnancy, birth, and recovery cannot be so sharply separated from caretaking. Women who are on leave to recover from childbirth are also taking care of, bonding with, and generally getting to spend time with their children. This means that, as long as caretaking leave is measured in days rather than weeks, even a leave policy that strictly limits pregnancy leave to the period of physical necessity will perpetuate gender differences in infant care. Looked at from the perspective of the family, it means that families who have children by adoption are deprived of the chance to have either parent spend substantial amounts of time with the new child. Extra baby time for birthing mothers is an inevitable side effect of extra time for physical recovery.

Labor Day Links

Frank Pasquale — Mon, 05 Sep 2011 21:07:38 +0000

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.

UCLA Law Review Vol. 58, Issue 4 (April 2011)

UCLA Law Review — Wed, 27 Apr 2011 16:00:32 +0000

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

Comments

Still Fair After All These Years? How Claim Preclusion and Issue Preclusion Should Be Modified in Cases of Copyright’s Fair Use Doctrine	Karen L. Jones	1071
Patenting Everything Under the Sun: Invoking the First Amendment to Limit the Use of Gene Patents	Krysta Kauble	1123

The Ministerial Exception Part III

Caroline Mala Corbin — Tue, 12 Apr 2011 20:53:18 +0000

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.

In contrast, application of anti-discrimination laws like the ADA never requires that kind of direct grappling with religious doctrine or beliefs. Indeed, anti-discrimination cases may present no religious issues at all. To the extent they might, courts need not resolve theological disputes such as what role music or schoolteachers play in the church. Instead, they would be deciding whether a legitimate religious reason or an illegitimate secular reason (discrimination) motivated an employment decision. For example, imagine a church fires a teacher who has an extramarital affair, arguing that she violated the church’s proscription against sex outside marriage. In a sex discrimination case, the issue of whether sex discrimination has occurred depends on whether the school applies the religious policy equally to male and female teachers. The court will not have to resolve any doctrinal dispute or otherwise evaluate the religious merit of the proffered reason: no one questions the school’s religious belief that sex outside of marriage is forbidden. The court need not evaluate the plaintiff’s spirituality because no one disputes she engaged in forbidden conduct. The only question to be decided falls well within the court’s competence: determining whether the plaintiff’s evidence establishes that men and women were treated the same on this issue. In other words, the court judges the credibility of a religious reason, rather than whether something is religiously true. Judging the credibility of a proffered reason is within the court’s role and expertise. Resolving religious questions is not.

Ministerial Exception Part II

Caroline Mala Corbin — Wed, 06 Apr 2011 22:02:19 +0000

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.

Corbin on The Ministerial Exception, Part I

Danielle Citron — Wed, 30 Mar 2011 21:49:48 +0000

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.”

When the ministerial exception was first articulated, the Free Exercise Clause prohibited any substantial burdens on religious practices unless strict scrutiny was satisfied. As a result, Title VII’s ban on sex discrimination, which would outlaw a church’s practice of limiting its clergy to men, might well have violated the Free Exercise Clause, assuming the burden of having women clergy was substantial, and the state interest in eliminating discrimination was not compelling enough and tailored narrowly enough to justify this burden.

This argument is not actually the major Free Exercise Clause argument espoused in favor of the ministerial exception. (Almost no plaintiffs challenge religiously-required discrimination.) Instead, courts have relied on the notion of “church autonomy.” The idea is that the government should not intrude on internal church matters. In particular, the government should not interfere with the church-clergy relations. Ministers—“the lifeblood” of the church—represent and speak for the church. Consequently, the selection of spiritual leaders is a crucial internal decision, and one secular courts are not competent to make.

While often framed as a Free Exercise right, these church autonomy concerns might be more comfortably housed under the Establishment Clause. The Establishment Clause forbids the government from resolving theological disputes or endorsing one religious vision over another. In theory, adjudicating discrimination claims risk exactly this type of entanglement with religion if the court evaluates a ministerial employee’s spiritual qualifications or determines whether the ministerial employee sufficiently embodies the church and its teachings—a decision only the church is competent to make. Consequently, it could be argued that the ministerial exception is necessary to avoid Establishment Clause violations.

In fact, as I will argue in my next post, neither the Free Exercise Clause nor the Establishment Clause actually mandates the ministerial exception.

Wal-Mart and the Future of Antidiscrimination Law

Solangel Maldonado — Tue, 29 Mar 2011 16:42:56 +0000

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.

Holding Unemployment Against the Unemployed

Danielle Citron — Mon, 21 Feb 2011 20:10:34 +0000

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

Creating Disposable People

Frank Pasquale — Sun, 20 Feb 2011 16:07:20 +0000

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. . . .

As I filled out more applications, I discovered a critical error in my strategy. The first question was “Have you ever been denied health insurance”? Now my answer was yes, giving the new companies reason to be wary of my application. I learned too late that the best tactic is to apply simultaneously to as many companies as possible, so that you don’t have to admit to a denial.

As was recently reported, “50 to 129 million (19 to 50 percent of) non-elderly Americans have some type of pre-existing health condition.” The “health care market” is sending a strong signal: don’t step out of the system, even for a day, if you have any continuing need for even minor care.

The job market is becoming similarly unforgiving. As an LA Times story relates, “there’s a growing trend of employers refusing to consider the unemployed for job openings.” Again, stay in the system, or else.

Someone has to pay for the private insurer CEO salaries, or the “business efficiencies” I noted in my last post. There is so much economic pain to go around that the rationales for distributing it are becoming increasingly harsh and arbitrary. When so many of society’s resources go to the top, there is little margin for error at the (ever larger) bottom. Kudos to the House representatives who gave up their employer-provided health insurance to discover this harsh reality.

NASA v. Nelson

Daniel Solove — Thu, 20 Jan 2011 06:30:18 +0000

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.

Outsourcing & Tracking the Service Sector

Frank Pasquale — Tue, 18 Jan 2011 16:00:55 +0000

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.

For a refreshingly bleak libertarian perspective on pervasively distributed “copies” of human selves, check out Robin Hanson’s discussion with Russ Roberts.

Many will likely bridle at the idea of implanted nodes in workers. But when the “freedom of contract” crowd wraps its minds around this future, I’m sure they can think of it as a worker’s God-given right to a certain form of bodily care. A recent issue of Harper’s also mentioned some changing mores on implants. For example, from cables on Guantanamo detainees:

“I’ve just thought of something,” [a Saudi Arabian] added, and proposed implanting detainees with an electronic chip containing information about them and allowing their movements to be tracked with Bluetooth. This was done with horses and falcons, [he added]. [White House advisor Brennan] replied “Horses don’t have good lawyers.” [Harper's, Feb. 2011, p. 16]

And from “cost-saving ideas submitted” to the “Securing Americans’ Value & Efficiency Program:”

Implant a chip under the skin of our combat troops in order to locate them quickly. It would find our captured troops in order to locate them quickly. It would find our captured troops and save the taxpayers thousands of dollars. [Harper's, Feb. 2011, p. 18]

And someday it might be possible to track “illegals” like FedEx packages.

While it’s all too easy to be overenchanted by futurism, I’m glad to see legal scholars grappling with robotized futures. As Ryan Calo observes, robots create new privacy concerns. Robotizing humans creates even greater ones.

Online Employment Discrimination and Sexual Harrassment Training

Sarah Waldeck — Wed, 22 Sep 2010 21:34:40 +0000

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.

My approach was hardly exemplary. But I would bet that lots of other employees used similar strategies, particularly since my initial attitude toward the tutorials was pretty favorable. Since I don’t know much about employment law, I thought I might learn something. Plus, I was actually pleased to be able to log into the sexual harassment tutorial (which I did first) because it provided an excuse to procrastinate about some of the other work on my desk. This relatively receptive attitude, however, went immediately south as I decided that almost anything was more appealing than reading page after page of what were essentially power point slides. When I logged into the employment discrimination tutorial a week later, I had resolved to slow down because I was feeling guilty about how cavalier I had already been. But once I was in the tutorial, all of this resolve disappeared instantly. I just wanted to print my compliance certificate and be done.

What can employers who use such tutorials reasonably hope to accomplish? It can’t really be about teaching the law, despite the number of different statutes the program summarized. My breakneck speed assured that I would learn nothing and my 10-year-old’s passing grade suggests that many people will be able to intuit enough correct answers to successfully complete the “mastery test.” One possible interpretation of her test score, of course, is that what employment discrimination laws prevent corresponds to most people’s sense of what’s fair. But this doesn’t begin to explain why employees should work through 90-120 minutes of tutorials when many of them would have been able to demonstrate “mastery” from the outset.

Probably these tutorials are aimed at creating awareness among employees who are engaging in illegal or questionable behavior and among victims who may not realize that they can report discrimination or harassment. As for the perpetrators, however, seeing yourself in the tutorial’s hypotheticals requires a level of self-awareness and humility that few actually possess. Moreover—and critically in this context—such recognition also requires a level of engagement with the instructional material. I’m hard-pressed to imagine how my employer could have more effectively facilitated my disengagement than to have me complete the tutorial alone on my computer, in a setting where I didn’t even have to feign attention. Of course, victims are more likely than perpetrators to see a glimmer of themselves in the hypotheticals. I imagine that if they engage long to see the glimmer, they will then slow down to figure out whether the laws and policies presented really do apply to their situation. But a lack of awareness about what the rules are is only one reason why harassing or discriminatory conduct frequently goes unreported.

All of this raises the question of what employers who care about creating comfortable workplaces should do. When I complained about the online tutorials to one of my colleagues, he asked if I had ever been to a workplace training session conducted live and in person. “Painful,” he said, shuddering slightly. “And expensive,” I replied. I don’t know how an employer can successfully raise awareness without breaking the bank, but online tutorials aren’t the answer.

Anonymous Employee Dirt, Soon Available on You?

Danielle Citron — Tue, 31 Aug 2010 01:54:44 +0000

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.

Thoughts on City of Ontario v. Quon: The Fourth Amendment and Privacy of Electronic Communications in the Workplace

Daniel Solove — Thu, 15 Apr 2010 16:04:06 +0000

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.”

Orin Kerr notes that Ortega was a plurality opinion, and the Court could revisit the issue of how the Fourth Amendment applies in the government employment context. I doubt the Court will do this. A very extensive body of jurisprudence in lower courts has been built upon Ortega, and it is fairly with how the Court has dealt with the Fourth Amendment in the schools and other special contexts. So I see the Court following the Ortega approach.

Employer Computer Monitoring Policies: Words vs. Practice. Under Ortega, did Quon have a reasonable expectation of privacy in his text messages? I believe the answer is yes. Although the police department had a general policy where it stated that it would monitor computer use, it had an informal policy for text messages (what the 9th Circuit opinion referred to as the “operational reality”). That policy was that the department wouldn’t look into the officers’ text messages, and if they went over a certain character limit, they’d pay for the use. The policy implied that officers could use the text messaging for their personal use — that’s why they would have to pay out of their own pocket for going over the character limit. Why make them pay anything out of pocket if the use was exclusively for their jobs?

This informal policy should trump the general computer policy. It is far too easy to just roll out boilerplate warnings about monitoring of computer use — these shouldn’t govern over the realities of practice. The Court should look at the employees’ actual understandings and the actual practices of the department. Most employers have boilerplate warnings of monitoring, but this boilerplate is meaningless if it doesn’t accord with actual practices and if everybody understands it will be disregarded or not followed in certain contexts.

Responding to Concerns About Looking at “Operational Reality.” What about the potential danger that if “operational reality” trumps written policies, it could lead to a chaos of litigation? Won’t this open the floodgates to employees challenging employer searches and monitoring? Employers might try to create clear written policies, but they could be upended whenever an employer makes an exception or a supervisor misinforms an employee or the employer becomes lax and tolerates violations. Isn’t it just easier to stick to the plain language of a written policy, no matter whether it is followed in practice or not? I see the Court really getting hung up on this issue. With the “operational reality” approach, what an employer says in its official policy no longer controls — what an employer does matters more. And it is so easy for employers to say and do things that might not be consistent with their policies.

Is there a good response to the objection above? I believe there is. Without an “operational reality” rule, employers could easily promulgate broad policies of monitoring, and then totally eliminate the Fourth Amendment rights of employees. Counsel to various government workplaces will urge this general boilerplate monitoring policy to stave off any potential litigation. Smart lawyers will do this to protect against lawsuits. This is akin to attempts to use clickwrap contracts or put all sorts of warnings and disclaimers of liability on products. Nobody really reads them, or believes they matter in practice. And courts often hold they’re not binding.

What an employer actually does and says in practice is a more accurate indication of the necessity for intruding upon employee privacy. Ultimately, the goal of Ortega was to recognize there’s a balance between (1) the needs of the employer to monitor employees and sometimes search employee work spaces and (2) an employee’s privacy. The workplace isn’t a no privacy zone and a no constitutional rights zone. But as the Court noted in Ortega, there must be a balance, for employers have to be able to maintain efficiency, order, and supervision of their employees. The “operational reality” is a far better indicator of how important certain incursions on rights and privacy really are to employers. It is one thing for some distant lawyer to write up a Big-Brother-esque monitoring statement, but the best indication of the value of monitoring to the employer is the extent to which the employer devotes time and resources to the monitoring as part of a routine practice.

Moreover, in a world of clickwrap contracts and excessive warnings, we all know that these have little to do with reality. And reality should matter for determining reasonable expectations of privacy. If an employer says, contrary to policy, that it won’t monitor one’s electronic communications, then that should weigh heavily on an employee’s expectation of privacy.

Guidelines. To prevent any minor statement or divergence in practice from undermining an employer’s written general policy, the Court can use the following guidelines:

(1) If the official policy clearly covers the practice at issue, and is specific in referencing it, then there should be a strong presumption it should govern. This presumption can be overridden only when there is a consistent policy to the contrary demonstrated by clear and convincing evidence based on the employer’s statements and practices.

(2) If the official policy is general in nature, and doesn’t specifically reference the practice at issue, then there should be a weak presumption it should govern. This presumption can be overridden when there is a preponderance of evidence demonstrating a different policy with regard to the practice at issue.

Applying the Guidelines to Quon. In Quon, we’re in situation (2) above. The official policy was general in nature and didn’t specifically reference the text messaging service. Absent anything else, there should be a weak presumption that the general policy governs the text messaging service, but this is overriden by the evidence that personal use of the text messaging service was permitted. Indeed, the police department had a specific and well-understood practice of handling text messaging use — if employees went over the limit, they paid for the excess themselves. The focus of the employer was on whether the limit was exceeded or not. Quon always paid, and followed this policy, and he was reasonable in expecting this policy would continue to be followed unless the police department told him otherwise. Since the department suddenly did something it had never done before, inconsistent with this informal policy, this should have been communicated to Quon in advance.

Was Obtaining the Contents of the Text Messages “Reasonable”? Short answer: No. This was totally unnecessary to achieve the department’s goal — to prevent excessive personal use of the text messaging service. The department could have told Quon and the other officers to avoid exceeding the character limit in the future. It could have warned them that if they repeatedly exceeded the limit, they’d lose privileges or be sanctioned. And if it wanted to obtain the contents of the text messages, it should have issued a new policy by telling Quon and others: “Okay, our old policy isn’t working, so we’re changing things. If you go over the limit repeatedly, we’ll obtain the contents of your messages.”

The Supreme Court should affirm Quon.