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 [...]]]> 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.

 These are the six different groups:

 1. The  24 African American who, because the City decided not to use the test scores,  now have an improved chance for promotion if some other method is used to make the promotions. The City claims their threat of a disparate impact lawsuit was why it decided not to use the test scores.

2. The three African-American testtakers who might be considered for promotion to lieutenant if there were more openings over the two year life span of the test results. If it was decided not to use the test scores, their chance for promotion probably decline but that would not be known until it was known what the alternative promotion procedures the City might adopt would mean for them.

 3. The 20 Hispanic testtakers who, like the 24 African-American testtakers in group 1, would not have been promoted under the tests.

 4. The 51 white testtakers who did not score high enough to be promoted if the test scores would be used. Like the African-American and Hispanic testtakers in groups 1 and 3, their chances for promotion were improved by the City’s decision not to use the test scores because they had no chance for promotion if the test scores were used.

 5. The 17 white testtakers who did score high enough to be promoted if the test scores were used. With the decision not to use the test scores, their chances for promotion declined. They lost a sure thing and only have some chance for promotion under whatever system the City would decide to use for promotions instead of the test scores.

 6. The two Hispanic testtakers who scored high enough to be promoted if the test scores were used. Like the members of group 5, they have a reduced chance of promotion because they lost a sure thing.    

 In sum, there are six distinct groups involving three different racial groups and two possible outcomes. Each racial group had members in the group that would be treated more favorably if the test scores were used and had members in the group who likely would be treated more favorably if the scores were not used and some alternative selection method was adopted. In other words, the results as to all the testtakers resembles a racial mosaic, with the decisions not made along strict racial lines. This table shows the results as to all six groups: 

                                               Racial Groups

 Based on this, how could the Court conclude, as a matter of law, that the “City rejected the test results solely because the higher scoring candidates were white”? Was it also disparate treatment discrimination against the two Hispanic testtakers who would be promoted if the test scores were used and the three African-American testtakers who had some chance for promotion during the life span of the test results? None of these questions were addressed in Ricci. Why was this solely discrimination against the 17 white testtakers and not anyone else or everyone else?

 The basis for the Court’s conclusion appears to be simply that the City acted with knowledge of the racial impact of using or not using the test scores on all three races, not just the impact on the 17 white testtakers who were the first group to sue. The Court assumed there was no animus against any of the racial groups because there was disparate treatment racial discrimination “[e]ven if respondents were motivated as a subjective matter by a desire to avoid committing disparate-impact discrimination.”

 So, even if the City had subjectively intended to benefit members of the first three groups that included whites, Hispanics and African Americans, its decision not to use the test scores amounts to an intent to discriminate against only one group, the whites who would benefit if the test scores were used. If the City’s decision was disparate treatment discrimination against the white plaintiffs, what is the explanation for it also not being disparate treatment against those members of these two minority groups who were similarly situated to those white plaintiffs? Since those Hispanics and African Americans did not sue, is it simply out of sight, out of mind? 

Deciding to benefit, or not to disadvantage, most of the testtakers be they African-American, Hispanic or white inevitably, for the Court, supports drawing the inference, as a matter of law, that the City acted with an objective intent to discriminate solely against the comparatively small group of whites who were disadvantaged by that decision. Apparently, what got the City in trouble with the Supreme Court was that the City acted, knowing the racial consequences of its decision not to use the test. Of course, the City also had to know that its decision would also disadvantage some Hispanic and African-American testtakers as well as the white plaintiffs and that it would also be to the advantage of members of all three racial groups who would get a new chance to be promoted under whatever alternative promotion system the City might adopt.

Can support for this objective intent rule be found in the Title VII systemic disparate treatment cases where plaintiff establishes liability by proving the existence of an explicit, written employment policy that expressly discriminates? For example, in Los Angeles Department of Water & Power v. Manhart, plaintiffs proved that the defendant had an employment policy requiring all women to contribute more for their pensions than all men. That policy was drawn with all women on one side of the classification and all men on the other. That is not the situation in Ricci since members of all three groups fall on both sides of the line and there is no express policy to discriminate.  In International Union, UAW v. Johnson Controls, the Court found that an express employment policy excluding all fertile women but no fertile men from jobs making batteries was systemic disparate treatment even though non-fertile women and all men were not disqualified. This is not Ricci since not all members of one racial group were on one side of the line as the men were in Johnson Controls and, again, there was no express policy drawing any racial division. Those cases give little support to the idea that disparate treatment liability can be found without an express classification and with impact that leaves members of all racial groups on both sides of the line.

It is also not clear that the systemic disparate treatment cases based on statistical evidence proving the employer had an intentionally discriminatory employment practice support the holding in Ricci. In Teamsters and Hazelwood School District, the statistics established intent, even in the absence of proof that no African Americans were, respectively, over-the-road truckers or school teachers. In the situation of an “inexorable zero” of African-American truckers in Teamsters and the statistically significant absence of African-American teachers in Hazelwood is quite different from the statistics in this case where disparate treatment was found even though the white plaintiffs were only 25% of all the whites who took the test. Looking at the statistics alone, it would seems to be unlikely to support drawing an inference of intentional race discrimination against the members of any of the six groups without drawing the same inference as to the members of each of the six groups. That would not be disparate treatment discrimination.

There is support in the cases for the proposition that simply being conscious of the race or gender of the affected individuals does not support drawing an inference of intent to discriminate sufficient to support a claim of disparate treatment discrimination. Justice O’Connor, in her concurring opinion in Price Waterhouse v. Hopkins, made it clear that intent to discriminate cannot be found solely on the fact that the race or gender of the person affected by the decision is known to the decisionmaker:

“Race and gender always ‘play a role’ in . . . a benign sense that these are human characteristics of which decisionmakers are aware and may comment on in a perfectly neutral fashion. For example, . . mere reference to ‘a lady candidate’ might show that gender ‘played a role’ in the decision, but by no means could support a rational factfinder’s inference that the decision was made ‘because of’ sex.”

Similarly, in the context of equal protection law, the Court, in Personnel Administrator of Massachusetts v. Feeney, found that an absolute preference for hiring military veterans at a time when men were 98% of the veterans was not intentional discrimination against all women other than the 2% of veterans who were women even though the vast majority of women would be disqualified if even one veteran applied for the job:

“’Discriminatory purpose,’ however, implies that the decisionmaker . . . selected or reaffirmed a particular course of action at least in part ‘because of,’ not merely ‘in spite of,’ its adverse effects upon an identifiable group.”

The concurring opinion of Justice Alito in Ricci argues that the motive for the City deciding not to use the test was the mayor’s fear of the consequences of local, racialized politics aimed at him: “[W]ere the exams certified, the Mayor would incur the wrath of [Rev. Boise] Kimber and other influential leaders of New Haven’s African-American community.” Assuming that avoiding the wrath of some members of the community was what drove the decision not to use the test, the City’s announced reason for not using the tests of trying to avoid disparate impact liability seems like a pretext. But, a pretext for what? It is hard to conclude that it is a pretext for discrimination against some of the testtakers. Giving in to political pressure to benefit African-American does not equate with an intent to discriminate against some but not all white, Hispanic and African-American testtakers “because of” their race. Justice Alito’s reasoning is at odds with Hazen Paper Co. v. Biggins, where the Court, in an age discrimination case, held that an illegitimate, even unlawful, intent to discriminate to deny the plaintiff his pension simply was no evidence of age discrimination. Of course, decisions can be motivated by more than one factor, but where is the evidence of another factor other than racial politics or the subjective intent to not disadvantage African American testtakers? If anything, Justice Alito has inadvertently provided a defense in this case that the City did not think to present. Perhaps its best defense would have been to admit that the City gave into political pressures. That may be a lot of things, but it is not evidence of an intent to discriminate “because of” race against the 17 white testtakers who sued first. Whether or not what he claims was the motivation for the City’s action is true, Justice Alito’s position does not support finding the City acted with intent to discriminate against the 17 Riccii plaintiffs.

The Court appeared to take a giant leap from the fact that the City knew the racial distribution of the testtakers and the racial consequences of using the test to concluding, as a matter of law, that the decision not to use the scores was “because of” the race of one of the six different groups. With whites, Hispanics and African Americans in both groups of those affected positively and negatively by whatever decision that was made, it is hard to see where intent to discriminate because of race against these particular plaintiffs played any role at all.

Should civil rights advocates take Ricci as a progressive step forward?  Ricci does seem to have tremendous potential for changing the approach to proving intentional discrimination to the advantage of plaintiffs: Plaintiff can establish liability simply by proving that (1) the defendant knew the racial or gender consequences of its decision and (2) it then made that decision and (3) the plaintiff suffered an adverse employment impact. The intent to discriminate element, which traditionally has been the hardest to prove, becomes simply a question of the defendant’s knowledge of the racial consequences without more.  Not only is plaintiff’s burden of proving intent vastly simplified, the Court’s approach seems to knock out the linkage, the “because of” race element, that supposedly joins a defendant’s intent to discriminate to an adverse employment action suffered by the plaintiff “because of” the victim’s race. All that is necessary is proof that the defendant knew the race of those affected by the decision and that those adversely affected were of one race or another or, as in Ricci, of as many racial groups that are involved. Go back to the opening quote. Once the racial consequences of the use of the test were known, a huge debate broke out, with some claiming the use of the test was discrimination and others claiming the refusal to use the test was discrimination. The City picked one of those two outcomes and the Supreme Court found it liable for discrimination in making that choice. If the City had picked the other outcome, would not there just be a different group of plaintiffs claiming disparate treatment discrimination?

Let’s see how this works now that the City of New Haven has announced that it will implement the test scores to promote firefighters to the lieutenant and captain openings. Without more evidence, the outcome on all six groups is the same though the valence has flipped: As before some, but not all, white testtakers, Hispanic and African-American testtakers are positively affected by using the test scores and some members of all three racial groups are negatively affected.  Assuming no other proof of subjective intent to discriminate because of race against anyone, is the City nevertheless liable for intentional disparate treatment based against those newly affected by the decision to go ahead using the test scores?  Just as in Ricci, the City will be acting, knowing the racial consequences of its action. Only this time, those who were advantaged when the test scores were not used are now disadvantaged and vice versa. This makes the City damned if it does, and damned if it doesn’t. But, that is the outcome that logical consistency seems to require based on the minimalist grounds relied on to find, as a matter of law, disparate treatment discrimination in Ricci.

We may get to find out how this will be worked out since some African-American testtakers who will be disadvantaged if the City goes ahead with its plan to use the test scores have moved to intervene in Ricci at its implementation phase and have filed EEOC charges that the decision to use the test scores is both disparate treatment and disparate impact discrimination. Further, Briscoe v. City of New Haven involves a claim by an African-American testtaker that the test caused disparate impact because of how the test score were weighted with oral test scores to make the rank order list. Briscoe claims that if the weighting were different, he would be among those promoted.

Some might argue that it is wrong to put the City in the situation of being liable to the Ricci plaintiffs for deciding not to use the test scores and to the new plaintiffs for deciding to use the scores. If the standard is in fact to be “color-blind” in decisionmaking that affects employees, that is, that making a decision knowing its racial consequences is disparate treatment discrimination, the result may seem harsh but it seems logically to follow. Further, holding the City liable to both groups does not put it in the position of having mutually inconsistent obligations: Because of Ricci, those white plaintiffs will get promoted (as will the two Hispanics and, if openings subsequently occur within two years, up to three African Americans as well). Because of a disparate treatment challenge recently brought against the City for now deciding to use the test scores, these new plaintiffs also get a remedy, but it would not include replacing those promoted using the test scores. Since these new plaintiffs have yet to be determined to be qualified for promotion, presumably, the City would be ordered to establish a nondiscriminatory system of promotions. Then, if these plaintiffs successfully wend their way through that process, they would be eligible openings for lieutenants and captains that occur after the time span for the use of the test has passed. Presumably, they would receive as backpay and frontpay the difference between their pay as firefighters and lieutenant or captain salaries which would last until they are promoted into openings as they arise.

If the Court has adopted a something like an absolute “color-blind” test of intent to discriminate for Title VII, the only way employers can insulate themselves from disparate treatment liability is to make employment decisions behind a veil of ignorance as to race. Employers may have to follow the lead of symphony orchestras that have come to use blind auditions when selecting new members of the orchestra. If there was no other evidence of discrimination, the effective use of a veil of ignorance would seem to protect the decisions from claims of disparate treatment discrimination since the racial consequences were not known by the decisionmaker when the decision was made. The “cats paw” case that the Supreme Court recently granted cert. on may illuminate this area of discrimination law.

Where did this radical “color-blind” standard of disparate treatment discrimination come from and how can it be? While, during the Sotomayor nomination proceedings, some talking heads and commentators denounced empathy as a factor in judicial decision making, the Ricci majority, and the dissent, exude empathy for the white plaintiffs who did go to great effort and expense to prepare for the exam and thought they won the prize: test scores high enough to result in their promotions to lieutenant and captain positions. The decision not to use the test scores dashed those expectations. Justice Kennedy expressed it this way:

“[A]fter the tests were completed, the raw racial results became the predominant rationale for the City’s refusal to certify the results. The injury arises in part from the high, and justified, expectations of the candidates who had participated in the testing process on the terms the City had established for the promotional process. Many of the candidates had studied for months, at considerable personal and financial expense, and thus the injury caused by the City’s reliance on raw racial statistics at the end of the process was all the more severe.” 

One way of looking at this from a technical point of view is that the Court feels compelled to justify finding that the reduced opportunity for promotion which resulted from the decision not to use the test scores was sufficiently adverse to satisfy the “adverse employment action” element of a disparate treatment discrimination case. Without finding some present impact on these white testtakers, it might be hard to conclude that they had suffered an adverse employment action. Dashing an earned reliance interest does provide an adverse employment action even though nothing has actually happened to these plaintiffs or, in fact, to any of the testtakers. But Justice Kennedy seems to make much more out of this. It appears to be the basis for jumping past the “because of” element of a disparate treatment case so that racial consciousness satisfies the intent to discriminate element which establishes liability when an adverse employment action results from that decision, whether or not that decision was “because of race.” 

Another way of looking at this earned reliance interest issue is as a limit on the scope of application of this newly announced disparate treatment doctrine: The employer does not commit disparate treatment discrimination if its decision that is based on the known racial consequences precedes the creation of reliance interests in anyone. Planning to use some sort of employment practice, such as the written test in Ricci, can include the employer projecting what the racial consequences of that use of that practice might be and revising the plan so as to reduce disparate impact, just as long as all the action takes place before anyone has a reliance interest in the implementation of the employment practice. This meaning seems consistent with Justice Kennedy’s concurring opinion in Parents Involved, as to the ability of school boards to act to establish school attendance policies that take account of the racial populations of the different schools just as long as race is not used to decide the school to which individual students will be assigned. So, not all action when the racial consequences are known constitutes disparate treatment discrimination. But the employer must be “color-blind” when some employees have an established reliance interest. So, perhaps, employers need not establish race-blind procedures to make all employment decisions, as long as no one has any established reliance interest as stake. An important new issue will be, therefore, when reliance interests are created because, once they are, risk averse employers will use race-blind procedures.

Does anyone believe that Ricci is a tremendous progressive step making employment discrimination cases very much easier for plaintiffs? Will a majority of the Court now empathize with the African-American plaintiffs who have challenged the use of the test scores in Ricci as disparate treatment discrimination against them?  If a majority of the Court avoids finding liability as to them, how will they support such a decision, given  the logical consequences of its move toward a color-blind standard of liability in this race conscious society of ours?

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 [...]]]> 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.

The major focus of the Court turned to whether the City showed it had a strong basis in the evidence that the test was neither “job related for the position in question [nor] consistent with business necessity.” Long story short, the City had spent a lot of money hiring a test consultant who did an analysis of the lieutenant and captain jobs and then drafted a written test asking questions about information relevant to the jobs. Instead of jumping from job analysis to test writing, the next step should have been, at least under the EEOC’s Uniform Guidelines on Selection Procedures, deciding what kind of test should be constructed, if any, and what strategy should be used to validate the test. Under the classic approach established by the professional standards of industrial psychologists, a pen-and-pencil written test for a job that did not require the workers to take such tests as part of the job would have to be validated using criterion-related validation.

Criterion-related validation would require giving the test, hiring all the testtakers, doing a subsequent evaluation of their job performance and then running a correlation coefficient to determine whether the test scores correlated with their subsequent job performance scores. Since criterion-related validation is not used out in the real world, the City’s test consultant simply argued that the written test was content valid, i.e., that the written test was a sample of the lieutenant and captain jobs even though test taking was not part of the job.

Relying on content validation, even though it technically was inappropriate for this written test, would not be not risky if the City had been sued for disparate impact discrimination. Basically, the lower courts have upheld pen-and-pencil tests as content valid even though the job did not require workers to take pen-and-pencil tests as long as the defendants had spent some real money constructing and administering the tests and the test questions asked about the job. So, given the judicial abandonment of the professional test validation standards and if business necessity and job relatedness were the only issues, the City would have prevailed on its affirmative defense. With the test being held to be validated, the City could use it. So, on the issue of the validity of the written test, it is no surprise that the Supreme Court found as a matter of law that the test was job-related and justified by business necessity. If that was the only issue, the City would lack a “strong basis” in evidence that it faced disparate impact liability if it had used the test results.

But, even if a defendant proves its written test is job-related and justified by business necessity, the plaintiff has one more bite at the apple. That is by showing that the employer refused to adopt an available alternative that had less disparate impact and served the employer’s legitimate needs. The Court did discuss this and, in light of the weak “available alternative” authority that has been developed in the lower courts, it is not surprising that it found that the City lacked a “strong basis” in evidence that potential disparate impact plaintiffs would prevail on their available alternative surrebuttal claim. While shifting the weighting of the written and oral scores to reduce reliance on the written part of the exam would be an alternative that the Court indicated would have reduced the test’s disparate impact, that was not enough to establish that the test was illegal. The Court found that the City produced no evidence to show that a different weighting would be equally valid in determining who was qualified. In other words, an alternative that reduced the impact of the test was a necessary but not sufficient condition for this surrebuttal stage. There would also have to be a strong basis in the evidence that a change in weighting the scores would have adequately served the employer’s interests. While there was some testimony before the City when it was making its decision whether or not to use the test scores that the City of Bridgeport had reduced the disparate impact of its written exams by changing its weighting with an oral score, the City did not have before it any evidence that doing this would serve the City’s legitimate interests. This is a bit debatable since the claim was made that the revised system used by Bridgeport worked just fine. All in all, applying the prevailing lower court authority to this pen-and-pencil exam, it was likely that the City would not have a strong basis in evidence that it would be liable if it used the test scores. In sum, the Court pretty much applied the prevailing authority from the lower courts regarding job-relatedness, business necessity and available alternatives in deciding that the City would have won, not lost, a disparate impact challenge if it had used the test scores for promotion.

This is where the recent, post-Ricci disparate impact claim, Briscoe v. City of New Haven, comes in. Plaintiff, an African American firefighter who took the test at the same time as the Ricci plaintiffs, claims that he would have been promoted if the weighting were changed and that the weighting of 60/40 favoring the written component had a disparate impact on African Americans. Further, he claims the City knew, even before it decided to use a written test for promotions, that using this 60/40 weighting would have a disparate impact. Nothing was done about the weighting issue because it was a longstanding feature of the collective bargaining agreement between the City and the firefighters’ union even thought the existence of that contract obligation would not be a defense to a disparate impact claim. Briscoe’s claim of impact is that, of the 77 candidates for the lieutenant position, he scored the highest on the oral part of the exam, but his overall score using the 60/40 weighting left him 24^th on the list and thus not eligible to be promoted. His complaint alleges:

“The City did not believe that the 60 percent weighting that it required was job related, and it knew that the weighting would have a disparate impact on African-American candidates: for example, on the lieutenant exam immediately preceding the 2003 exam, the African-American candidates as a group performed substantially better than the white candidates on the oral exam, but they were scored much lower overall because of the 60 percent weighting given to the written test.”

The job-relatedness of the written test, as decided in Ricci, is irrelevant to Briscoe’s claim because he focuses on the impact and job-relatedness of the weight given to the written test scores, not the test itself, when those scores were combined with the oral scores to rank order those who would be promoted. The claim relies on Connecticut v Teal, where the Court upheld a disparate impact challenge to part of an overall selection process – the use of a written test – even though there was no disparate impact resulting at the end of the whole selection process. In Teal, African-American plaintiffs had flunked a written exam and so were not eligible to continue further in the selection process. Because of the impact that the written test scores had in the overall process, they could challenge the test even though when the hiring decisions were finally made there was not a disparate impact on African Americans among those hired.  

Briscoe tries to escape Ricci entirely by making his disparate impact based on fact that the liability of the City is triggered by events that all occurred before the test was administered, before the consequences in terms of the scores of different groups were known and before the City decided not to use the test results because it knew the racial consequences of using the scores. Thus, the argument will be whether or not Ricci has any relevance because Ricci’s focus was at a time after the test had been given, its racial impact was known, including the racial composition of those who would be promoted if the scores were used. In Ricci, Justice Kennedy seems to emphasize that the case focuses on what happened once the test was given.

“Nor do we question an employer’s affirmative efforts to ensure that all groups have a fair opportunity to apply for promotions and to participate in the process by which promotions will be made. But once that process has been established and employers have made clear their selection criteria, they may not then invalidate the test results, thus upsetting an employee’s legitimate expectation not to be judged on the basis of race. . . . Title VII does not prohibit an employer from considering, before administering a test or practice, how to design that test or practice in order to provide a fair opportunity for all individuals, regardless of their race.”

That suggests that when the City was planning to use the written test it was required to look, rather than being restrained from looking, at the potential disparate impact of its subsequent use. In other words, Ricci only comes to bear once a test has been given and the successful testtakers have an established reliance interest in its use.

Assuming that the earlier time frame does makes Ricci irrelevant to his claim, Briscoe focuses his attack on the disparate impact of the weighting of the written and oral scores and not the rest of the test as it was constructed by the test consultant. Again, the complaint alleges that:       

“If the oral exam were weighed 60 percent and the written test 40 percent instead of the other way around, the plaintiff would be ranked ninth instead of 24^th and would be promotable. . . . If the written test were not considered [at all], . . three African-Americans would be in the top 12, and the plaintiff would be at the top of the list.”

Briscoe looks more deeply at the issue of what caused the disparate impact in the City’s promotion process than the simple recognition in Ricci that, at the end of the day, the City’s selection process caused a disparate impact on the basis of race. Based on Teal, the weighting element of the selection would appear to make out a prima facie case of disparate impact discrimination. That was not addressed in Ricci because that case focused on the justification, the job-relatedness, of the written test itself, not how the test results were to be used. 

If Briscoe establishes a prima facie case on the weighting issue, the burden of persuasion shifts to the City to demonstrate that the weighting formula it used was “job related for the position in question and consistent with business necessity.” The only evidence in Ricci about the weighting was whether it was an available alternative, an issue upon which the City failed to carry its burden of persuasion. That does not address the business necessity issue as to the weighting at all. And, even if the City did prove that the weighting formula it used was job related and consistent with business necessity, that should still leave to plaintiff the chance to prove that a different weighting formula was an available alternative that the City knew of and failed to adopt. Just because the City failed to carry its burden on that issue in Ricci, would not seem to bar Briscoe from carrying his burden unless the Ricci Court meant that, as a matter of law, the alternative of changing the weighting was not an available alternative. 

While Ricci seemed to adopt the weakened use of the professional test validation standards to justify a written test as job-related for jobs that did not involve test taking, that decision may not foreclose Briscoe. And, of course, if Briscoe is successful, that will have no negative impact on the Ricci plaintiffs, who have been and will be promoted using the results of the test that the Ricci plaintiffs and Briscoe took. If the City failed to carry its burden of proving that the weighting of the written and oral scores was job-related and consistent with business necessity, Briscoe would be entitled to a remedy. Presumably, the City would be ordered to adopt a new promotion process that would either not result in any disparate impact or, if it did, was job-related and consistent with business necessity. Briscoe would then be subjected to the new process and, if he showed himself to be qualified, would get the first opening for lieutenant after the cycle of use of the Ricci test was completed. He should also receive backpay plus front pay until he gets his promotion, with that determined by the difference between his earnings as a firefighter and what he would have earned as a lieutenant.  If, however, the City proved the test was valid but Briscoe proved on surrebuttal that an alternative was available, Briscoe would have to show that he was qualified if that alternative was used. If he did, he would be entitled to promotion once the Ricci test had run its course and back and front pay until that happens.

Given the success of the Ricci plaintiffs’ disparate treatment claim and assuming Briscoe will be successful on his disparate impact claim, the City of New Haven would appear to be damned for not considering the disparate impact before it set up the promotion procedure and then also damned for trying to take account of that impact once the test was given and the reliance interests of the successful testtakers had been established. But relief to the Ricci plaintiffs is not in conflict with relief to Briscoe: The Ricci plaintiffs get the promotions earned by their test scores and Briscoe would likely get the next opening of a lieutenant slot after the cycle for the use of the test had ended.

With that result, there would certainly be strong incentives for employers to investigate the potential disparate impact of any employment practices before using it and either modifying it to avoid that impact or be confident that its use can be shown to be job-related with consistent with business necessity with no alternative available to its use. Further, once the employment practice is implemented and there exists identifiable people who have legitimate expectations that their success pursuant to that practice would be followed, then it is likely too late for employers to refuse to honor those expectations. To fail to use the results of the practice would trigger disparate treatment liability unless the employer had a “strong basis in evidence” that it would be liable for disparate impact discrimination. One wonders, of course, whether an employer can prevent the creation of any expectations, or reliance interests, by making it clear from the start that the employer reserves the right not to use the results of the employment practice it uses.

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 [...]]]> 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.

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 [...]]]>

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?

Surely, a variety of reasons contribute to the male dominance of science and technology fields. Some blame our “cultural software”: young girls are not [...]]]> 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.

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 [...]]]> 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?

However, the argument is not completely analogous, as expressing oneself through body art is a “choice,” not an immutable characteristic or freighted with longstanding prejudice that we need to correct through the legal system.

In fact, the tattoo itself is a determined choice to communicate (something), and in fact those who I’ve talked to who have them are extremely committed to that idea of that expression.

Obviously some of that has to do with the subject matter/content of the tattoo itself. If someone decides to get a tattoo to express love for a partner that reads “I heart Barry,” that may be different from getting a tattoo right before the last election reading “I heart Barry O,” (unless you are Michelle Obama and then, I suppose, those messages are one and the same).

Most of the tattoos I see people sporting around San Francisco are not politically related or express any particular intellectual thought. Instead many – fairies, symbols – are artistic and others – a skull, chain, etc. – do not communicate much of anything at all (other than to look menacing or perhaps convey rebellion).

So I go back and forth on this, trying to balance the interests. I am sympathetic, and understand, an employer wanting patrons to have trust in employees – and I’m not sure that the tattoos help that process (unless it’s a place of business that is deliberately provocative – the hip bar, artsy hair salon, etc.) But perhaps I’m behind the times. Tattoos – having them or not having them, covering them or not covering them – is a youth/age thing, and I’m now on the wrong side of the divide. Culture/religion/class is lurking there too, as is a potential gap between personal expression and professionalism.

Berkeley-based Disability Rights Advocates filed a lawsuit that could affect thousands of veterans returning from Iraq and Afghanistan. They allege that the Department of Veterans Affairs is unable to provide timely mental health treatment for returning veterans.

Bipartisan resistance to courts’ evisceration of the ADA may also benefit a large number of veterans:

Advocates [...]]]> Bilmes & Stiglitz’s book The Three Trillion Dollar War explains in depth how aggressively the Administration has denied benefits to many returning veterans. It’s a natural consequence of going to war while cutting taxes–and given Jonathan Chait’s work, I’m not terribly surprised to see the Social Darwinist wing of the Administration trump the military on this issue. I’m happy to see that some are now starting to challenge these policies in court:

Berkeley-based Disability Rights Advocates filed a lawsuit that could affect thousands of veterans returning from Iraq and Afghanistan. They allege that the Department of Veterans Affairs is unable to provide timely mental health treatment for returning veterans.

Bipartisan resistance to courts’ evisceration of the ADA may also benefit a large number of veterans:

Advocates for people with disabilities say that recent court rulings have made the employment protections of the disability civil rights law almost meaningless, especially to people with diabetes, epilepsy, cancer, and mental illness. . . . Last year, a version of [the ADA Restoration Act] quickly got support from more than half of the House of Representatives. That forced the business community to negotiate. [Now the] bill’s backers hope to give President Bush something he can sign by the end of July.

As any viewer of Iraq: Alive Day Memories knows, many returning veterans will appreciate these developments.

As for your request for a release, non-disclosure, and non-disparagement agreement in return for three months’ pay, I reject it. Unlike you, I am not just a paid mouthpiece with no independent judgment. I will decide how and to whom to communicate how you have treated me. I find it ironic that you would try to buy the right not to be disparaged after behaving as you have. Your [...]]]> Can a company sign an airtight “nondisparagement” agreement with a departing employee? That’s one question raised by this fascinating post at Above the Law. It reprints an email by a departing associate who essentially accuses a firm of trying to hide the real reason for her being let go. At one point she states:

As for your request for a release, non-disclosure, and non-disparagement agreement in return for three months’ pay, I reject it. Unlike you, I am not just a paid mouthpiece with no independent judgment. I will decide how and to whom to communicate how you have treated me. I find it ironic that you would try to buy the right not to be disparaged after behaving as you have. Your actions speak volumes, and you don’t need much help from me in damaging your reputation.

This is not my area, but I find work in the general field of regulation of information flow fascinating. This news story by Adam Liptak suggests that while “settlements for silence” are generally enforceable, there are several reasons why a beneficiary of one may not seek to enforce it. Richard Epstein has argued for a “better coordination” of contract and free speech law here, and his proposal would largely eliminate public policy exceptions (and First Amendment defenses) to enforcement. Epstein argues that “where true information is obtained illegally– whether by trespass, fraud, or breach of confidence or contract–the presumption should shift sharply in the other direction, so that both damages and injunctive relief are made available to the party with the right to keep that information confidential.”

From Inside Higher Ed today:

Many professors hate grading, and like most human beings, they often put off what they don’t like. So at many colleges, the end of a term results in some proportion of the faculty turning their grades in late, much to the dismay of the registrars whose job it is to process the grades and make them available to students. The outcome can be more than just annoying to the registrars; late grades can delay diplomas, disrupt the awarding of financial aid, or get students into academic trouble . . . .

Florida State University once had a major problem with late grades, Kimberly Barber, the interim registrar there, told a large group of interested registrars and deans [...]]]> [Cross Posted on Workplace Prof Blog]

From Inside Higher Ed today:

Many professors hate grading, and like most human beings, they often put off what they don’t like. So at many colleges, the end of a term results in some proportion of the faculty turning their grades in late, much to the dismay of the registrars whose job it is to process the grades and make them available to students. The outcome can be more than just annoying to the registrars; late grades can delay diplomas, disrupt the awarding of financial aid, or get students into academic trouble . . . .

Florida State University once had a major problem with late grades, Kimberly Barber, the interim registrar there, told a large group of interested registrars and deans Wednesday at the annual meeting of the American Association of Collegiate Registrars and Admissions Officers. About a decade ago, instructors in an average of 10 to 15 percent of the 8,000 course sections Florida State offered each semester at the time missed the deadline for turning in student grades, driving registration officials there nuts. Processing grades after the end of the normal process (which formerly involved scanning, and is now entirely electronic) was costly, and forced administrators to spend significant time telling students (and parents) why they couldn’t have their transcripts or financial aid or, in extreme cases, diplomas . . . .

As Barber explained to a somewhat incredulous audience Wednesday: Florida State is what she believes to be the only institution in the country that fines its professors when they turn grades in late at semester’s end. The tab: $10 per grade.

“We charge for every grade for every student that is not turned in by our deadline,” Barber said, adding, slowly for emphasis: “I’ll say that again: Every grade for every student that is not turned in by our deadline.”

With that, the crowd broke into a wave of spontaneous applause.

First, I wonder if this applies at the FSU law school (Lesley Wexler, Dan Markel or someone else, can you confirm or deny?). Also, there may be some academic freedom issues here (I’ll leave that to the Paul Horwitz’s of the world), but what I really wonder is if this practice a violation of the Fair Labor Standards Act (FLSA) or similar state wage and hour law?

Usually, an exempt, salaried employee may not be docked for pay for work rule violations without putting their exemption at risk. In other words, docking pay may turn your salaried worker into an inadvertent hourly, non-exempt worker. Depending on how often FSU has been doing this, this might be an expensive mess that FSU doesn’t even realize and one that does not inspire applause.

Here is an explanation of the salary basis test for exemption under the FLSA from the Wage and Hour Division of the Department of Labor:

Deductions from pay are permissible when an exempt employee: is absent from work for one or more full days for personal reasons other than sickness or disability; for absences of one or more full days due to sickness or disability if the deduction is made in accordance with a bona fide plan, policy or practice of providing compensation for salary lost due to illness; to offset amounts employees receive as jury or witness fees, or for military pay; for penalties imposed in good faith for infractions of safety rules of major significance; or for unpaid disciplinary suspensions of one or more full days imposed in good faith for workplace conduct rule infractions. Also, an employer is not required to pay the full salary in the initial or terminal week of employment, or for weeks in which an exempt employee takes unpaid leave under the Family and Medical Leave Act.

I don’t see where the grade penalty fits in, do you?

Matthew Muggeridge of the National Right to Work Foundation has posted in The Federalist Society’s Engage 9.1 magazine: Organized Labor’s International Law Project?: Transforming Workplace Rights into Human Rights.

Here’s some highlights:

For more than half a century, large U.S. labor unions, alone or in concert with other labor organization federations, have regularly filed complaints with the International Labour Organization (ILO) against the U.S. Government. This article analyzes the significance of organized labor’s forays into international law through the ILO process . . . .

We can see from this quick overview of a half-century of complaints how the ILO’s Committee on Freedom of Association went from a blunt dismissal of a complaint as unsubstantiated and “vague” in 1950, to requesting wholesale federal [...]]]> [Cross posted on Workplace Prof Blog]

Matthew Muggeridge of the National Right to Work Foundation has posted in The Federalist Society’s Engage 9.1 magazine: Organized Labor’s International Law Project?: Transforming Workplace Rights into Human Rights.

Here’s some highlights:

For more than half a century, large U.S. labor unions, alone or in concert with other labor organization federations, have regularly filed complaints with the International Labour Organization (ILO) against the U.S. Government. This article analyzes the significance of organized labor’s forays into international law through the ILO process . . . .

We can see from this quick overview of a half-century of complaints how the ILO’s Committee on Freedom of Association went from a blunt dismissal of a complaint as unsubstantiated and “vague” in 1950, to requesting wholesale federal and state legislative action in 2007. Th ere is no reason to suppose that the CFA will hesitate in recommending that the “Bush Board’s decisions” be condemned as well, as a violation of international law and the commitments entered into by the United States.

What happened over these fi fty years to make U.S. labor law so unacceptable to the international labor oversight body? Evidently, over fifty complaints during the span of nearly sixty years have convinced the ILO that the U.S. is not living up toits commitments. What are those commitments? The U.S. has signed no relevant new ILO Convention in that time span. Any development of labor law since 1950 has worked to grant U.S. workers greater employment and organizing protection . . . .

To conclude, non-participation in the ILO process will not prevent international scrutiny of U.S. labor law. Moreover, as international legal machinery goes, the ILO process does not pose as serious a threat to national sovereignty as does the International Criminal Court, for example. Nonetheless, ILO processes are a lobbying tool for organized labor and a potential embarrassment for the United States as long as it participates in them and does not comply with the CFA’s interpretations of ILO Conventions that the U.S. has not ratified. Consequently, the U.S. government might well give serious consideration to withdrawing from ILO membership, while candidly explaining its reasons for doing so.

Now, this is not a surprising commentary from someone affiliated with the National Right to Work Foundation. And I don’t think any serious politician (and heck, W didn’t even do it) would give “serious consideration” to withdrawing the US from ILO membership. Shoot, we should be the ones leading the world in showing how workers’ rights should be protected. Haven’t we pulled out of enough international treaties yet?

But I myself have questioned in the past the importance of symbolic filings with the ILO, when money can be better used domestically for grass roots organizing and domestic political campaigns.

In response to that post, Deborah Greenfield of the AFL-CIO wrote in the comments:

We understand only too well that the ILO has no enforcement authority, but that’s not the point. Unless and until the United States owns up to its serious breaches of international labor commitments, it can hardly expect other nations, which often enjoy serious trading advantages through systemic labor abuses, to do so. And, by repeatedly calling to the attention of the ILO, which remains the world’s preeminent labor agency, the U.S. government’s deepening failures to protect the rights of workers, we can mobilize international pressure on our government with respect to core labor rights.

And Lance Compa (Cornell) wrote in the comments to the same post:

International complaints are indeed a waste of time if they are not integrated into a broader strategy that can make use of them. That is one goal of the ILO complaint in the Oakwood case, to be able to put employers on the defensive as violators of international human rights standards in campaigns on the ground, especially if they file UC petitions.

A favorable ruling from the ILO Committee on Freedom of Association will boost support for trade union goals in the U.S. human rights community, an important ally in a movement for a legislative fix to Oakwood. It will also provide solid ground for enlisting European and other foreign trade union and NGO support in disuptes involving EU-based MNCs. They take the ILO very seriously.

Finally, Michael Duff (Wyoming):

I’m convinced that many workers never experience the cognitive dissonance that is created by the conflict between the two “regimes.” I began my experience of that dissonance as a Philadelphia-based ramp agent as USAirways was breaking the Teamsters Union in the early 1990s. It was enough to drive me to law school. I think that anything (including the incremental gravitas of contrary world opinion generated in part by ILO decisions) resulting in an increase of that dissonance is beneficial.

So in the end, I am more persuaded that filing complaints with the ILO has some value, ILO membership has definite value, and that Muggeridge’s analysis and conclusions are part of a project really not worth the candle.

A few years back, I got interested in taxicab tipping – and what influences how much people tip. So together with Fred Vars and Nasser Zakariya, I collected data on more than 1,000 cab rides in New Haven, C.T. and crunched the numbers. The study (published in The Yale Law Journal) found — after controlling for a host of other variables — two independent racial effects:

1. African-American cab drivers, on average, were tipped approximately one-third less than white cab drivers.

2. African-American and Hispanic passengers tipped approximately one-half the amount white passengers tipped.

African-American passengers also seemed to participate in the racial discrimination against African-American drivers. While African-American passengers generally tipped less, on average they also tipped black [...]]]> From Freakonomics by Ian Ayres in the New York Times:

A few years back, I got interested in taxicab tipping – and what influences how much people tip. So together with Fred Vars and Nasser Zakariya, I collected data on more than 1,000 cab rides in New Haven, C.T. and crunched the numbers. The study (published in The Yale Law Journal) found — after controlling for a host of other variables — two independent racial effects:

1. African-American cab drivers, on average, were tipped approximately one-third less than white cab drivers.

2. African-American and Hispanic passengers tipped approximately one-half the amount white passengers tipped.

African-American passengers also seemed to participate in the racial discrimination against African-American drivers. While African-American passengers generally tipped less, on average they also tipped black drivers approximately one-third less than they tipped white drivers . . . .

However, a new study co-authored by the world’s leading number cruncher on tipping, Michael Lynn, has found a similar effect in a Southern restaurant. His article, “Consumer Racial Discrimination in Tipping: A Replication and Extension” is based on 140 surveys that he and his co-authors:

…

collected during three lunch shifts (11:00 a.m. to 4:00 p.m.) at a [large national chain] restaurant located in the southern United States.

Focusing on just blacks and whites, the study once again found that:

Consumers of both races discriminated against black service providers by tipping them less than white service providers.

Ayres then gives us the employment discrimination law angle: “But as a law professor what is most interesting about Lynn’s article is his suggestion that an employer might be held liable under Title VII of the Civil Rights Act for establishing a tipping policy that has a disparate impact against African-American employees . . . But the harder question is whether the racial disparate impact of tipping is legally justified by the legitimate interest of businesses to enhance customer service.”

Very thought-provoking article, with some interesting tidbits about the history of tipping practices in this country. Should tipping be curtailed to prevent discriminatory impacts in pay practices?

OK, I have seen some pretty crazy stories in my day while blogging in these parts, but this just might take the cake. What makes it even more interesting is that the story is related to us by the Dank Professor, who describes himself as someone who “openly engaged in propinquitous dating, dating students and having many wonderful friendships with many of my students and their families.”

In any event, on to the sadomasochism:

The Albuquerque Journal reported yesterday that University of New Mexico professor of English Lisa Chvez was found fit to teach by the UNM Deputy Provost Richard Holder. Provost Holder reported to the English department faculty that he determined that the faculty member had posed on a sadomasochism [...]]]> [Cross Posted on Workplace Prof Blog]

OK, I have seen some pretty crazy stories in my day while blogging in these parts, but this just might take the cake. What makes it even more interesting is that the story is related to us by the Dank Professor, who describes himself as someone who “openly engaged in propinquitous dating, dating students and having many wonderful friendships with many of my students and their families.”

In any event, on to the sadomasochism:

The Albuquerque Journal reported yesterday that University of New Mexico professor of English Lisa Chvez was found fit to teach by the UNM Deputy Provost Richard Holder. Provost Holder reported to the English department faculty that he determined that the faculty member had posed on a sadomasochism website with at least one of her graduate students, and that Professor Chvez should not have to face a faculty ethics inquiry.

In a March 10 letter to English department faculty, Deputy Provost Richard Holder said he thinks associate professor Lisa Chvez used poor judgment in participating in the Web site’s activities with one of her students.

But, Holder goes on to say, “In my mind this participation did not rise to the level of calling into question her ‘unfitness for duty.’ ”

Okay. What then does qualify? The Provost says that it appears the conduct was consensual between adults away from campus, but what type of power does a professor have over graduate students in this type of situation? In the consensual university student relationship context, I have argued in a law review article previously that if a professor has supervisory authority over the student, we should look askance over whether the university should normally permit such a relationship.

And I wasn’t talking about sadomasochistic relationships.

For his part, the Dank Professor concludes:

Findings of no undue influence, no hostile environment, no use of university facilities means in the dankprofessor’s opinion, that there is no case against the professor. Bravo to the University of New Mexico administration for doing the right thing.

But given the upset reaction of members of the English Department (”Scharnhorst said none of his colleagues are angry that [the professor in question]] posed on the Web site. “What everyone finds troublesome is the fact that she was involved with graduate students,” he said.), I think an appeal of the Provost decision is a safe best and given the lurid subject matter, this is not the last we have heard of this case for sure.

I do not jest. Consider that just last week the Clarion-Ledger of Jackson reported:

A vote to unionize the Johnson Controls plant in Madison County was unsuccessful.

“We were 34 votes short,” said Gary Casteel, United Auto Workers regional director.

The facility supplies seats and other components to Nissan. The United Auto Workers was seeking to represent the workers.

The final tally was 213 for unionizing and 145 opposed.

Now, I want to argue that 145 votes for unionization in the heart of the Deep South is nothing short of an amazing accomplishment and Southern workers are being to understand the benefits that come with unionization. Although there are currently over 100 local unions in Mississippi (again, not kidding), there is only one lawyer [...]]]> [Cross-Posted on Workplace Prof Blog]

I do not jest. Consider that just last week the Clarion-Ledger of Jackson reported:

A vote to unionize the Johnson Controls plant in Madison County was unsuccessful.

“We were 34 votes short,” said Gary Casteel, United Auto Workers regional director.

The facility supplies seats and other components to Nissan. The United Auto Workers was seeking to represent the workers.

The final tally was 213 for unionizing and 145 opposed.

Now, I want to argue that 145 votes for unionization in the heart of the Deep South is nothing short of an amazing accomplishment and Southern workers are being to understand the benefits that come with unionization. Although there are currently over 100 local unions in Mississippi (again, not kidding), there is only one lawyer I know in the state that practices union-side labor law full-time (hello Roger Doolittle!).

But here I want to go back over fifty years of history and invoke the memory of the great Professor Bill Murphy, who recently passed away, who wrote in a prescient piece in the Mississippi Law Journal in 1954. I describe his idea in a recent tribute I penned to him in the same Journal:

In Bill’s article on “The ‘Right to Work’ ‘Statute,” “[he] wanted lawyers to understand how labor unions sought security, the arguments for and against such security measures, the origins of right-to-work laws, and the litigation that the laws had caused.” Murphy’s commentary on these laws was unusually astute and he proved prescient when he observed that “a cheap, docile labor supply” in the South would attract industry which would inevitably lead to the rise of unionism in the region. Indeed, in the last decade as Mississippi has been successful in luring the likes of Nissan, Toyota, and other large corporations, Bill’s prediction about the eventual increase in unionism in this state no larger appears far-fetched.

I hope where ever you are Bill, that you are smiling about these favorable developments.

Lost in the business disaster that is Bear Stearns’ acquisition by JP Morgan Chase this past weekend is the plight of Bear Stearns employees after this collapse.

Not only our many jobs lost, but according to Lisa Fairfax at the Conglomerate Blog, a lot of these employees did not learn from the Enron debacle and had a lot of their pensions tied up in company stock:

I know we are trying to move on, but I have heard several news sources and commentators point out that Bear Stearns employees own some 1/3 of the company’s stock. That number seems striking and a bit surprising, particularly given all of the hoopla surrounding Enron and the fact that its employees held so much [...]]]> [Cross posted on Workplace Prof Blog]

Lost in the business disaster that is Bear Stearns’ acquisition by JP Morgan Chase this past weekend is the plight of Bear Stearns employees after this collapse.

Not only our many jobs lost, but according to Lisa Fairfax at the Conglomerate Blog, a lot of these employees did not learn from the Enron debacle and had a lot of their pensions tied up in company stock:

I know we are trying to move on, but I have heard several news sources and commentators point out that Bear Stearns employees own some 1/3 of the company’s stock. That number seems striking and a bit surprising, particularly given all of the hoopla surrounding Enron and the fact that its employees held so much of the company’s stock when it collapsed. Indeed, I thought one important lesson from Enron, at least for employees, was to diversify. Apparently not. To be sure, there are many good reasons to invest in your company’s stock. Then too, a short while ago Bear Stearns did not appear like it was heading for disaster (but then again neither did Enron). Moreover, it is not clear that Bear Stearns employees have not diversified and hence perhaps there are employees who did not have their entire nest egg in the Bear Stearns basket. Unfortunately, it seems more likely that employees have once again found themselves in a situation in which they not only face potential job loss, but also the loss of their retirement.

As I tell my employee benefits law students every semester, the statistics indicate that a remarkable amount of employees believe that their safest retirement investment is their own company, based apparently on some belief that “really” know what’s going on where they work.

Workers need to resist this urge and practice fundamental modern portifolo theory with their defined contribution plans and diversify. More than that, advocacy groups, unions, and employers need to do a better job of educating their employees about what can happen when a 401(k) plan is not adequately diversified not only between sectors (financial vs. tech. vs. health), but also across investment types (bonds vs. stock, etc).

Unfortunately, to the extent that Bears Stearns workers have indeed lost their retirement savings, for a lot of them it will not be easy to make up the deficit, even by working through retirement. Expect many lawsuits to follow, including a few ERISA ones.

Ross summarizes the case:

Lanier sued the municipal employer, alleging that its policy requiring job applicants to pass pre-employment drug tests violated her privacy rights under the 4th Amendment of the United States Constitution and Article I, Section 9 of the Oregon Constitution. The trial court granted summary judgment in Lanier’s favor, finding that the policy was facially unconstitutional. The 9th Circuit affirmed in part and reversed in part – concluding that the policy was [...]]]> As I wrote today on Workplace Prof Blog, Ross Runkel’s Employment Law Memo brings word that the Ninth Circuit has handed down Lanier v. City of Woodburn, 06-35262 (9th Cir. Mar. 13, 2008) (case link in Workplace Prof post), a case discussing the permissibility of drug testing public employee.

Ross summarizes the case:

Lanier sued the municipal employer, alleging that its policy requiring job applicants to pass pre-employment drug tests violated her privacy rights under the 4th Amendment of the United States Constitution and Article I, Section 9 of the Oregon Constitution. The trial court granted summary judgment in Lanier’s favor, finding that the policy was facially unconstitutional. The 9th Circuit affirmed in part and reversed in part – concluding that the policy was unconstitutional as applied to Lanier (who had applied for a job as a library page) but not facially invalid.

The employer argued that it had a substantial and important interest in screening library pages because 1) drug abuse is a serious societal problem; 2) drug use has an adverse impact on job performance; and 3) children must be protected from those who use drugs or could influence children to use them. The court rejected that argument, reasoning that the United States Supreme Court’s decision in Chandler v. Miller, 520 US 305 (1997) “makes clear the need for suspicionless testing must be far more specific and substantial than the generalized existence of a societal problem of the sort that [the employer] has posited.” The court noted that the need in suspicionless cases not involving interdiction work (or high risk/safety-sensitive tasks) must be “special” and not merely “symbolic.”

I think the court got this one right. There needs to be a case-by-case analysis if there is a specific and immediate government interest in conducting the drug search before invading public employees’ Fourth Amendment rights to be free from unreasonable search and seizure.

The use of the word “symbolic” in the court’s decision brings to mind Justice Scalia’s dissent in the Von Raab case concerning federal custom agents. Pointing out that there had not been a history of drug abuse among custom agents, Scalia argued, correctly in my view (yes, you can pinch yourself) that the government should not be able to violate a public employee’s 4th Amendment rights for symbolic purposes.

The best approach when dealing with conflicting interests between public employees and the government employer is to engage in an ad-hoc balancing test, as in the First Amendment Pickering area. It is not a perfect test, but at least it allows the court to weigh the relevant interests before bringing governmental power to bear on citizen employees.