ENDA Lite Hits a (Temporary?) Dead End

While I didn't actually predict that the Obama Administration would issue an Executive Order implementing protection for lesbians, gays and transgendered individuals employed by federal contractors, reading my post from a couple of weeks ago, you might could have drawn that conclusion. See, ENDA "Lite" On the Way?

But apparently, it is not to be, or at least not now, although the story in the Washington Post reporting that the Administration has chosen to not issue such an Order details both the pressure that is going to be forthcoming and the possibility that somewhere down the road, the decision might be different. See Gay rights groups vow more pressure on Obama to sign nondiscrimination order.

Although denied by the Administration, it is hard not to view such an Order in light of the role it could play in "prresidential politics" which is pretty much the only prism that anything having to do with the Administration is, correctly or not, going to be viewed from now until November.  

Hat tip to the folks at Employment Law 360, whose reporting on this issue brought it to my attention, including today's story, Obama Won't Order Ban on Anti-Gay Bias by Contractors. ($)

Non-traditional Plaintiff Theme Continues

At the start of 2011, I noted that one of the stories of the year might be that more and more of what I would call non-traditional plaintiffs would be filing discrimination suits. See, 2011 ---- the Year of the Non-minority?

It seems that trend is continuing in 2012, including the following examples:

• Male FBI special agent 'wanna be', claims sex discrimination, Lawsuit: He failed FBI agent test by 1 pushup
• After the City's governing board  in West Point, Missippi changed racial composition, the result was,  Court Determines White Utility Employees Have Some Worth Claimy Claims Against City, ($)
• A white Illinois Police sergeant who sent an email to 16 co-workers describing 11 fictious Barbie Dolls caricaturing stereotypical women was suspended and unsuccessfully argued he would have been more leniently disciplined if he had been black, White Police Officer Disciplined for Email Fails to Raise Race Bias Claim, Court Affirms, ($)

The last two courtesy of the BNA Daily Labor Report.

One common denominator between these three is that they are all governmental defendants. Public sector employers may be more susceptible to such claims, but all employers ought to be aware.

Body Mass Index As a Hiring Criteria

Hat tip to (probably my favorite blog title in our corner of the world) the Evil HR Lady for catching news from my own back yard, see the original news article, Victoria Hospital Won't Hire Very Obese Workers, as Victoria is just a couple of hours down the road from me, but  also a brilliant commentary on the policy itsefl.

Hard to top anything Suzanne Lucas has to say in her post, Is it okay to discriminate against obese people?, so just check it out.

One thing that I did find interesting was the comment from the Administrator that it was based on the preference of patients. 

Although client preference alone does not automatically push one across any legal boundry, over the years it's one of those "red flag" type comments that tends to make me sit up and pay attention because there could be something troubling about to occur.

ENDA "Lite" On the Way?

Federal legislative action in employment law matters, actually on most things, is pretty much a non-starter these days.  But that does not mean that there is no potential for continuing developments, witness the firestorm of attention that the NLRB has received of late.

ENDA, the legislation which would extendTitle VII type protection to gays, lesbians and depending on the version of the bill, transgendered individuals, is one piece of legislation that all the pundits had predicted was most likely to pass following Obama's election in 2008. But it too has stalled.

Now a partial step could be imminent, with news that the Administration is considering an Executive Order that would extend such protections to employees of federal contractors, either with a separate Executive Order or amending the venerable Executive Order 11246.

The Advocate gets down into the political nitty-gritty on the chances of such action being taken as it appears that it been cleared at the department level, and the decision is now, or soon will be, on President Obama's desk. See, Gatekeepers of the Employment Executive Order.

According to the article, via an Executive Order 20% of the civilian workforce would be covered by such an action.

One Prediction That Had Some Legs

Forecasting is an art not a science, and truth be known luck is probably the most single important factor if one gets it right, still I could not help but think back to one of my first posts of this year, 2011 --- the Year of the Non-minority? where I thought that we might see

more cases where what might be thought to be "non-minority" employees are claiming that they have been treated differently because of their race.

Now a few days before year's end the 5th Circuit decides Vaughan v. Woodforest Bank (5th Cir. 12/21/11). Ms. Vaughan, a white bank manager who managed a work force that was almost all black was terminated for what was described as "inappropriate comments in the presence of employees and customers that created a perception of racial discrimination and uncomfortable environment due to lack confidentiality."

The Court reversing a summary judgment in favor of the employer discussed the three comments that were said to underlie this conclusion. Without really saying so, the Court seemed to be saying that the comments did not seem to them to set a racial tone. Although its unclear how much it influenced the decision, it did note that the manager who made the decision to terminate Vaughan had a view that any discussions of race were problematic: "we cannot talk about race in the workplace" and "if you talk about race in the workplace it's racial discrimination."

Probably pushing my luck, but I sense that this particular type of case may have more than a one year run.

Disparate Impact and the Non-Traditional Plaintiff

At the start of the year, I noted that one thing that seemed to be a "trend" was litigation by non-minority plaintiffs. See, 2011 -- the Year of the Non-Minority?

Throughout the year I have noted other cases. And now Molly DiBianca who is always on top of things at the Delaware Employment Law Blog has picked up yet another case recently decided by the 3rd Circuit, Disparate Impact of Newark, NJ’s Residency Requirement .

In Meditz v. City of Newark, (9.28.11) [pdf] a white male analyst job applicant was rejected by the City of Newark because he did not live within the city limits. The Court summarized the case in perfect disparate impact terms:

Meditz alleges that the residency requirement adopted by Newark for its non-uniformed work force has a disparate impact on white, non-Hispanics because Newark‟s population does not reflect the racial make-up of the relevant labor market in the surrounding area. As a result, white, non-Hispanics are under-represented in Newark‟s non-uniformed work force.

Although there were a number of statistical comparisons, one was between the City of Newark and Essex County, the county had 42.96 % white, non-Hispanic employees in the non-uniformed ranks compared to Newark's 9.24%.

The decision has a good discussion not only about the statistical basis for finding disparate impact, but how to determine the relevant job market and the correct standard for the business necessity defense.

About the only thing that this case does not stand for is that lawyers are being more receptive to bringing claims on behalf of non-minority plaintiffs. Mr. Meditz represented himself, including at oral argument.

Wal-Mart Stores, Inc. v. Duke -- A Sigh of Relief

Analysis will come later as all I have done is read the highlight and the line up of  judges. Judge Scalia's majority opinion was joined in some parts by all justices, while Justices Ginzberg, Breyer, Sotomayor and Kagan dissented from some.

The loud sound you heard was corporate America finally relaxing.

Frankly, I don't think anyone who is serious about an orderly resolution of disputes, where all parties have a fair shot at proving their allegations or defenses, has any other feeling.

The court's opinion is here.

Update: Now that I have read the opinon, here are some more substantive thoughts.

First, an ironic and sad footnote to today's opinion. Professor Richard Nagareda achieved what I assume is something highly desired by any academician, have one of your articles play a key role in a seminal Supreme Court decision. Professor Nagareda achieved that today, as both opinions the majority by Justice Scalia and a concurrence and dissent by Justice Ginzberg cite frequently from his Class Certification in the Age of Aggregate Proof, 84 N.Y.U. L. Rev. 97 (2009).  Unfortunately, Professor Nagareda died last October at the much too early age of 47, shortly after taking a position with Vanderbilt University School of Law.

 Today's case deals with the fine points of Rule 23, which is the vehicle for creation of class versus individual trials. It was widely used in the early days of Title VII, but its use had fallen off until the last few years. In part this was tied to the Civil Rights Act of 1991 which for the first time permitted jury trials and compensatory damages.  Courts generally held the compensatory damages were not suited for class actions.

In the last few years though, a new plaintiffs strategy emerged. Get a large enough class together, don't seek compensatory damages, just back pay and punitive damages,  get it certified and then force the defendant to settle because of the costs of defending and the uncertainty and difficulty of trying such a large case.  Wal-Mart v. Dukes was the largest of all, and frankly was a good case from an employers standpoint to end up before the Court.

Today's decision is going to severely restrict the use of class actions in discrimination cases going forward. The details will be fleshed out, but the Court unaminously made clear that cases where monetary issues, including back pay dominate (i.e. almost if they exist) then certification under Rule 23(b)(2), plaintiffs' preferred suit and the one it tried in Wal-Mart, is not appropriate. (Kudo's to the 5th Circuit, for having this position in advance.)

Much more important to Wal-Mart, and probably going forward, all of us, the 5-4 majority made it much more difficult to meet the standards for any class without a very tangible, specific job practice that it can be tied to. A standardized test with a disparate impact probably meets the standard but on first blush that seems to be about the closest bright line that we have.

The 5-4 opinion seems to pull the teeth from what I have always considered one of the more dangerous Supreme Court opinions, Watson v. Fort Worth Bank and Trust, a 1988 decision which seemed to permit a disparate impact case any time an employer's promotion practices were subjective (which was every employer) and there was a disparate impact (almost every employer).

For the short term, I think the focus will shift back to individual law suits and plaintiffs, or more aptly, the plaintiffs' bar, will regroup and decide what avenues there are left to pursue cases within a class framework. 

Although this case does not deal with the Fair Labor Standards Act and the collective action it permits, which are outside the purview of Rule 23, much of what the Court said could clearly be applicable to the way such cases are now being certified and handled.  I think you can start seeing Wal-Mart v. Dukes cited to district courts in FLSA cases starting today. What I will be looking for is when the district court cases start citing it back.

Here are a few of the early reports on today's decision:

• HR Lawyers Blog
• Workplace Prof Blog
• What's New in Employment Law

With a Friend Like Justice Scalia ... Cat's Paw Decision Not Very Employer Friendly

Although viewed as one of THE most conservative justices, I am not sure anyone who is very knowledgeable about employment law relishes the idea of Judge Scalia writing the majority opinion in an employment law case. If they did before this term, their view would be strongly challenged by today's decision in Staub v. Proctor (S.Ct. 3.1.11) [pdf] and coupled with his earlier opinion in Thompson v. North American Stainless, should readily disabuse them of that notion.

Nothing is rarely as bad as it appears on first blush, and perhaps a closer reading will lessen my angst over today's opinion. But at least I am not the only one feeling the same way. Jon Hyman at Ohio Employer's Law Blog, calls it a "huge victory" for employees.

One immediate concern is that the Court takes what is a relatively narrow range of cases, where a decision maker is deemed to have been "used" by another to carry out his or her discriminatory intent, and by focusing on the underlying disciplinary actions and the motives of those who carried them out,  seems to invite numerous fights over each and every warning or other disciplinary activity that were given to an employee in the past and that might could arguably have been a factor in the termination decision. It is almost certain that there will be many more "Staub cat's paw cases" after today's decision than we have dealt with before.

Proponents will argue that this is not so, that it is only those that rise to the high level of proximate cause that are at issue. But those who do, probably do not deal with day to day employment litigation where every opportunity to raise a fact issue is yet another arrow in the plaintiff's quiver. Today, I am afraid, at least until courts below fill in the gaps, the Court has created more complexity and less certainty.

And in a time when there is confusion enough over what is the standard for determining the basic question "what is discrimination," the addition of the negligence tort doctrine of proximate cause into the mix seems to me less than a beneficial step.

Although as Paul Secunda of Workplace Prof Blog points out in his approving comment on the decision, there  is an argument that it does not apply to ADEA cases, it appears likely that the Court intended it for Title VII and other statutes that use similar language:

The statute is very similar to Title VII, which prohibitsemployment discrimination "because of . . . race, color,religion, sex, or national origin" and states that suchdiscrimination is established when one of those factors "was a motivating factor for any employment practice,even though other factors also motivated the practice."

If there is any good news, it is that the Court remanded the case to the 7th Circuit for application of its newly articulated rule in determining whether the jury verdict for Staub should be re-instated or a new trial granted. The basis is that the trial court's instruction did not conform to the "rule we adopt today". Perhaps that learned bench can shed some early guidance.

Goodness knows we will all need some.

This is another case where not only bad facts, but a bad procedural background made it an unfavorable case for employers. The Court was faced with a case where the appellate court had reversed a jury verdict, which meant that all facts had to be construed in the most favorable of light to the employee. Also the fact that it was a USERRA case, here a military reservist, is not the best context in today's world with two wars and numerous military personnel being asked for extraordinary measures, for any case focusing on the whether or not an employee was treated badly.

Although I have long felt this, I think today's decision makes it more clear that the Supreme Court although still adhering to the broad notion that courts should not function as super-human resources departments, second-guessing the decisions of an employer, have and continue to create a set of rules that at least encourages, if not requires, the lower courts to be just that.

Is Retaliation for Complaining About Sexual Orientation Discrimination a Violation of Title VII?

The headline in today's Daily Labor Report caught my attention, Court Revives Fired Gay Employee's Retaliation, Harassment Claims ($). I thought maybe it was another another step down the road for protection against sexual orientation discrimination, but still within the limits of Title VII.
But when I looked at the decision, Dawson v. Entek International (9th Cir. 1.10.11) [pdf] what I found was even more confusing.

The Court had in fact discussed the line of cases I was thinking about -- where a number of courts have found Title VII protection for sexual orientation based on gender stereotyping. However, the Court specifically found that there was no evidence of gender stereotyping in this case, and so dismissed what it called claims for sexual discrimination under both Title VII and Oregon state discrimination law. 

The Court held that it was error to dismiss Dawson's sexual orientation discrimination claim under Oregon state law. (There was a question about the effective date of the statute versus the conduct. The 9th Circuit side stepped that question by noting that even before the effective date Oregon had recognized a common law claim for sexual orientation discrimination.)

The part that obviously prompted the DLR headline, and caught my attention after reading the opinion, was the Court's holding that the trial court erred in dismissing his retaliation claim under both Title VII and Oregon state law.  There was no question Dawson had complained, but there was also no question that he had complained only about taunts based on his homosexuality, i.e. his sexual orientation, not anything based on gender stereotyping. 

I think the problem in the court's analysis is here:

Title VII prohibits an employer from discriminating against an employee for opposing an unlawful employment practice, such as filing a complaint alleging sexual orientation harassment and hostile work environment.

After making clear that sexual orientation is not protected under Title VII, the Court seems to have made a logical error in calling sexual orientation discrimination an unlawful employment practice.
In this case, depending on the remedies under Oregon state law, it may not matter, but as the decision is currently written it would certainly impact Title VII retaliation law.

It would be quite a step forward, not to mention ironic, if you could be fired for your sexual orientation, but could not be fired for complaining that you were being discriminated against because of your sexual orientation.

Surely we are not that much in the Alice in Wonderland world, at least not yet.

2011 --- the Year of the Non-minority?

Predicting what a new year will bring is a time honored tradition, but much like resolutions, most predictions rarely last longer than the first flip of the calendar. So rather than a long list, let me just start with one thing that I am guessing we might see, more cases where what might be thought to be "non-minority" employees are claiming that they have been treated differently because of their race.

One example of such a case comes from Peter Thompson's Maine Employment Lawyer's Blog, Can an employer fire a white employee for using the n-word if it lets black employees say it?. The employee in question was a news broadcaster at Fox 29 in Philadelphia before he was fired for using the n-word, while black employees were not disciplined for their use. According to Thompson's blog post,

Fox 29 argues that Mr. Burlington's comparison between his use of the n-word and black employees' use of the n-word ignores the fact that his use of the n-word offended some black employees; whereas no one took offense when the black employees used the n-word.

District Judge R. Barclay Surrick's 36 page opinion is a worthwhile read not only for the factual background, but for the complexity of the legal issues (which also includes a discussion of a cat's paw theory). Turning to the central issue he noted:

We begin by addressing an issue that does not appear to have been decided by the federal courts: can an employer be held liable under Title VII for enforcing or condoning the social norm that it is acceptable for African Americans to say “nigger” but not whites? ...

Historically, African Americans’ use of the word has been ironic, satirical, or even affectionate. Id. at 28-31. Too often, however, the word has been used by whites as a tool to belittle, oppress, or dehumanize African Americans. When viewed in its historical context, one can see how people in general, and African Americans in particular, might react differently when a white person uses the word than if an African American uses it. ...

Nevertheless, we are unable to conclude that this is a justifiable reason for permitting the Station to draw race-based distinctions between employees. It is no answer to say that we are interpreting Title VII in accord with prevailing social norms. Title VII was enacted to counter social norms that supported widespread discrimination against African Americans. See  McDonnell Douglas, 411 U.S. at 800 (stating that the purpose of Title VII was “to eliminate those discriminatory practices and devices which have fostered racially stratified job environments to the disadvantage of minority citizens”). To conclude that the Station may act in accordance with the social norm that it is permissible for African Americans to use the word but not whites would require a determination that this is a “good” race-based social norm that justifies a departure from the text of Title VII. Neither the text of Title VII, the legislative history, nor the caselaw permits such a departure from Title VII’s command that employers refrain from “discriminat[ing] against any individual . . . because of such individual’s race.” 42 U.S.C. § 2000e-2(a)(1).

In El Paso, right before Christmas, a jury returned a verdict in a case that also seems to make the point. The Odessa American headline over an AP story told the story, Anglo worker wins discrimination suit.

The case was brought by a white benefits manager who had an altercation with his Hispanic supervisor. The company fired both.  The employee's lawyer, John Wenke, argued that:

The company feared the human-resources manager, who is Hispanic, would file a discrimination lawsuit if fired, so company officials fired both Duncan and the manager. Wenke claimed the company feared the human-resources manager, who is Hispanic, would file a discrimination lawsuit if fired, so company officials fired both Duncan and the manager.

The jury apparently agreed, returning a $5.8 million verdict.

Two cases are hardly a trend, but they are enough to get one's attention.

Disparate Impact Suit - Credit Checks

Three times a year for the last several years I have done a program for the UT School of Law, CLE group called Essential Employment Law. In the morning, I talk about theory and in the afternoon my good friend (and great lawyer) Connie Cornell talks about the practical application.

One of the things I always cover are the three theories of discrimination, including disparate impact. Since disparate impact is not something that always readily comes to mind when you first think about discrimination I always try to mention an example that might cause people to relate to something that they could be doing.

This year, based on the EEOC's recent interest, I talked about credit checks. See, EEOC Public Meeting Explores the Use of Credit Histories as Employee Selection Criteria.

Given that history, it was not rocket science to predict such actions might be coming, but I did find it affirming to see the headline in today's Employment Law 360, School Sued Over Use Of Credit Checks In Hiring ($), challenging the University of Miami's Medical School's hiring practices.

According to the article:

The lead plaintiff in the case is Loudy Appolon, a black woman who lives in Miami. In the summer of 2009, she applied for and was offered a position as a senior medical collector at the university's medical school.

Just before her employment was about to commence — and after she had resigned from her previous position at North Shore Medical Center — the university reneged on its job offer due to her credit history, the complaint alleges.

It says that her credit history showed no pending delinquencies and just a few defaults from prior years that had been remedied to the satisfaction of lenders.

As noted by the term "lead plaintiff", the case was filed as a class action. Unfortunately, almost by definition disparate impact claims lead to class claims.

And if you have not looked in awhile at how savvy plaintiffs' employment lawyers are using the net in these cases, check out the website Credit Discrimination Lawsuit, by one of the plaintiffs' counsel in the suit (Outten & Golden LLP), which include a link to the complaint filed in the S.D. of Florida along with reports and case studies. It also poses the following three questions:

• Have you been a victim of Credit Discrimination while applying for a job at the University of Miami?
• Have you been denied a job based on your Credit History?
• Have you been denied a job based on your Criminal History?

Note that while the first question is limited to the University of Miami, the other two cast a much broader net. If you can answer yes to any of the three, the site kindly notes that "we" would like to talk with you and provides a questionnaire where you can furnish the details.

It may not be a bad time to brush up on disparate impact law.

The Flavor of the Season: Disparate Impact?

In times past, one could go a fairly long time without much discussion of disparate impact, but two posts in other blogs today caught my attention. First, Paul Secunda has a post about new scholarship Seiner and Gutman on the New Disparate Impact.

Professor Secunda calls it a "very worthwhile read among the increasing literature on this watershed case [Ricci v. DeStefano (S.Ct. 6/29/09)]. He quotes the abstract of the article in full, but the last paragraph and one-half is enough to give you a flavor and a tease:

... After Ricci, however, in a broad category of disparate-impact cases liability now turns on what the employer knew when it took the challenged action. If the employer had no reason to think that the practice would have an unlawful disparate impact, it is immune from liability for its past actions.

This is a dramatic development, and it suggests that the Court sees disparate impact as not fundamentally different from intentional discrimination. Beyond its doctrinal importance for disparate-impact claims—which itself is considerable—the Ricci affirmative defense reflects an entirely new direction for this area of law. In this Article, we parse the language of Ricci to derive the new affirmative defense. We explain its significance for disparate-impact theory and discuss the limited safe harbor it has created for employers. We also situate the new defense within the broader context of federal employment-discrimination law, including other affirmative defenses that the Court has created for policy reasons. We thus explain how Ricci heralds a new disparate impact.

Then my fellow Texan, Russell Cawyer, who blogs at Texas Employment Law, had this note, Is the EEOC Getting Interested in Disparate Impact Claims? It was two informal discussion letters from the EEOC, one on the subject of requiring a master's degree and the other on "credit checks" as they relate to the possibility of a claim for disparate impact that caught his attention.

Like any field of endeavor, there tend to be trends, hot buttons, flavors of the week,month etc. in the employment law field. Is it disparate impact's turn? Maybe you should think of it as being on a trip to Ben and Jerry's -- it's too early to order, but not too early to think about what other scoop you want to go with your disparate impact Chunky Monkey.

5th Circuit On Continuing Violations

Decisions related to the timeliness of a claim are most complicated when it involves hostile environment harassment, which almost always occurs over a period of time. Although the rule is fairly simple according to the US Supreme Court's decision in National R.R. Passenger Corp. v. Morgan, “so long as any act contributing to that hostile environment takes place within the statutory time period," it can get sticky in the application.


In Stewart v. Mississippi Transport Commission (5th Cir. 10/21/09) [pdf] the Court dealt with such a claim. The plaintiff had been harassed by her supervisor. After an investigation they had been separated, but 16 months later when her new boss retired, the old boss replaces him. He begins offensive conduct again. When she complains they are again separated. The question for the Court was whether or not the sexual harassment claim should include the events before the first separation. Ultimately, two members of the Court held that they should not be.


In reaching that conclusion, they referred to 3 limitations on the continuing violation rule also found in Morgan:

1. the plaintiff must demonstrate that the “separate acts” are related, or else there is
   no single violation that encompasses the earlier acts;


2. the violation must be continuing; intervening action by the employer, among
   other things, will sever the acts that preceded it from those subsequent to it,
   precluding liability for preceding acts outside the filing window; or


3. the continuing violation doctrine is tempered by the court’s equitable
   powers, which must be exercised to “honor Title VII's remedial purpose ‘without
   negating the particular purpose of the filing requirement.

Here, it was the second exception that was fatal to plaintiff's claim -- the Court considered the employer intervention of separating the two, which did cause the earlier harassment to stop, an intervening action. When it viewed the events of the last incident of harassment (absent the circumstances of the first harassment), the majority found that they were not sufficiently severe or pervasive.

Interestingly, the newest member of the 5th Circuit, and the last Bush appointment, Judge Haynes dissented on this point from Chief Judge Edith Jones' opinion.

Supreme Court Gives Victory to New Have Firefighters

Appropriately enough given the venue, Daniel Schwartz at the Connecticut Employment Law Blog has one of the first substantive analyses of this morning's Supreme Court decision in Ricci v. DeStefano (S.Ct. 6/29/09) [pdf].

He also gives good counsel about not rushing to conclusions about the outcome until the 93 pages of the various opinions can be more than just skimmed.

Still, some basics are clear. The 5-4 opinion with Kennedy in the majority and writing the opinion is not a shocker. The 4-4 split is along the well known divide of Scalia, Thomas, Roberts and Alito vs. Stevens, Ginsburg, Souter and Breyer. And given the headline, it is clear that it was the conservative quartet that came out on top this time.

Justice Ginsburg took her role in providing the dissent (38 pages itself).

Among the points:

• it is based on Title VII, not constitutional principles, so it is equally important to private sector employers as well as government employers.
• Justice Kennedy saw the role of the majority to provide guidance to lower courts and parties when an employer is faced with a possible disparate impact case on one hand and a disparate treatment on the other;
• The test is fairly easy to describe -- an employer can not rely on the threat of a disparate impact case as a defense to a disparate treatment case unless it "can demonstrate a strong basis in evidence that, had it not taken the action, it would have been liable under the disparate-impact statute. "
• Applying that test is not likely to be all that easy.
• Sure to be much discussed is what Justice Ginsburg meant when she said, "The Court's order and opinion, I anticipate will not have staying power." Another veiled suggestion for legislative override?

Probably the biggest surprise is that given that New Haven had prevailed on summary judgment, the Supreme Court could easily have sent the case back to the trial court for it to apply its newly established standard. However, rather than doing so, it seems to have jumped a step and handed victory to the firefighters:

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

I think that's Supreme Court talk for "this one is over," although I am not sure that will actually turn out to be the case.

This decision is going to get tons of scrutiny and comment, largely because Judge Sotomayor was on the panel of the 2nd Circuit which had a different outcome. To the extent that the commentary focuses on the case itself that's good, when it goes off on how it impacts on her abilities/views etc. I am less interested.

My first instinct is that it is an important case, but applies to a situation that does not come up all that often.

However, the reason that has not come up all that often in recent years is that the OFCCP has changed its direction, with much less emphasis on affirmative action via AAP's and much more attention to discrimination. To the extent that under the Obama administration, that emphasis switches back to what employers subject to EO 11246 faced in much earlier times, the case could be even more important.

Although there's that Ginsburg tease, 'not much staying power.'

The Price of Discrimination in England

One of the blogs I follow is from PJHLaw, a Stamford, Lincolnshire, UK law firm that refers to itself as "Exclusively Employment Law Solicitors". Today, they had an interesting summary of 2008 awards in discrimination cases, Equal Opportunities Review.

The key numbers -

Average/ Median Compensation Awards in 2008

Age Discrimination £15,080/4,503

Disability £21,339/£8,000

Race £18,200/£6,325

Sex Discrimination £13,312/£9,109

Sexual Orientation £33,724/£6,364

Combined £37,655/£26,014

It would be interesting to see a similar study of American awards.

ENDA Back Into the Congressional Mix Soon

Jillian Weiss' post at Trangender Workplace Diversity, Federal Bill on Employment Non-Discrimination Moving Forward has a link to the Washington Blade's interview with Congressman Barney Frank, the sponsor of ENDA who indicates he will be introducing it into this Congress soon.

According to the article, he intends on going with the full version of the Act which would extend Title VII protection not only for sexual orientation but for gender identity. It was the latter provision which caused a breakdown in negotiations between its proponents and the business community in the last Congress, and perhaps more importantly, set off a divide int the LGBT community itself.

Although it seems the general feeling is that most workplace legislation will await a resolution EFCA, given that a compromise was almost reached on this legislation in the last Congress, it could be one that moves on a slightly different and faster track.

Some reasons:

• many states already have extended such protection, more on sexual orientation, but a substantial number on gender identity as well,
• many large employers have extended their own internal protections, and combined with the state statutes means it is not as big a cause for that group;
• the constituencies behind EFCA and ENDA are not necessarily the same, although there is considerable overlap; and
• my sense that same sex marriage, not workplace rights, now seems to be the focal point for those for whom sexual orientation is a political issue.

Gender identity is still much less understood, a point that Representative Frank seems to understand, as he is looking to Congressional hearings for purposes of education on that part of the legislation. Dr. Weiss will be doing her part at her blog as she intends a series of educational postings on the issue.

Ironically, although it is much less understood, it is individuals who can make a claim of gender identity discrimination who have fared much better under at least some circuit's view of Title VII than those with a sexual orientation claim. See 9th Circuit Joins 6th on Transgender Cases and Transgendered Workers in the Mainstream Press.

No Early Supreme Court View on Lily Ledbetter Act

What was always a long shot did not pan out as the Supreme Court today issued its decision in AT&T Corp. v. Hulteen (S.Ct. 5/18/09) [pdf] without giving any guidance on how it would view the Lily Ledbetter Act. At issue was the present effect of a seniority system which treated pregnancy adversely that was used only before the Pregnancy Discrimination Act, although it had on ongoing consequences. In a 7-2 decision written by retiring Justice David Souter, the Court concluded that it did not.

The basic reason, the decision was not illegal when it was made and seniority systems have their own treatment under Title VII, which recognizes their importance in maintaining stability. That was the same reason the Lily Ledbetter Act was not relevant, even though the Supreme Court had allowed supplemental briefing on its potential impact. Quoting from the statute, the Court answered plaintiff's argument that it revived her cause of action:

For the reasons already discussed, AT&T’s pre-PDA decision not to award Hulteen service credit for pregnancy leave was not discriminatory, with the consequence that Hulteen has not been “affected by application of a discriminatory compensation decision or other practice.” §3(A), 123 Stat. 6.

In a spirited defense that was really more of an attack on the original Gilbert decision that led to the passage of the Pregnancy Discrimination Act than anything, Justice Ginburg's dissent (joined by Justice Breyer) does not even mention the Ledbetter Act.

If the case had gone the other way, it is possible to imagine how it could have had broad ramifications. However, given its narrow holding, it seems unlikely to be very important beyond its impact on the parties.

Transgendered Workers in the Mainstream Press

Transgender Workplace Diversity has a post about a Fortune Magazine article about the most vexing workplace issue for employers of transgendered individuals, neatly encapsulated in the title, When a staffer switches genders. The story is about how the change happened in one small business. On Tony (formerly Ann) Ferraiolo's first day back,

Madison owner and president Steve Schickler walked in and sat down. "So you're a 'he' now, right?" Schickler asked. Ferraiolo nodded. "Good enough," Schickler said briskly. "I'll let the managers know."

For Schickler, 50, there was no question about what would happen next. Ferraiolo would continue to supervise more than half of the plant's 50 employees. Life would go on as before, with one small difference: Ferraiolo would no longer use the ladies' room.

Besides 'tolerance' the article has some other suggestions on managing the transition.

One interesting note in the article, 322 major companies have added gender identity to their diversity programs. One small mistake is the statement that the first court to recognize protection for transgendered employees under Title VII was a DC District Court case brought by an employee of the Library of Congress last year. In reality that honor goes to the 6th Circuit decision Smith v. City of Salem, almost five years ago, see Transsexual Discrimination - By Definition Sex Stereotyping and Actionable Under Title VII.

9th Circuit Joins 6th on Transgender Cases

Although normally the 9th Circuit is the trend setter on new trends in labor and employment law, in Kastl v. Maricopa County Community College Dist.(9th Cir. 4/14/09) [pdf] it found itself following the 6th Circuit's 2004 decision that transgendered employees can state a claim under Title VII on a sex stereotyping theory.

In Kastl it was a male to female employee who was barred from using the female restroom. Interestingly, although it held she could state a claim under Title VII, summary judgment for the employer was upheld because she was unable to rebut the employer's articulated business reason. That may be why the decision was unpublished.

Hat tip to the folks at Alaska Employment Law for catching this development.

Dukes v. Wal-Mart, Not Over Yet, Not Even in the 9th Circuit

The folks at Shaw Valenza were busy working on Valentine's Day and were good enough to post the news that the 9th Circuit had granted an en banc review in the largest sex discrimination class action case ever certified, Dukes v. Wal-Mart. The original 9th Circuit opinion is here. [pdf] The granting of re-hearing is almost two years to the day from the original decision.

Unlike all other circuits, an en banc review does not mean all judges of the 9th Circuit, but a 15 member panel. Probably good that this one gets another set of eyes before the (barring settlement) inevitable petition for writ of certioari to the Supreme Court.

For some background on the underlying lawsuit check out the wikipedia entry here, which has already been updated with Friday's action.