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.

Oregon Statute Could Bar Captive Audience Speeches in Union Campaigns

Last Friday, the Oregon House passed SB 519 a bill that was passed earlier this month by the Oregon Senate. As passed, the bill would preclude an employer from mandating that an employee attend certain meetings.

The bill prohibits:

An employer or the employer's agent,representative or designee may not discharge, discipline or otherwise penalize or threaten to discharge, discipline or otherwise penalize or take any adverse employment action against an employee:

(a) Who declines to attend or participate in an employer-sponsored meeting or communication with the employer or the agent, representative or designee of the employer if the primary purpose of the meeting or communication is to communicate the opinion of the employer about religious or political matters;

and political matters:

includes political party affiliation, campaigns for legislation or candidates for political office and the decision to join, not join, support or not support any lawful political or constituent group or activity.

And to round it out, constituent group or activity, includes:

but is not limited to, civic associations, community groups, social clubs and mutual benefit alliances, including labor organizations.

Net result, if it should ever come to pass, a major impact on union organizing campaigns as traditionally run.

Still, the "could" in the headline deserves heavy emphasis. Before this bill allows the first employee to skip a scheduled meeting, it must be signed into law by Oregon's Gov. Ted Kulongoski. According to an AFL-CIO website, at least before its final passage, the Governor had said he would sign the bill. Oregon Bill Bans Mandatory Meetings.

The second big hurdle is the anticipated litigation that this statute is pre-empted by the National Labor Relations Act and/or that it is unconstitutional. My guess is both arguments are formidable, but it will take some time for them to play out.

Although it is not generally expressed in exactly these terms, for purposes of labor and employment law in America the fundamental principle is that "jobs" have belonged to the employer. This Oregon statute may only be a "left coast" thing, or it could be a sign that we may are approaching a major shift from "jobs" belonging to the employer, to "jobs" belonging to those who hold them.

Whether you think that is a good thing or a bad thing, it should not be overlooked that such change would be of epic proportion.

Gran Fondo Sportful Sunday 21st June

Just returned from Feltre in the Dolomites where I took part in the Gran Fondo which has just changed its name from Campagnolo to Sportful. Nothing else has changed though. In particular the 216km and 5,300m climbing route remains the same as last year. A tough day but with rewards in the form of fantastic views. I posted a fairly leisurely 10h54m but I am just not sufficiently practised at those very fast descents.

Supreme Court Says No Mixed Motive for Age Cases

One of the more anticipated decisions of this Supreme Court was going to answer under what circumstances a mixed-motive decision would be appropriate. Since the whole procedural law of mixed-motive cases seems muddled, help from the Supremes on any aspect was eagerly anticipated.

But today in Gross v. FBL Financial Services (S.Ct 6/18/09)[pdf] the Supreme Court took a pass on that specific question, and instead answered the question it (well at least the 5 in the majority) really wanted to answer:

Can you ever have a mixed-motive instruction under the ADEA?

Since the answer was no, the question the rest of us were waiting for, under what circumstances do you get one, remains an open question, at least for Title VII cases.

The reason the 5-4 opinion went the way it did, with Justice Thomas writing it, has to do with differences between the ADEA and Title VII, in particular on the issue of the burden of persuasion.

Even worse, the majority teased us with the idea that perhaps the Supreme Court might if it had it to do over again jettison the mixed motive idea, since it has been so difficult for the courts to implement. (Unfortunately, that idea seems likely foreclosed by the Congressional amendments to Title VII discussed in Justice Thomas' opinion.)

Workplace Prof's first look, thinks it could also impact ADA cases. More detailed analysis will be forthcoming from many I am sure.

My first take -- its an important decision, for now. However, since it is based on a question of statutory interpretation, stay tuned for the Jack Gross Mixed-Motive for Old Folks Bill coming to a Congress near you soon.

Texas Employers Unemployment Rate Headed Up

Hardly a surprise I suppose, but Tom Pauken, Chairman of the Texas Workforce Commission which handles unemployment claims in Texas, has confirmed that employers should be prepared for a substantial rise in their unemployment tax rate.

According to a story in today's Dallas Morning News:

Pauken said that though things could still change, it's probable that the commission next year will need to raise an amount from employers comparable to the amount raised in 2003 – or 2.4 percent of all taxable wages.

See, Employers' unemployment insurance taxes likely to rise, workforce commission chairman says.

No doubt employers in other states will be in a similar, unhappy, situation.

Arbitration Fairness Act is a Trio, Not a Duo

A reader of my post last week, Arbitration Fairness Act - A Fatal Linkage for Employers, would be forgiven for not understanding that there is a third interest group other than employment and consumer transactions in which arbitration would be banned if the bill passes.

That ban would be for pre-dispute arbitration in franchise agreements. And as you might guess, there are differences of opinion in that industry as well, see Franchisors, Franchisees at Odds Over Arbitration Fairness Act, a story at a franchising specific blog, blue maumau.

According to the author, Lionel Hutz:

The International Franchise Association opposes this bill. Franchisee groups such as the American Association of Franchisees and Dealers, the Coalition of Franchisee Associations and Dunkin’ Donuts Independent Franchise Owners supports it.

The franchise part of the bill may impact the fewest people of the three areas in which pre-dispute arbitration agreements would be banned, but it may also be the group where feelings are the deepest.

My guess is that employers who want to keep the ability to mandate agreement to arbitration for disputes as a condition of employment, ought to distance themselves from that aspect of the bill as well and should push for separate treatment. Even then, it will be an uphill fight.