Shaw Valenza's Employment Law Pot Pourri / Quick Takes

Here are some quick takes to catch you up on a bunch of recent developments.

Rounding Time to the Quarter Hour

The Ninth Circuit upheld a neutral policy under which an employer rounded time to the nearest quarter-hour.

The time clock system would automatically round back for 7 minutes or less of time worked in the 15-minute period, and would round ahead for 8 or more minutes.  The rounding mechanism was not allowed to be edited by managers.

On that basis, the Court held that the rounding system was neutral on its face.  And as applied to the plaintiff, he lost just $15.00 in pay over the 13 months of punches that he made.  That's how neutral rounding is supposed to pan out.

The Court found that this practice was lawful under both the federal Fair Labor Standards Act and the  California Labor Code.  The case is Corbin v. Time Warner Entertainment etc. and the opinion is here.

California Fair Employment Agency to Revise Gender Regulations

The FEHC is beginning the process of revising its regulations regarding gender identity.   You can read the proposed revisions here.  The proposed additions include a new provision on bathroom / locker facilities:

(A) Employers shall permit employees to use facilities that correspond to the employee’s gender identity or gender expression, regardless of the employee’s assigned sex at birth.

(B) To balance the privacy interests of all employees, employers shall provide alternatives if no individual facility is available, such as, locking toilet stalls, staggered schedules for showering, shower curtains, or other method of ensuring privacy. However, an employer or other covered entity may not require an employee to use a particular facility.

(C) Transitioning employees shall not be required to undergo, or provide proof of, any particular medical treatment to use facilities designated for use by a particular gender.

(D) Employers and other covered entities with single-occupancy facilities under their control shall use gender-neutral signage for those facilities, such as “Restroom,” “Unisex,” “Gender Neutral,” “All Gender Restroom,” etc.

There also is a proposed regulation regarding pronouns and names:

(h) Recording of Gender and Name

(1) It is unlawful to require an applicant or employee to state whether the individual is transgender.

(2) If a job application form requires an individual to identify as male or female, designation by the applicant of a gender that is inconsistent with the applicant’s assigned sex at birth or presumed gender shall not be considered fraudulent or a misrepresentation for the purpose of adverse action based on the applicant’s designation.

(3) If an employee requests to be identified with a preferred gender, name, and/or pronoun, an employer or other covered entity who fails to abide by the employee’s stated preference may be liable under the Act, except as noted in subdivision (4) below.

(4) An employer may use an employee’s gender or legal name as indicated in a government-issued identification document only if it is necessary to meet a legally- mandated obligation.

Here's a proposal about dress and grooming standards:

(g) Physical Appearance, Grooming, and Dress Standards. It is lawful for an employer or other covered entity to impose upon an applicant or employee physical appearance, grooming or dress standards that serve a legitimate business purpose, so long as any such standard does not discriminate based on an individual’s sex, including gender, gender identity, or gender expression.

However, if such a standard discriminates on the basis of sex and if it also significantly burdens the individual in his or her employment, it is unlawful.  It is unlawful to require individuals to dress or groom themselves in a manner inconsistent with their gender identity or gender expression.

And, finally, something about requiring proof of gender identity:

(1) It is unlawful for employers and other covered entities to inquire or require documentation or proof of an individual’s sex, gender, gender identity, or gender expression as a condition of employment, unless the employer or other covered entity meets its burden of proving a BFOQ defense, as defined above, or the employee initiates communication with the employer regarding any requested adjustment to the employee’s working conditions. 

Attorney's Fees for Prevailing Employers Under Federal Anti-Discrimination Law?

The U.S. Supreme Court decided - 8-0 - that a prevailing defendant in a Title VII discrimination case (and that means ADA, ADEA and section 1988, too), may recover attorney's fees without winning "on the merits."  That means, for example, if a plaintiff insists on bringing a frivolous case that is obviously barred by the statute of limitations, the employer can apply for attorney's fees even though the statute of limitations defense is not proof of non-discrimination.  As Justice Thomas already points out, the defense already has to establish that the plaintiff's case was 'frivolous, unreasonable or groundless" because of an earlier Supreme Court case (that invented that standard).  So requiring a win "on the merits" would have been a whole new burden and the Court wasn't having it.  So, the EEOC owes CRST at least $4 million for its frivolous pursuit of CRST if that ruling holds up on remand.  Wet blanket moment: Where will the EEOC get the money to pay those fees?  Oh. Right.  Us.

That case is CRST Van Expedited, Inc. v. EEOC and the opinion is here.

Statute of Limitations for Constructive Discharge Under Federal Law

The U.S. Supreme Court in an 7-1 decision decided that a "constructive discharge" or forced resignation claim is considered timely or untimely based on the date that the employee gives notice of resignation.

The Post Office in Green v. Brennan, opinion here, argued that the limitations clock begins to run when the employer performs the "last discriminatory act."  But the Court disagreed and reversed the Tenth Circuit:

Ordinarily, a “ ‘limitations period commences when the plaintiff has a complete and present cause of action.’” Ibid. “[A] cause of action does not become ‘complete and present’ for limitations purposes until the plaintiff can file suit and obtain relief.” Bay Area Laundry and Dry Cleaning Pension Trust Fund v. Ferbar Corp. of Cal., 522 U. S. 192, 201 (1997).

 Applying this general rule to the case before it, the Court ruled:

the “matter alleged to be discriminatory” in a constructive-discharge claim necessarily includes the employee’s resignation for three reasons. First, in the context of a constructive-discharge claim, a resignation is part of the “complete and present cause of action” necessary before a limitations period ordinarily begins to run. Second, nothing in the regulation creating the limitations period here, §1614.105, clearly indicates an intent to displace this standard rule. Third, practical considerations confirm the merit of applying the standard rule here.

Of note, the Court made clear that the limitations period begins to run when the employee gives notice of the resignation, not on the date of the resignation.

U.S. Supreme Court: Employer's Motivation Rather than Knowledge Is Key to Liability Under Title VII

Samantha Elauf applied to work for Abercrombie & Fitch.  She wore a headscarf during the application process.  A&F has in place a no-headgear "look" policy.   The hiring managers determined that her head scarf would violate that policy.

At least one hiring manager suspected that Elauf wore the headscarf as a religious practice.  She so informed the district manager, who decided that the scarf would violate the "look" policy and that she would not be hired.

No one asked Elauf if the scarf was a religious practice, or investigated whether she would work without it.  No one sought to determine if allowing the scare would be an accommodation for a religious practice, or whether flexing the policy would be an undue hardship.  Apparently seeking to avoid these issues, they just turned her down for the job.

The EEOC sued on Elauf's behalf.   The dispute before the court boiled down to whether the Company could be liable for intentional discrimination when it did not know Ms. Elauf wore the scarf for religious reasons, but at least one manager surmised that there was a religious connection to her garb.  The district court had granted summary judgment in favor of the EEOC.  But the court of appeals reversed and granted summary judgment in favor of A&F.

Justice Scalia, writing for a majority of 7, decided that A&F could violate Title VII without actual knowledge that a religious practice was at issue.  Rather, for the Court, the issue was the motivation of the hiring managers.

First, the Court noted that under Title VII (as opposed to the ADA), the only claims available are disparate treatment or disparate impact. Therefore, "denial of religious accommodation" alone is not a claim under Title VII.   That being the case, the plaintiff can win only by proving that the company's failure to hire (or other adverse action) is motivated by an illegal criterion:

The disparate-treatment provision forbids employers to: (1) “fail . . . to hire” an applicant (2) “because of ” (3) “such individual’s . . . religion” (which includes his religious practice). Here, of course, Abercrombie (1) failed to hire Elauf. The parties concede that (if Elauf sincerely believes that her religion so requires) Elauf’s wearing of a head- scarf is (3) a “religious practice.” All that remains is whether she was not hired (2) “because of” her religious practice.

 *  *  *

the intentional discrimination provision prohibits certain motives, regardless of the state of the actor’s knowledge. Motive and knowledge are separate concepts. An employer who has actual knowledge of the need for an accommodation does not violate Title VII by refusing to hire an applicant if avoiding that accommodation is not his motive. Conversely, an employer who acts with the motive of avoiding accommodation may violate Title VII even if he has no more than an unsubstantiated suspicion that accommodation would be needed.

Thus, the rule for disparate-treatment claims based on a failure to accommodate a religious practice is straightforward: An employer may not make an applicant’s religious practice, confirmed or otherwise, a factor in employment decisions. For example, suppose that an employer thinks (though he does not know for certain) that a job applicant may be an orthodox Jew who will observe the Sabbath, and thus be unable to work on Saturdays. If the applicant actually requires an accommodation of that religious practice, and the employer’s desire to avoid the prospective accommodation is a motivating factor in his decision, the employer violates Title VII.

Let us remember that this case involves a question of fact: did the company deny employment "because" she was Muslim and might seek a relaxing of the look rule?  There was evidence of that motivation in the record.  Therefore, the Court's only ruling was that the court of appeals should not have granted summary judgment. It remains to be seen if a jury would find that A&F denied employment motivated by the possibility of religious accommodation, or because they don't hire anyone with a headscarf.  Given the hiring manager's articulated suspicion, this one is not likely to go the employer's way.

This case opens up employers to claims that are based on "perceived" religious practice.  That is the employer can be wrong and still be held liable. Motivation is almost never provable before trial.  

This case also establishes that under Title VII, the employee would have to prove the motivation.  That is the employee has to prove the employer denied employment because it did not wish to accommodate the applicant. 

This case could have been avoided had management simply asked the applicant if she could abide by the look policy if hired.  That's a perfectly legal question. Then the applicant could have said "I need to wear a scarf as a religious practice."  At that point, the company would be faced with two options: accommodate, or claim undue burden. In most cases, a relaxation of a dress code can be a form of accommodation.  

Justice Thomas and Alito wrote separate concurrences in the judgment. Both believed the circuit court should not have granted summary judgment in favor of A&F, and correctly so.  But neither agreed with the majority opinion's rationale.  Justice Thomas felt that the case was one of disparate impact discrimination, seeming to ignore the evidence of unlawful bias by the hiring manager.  Justice Alito appears to claim that the case was one of reasonable accommodation law rather than intentional discrimination, i.e., failure to hire.  (Amateur Justice Valenza says they're both incorrect).

This case is EEOC v. Abercrombie & Fitch and the opinion is here. 

U.S. Supreme Court: Courts Have the Power to Review EEOC's Conciliation Efforts

The Supreme Court unanimously held that the Equal Employment Opportunity Commission's duty to "conciliate" after finding reasonable cause is reviewable in court.

The EEOC typically investigates "charges," administrative complaints filed by individuals alleging discrimination or harassment or retaliation.  If EEOC decides there is no "reasonable cause" to find a violation of Title VII, the ADA, etc., it issues a "no cause" finding and a "right to sue" letter.

But when the agency decides there IS reasonable cause to believe a violation has occurred, then it proceeds with an effort to remedy the situation. That can be via "conciliation" - e.g., a settlement proposal, mediation, etc. If that fails the EEOC can sue or issue a eight-to-sue letter.

The conciliation process is required by law.  But what happens if the employer believes the EEOC has not attempted to do so?  That's what the supreme Court considered in  Mach Mining, LLC v. EEOC.  Justice Kagan, writing for the unanimous court, explained:

This case began when a woman filed a charge with the EEOC claiming that petitioner Mach Mining, LLC, had refused to hire her as a coal miner because of her sex. The Commission investigated the allegation and found reasonable cause to believe that Mach Mining had discriminated against the complainant, along with a class of women who had similarly applied for mining jobs. See App. 15. In a letter announcing that determination, the EEOC invited both the company and the complainant to participate in “informal methods” of dispute resolution, promising that a Commission representative would soon “contact [them] to begin the conciliation process.” Id., at 16. The record does not disclose what happened next. But about a year later, the Commission sent Mach Mining a second letter, stating that “such conciliation efforts as are required by law have occurred and have been unsuccessful” and that any further efforts would be “futile.” Id., at 18–19.

The EEOC then sued Mach Mining in federal district court alleging sex discrimination in hiring. The Commission’s complaint maintained that “[a]ll conditions precedent to the institution of this lawsuit”—including an attempt to end the challenged practice through conciliation—“ha[d] been fulfilled.” Id., at 22. In its answer, Mach Mining contested that statement, asserting that the EEOC had failed to “conciliat[e] in good faith” prior to filing suit. Id., at 30.

So, the EEOC moved for summary judgment against Mach Mining on the conciliation issue, arguing that the quality of its efforts are not reviewable by a court.  The district court disagreed; the Seventh Circuit ruled in favor of the EEOC.

The Supreme Court held as follows:

1.  Courts indeed have the power to review the EEOC's efforts to conciliate. Therefore, the court rejected the EEOC's argument that it had unreviewable discretion to determine what is adequate.

2.  EEOC's letter showing that it found reasonable cause and planned to conciliate, and a later letter stating conciliation has failed is insufficient evidence of conciliation.  EEOC must provide notice to the employer of what the violation is claimed to be, and must provide a court with an affidavit that it attempted conciliation. If the employer offers credible evidence contradicting EEOC's claim, the court may do fact-finding into that limited issue.

3.  If the district court finds in favor of the employer - that the EEOC did not conciliate adequately - then it is to stay the action and order the EEOC to conciliate.

So, thanks for reading this far.  As you probably figured out, this case will have little impact on employers and employment litigation.  First, the EEOC finds reasonable cause in few cases.  Second, the failure to conciliate at best is remedied with an order to conciliate, not dismissal of the lawsuit. And third, EEOC rarely sues employers, filing lawsuits in just a small percentage of cases in which it finds cause.  Fourth, this case has no bearing on state agencies and their charges, such as the Department of Fair Employment and Housing in California.

So, that's Mach Mining, LLC v. EEOC. The opinion is here. 

U.S. Supreme Court Explains Burdens in Pregnancy Discrimination Cases

The Supreme Court analyzed the federal Pregnancy Discrimination Act, which amended Title VII of the Civil Rights Act of 1964.  The Court in an opinion written by Justice Breyer on behalf of himself and five more justices, analyzed how pregnant employees can prove discrimination in cases where they cannot do their jobs, but claim other employees were provided accommodations not afforded to the pregnant workers.

The facts are as follows, per the Court:

Peggy Young, worked as a part-time driver for the respondent, United Parcel Service (UPS). Her responsibilities included pickup and delivery of packages that had arrived by air carrier the previous night. In 2006, after suffering several miscarriages, she became pregnant. Her doctor told her that she should not lift more than 20 pounds during the first 20 weeks of her pregnancy or more than 10 pounds thereafter. App. 580. UPS required drivers like Young to be able to lift parcels weighing up to 70 pounds (and up to 150 pounds with assistance). Id., at 578. UPS told Young she could not work while under a lifting restriction. Young consequently stayed home with- out pay during most of the time she was pregnant and eventually lost her employee medical coverage.

Young's theory of discrimination was

that her co-workers were willing to help her with heavy packages. She also said that UPS accommodated other drivers who were “similar in their . . . inability to work.” She accordingly concluded that UPS must accommodate her as well.

UPS, on the other hand, 

responded that the “other persons” whom it had accommodated were (1) drivers who had become disabled on the job, (2) those who had lost their Department of Transportation (DOT) certifications, and (3) those who suffered from a disability covered by the Americans with Disabilities Act of 1990 (ADA), 104 Stat. 327, 42 U. S. C. §12101 et seq. UPS said that, since Young did not fall within any of those categories, it had not discriminated against Young on the basis of pregnancy but had treated her just as it treated all “other” relevant “persons.”

So, Young sued. Her federal claim under the Pregnancy Disability Act required the Court to interpret this language:

“women affected by pregnancy, childbirth, or related medical conditions shall be treated the same for all employment-related purposes . . . as other persons not so affected but similar in their ability or inability to work....”

The Court rejected the plaintiff's argument that the employer must provide pregnant employees the same accommodations it provides to any other worker, even if some nonpregnant workers would not receive that accommodation. For example, the plaintiff sought to invalidate policies that provide accommodations only to employees with industrial injuries. Here's what the court wrote:

We doubt that Congress intended to grant pregnant workers an unconditional most-favored-nation status. The language of the statute does not require that unqualified reading. The second clause, when referring to nonpregnant persons with similar disabilities, uses the open-ended term “other persons.” It does not say that the employer must treat pregnant employees the “same” as “any other persons” (who are similar in their ability or inability to work), nor does it otherwise specify which other persons Congress had in mind.

So, how can a plaintiff prevail in a pregnancy discrimination lawsuit involving denial of accommodation?  The Court answered.  First -

plaintiff alleging that the denial of an accommodation constituted disparate treatment under the Pregnancy Discrimination Act’s second clause may make out a prima facie case by showing, as in McDonnell Douglas, that she belongs to the protected class, that she sought accommodation, that the employer did not accommodate her, and that the employer did accommodate others “Similar in their ability or inability to work.”

Then it's the employer's turn - 

The employer may then seek to justify its refusal to accommodate the plaintiff by relying on “legitimate, nondiscriminatory” reasons for denying her accommodation. 411 U. S., at 802. But, consistent with the Act’s basic objective, that reason normally cannot consist simply of a claim that it is more expensive or less convenient to add pregnant women to the category of those (“similar in their ability or inability to work”) whom the employer accommodates. 

And finally - the employee will have to prove pretext to prevail. The Court offered some advice for plaintiffs -

If the employer offers an apparently “legitimate, non- discriminatory” reason for its actions, the plaintiff may in turn show that the employer’s proffered reasons are in fact pretextual. We believe that the plaintiff may reach a jury on this issue by providing sufficient evidence that the employer’s policies impose a significant burden on pregnant workers, and that the employer’s “legitimate, nondiscriminatory” reasons are not sufficiently strong to justify the burden, but rather—when considered along with the burden imposed—give rise to an inference of intentional discrimination.

The plaintiff can create a genuine issue of material fact as to whether a significant burden exists by providing evidence that the employer accommodates a large percentage of nonpregnant workers while failing to accommodate a large percentage of pregnant workers. Here, for example, if the facts are as Young says they are, she can show that UPS accommodates most nonpregnant employees with lifting limitations while categorically failing to accommodate pregnant employees with lifting limitations. Young might also add that the fact that UPS has multiple policies that accommodate nonpregnant employees with lifting restrictions suggests that its reasons for failing to accommodate pregnant employees with lifting restrictions are not sufficiently strong—to the point that a jury could find that its reasons for failing to accommodate pregnant employees give rise to an inference of intentional discrimination.

So, this case calls into question light duty and other accommodation policies that would categorically exclude pregnant employees.  But it does not outright invalidate them.  The Court's explanation of pretext is strange.  The Court wants a jury to decide whether the employer's explanation for a policy is not "sufficiently strong" to justify the burden on pregnant employees.  So, the Court IS sitting as a "super-personnel department" now?

Finally, in 2014, the EEOC issued Enforcement Guidance broadly interpreting the Pregnancy Disability Act's provisions.  The EEOC apparently issued these regulations after the Court granted review of this case.   The Court was not amused:

we have long held that “the rulings, interpretations and opinions” of an agency charged with the mission of enforcing a particular statute, “while not controlling upon the courts by reason of their authority, do constitute a body of experience and informed judgment to which courts and litigants may properly resort for guidance.” Skidmore v. Swift & Co., 323 U. S. 134, 140 (1944). See Brief for United States as Amicus Curiae 26.

But we have also held that the “weight of such a judgment in a particular case will depend upon the thoroughness evident in its consideration, the validity of its reasoning, its consistency with earlier and later pronouncements, and all those factors that give it power to persuade, if lacking power to control.” Skidmore, supra, at 140. These qualifications are relevant here and severely limit the EEOC’s July 2014 guidance’s special power to persuade. 

We come to this conclusion not because of any agency lack of “experience” or “informed judgment.” Rather, the difficulties are those of timing, “consistency,” and “thoroughness” of “consideration.” The EEOC promulgated its 2014 guidelines only recently, after this Court had granted certiorari in this case. In these circumstances, it is fair to say that the EEOC’s current guidelines take a position about which the EEOC’s previous guidelines were silent. And that position is inconsistent with positions for which the Government has long advocated. . . . Nor does the EEOC explain the basis of its latest guidance.  Does it read the statute, for example, as embodying a most-favored-nation status? Why has it now taken a position contrary to the litigation position the Government previously took? Without further explanation, we cannot rely significantly on the EEOC’s determination. 

Ouch.

So, the Court sent the case down to the circuit court for examination of its decision upholding summary judgment in favor of UPS.

In dissent, Justice Scalia, along with Thomas and Kennedy, argued that the pregnancy discrimination provision is the same as the prohibition of sex discrimination.  The dissent accused the majority of making up a mushy test that had no basis in the text of the law. And the dissent writes that the majority conflated the concept of disparate treatment and disparate impact. 

This case is Young v. United Parcel Service, Inc. and the opinion is here.

Pot Pourri of Recent Cases I missed

There have been so many recent employment law decisions that I can't long-form blog them all.  So, here's a quick roundup of three recent, significant rulings -

Don't miss Serri v. Santa Clara University opinion here.  This case is a defense lawyer's summary judgment go-to. Of note, the court handled a number of claims that are rarely seen (such as defamation by self-compelled publication, intentional interference, and the Labor Code's equal pay law. Here are some of the highlights:

- Upholds denial of extension to file opposition to motion for summary judgment.

- Affirms summary judgment against discrimination, retaliation and wrongful termination claims.  Good analysis of the employee's burden of establishing "pretextual" reason for termination.

- Upholds summary judgment on a national origin harassment claim because the alleged comments were not severe or pervasive.

- Agrees that the trial court properly adjudicated the plaintiff's claim under the state Equal Pay Act (Labor Code section 1197.5). The court held the plaintiff did not establish the proper "comparators" to establish she was paid less than someone performing substantially equal work.

- Rare bird:  Upholds summary judgment against the plaintiff's claim of breach of employment contract. The court held that the university had "good cause" to fire Serri as a matter of law.

- Affirmed summary judgment on the plaintiff's defamation claim, including "compelled self-defamation."  The court held that all statements were true or privileged.

- Affirmed summary judgment on an intentional interference with prospective economic advantage claim.

*****

Ruiz v. Affinity Logistics, opinion here is the Ninth Circuit's second pass on an independent contractor v. employee analysis for delivery drivers. The court reversed the district court and held that  the delivery drivers were mis-classified:  "Affinity retained absolute control over drivers’ rates, payment, routes, schedules, trucks, equipment, appearance, decision to hire helpers, choice of helpers, and the right to deal with customers."  Thus, the court held, the most important factor under the Borello analysis—right to control—indicates overwhelmingly that the drivers were Affinity’s employees."  Close case, right? 

*****

Anderson v. City and County of San Francisco, opinion here, is another unusual case, testing out a "bona fide occupational qualification" defense under Title VII of the Civil Rights Act of 1964.  San Francisco's jail implemented a policy of prohibiting male guards from supervising female inmates.  The Sheriff articulated four reasons: "(1) to protect the safety of female inmates from sexual misconduct perpetrated by male deputies, (2) to maintain the security of the jail in the face of female inmates’ ability to manipulate male deputies and of the deputies’ fear of false allegations of sexual misconduct by the inmates, (3) to protect the privacy of female inmates, and (4) to promote the successful
rehabilitation of female inmates."  Guards sued, alleging they were denied promotional opportunities, overtime, and other harms because of the restriction.  Reversing the district court, the Ninth Circuit held that the plaintiff was entitled to a jury trial on whether the policy violated Title VII.  The Court explained that a BFOQ is narrow and requires the defendant employer to prove specific issues as an affirmative defense. Because the city failed to do that, the city was not entitled to judgment as a matter of law.  The "common sense" assumption that females should be supervised by females to avoid sexual contact, invasions of privacy, etc. are not enough.

 

U.S. Supreme Court: Retaliation Causation

University of Tex. Southwestern Med. Ctr. v. Nassar (opinion here) is the Supreme Court opinion setting forth the "causation" standards that apply to retaliation cases under Title VII of the Civil Rights Act of 1964.

Nassar was a doctor and professor at Univ. of Texas. He also worked at the University's medical center.  He  complained of harassment and discrimination by Dr. Levine. He tried to work only at the hospital to avoid Dr. Levine's harassment at the University. But the University blocked his effort, claiming that University policy required attending doctors also to be professors at the medical school.

So, Nassar sued for retaliation, claiming discrimination / constructive discharge, and retaliation in that the University blocked his hiring at the hospital.  After Nassar won a verdict, the Supreme Court accepted review to determine whether the retaliation claim was decided under the correct "causation" framework.

The Court decided that in Title VII cases, the causation standard is "but for," which means that the employer would not have taken negative action against the employee "but for" the employee's engaging in protected activity. Put another way, the harm would not have occurred if the employee had not complained.

Along the way, the Supreme Court majority explained the causation standard that applies to Title VII discrimination cases.  This is known as the "motivating factor" standard:

An employee who alleges status-based discrimination under Title VII need not show that the causal link between injury and wrong is so close that the injury would not have occurred but for the act. So-called but-for causation is not the test. It suffices instead to show that the motive to discriminate was one of the employer’s motives, even if the employer also had other, lawful motives that were causative in the employer’s decision. This principle is the result of an earlier case from this Court, Price Water­house v. Hopkins, 490 U. S. 228 (1989), and an ensuing statutory amendment by Congress that codified in part and abrogated in part the holding in Price Waterhouse, see §§2000e–2(m), 2000e–5(g)(2)(B). 

Why the separate standards, you ask?  Because in Title VII, the discrimination provisions are covered by a specific statute, and that statute was amended to include the motivating reason standard.    The anti-retaliation section is in another part of Title VII.  So, what the Court really decided was that the 1991 amendment to Title VII's causation provision did not apply to the retaliation piece. 

It remains to be seen whether this decision will influence California courts' interpretation of the causation standard. Earlier this year, the California Supreme Court examined causation standards in "mixed motive" cases (discussed here). We will see what the lower courts do with Nassar in the coming months. 

DGV

 

US Supreme Court: Who Is a Supervisor for Determining Title VII Liability Standards?

Under Title VII of the Civil Rights Act of 1964, the law regards harassment by a supervisor as different from harassment by a co-worker.  The employer is liable for harassment by a co-worker if the employer is negligent: the employer knew or should have known of the harassment and failed to take appropriate corrective action.  That is true as well in California under the Fair Employment and Housing Act.

For supervisor harassment, though, the employer is "strictly liable" - regardless of what it knew or should have known, and regardless of what action it takes - if the harassment includes a "tangible employment action" such as firing, demotion, loss of pay.  But if there is no tangible employment action, the employer may escape liability by proving that the employer exercised reasonable care to prevent harassment and the harassment victim did not take advantage of the employer's preventive or corrective opportunities.  That is known as the "Faragher-Ellerth" defense.  

Under California law, there is no escape from liability.  Employers are strictly liable for supervisor harassment, regardless of whether there is a tangible employment action. The employer may assert as a defense, though, that the employee's damages should be reduced because of the employee's failure to avail herself of opportunities to avoid the harassment (avoidable consequences defense.)

So, the issue of who is a supervisor matters under both schemes.  California law defines supervisor in its statute (Govt. Code Section 12926(s): "'Supervisor' means any individual having the authority, in the interest of the employer, to hire, transfer, suspend, layoff, recall, promote, discharge, assign, reward, or discipline other employees, or the responsibility to direct them, or to adjust their grievances, or effectively to recommend that action, if, in connection with the foregoing, the exercise of that authority is not of a merely routine or clerical nature, but requires the use of independent judgment."

Title VII does not define supervisor.  Some lower courts said that supervisors had to have the power to take tangible actions like firing, reassignment, etc.  The EEOC said supervisors merely have to have the power to direct the victim's work. Enter the Supreme Court.

Maetta Vance worked for Ball State University as a server in the catering department.  She complained that a co-worker, Saundra Davis, was her supervisor and harassed her over a period of time on the basis of her race.  Davis was a catering specialist, but she had no power to hire, fire, promote, demote, etc. Vance.  The lower courts threw out Vance's harassment claim because they found that Davis was not a supervisor and that Ball State was not negligent.

After reviewing precedent and the different supervisor formulations, the Court 5-4 decided

We hold that an employer may be vicariously liable for an employee’s unlawful harassment only when the employer has empowered that employee to take tangible employment actions against the victim, i.e., to effect a “significant change in employment status, such as hiring,firing, failing to promote, reassignment with significantly different responsibilities, or a decision causing a significant change in benefits.” Ellerth, supra, at 761. We reject the nebulous definition of a “supervisor” advocated in the EEOC Guidance and substantially adopted by several courts of appeals.

It is unclear whether this decision will affect California law.  As stated above, California has a statutory definition of "supervisor."  In fact, that definition is taken from the National Labor Relations Act, Section 2(11).  And the majority in the Vance case said the NLRA definition was too broad and did not apply to Title VII harassment cases.  So, it appears that California's supervisor definition is broader than  the Court's definition in Vance.

In dissent, Justice Ginsburg, writing for four, argued that the majority's definition is too narrow and that Congress should define supervisor.

This case is Vance v. Ball St. University and the opinion is here.

U.S. Supreme Court on Ministerial Exception to Title VII

The U.S. Supreme Court decided for the first time that there is a "ministerial exception" to anti-discrimination laws such as the ADA. The lower courts for many years recognized that exception.

At issue was Hosanna-Tabor Evangelical Lutheran Church and School and its discharge of a former teacher, Cheryl Perich. Perich was classified as a "called" teacher, rather than a "lay" one. Called teachers have to satisfy certain requirements, cannot be removed except for cause and by a vote of the congregation, and hold the title “Minister of Religion, Commissioned.”

As a called teacher, Perich 

taught math, language arts, social stud- ies, science, gym, art, and music. She also taught a reli- gion class four days a week, led the students in prayer and devotional exercises each day, and attended a weekly school-wide chapel service. Perich led the chapel service herself about twice a year.

Perich developed symptoms of narcolepsy, which resulted in her inability to perform her job. She later was discharged, after she threatened to file a Charge. The EEOC took up her case and sued on her behalf.

The District Court dismissed the case; the Sixth Circuit reversed, holding that a retaliation claim under the ADA could proceed against the Church.
The unanimous Court, recognizing there is a ministerial exception, put it this way:

We agree that there is such a ministerial exception. The members of a religious group put their faith in the hands of their ministers. Requiring a church to accept or retain an unwanted minister, or punishing a church for failing to do so, intrudes upon more than a mere employment decision. Such action interferes with the internal governance of the church, depriving the church of control over the selection of those who will personify its beliefs. By imposing an unwanted minister, the state infringes the Free Exercise Clause, which protects a religious group’s right to shape its own faith and mission through its appointments.

The Court did not set out a specific test, but noted that (1) the Church held Perich out to be a minister (2) the Church had a ceremony and the congregation was involved in her investiture (3) she had significant religious training as a prerequisite (4) she held herself out to be a minister and even took a special tax deduction applicable only to members of a ministry (5) her duties involved significant religious teaching activities.


Based on that, the Court decided that Perich met the standards of the ministerial exemption.  The Court was careful to note that the term "minister" was misleading because the exception applies to religions that do not include "ministers."  The Court also refused to address the "parade of horribles" the EEOC argued, such as that Church employers would be exempt from wage-hour or criminal violations towards "ministerial" employees.  


The case is Hosanna-Tabor Evangelical Lutheran Church and School v. Perich and the opinion is here.

Supreme Court Rules on Dukes v. Walmart

The U.S. Supreme Court issues its opinion in Dukes v. Walmart.  Here is the opinion.

Wal-Mart, the country's largest employer, faces the largest employment law class action ever.  We've posted about it a number of times as it made its way through the courts.  The U.S. Supreme Court decided to review the case to see if the Federal Rules of Civil Procedure authorizes a class action under the facts presented.  

The facts that give rise to the discrimination claims are as follows:

Pay and promotion decisions at Wal-Mart are generally committed to local managers’ broad discretion, which is exercised “in a largely subjective manner.” 222 F. R. D. 137, 145 (ND Cal. 2004). Local store managers may increase the wages of hourly employees (within limits) with only limited corporate oversight. As for salaried employees, such as store managers and their deputies, higher corporate authorities have discretion to set their pay within preestablished ranges. 

Promotions work in a similar fashion. Wal-Mart permits store managers to apply their own subjective criteria when selecting candidates as “support managers,” which isthe first step on the path to management. Admission to Wal-Mart’s management training program, however, does require that a candidate meet certain objective criteria,including an above-average performance rating, at least one year’s tenure in the applicant’s current position, and a willingness to relocate. But except for those requirements, regional and district managers have discretion to use their own judgment when selecting candidates for management training. Promotion to higher office—e.g., assistant manager, co-manager, or store manager—is similarly at the discretion of the employee’s superiors after prescribed objective factors are satisfied.

Thus, there is no "corporate wide" policy of intentional or even unintentional discrimination. Rather, the plaintiffs asserted the following theory regarding class-wide discrimination on behalf of hundreds of thousands of store level employees and supervisors:

local managers’ discretion over pay and promotions is exercised disproportionately in favor of men, leading to anunlawful disparate impact on female employees, see 42 U. S. C. §2000e–2(k). And, respondents say, because Wal-Mart is aware of this effect, its refusal to cabin its managers’ authority amounts to disparate treatment, see §2000e–2(a). . . . [T}the discrimination to which they have been subjected is common to all Wal-Mart’s female employees. The basic theory of their case is that a strong and uniform “corporate culture” permits bias against women to infect, perhaps subconsciously, the discretionary decisionmaking of each one of Wal-Mart’s thousands of managers—thereby making every woman at the company the victim of one common discriminatory practice.

The plaintiffs sought injunctive relief, monetary relief that is considered "equitable" such as back pay, and punitive damages. They did not seek individual compensatory damages for emotional distress or front pay, because doing so would be unauthorized by Federal Rule of Civil Procedure 23.

Federal Rule of Civil Procedure 23,  contains a number of requirements.  The plaintiff must satisfy all of the 23(a) provisions:

“(1) the class is so numerous that joinder of all members is impracticable,“(2) there are questions of law or fact common to the class, “(3) the claims or defenses of the representative parties are typical of the claims or defenses of the class, and “(4) the representative parties will fairly and adequately protect the interests of the class”

The Supreme Court held that there was insufficient common law or fact questions.  5-4, the Court explained what "common questions of law or fact" means:

Commonality requires the plaintiff to demonstrate that the class members “have suffered the same injury,” Falcon, supra, at 157. This does not mean merely that they have all suffered a violation of the same provision of law. Title VII, for example, can be violated in many ways—by intentional discrimination, or by hiring and promotion criteria that result in disparate impact, and by the use of these practices on the part of many different superiors in a single company. Quite obviously,the mere claim by employees of the same company that they have suffered a Title VII injury, or even a disparate impact Title VII injury, gives no cause to believe that all their claims can productively be litigated at once. Their claims must depend upon a common contention—for example, the assertion of discriminatory bias on the part of the same supervisor. That common contention, moreover, must be of such a nature that it is capable of classwideresolution—which means that determination of its truth or falsity will resolve an issue that is central to the validity of each one of the claims in one stroke.

The  Court, 5-4, squarely rejected that a common policy of decentralized decisions can support a class action where the standard requries proof of common issues of fact:

The only corporate policy that the plaintiffs’ evidence convincingly establishes is Wal-Mart’s “policy” of allowing discretion by local supervisors over employment matters.On its face, of course, that is just the opposite of a uniform employment practice that would provide the commonality needed for a class action; it is a policy against having uniform employment practices.

To sustain a class action under the federal rules, the plaintiff must establish one of the elements under Rule 23(b).  The plaintiffs in Dukes relied on Rule 23(b)(2):

Rule 23(b)(2) allows class treatment when “the party opposing the class has acted or refused to act on grounds that apply generally to the class, so that final injunctive relief or corresponding declaratory relief is appropriate respecting the class as a whole.” 

Therefore, Dukes did not rely on (b)(3), which is the familiar standard permitting damages when "common issues" predominate.  This is the basis for most class actions seeking money.  Unlike (b)(2), classes under (b)(3) are entitled to "opt out," and must receive adequate notice.  Rule 23(b)(2) is more concerned with injunctive and declaratory relief.

The question was whether the monetary relief that the plaintiffs sought was authorized under  Rule 23(b)(2). The Court (9-0) held that it was not:

Rule 23(b)(2) applies only when a single injunction or declaratory judgment would provide relief to each member of the class. It does not authorize class certification when each individual class member would be entitled to a different injunction or declaratory judgment against the defendant.

The Supreme Court held that "backpay" was not authorized generally by Rule 23(b)(2), and the only monetary relief available would be when it was intertwined with a particular injunction.  In Dukes' case, the injunction would not be common to each member of the class, anyway, so there could be no common monetary relief either.

So, we'll have an article, and you'll be hearing a lot about this case in the coming days.  I hope this brief summary was helpful.  It will result in less blockbuster class actions in federal court.  However, it does not necessarily mean that smaller class actions will be limited when there is a common practice causing a common injury.

U.S. Supreme Court Recognizes Third-Party Retaliation Claims

Justice Scalia for a unanimous Supreme Court wrote that employees may claim retaliation when they are associated with someone ELSE who engaged in protected activity.  What?

Miriam Regalado was engaged to Eric Thompson. They both worked for North American Stainless.  So, Miriam filed a charge with the EEOC alleging sex discrimination. NAS fired Thompson three weeks later. 

Thompson then filed a retaliation charge. But Thompson did not actually engage in protected activity. Regalado was the one who filed with the EEOC. 

So, was it retaliation under Title VII to fire Thompson?  The Supreme Court said yes. Relying on the Court's expansive definition of retaliation set forth in Burlington N. & S. F. R. Co. v. White, 548 U. S. 53 (2006),the court said:

“the antiretaliation provision, unlike the substantive provision, is not limited to discriminatory actions that affect the terms and conditions of employment.” Id., at 64. Rather, Title VII’s antiretaliation provision prohibits any employer action that “well might havedissuaded a reasonable worker from making or supporting a charge of discrimination.” Id., at 68 (internal quotation marks omitted).

And of course, they found that firing a fiance "well might have dissuaded" the complainant from making or supporting a charge: NAS argued, where do you draw the line?  Trusted co-worker? Girlfriend? What third parties are close enough to the complainant.  The Court could not find any language in Title VII to support setting down a blanket rule.
 

We must also decline to identify a fixed class of relationships for which third-party reprisals are unlawful. We expect that firing a close family member will almost always meet the Burlington standard, and inflicting a milder reprisal on a mere acquaintance will almost never do so, but beyond that we are reluctant to generalize.

The court next decided that Thompson had standing to sue under Title VII because he was a "person aggrieved."  The Court knew it was opening a can of worms to let third parties sue. So, it limited Title VII standing to those covered by the "zone of interests" Title VII seeks to protect.  Thompson was an employee at the same company as his fiance, and, most importantly, according to the complaint, the company fired him for the purpose of hiring the fiance who filed the charge.
 
The case is Thompson v. North American Stainless Inc. and the opinion is here.
DGV

Ninth Circuit Pretty Much Kills Most Attorneys' Fees Awards to Employers

In a case where the court readily acknowledged that the plaintiff's claims were frivolous, the court invented a whole new standard for awarding attorney's fees.  The fees statute says the "prevailing party" is entitled to "reasonable attorney's fees."  Then the courts said that employers can recover fees only if the plaintiff's claims are frivolous. 

In this case, Harris v. Maricopa County Superior Court, the court of appeals decided if the plaintiff asserts multiple claims, the defendant can recover fees only on the amount of time spent exclusively on frivolous claims.  So, let's say  the defense counsel spends time that overlaps on frivolous and non-frivolous claims - the attorneys' fees cannot be recovered at all.

In essence, they might as well have said, "if there are multiple claims, unless they are all 100% frivolous, the defendant shouldn't even bother trying for attorney's fees."  Instead, the court hides its true intention by setting a new standard ensuring it's impossible to recover fees, without really saying so. Judge Stephen Reinhardt, who has never met a plaintiff he didn't like, laughed at employers like this:

Although the court may not have erred in determining that the claim was frivolous, it nonetheless erred in awarding substantial fees to defendants on this claim. Almost every time entry in defendants’ fee petition for work related to the hostile work environment claim was also listed as related to some or all of Harris’s nonfrivolous discrimination claims. As we have already explained, in a civil rights action with multiple claims, only some of which are groundless, a defendant is entitled only to those fees attributable exclusively to defending against plaintiff’s frivolous claims. If the work is performed in whole or in part in connection with defending against any of plaintiff’s claims for which fees may not be awarded, such work may not be included in calculating a fee award. Accordingly, the fees properly attributable to this claim, if any, would be quite minimal.

The court's rationale is that the law is "solicitous" of plaintiffs' complaints in civil rights cases.  The court more accurately is "solicitous" of bad faith lawsuits with no chance of succeeding.  It is not mutually exclusive to allow plaintiffs with bona fide claims to have a day in court, while still enforcing some minimal standards.  If a case is frivolous, that means it never should have been brought. It is only fair to defray some of the employers' costs in defending against a lawsuit that never should have been filed in the first place.

Oh, I'm not the only one who smacked his forehead after reading the opinion in this case. There was a dissent that pretty much calls bull on the majority.  Perhaps the full en banc court will take up this issue.

The opinion is Harris v. Maricopa County Superior Court and the opinion is here.

DGV

Ninth Circuit Explains "BFOQ" Defense in Sex Discrimination Case

Title VII of the Civil Rights Act of 1964 prohibits discrimination based on sex and other criteria. But there are some defenses to discrimination. One of these is the "BFOQ" or bona fide occupational qualification.

As the court of appeals explained in Breiner v. Nevada Dept. of Corrections, the BFOQ defense is "an 'extremely narrow exception to the general prohibition of discrimination on the basis of sex' that may be invoked 'only when the essence of the business operation would be undermined' by hiring individuals of both sexes."

So, the Nevada prison system was beset by a number of instances of male corrections officers engaging in sexual conduct with female inmates. A guard impregnated an inmate, which came to the attention of administration. The inmates purposely traded favors for better treatment.

Nevada's response, in part, was to exclude males from certain jobs, including "Corrections Lieutenant" at women's prisons. The thought was that hiring only female lieutenants would cut down corruption caused by female inmates' solicitations. Some male corrections officers sued, saying they were denied promotional opportunities at the female prisons.

The Ninth Circuit reversed the prison systems' summary judgment victory. The court did not believe that Nevada adequately supported its justification for discriminating against male candidates for hiring at women's prisons.

This opinion explains in detail the BFOQ defense and the employer's difficulty proving it. Much of the opinion focuses on prison cases, but the BFOQ defense and its burdens will be applicable to all businesses seeking to establish a sufficient justification for hiring women or men exclusively in a particular setting.

The case is Breiner v. Department of Corrections and the opinion is here.

U.S. Supreme Court on Timeliness of Disparate Impact Claims

The U.S. Supreme Court unanimously held that disparate impact claims were timely even though the plaintiffs did not challenge the original implementation of the alleged discriminatory practice. Justice Scalia wrote the opinion. So there, Scalia haters.

The City of Chicago conducted an examination for firefighters in 1995. It announced it would begin selecting from among the highest scorers, called "well-qualified." The middle tier was called "qualified." Applicants who scored in this range would be kept on an eligibility list. No one brought suit attacking the examination at the time it was given.

Over time, the city exhausted the "well-qualified" list. On March 31, 1997, some African-American applicants filed a charge with the EEOC. They claimed the use of the "well qualified" score had a disparate impact on black applicants - i.e., it resulted in exclusion of a disproportionate number of black applicants. After receiving right to sue letters, they brought a class action on behalf of 6,000 "qualified" applicants.

The Court framed this issue like this:

We consider whether a plaintiff who does not file a timely charge challenging
the adoption of a practice—here, an employer’s decision to exclude employment
applicants who did not achieve a certain score on an examination—may assert
a disparate-impact claim in a timely charge challenging the employer’s later
application of that practice.

The city argued the charges were untimely and that the scoring was justified by business necessity. The city lost at trial. The district court rejected the business necessity of the test as a justification for the admittedly "severe" disparate impact.

Regarding timeliness, the plaintiffs were timely regarding the city's more recent selections of well-qualified applicants, but were untimely regarding the city's initial classification of qualified and well qualified persons.

The Supreme Court decided that the city's use, rather than adoption, of the practice was the discriminatory act. Therefore, the decision that the City's selection of well-qualified applicants within the limitations period was sufficient to establish a disparate impact claim.

The issue in Ledbetter v. Goodyear Tire & Rubber Co., 550 U. S. 618 (2007), in contrast, was whether a plaintiff could allege disparate treatment - intentional discrimination - based on time-barred past decisions. The court distinguished Ledbetter because the disparate impact claim is based on the use of neutral, but discriminatory, criteria, without the need to prove intent. So, Ledbetter is not in conflict with this decision.

The case is Lewis v. City of Chicago and the opinion is here.

Ninth Circuit Issues Walmart Class Certification Opinion

Dukes v. Walmart is the massive class action filed on behalf of some 1.5 million current and former female employees. Back in 2007, we posted about this case here and here.

An en banc panel of the Ninth Circuit just issued a "rather lengthy" opinion (read: super-long). It's a scholarly exposition of class action certification law. It makes a law review article read like a comic book.

The court's intention is to clarify the standards for class certification in the Ninth Circuit for cases brought or removed to federal district court. Federal court class action practitioners are going to want to read this opinion again and again. They're going to have to, because the majority's opinion is a bit, well, windy.

I will spare you the details because you can read as much of the opinion as you can stand. To sum up, the court is permitting the certification of a class of hundreds of thousands of current workers claiming sex discrimination. The court, however, remanded the case to the district court regarding whether to allow a separate class of former employees, and whether punitive damages makes the case inappropriate for certification.

The case is Dukes v. Walmart and the opinion is here.

Ninth Circuit: Subjective Criteria Cannot Be Used at Prima Facie Stage

Nicholson was a pilot for Cape Air. The airline rated her as unqualified to fly certain aircraft because of "CRM" skills, which included her communication and cooperation skills with her crew. She was the only female pilot in the Pacific area of operations. She had a personal relationship with one of the other pilots.

Once disqualified from flying a certain type of plane, she did not bid on other types of aircraft and was fired for job abandonment. She sued for sex discrimination under Title VII.

The court reversed the district court's grant of summary judgment. The court disagreed with the district court's determination that Nicholson was unqualified - an element of the prima facie case:

This court has long held that subjective criteria should not be considered in determining whether a plaintiff is “qualified” for purposes of establishing a prima facie case under McDonnell Douglas. Instead, “[t]he qualifications that are most appropriately considered at step one [of McDonnell Douglas] are those to which objective criteria can be applied . . . .” Lynn v. Regents of Univ. of Cal., 656 F.2d 1337, 1345 n.8 (9th Cir. 1981).

The court also found a genuine issue of material fact regarding pretext. Sometimes the court requires specific evidence when there is only circumstantial evidence (rather than direct evidence of discrimination such as sex-based comments). But here, the court picked from its patchwork of jurisprudence on what amount of evidence is required to show pretext, and settled on its most employee-friendly standard:

To avoid summary judgment at this step, however, the plaintiff must only demonstrate that there is a genuine dispute of material fact regarding pretext.
The amount of evidence required to do so is minimal. “We have held that very little evidence is necessary to raise a genuine issue of fact regarding an employer’s motive; any indication of discriminatory motive may suffice to raise a question that can only be resolved by a fact-finder. When the evidence, direct or circumstantial, consists of more than the McDonnell Douglas presumption, a factual question will almost always exist with respect to any claim of a nondiscriminatory reason.” McGinest v. GTE Serv. Corp., 360 F.3d 1103, 1124 (9th Cir. 2004)

The court found sufficient evidence of pretext. Under the above formulation of the law, how could it not? In fact, the court said that the evidence supporting the prima face case alone in this case would have been sufficient.

I'm pointing this out because it's time for the Ninth Circuit to articulate a clear standard regarding summary judgment in discrimination cases. Here's what the court said in another case in 2006:

To establish that a defendant's nondiscriminatory explanation is a pretext for discrimination, plaintiffs may rely on circumstantial evidence, which we previously have said must be "specific" and "substantial" to create a genuine issue of material fact. n7 Godwin v. Hunt Wesson, Inc., 150 F.3d 1217, 1222 (9th Cir. 1998) ("Such [circumstantial] evidence of 'pretense' must be 'specific' and 'substantial' in order to create a triable issue with respect to whether the employer intended to discriminate on the basis of sex.").

Cornwell v. Electra Cent. Credit Union, 439 F.3d 1018, 1029 (9th Cir. Or. 2006).

The court in Cornwell then went on to note that Godwin may have been undermined by later decisions:

Although there may be some tension in our post-Costa cases on this point -- several of our cases decided after Costa repeat the Godwin requirement that a plaintiff's circumstantial evidence of pretext must be "specific" and "substantial" n9 -- this panel may not overturn Ninth Circuit precedents in the absence of "intervening higher authority" that is "clearly irreconcilable" with a prior circuit holding, see Miller v. Gammie, 335 F.3d 889, 893 (9th Cir. 2003) (en banc), because that power is generally reserved to our en banc panels. See Miller, 335 F.3d at 899; United States v. Hayes, 231 F.3d 1132, 1139-40 (9th Cir. 2000); United States v. Washington, 872 F.2d 874, 880 (9th Cir. 1989). Whether or not the precedential weight of Godwin has been diminished to any degree by the Supreme Court's decision in Costa, or by our decision in McGinest, we conclude that Cornwell's evidence is sufficient to create a genuine issue of material fact regarding the motives for his demotion under either the Godwin standard which would require "specific" and "substantial" circumstantial evidence of pretext, or the McGinest standard, which would not.

Cornwell v. Electra Cent. Credit Union, 439 F.3d 1018, 1031 (9th Cir. Or. 2006).

The Cornwell court seems to be politely suggesting that there is a patchwork of decisions and they cannot really be reconciled without an en banc intervention, followed by Supreme Court clarification of its prior holdings. Just sayin'.

The case is Nicholson v. Hyannis Air Service, Inc. and the opinion is here.

Supreme Court: Fear of Disparate Impact Litigation Does Not Justify Disparate Treatment

Ricci v. DeStefano may be the most eagerly anticipated decision this Term. But that doesn't have anything to do with the case itself. It's because the opinion under review was written by Sonia Sotomayor, nominated for a seat on the High Court. he Sotomayor fans / foes did not get a decisive victory from the Supremes.


The Court decided that New Haven, Connecticut violated Title VII by throwing out a firefighter's promotion examination on the ground that White firefighters passed the test far more frequently than Black firefighters. The city feared a disparate impact lawsuit from unsuccessful minority applicants because the test results were skewed along racial lines. The Second Circuit had upheld the city's action.

The Supreme Court (5-4) held that refusing to certify the test on the basis of the successful examinees' race constituted disparate treatment discrimination under Title VII. The Court then considered whether avoiding disparate impact litigation was a valid defense. Mere fear of a lawsuit is not sufficient. Rather, to justify the action, the city would have to have a "strong basis in evidence" that "the test was deficient and that discarding the results is necessary to avoid violating the disparate-impact provision."

The Court also addressed the probability that the Black firefighters would sue for disparate impact discrimination. The Court noted that the test appeared to be "job-related and consistent with business necessity," a defense to the claim. In addition, the Court suggested that its decision would insulate the city from liability because throwing the test results out would constitute disparate treatment.

Justice Scalia concurred to point out there is tension between disparate impact claims under Title VII and equal protection law, the resolution of which would have to wait for a later date. Justice Alito also concurred with the majority opinion. He pointed out that the city's decision not to certify the test results may have had more to do with "racial politics" - pressure from activists - than a fear of disparate impact litigation.

Justice Ginsburg's dissent focused on the long history of minority exclusion from the New Haven ranks of firefighters, particularly in senior positions. The dissent held that it is permissible to make a race-based decision to remedy a disparate impact where, as in the case before it, there was "good cause" to find the test flawed.

The case is Ricci v. DeStefano and the opinion is here.

Lily Ledbetter "Fair Pay" Act

Ledbetter v. Goodyear was one of those Supreme Court decisions that galvanized politicians, activists, etc. and became a proxy for complaints about "conservative" judges. We posted about that case here. We wrote an article about it here.

The opinion simply held that Title VII discrimination claims apply what's called a "statute of limitations." The "statute of limitations" protects employers from old claims. Claims that cannot be defended because records are gone, witnesses are dead or moved away, etc. It also protects defendants when plaintiffs "sit on their rights" and wait too long to prosecute their claims. By the way, Title VII indeed contains a statute of limitations. The dispute was over how it was applied.

Ledbetter had an Area Manager job with Goodyear for almost 20 years. Over a period of 15 years, her pay slipped as compared with other males. She finally sued for sex discrimination in her compensation under Title VII and the Equal Pay Act. The court held that the claims were time barred, because the allegedly discriminatory decisions to set her compensation were made outside the limitations period. But Ledbetter argued that every time she was paid, it was a new discriminatory act. As if the payroll coordinator knew how her wages were set. Anyway, the Court decided that her claims were time barred because none of the discriminatory decisions occurred within the 300 day limitations period that applies.

The decision hardly broke new ground. But it created a political firestorm, maybe because there was a presidential election campaign going on? Nah. But - but - Ms. Ledbetter spoke at one of the national party political conventions this year. Shhh.

Anyway, new administration, new laws. The Lily Ledbetter Fair Pay Act will make all compensation-based discrimination claims timely as long as one paycheck issued under the discriminatory practice falls within the limitations period. Ripple effects? Settlements, documentation and review of compensation decisions, pay equity studies.... the mind boggles.

Here's the text of the Act, which signed on 1/29/09. Oh its effective date? May 26, 2007 - the day the Supreme Court issued its decision. So, it is retro, at least as to pending cases.

Anyway, this will help you take your mind off Ms. Ledbetter and her new law: EFCA can't be far behind!

Greg

U.S. Supreme Court: Retaliation Provisions Cover Investigation Witness

Vicky Crawford worked for the Metropolitan school district of Nashville and Davidson County, TN. The agency was conducing an investigation into a harassment complaint made against an employee, who happened to be the employee relations director.

The investigator from the human resources department asked Crawford whether she had experienced inappropriate behavior by the director. She disclosed she had witnessed certain conduct. The district later fired Crawford, allegedly for embezzlement. She sued for retaliation.

The issue before the Supreme Court was whether Crawford's participation in the investigation fell within Title VII's anti-retaliation protections. The court unanimously ruled that "opposition" includes providing information during an investigation. The lower courts and the employer argued that it would require something more affirmative - such as making a complaint.

The case is CRAWFORD v. METROPOLITAN GOVERNMENT OF NASHVILLE AND DAVIDSON COUNTY, TENNESSEE and the opinion is here.