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Mohawk v. Williams - more on oral argument
April 27, 2006 by Ross Runkel at LawMemo

SCOTUSblog has quite a nice recap of the oral arguments on April 26, written by Kevin Russell, a partner at Goldstein & Howe.

Today's Argument in Mohawk Industries, Inc. v. Williams

Here's a tiny portion:

Based on argument, it was difficult to tell where a majority of the Court will come out on the RICO issues presented by this case -- namely, whether a corporation can ever be part of an association-in-fact enterprise and, if so, whether plaintiffs had alleged enough here to establish that the defendant corporation was participating in an enterprise with its outside recruiters when it hired illegal workers, rather than simply conducting its own affairs.

My previous comments on this case:

Mohawk Industries v. Williams oral argument

Mohawk v. Williams: RICO meets employment law

LawMemo publishes Employment Law Memo.

Mohawk Industries v. Williams oral argument
April 26, 2006 by Ross Runkel at LawMemo

Mohawk Industries v. Williams pits employees against employer in a civil RICO case. I wrote an article about this case - "Does RICO apply when a corporation allegedly contracts with a recruiter to obtain illegal employees?" for the ABA's print publication Supreme Court Preview. After today's US Supreme Court argument I've scoured the press for hints on the outcome.

The case: Employees claim that Mohawk violated the Racketeer Influenced and Corrupt Organizations (RICO) Act by forming an association with outside employee recruiters with the purpose of violating the immigration statutes.

Main issues:

• Can a corporation (Mohawk) be part of a separate RICO enterprise known as an "association-in-fact" or is the concept of association-in-fact limited to associations of individuals (that is, humans)?

  This hinges on interpreting Section 1961(4):

  "enterprise" includes any individual, partnership, corporation, association, or other legal entity, and any union or group of individuals associated in fact although not a legal entity; [emphasis added]

• Did the employees properly plead that Mohawk was conducting the affairs of the separate enterprise, as opposed to conducting its own affairs?

The action at the Supreme Court:

On the issue of a corporation being part of an association-in-fact:

• Justices Ginsburg and Scalia: Suggested the Court might not consider this issue because Mohawk did not argue it in the 11th Circuit proceedings.
• Justice Alito: Pressed the big question. Why does the definition of "enterprise" use the word "includes" instead of "means"?
• Justice Scalia: Suggested that the word "union" modifies the word "individuals," which clearly excludes corporations.

On the issue of Mohawk conducting its own affairs:

• Justice Breyer: Wonders whether it is wise to "RICO-ize vast amounts of commercial activities."
• Chief Justice Roberts: Thinks the employees could have easily gone after Mohawk on a theory of conspiracy rather than RICO.
• Justice Scalia: Doesn't want to delve into the minds of corporations, figuring out whether they are conducting their own affairs or the affairs of a separate enterprise.
• Justice Souter: Providing employees with false documents is not a normal activity of a corporation.

LawMemo publishes Employment Law Memo.

Don't Ask, Don't Tell - Cook v. Rumsfeld
April 25, 2006 by Ross Runkel at LawMemo

Another reminder that the constitution is rarely the solution when government adopts poor policies.

The military's Don't' Ask, Don't Tell policy was challenged by former military service members who were forced to leave the military due to the policy. They sued claiming violation of 5th amendment due process equal protection and 1st amendment free speech. They lost. Cook v. Rumsfeld (D. Mass. 04/24/2006).

Other courts reached the same conclusion, so why is this case special?

Some lawyers thought that Lawrence v. Texas (US Supreme Court 2003) (striking down the Texas sodomy statute) changed the legal landscape. The usual constitutional rule is that Congress needs only to have a "rational basis" to justify a statute. In some cases (example: race discrimination, some free speech and religion cases) Congress has to have a compelling governmental interest.

The judge in Cook v. Rumsfeld concluded that the Supreme Court used the rational basis test in Lawrence, and therefore, that's still the correct test to use. Using that test, he found ample justification for the Don't Ask, Don't Tell rule.

Leonard Link provides good analysis and details at Boston Judge Rejects "Don't Ask Don't Tell" Challenge

LawMemo publishes Employment Law Memo.

Happy Third Birthday to Benefitsblog
April 24, 2006 by Ross Runkel at LawMemo

Happy birthday to Benefitsblog - celebrating its third year anniversary.

Written by B. Janell Grenier, Esq., Benefitsblog is a rich source of information on all aspects of executive and employee compensation, tax, and ERISA law.

Janell is a Philadelphia-area lawyer whose practice includes employee benefits, ERISA, qualified retirement plans, executive compensation, and ERISA fiduciary compliance.

LawMemo publishes Employment Law Memo.

Sex harassment meets first amendment - court ducks the issue
April 20, 2006 by Ross Runkel at LawMemo

A comedy writer's assistant claimed that the sexually explicit banter by the writers was sexual harassment. She lost, of course, because she was forewarned that this would happen, and the writers' work was to generate an adult-oriented TV comedy (Friends) that featured sexual themes. Most of the banter was not directed at her or at other women in the workplace.

Lyle v. Warner Bothers Television (California 04/20/2006).

The California Supreme Court had previously announced that it might be addressing the question of whether imposing liability under California's Fair Employment and Housing Act (FEHA) would infringe on the defendants' free speech rights. Alas, because the plaintiff could not make out a prima facie case, the court was able to avoid deciding the first amendment issue.

LawMemo publishes Employment Law Memo.

FMLA 50-employee threshold overcome by equitable estoppel
April 19, 2006 by Ross Runkel at LawMemo

Can an employee overcome the FMLA 50-employee threshold by using the doctrine of equitable estoppel? Minard v. ITC Deltacom (5th Cir 04/18/2006) says yes.

Family Medical Leave Act applies only when the employer has 50 or more employees.

Minard claimed that the employer told her she was eligible for FMLA leave, and therefore the employer should not be allowed to assert that the 50-employee threshold has not been met.

The 5th Circuit agreed, saying:

an employer who without intent to deceive makes a definite but erroneous representation to his employee that she is an “eligible employee” and entitled to leave under FMLA, and has reason to believe that the employee will rely upon it, may be estopped to assert a defense of non-coverage, if the employee reasonably relies on that representation and takes action thereon to her detriment.

The court remanded for findings on whether Minard actually relied.

LawMemo publishes Employment Law Memo.

EEOC policy on race and color discrimination
April 19, 2006 by Ross Runkel at LawMemo

EEOC has new (04/19/2006) information on Race and Color Discrimination in Employment.

• Compliance Manual Section
• Question & Answer Fact Sheet
• Press release
• Summary page

LawMemo publishes Employment Law Memo.

Jespersen v. Harrah's Operating Co - a satire
April 18, 2006 by Ross Runkel at LawMemo

The 9th Circuit held that the following work rules were legal under Title VII because they did not create "unequal burdens" for men and women, and because they did not involve sex stereotypes:

• Women must wear makeup, stockings, and colored nail polish.
• Males are prohibited from wearing makeup or colored nail polish.
• Women must wear their hair teased, curled, or styled.


• Men must maintain short haircuts and neatly trimmed fingernails.

I offer the following rules, which will not result in "unequal burdens" and will not be sex stereotypes, according to the 9th Circuit's "reasoning" -

• Female judges must wear pink robes.
• Male judges must wear blue robes.
• Female lawyers must wear pointy-toed shoes.


• Male lawyers must wear square-toed shoes.
• Female lawyers must greet the bench with a curtsey.


• Male lawyers must greet the bench with a bow.
• Female lawyers must wear red jackets.


• Male lawyers must wear black jackets.

Perhaps you can think of a few more.

The case: Jespersen v. Harrah's Operating Co (9th Cir en banc 04/14/2006).

LawMemo publishes Employment Law Memo.

Gender-based grooming code survives Title VII attack
April 16, 2006 by Ross Runkel at LawMemo

The 9th Circuit - en banc, 7-4 - has upheld an employer's grooming code that expressly contains different standards for women than for men. The decision leaves me wondering whether that court ever reads the statute.

Jespersen v. Harrah's Operating Co (9th Cir en banc 04/14/2006).

Employment Law Memo notified its readers about this case in the 04/17/2006 issue, emailed on 04/16/2006.

Basic facts: Female bartenders were required to wear makeup, stockings, and colored nail polish, and to wear their hair teased, curled, or styled. Males were prohibited from wearing makeup or colored nail polish, and were required to maintain short haircuts and neatly trimmed fingernails.

The court held that these rules did not violate Title VII, and analyzed the case along two lines of reasoning.

Unequal burdens test

• The court applied the "unequal burdens" test announced in Franks v. United Airlines, 216 F3d 845 (9th Cir 2000) (en banc). Even though the employer's code expressly differentiated between the sexes, the court said it is not "facially discriminatory." (A facially discriminatory rule can be upheld only if it is a BFOQ, which this employer could not have proved.)
• An employee has to prove that the rule places a greater burden on one gender than the other. Jespersen did not submit any evidence on this point, and the court refused to take judicial notice of the fact that it takes a good deal of time and money to apply daily makeup.
• Three dissenting judges would take judicial notice of the necessary facts.
• My view:

  Utter nonsense. Nothing in Title VII (hello; read the statute) says anything about "equal burdens." This is a judge-made add-on. Apparently this is a special rule just for dress codes, appearance rules, and the like. You can bet the 9th Circuit would laugh at any suggestion that an employer could have gender-different rules as to when employees take lunch, where they park, which computers they can use. Can you imagine a court allowing such gender-different rules on the ground that the "burdens are not unequal"? Did I already say this is utter nonsense?

  Not one of the 11 judges challenged the legitimacy of the judge-created "equal burdens" test. They all assumed it was correct. I would have thought one of them might have gone back to read the text of Title VII and ask whether this rule can possibly be derived from the statute.

  Assuming an "unequal burden" analysis is the way to go, then I agree 100 percent with the majority when they say that Jespersen needed to present proof. I thought the dissent was stretching things by saying they would take judicial notice of how burdensome it is to put on makeup.

Sex stereotyping

• The court applied the sex stereotyping analysis of Price Waterhouse v. Hopkins, 490 US 228 (1989), and found no stereotyping. The majority said the employer's rules "do not require Jespersen to conform to a stereotypical image that would objectively impede her ability to perform her job requirements as a bartender."
• Four dissenting judges argued that the employer's rules contained a message that "women's undoctored faces compare unfavorably to men's ... because of a cultural assumption - and gender-based stereotype - that women's faces are incomplete ... without full makeup."
• My view:

  One of the specific facts in Price Waterhouse was that part of the sex stereotyping had to do with the fact that Hopkins didn't wear makeup. Price Waterhouse is not the easiest case in the world to work with. The sex stereotyping was extreme and extensive, and it's not clear how it should be applied to cases such as Jespersen's

  The 9th Circuit majority takes the position that sex stereotyping violates Title VII only when it interferes with the employee's ability to do the assigned job. I see no way to reconcile that view with the US Supreme Court decisions dealing with sex harassment, which have not imposed such a requirement. I see no way to reconcile that view with the text of Title VII, which does not impose such a requirement.

  Consider a similar grooming code that differentiated between two religions. The court would laugh the employer out of court. Not here, however, for one simple reason. The grooming code fit the court's own sex stereotypes exactly.

LawMemo publishes Employment Law Memo.

State's definition of "disability" does not require a substantial limitation on a major life activity
April 13, 2006 by Ross Runkel at LawMemo

States often adopt definitions of basic concepts that are different from the federal definitions. "Disability" is one.

The federal Americans with Disabilities Act (ADA) says that to be "disabled" one must show that an impairment results in a substantial limitation on a major life activity.

The State of Maine is different. Maine did not adopt the federal standard, so a substantial limitation on a major life activity is not something that has to be demonstrated.

True, even though the Maine Human Rights Commission adopted a regulation that tracked the federal standard. That regulation was invalid.

Not that the Maine Supreme Judicial Court was unanimous. They split 4-3.

Whitney v. Wal-Mart (Maine 04/11/2006).

Employment Law Memo notified its readers about this case on 04/14/2006.

So the message is clear. Always check out the local laws. Sometimes the definitions are different, often more employee-friendly. Sometime the remedies are different. Sometimes the statutes apply to smaller employers than the federal statutes reach.

LawMemo publishes Employment Law Memo.

"Adverse employment action" argument in Supreme Court
April 11, 2006 by Ross Runkel at LawMemo

In the most important employment law case of the year, the US Supreme Court hears arguments in Burlington Northern v. White on Monday, April 17. Issue: What's an adverse employment action in a retaliation case?

I've looked at the briefs, and we're going to see a great argument. The issue is of extraordinary importance. Often an employee loses on the merits of a claim for sex discrimination or race discrimination, but can win on a claim that the employer retaliated for filing an EEOC charge or for complaining.

In a regular discrimination suit or a harassment suit brought under Title VII Section 703, it's clear that the employee must prove that the employer took an action that has an effect on terms and conditions of employment - firing, transfer to a job with significantly different responsibilities, significant change in benefits, etc.

Retaliation suits come under Section 704. Is the standard different? We'll see.

History of Burlington Northern v. White: A jury found in White's favor on her claim of retaliation for filing an EEOC charge. The en banc 6th Circuit affirmed the verdict. The issue was whether two actions were adverse employment actions under Title VII Section 704.

• (1) White was working as a fork lift operator, and the employer transferred her to work as a standard track laborer.
• (2) Later, the employer suspended White without pay for 37 days. After she filed a grievance, the employer reinstated her and gave her full back pay.

Lower courts are in disarray, adopting various standards for deciding whether there has bee an adverse employment action. There are main three standards:

• Ultimate employment decision. It has to be a discharge or failure to promote. Can't be lesser items such as lateral transfers, temporary suspensions. Burlington likes this one, and says the Court should adopt the same test it used in Burlington Industries v. Ellerth, 524 US 742 (1998).
• Materially adverse change. The 6th Circuit used this one in the decision below.
• Reasonably likely to deter employees from engaging in protected activity. The EEOC likes this one.
• White is pushing for an "any retaliatory act" test, but probably would settle for the "reasonably likely to deter" test.

I've previously explained why I think the test in Section 704 should be much more employee-friendly than the Section 703 test. In a nutshell: (1) The text of 704 simply forbids discrimination, while 703 forbids discrimination with respect to terms and conditions of employment. (2) Section 704 is designed to protect the system (courts, EEOC, and employees who protest) against employer interference, which is more important than protecting an individual employee from an employer's race or sex discrimination.

No matter which test the Court adopts, the facts have to applied. Burlington makes some interesting arguments:

• White was re-assigned from driving a lift truck to doing track work. That cannot possibly be an adverse employment action because doing track work was part of her job description and was what she was hired to do. My view: The Court should look at what actually took place rather than the formal description of the employee's job.
• White was suspended and then reinstated with back pay, all under the system set up in a collective bargaining agreement. Following a collectively bargained process should not be considered an adverse employment action. My view: A contract with a union should not insulate an employer from Title VII liability.

Here's what the Court's job boils down to:

• Decide whether Section 704 "discrimination" means the same thing as it does in Section 703.
• If it means something less, then what does it mean?
• Figure out a way for lower courts to screen out allegations involving minor inconvenience or bruised egos.

LawMemo publishes Employment Law Memo.

Dana Corp neutrality agreement before the NLRB
April 11, 2006 by Ross Runkel at LawMemo

The NLRB issued a new call for amici briefs relating to a new case on neutrality agreements. Here is the whole press release, including the Board Order:

LawMemo publishes Employment Law Memo.

Bathroom peeping did not create hostile work environment
April 09, 2006 by Ross Runkel at LawMemo

A male supervisor used a bathroom peephole 2-3 times a day for more than three years to watch a female employee use the toilet. This did not create a hostile work environment because the employee was unaware of it. So says the 8th Circuit in a 2-1 decision.

Cottrill v. MFA, Inc (8th Cir 04/07/2006). Employment Law Memo notified its readers about this case in the April 10 issue, which was emailed April 9.

If that were the whole story, I could understand a court saying that an employee's terms and conditions of employment are not changed by a supervisor's actions when the employee doesn't know about them.

There's more to the story:

• The employee suffered a rash from an unknown cause. She believed it was caused by a sticky substance frequently found on the toilet seat. Later, management found corn starch and old leaves that an agronomist thought was poison ivy - located in the room from where the peeping took place.
• Management asked the employee to use the restroom so they could catch the supervisor on video. She testified that she agreed "because I was told that was the only way they could fire him."
• The employee testified there were other peepholes that management did not cover up.
• When the employee found out about the peeping, she got physically ill and left work.

The majority said the employee could not rely on the peeping because she was not aware of it.

The dissent cited a series of things that, taken together, could lead a reasonable jury to conclude that the harassment was pervasive or serious enough to be actionable:

• Employee got physically sick when she learned of the peeping.
• Management enlisted her as bathroom bait.
• The rash, the substance on the toilet seat, and the stuff found in the supervisor's break room.
• Another employee had a burning sensation after using the toilet.
• The employee testified that, after the bathroom incident, management delayed her workers compensation claim, reluctantly granted it, shamed her publicly, and told her to "forget" what happened.

My view:

• Can't help noticing this was two male judges vs. one female judge.
• Can't help noticing this was two Republican appointees vs. one Democrat appointee.
• I like juries. Juries are supposed to be the fact-finders. Deciding this case on summary judgment is an example of a court that weighed the evidence itself instead of letting a jury do it. This seems to be a frequent theme in the 8th Circuit.

LawMemo publishes Employment Law Memo.

State bar is NLRB-exempt
April 08, 2006 by Ross Runkel at LawMemo

National Labor Relations Act Section 2(2) exempts political subdivisions from the NLRB's jurisdiction. Is the State Bar of New Mexico one of these? Yes (2-1).

State Bar of New Mexico (NLRB 03/24/2006).

The question is slightly more complex than one might think, simply because of the way the New Mexico State Bar is organized and operated.

It was originally established by statute to operate as an agency of the New Mexico Supreme Court. In 1978 the legislature revoked its statute, and the Supreme Court adopted a rule "continuing" the state bar, which then was organized as a non-profit corporation.

The NLRB split 2-1 along party lines. The two Republicans (Chairman Battista and Member Schaumber) found that the state bar is exempt because it was created by the state to constitute a department or administrative arm of the state government. They thought it was especially significant that the Supreme Court of new Mexico has the final say on almost everything the state bar does.

Member Walsh thought the focus should be more on the day-to-day operations, and the fact that the New Mexico Supreme Court has little or no control over personnel and labor relations issues.

My view:

• This decision is an example of how the NLRB can split along political party lines.
• I wonder why this case (a matter of first impression for the Board) was decided by a panel of three instead of the full Board. Perhaps they didn't think it was important enough.

LawMemo publishes Employment Law Memo.

Massachusetts plan not preempted by ERISA
April 06, 2006 by Ross Runkel at LawMemo

I take issue with Paul Secunda's prediction that part of Massachusetts' new health care statute will be preempted by ERISA. Workplace Prof Blog - Massachusetts Universal Health Care and ERISA Preemption.

[The Statute, 145 pages] [The Conference Report, 5 pages]

Paul's focus is on the "pay-or-play" provision. As I understand the new law, employers will be required to either provide health care for their employees, or contribute to its cost, or pay a fee of $295 per year per employee to the state. Paul's point is this:

"This is because such a law that requires employers to play or pay is related to an employee benefit plan under Section 514(a) of ERISA in that it will impact how employers will administrate and operate their health plans and will potentially lead to the uniformity interests served by ERISA to be undermined. Thereafter, the law is not saved under the Savings Clause because the law is not specifically directed against entitles engaged in insurance as that language has been defined by the Supreme Court in Miller. Consequently, the Massachusetts law will probably not be saved from ERISA preemption."

I think not. ERISA preemption applies when a state law "relates to" an ERISA plan. The US Supreme Court has made it quite clear that "relates to" does not include every possible relationship you can think of. Indeed, it could be that the Massachusetts plan has nothing at all to do with ERISA plans. This part of the statute is pointed at employers, not at ERISA plans or insurers. It may turn out that some employers are plans or are insurers, but that will be merely an accidental (and incidental) byproduct.

Paul says the pay-or-play rule will relate to an employee benefit plan because "it will impact how employers will administrate and operate their health plans." I think the opposite is true. Massachusetts is not going to tell any plan how it should be administered or operated. (It may require that "players" provide specified benefits, but that's not the same thing.) As I understand it, the plans can continue operating, and continue being administered, as they have in the past.

I agree with Paul that the statute will not be saved under the Saving Clause because it's not directed at insurance companies. However, no "saving" is necessary because it does not "relate to" in the first place.

I suppose someone will argue that employers are being coerced into having an ERISA plan. That won't fly. The facts just aren't there. The $295 per year is not a penalty. It's way less than what anybody would pay for insurance. It's the state's estimate of its own costs to treat uninsured individuals (such as those who use emergency rooms for doctor visits). There may be some good questions about the wisdom of this, but it won't result in preemption.

LawMemo publishes Employment Law Memo.

Law professor tenure debate
April 05, 2006 by Ross Runkel at LawMemo

When I had tenure as a law professor, I once offered to the university president to trade my tenure for a good parking place. The offer was rejected.

Tenure has always been controversial.

The latest twist is that the American Bar Association (ABA), which is "recognized" by the US Secretary of Education as a "Nationally Recognized Accrediting Agency In The Field Of Legal Education," has applied for reaffirmation of this esteemed status. It's important to the ABA because they are the main group that accredits law schools. For most law students, ABA accreditation is essential because that is the big ticket for being able to take state bar exams.

In response to the ABA's application, a group of law school deans has filed a comment that accuses the ABA of "seeking to dictate terms and conditions of employment" in the individual law schools.

Pretty heavy.

Some say this group of deans (American Law Deans Association) has its guns pointed directly at tenure for law professors. I doubt that, but the groups statement is pretty strong. American Law Deans Association Public Comment.

Discussed in a National Law Journal article - Law Deans Dispute ABA's Tenure Power.

Geoffrey Manne talks about this at Truth on the Market: Tenure and the Law Deans

LawMemo publishes Employment Law Memo.

Ministerial exception: putting churches above the law
April 04, 2006 by Ross Runkel at LawMemo

Say a church fires an organist for being too old. Or a female minister claims sexual harassment. The "ministerial exception" requires the courts to look the other way. The law can't reach church conduct that would be illegal for any other employer.

Although I don't like this rule, it certainly is the predominate approach taken by the courts. They base it on both the Establishment Clause and the Free Exercise Clause of the 1st amendment of the US Constitution.

Yesterday the 7th Circuit, in a classic decision by Judge Posner, applied the ministerial exception to require the courts to ignore the claim of an ex-organist who claims he was replaced by a younger person in violation of the Age Discrimination in Employment Act (ADEA). Tomic v. Catholic Diocese (7th Cir 04/04/2006).

Employment Law Memo notified its readers about this case on 04/05/2006.

The 2nd Circuit has taken a different view (2-1) in Hankins v. Lyght (2nd Cir 02/16/2006), where the court side-stepped the ministerial exception and sent the case back for the lower court to take a look at the Religious Freedom Restoration Act. Judge Posner had some terrible things to say about that case in the Tomic opinion.

My view:

Courts that apply the ministerial exception are granting the church a blanket "hands-off" rule that makes no distinction between whether the church's actions are religiously based or not. Makes no sense. If the church has a religious reason for its action, then it should be shielded by the Free Exercise clause. When the claim is something like sex harassment, and that has no grounding in the religion, then there should be no free exercise problem. I see little force in the Establishment clause in these cases because there is no more entanglement than there would be in an ordinary assault-and-battery case.

I'm encouraged by cases such as Elvig v. Calvin Presbyterian Church (9th Cir 07/23/2004), holding that a church minister could state a claim for sexual harassment.

For an excellent discussion of all this, I recommend Dolquist v. Heartland Presbytery (D. Kans. 10/28/2004). The judge surveys the field, and then concludes that a church pastor can state a claim under Title VII for sexual harassment and retaliation.

LawMemo publishes Employment Law Memo.

Transsexuals and Title VII
April 03, 2006 by Ross Runkel at LawMemo

Diane (formerly David) Schroer claims the Library of Congress didn't hire her because she is a transsexual. She changed from male to female. Schroer claims the Library violated Title VII by discriminating against her "because of sex."

There are currently three ways to handle such a case:

1. The tradition view is that Title VII does not forbid discrimination because of transsexuality because that's not discrimination "because of sex."
2. Recently there has been a theory that such discrimination can come under Title VII because it is "sexual stereotyping" as discussed in Price Waterhouse v. Hopkins, 490 US 228 (1989), but that's a pretty shaky theory.
3. A federal district judge in Schroer's suit now says it is possible that a transsexual can show discrimination "because of sex" without relying on sexual stereotyping. The judge denied the employer's motion to dismiss for failure to state a claim, saying that there are facts that Schroer could prove that would establish discrimination "because of sex." Schroer v. Billington (D DC 03/31/2006)

My view: I've got a fourth theory. Let's reason this by analogy to religion discrimination. If Schroer had changed from being a Catholic to being a Mormon, and the Library had refused to hire her for that reason, then I think that would be a clear-cut case of discrimination "because of religion." Schoer changed from being a man to being a woman, so discrimination on that basis is discrimination "because of sex."

Read more about Schroer v. Billington:

• Workplace Prof Blog - Transexual Can Sue for Sex Discrimination Under Title VII
• Jottings By An Employer's Lawyer - Transsexuality - A Third Way
• Leonard Link - Trans Paradigm Shift Under Title VII? (Lengthy, thoughtful comments from an expert on sexuality and the law)

LawMemo publishes Employment Law Memo.

Mohawk v. Williams: RICO meets employment law
April 03, 2006 by Ross Runkel at LawMemo

Employees of Mohawk Industries, Inc. sued claiming a RICO violation. The case is in the US Supreme Court, set for argument on April 26.

The Court will decide whether the employees' complaint states a claim. Mohawk denies any illegality, and none has been proved. It's just a question of whether the allegations, if true, would make out a RICO violation.

The employees' complaint alleges:

• Mohawk entered into contracts with outside recruiters with the purpose of violating the Immigration and Nationality Act.
• The Mohawk-recruiter combination is a separate RICO "enterprise." Specifically, it is an "association-in-fact."
• Mohawk participated in the affairs of the enterprise.

Mohawk's response is:

• A corporation cannot be part of an association-in-fact enterprise.
• The enterprise is not "separate" because Mohawk was simply performing internal functions (hiring employees) through the use of an agent.
• Mohawk was conducting its own affairs, not the affairs of the separate enterprise.

[Read the briefs]

Both the trial court and the 11th Circuit ruled in favor of the employees, and that ruling is contrary to a similar case from the 7th Circuit: Baker v. IBP, Inc., 357 F.3d 685 (7th Cir.), cert. denied, 125 S. Ct. 412 (2004).

The most interesting question raised in this case is whether a corporation can be part of an association-in-fact. The statutory definition of a RICO enterprise goes like this:

"enterprise" includes any individual, partnership, corporation, association, or other legal entity, and any union or group of individuals associated in fact although not a legal entity;

Let your eyes rest on the phrase "individuals associated in fact," and consider the fact that an "individual" clearly means a natural person (a human being) and does not mean a corporation.

So how can the employees succeed in arguing that a corporation can be one of these? And why is the United States government backing them up (via an amicus brief and a short oral argument)?

The employees say that "individuals associated in fact" is just an example, and that Congress did not write out a complete and exclusive list. To demonstrate this, they focus on the word "includes" in the definition. Lots of other definitions use the word "means." The employees say that "means" signals a complete list and "includes" signals a list of examples.

Mohawk points out one definition that uses the phrase "including, but not limited to," which demonstrates that Congress knew how to make it clear that a definition was just a list of examples. Mohawk also points out a few RICO definitions that use the word "includes" but obviously contain exclusive lists.

Interesting argument on how to read a statute.

The employees' Supreme Court brief makes the fascinating claim that Mohawk should not be allowed to argue the point about corporations being part of an association-in-fact, claiming that Mohawk conceded this point in the trial court and did not properly raise it in the petition for certiorari.

Mohawk has a couple of other arguments that sound less promising.

One is that the combination of Mohawk plus the recruiters is not a separate enterprise because the recruiters are simply Mohawk's agents. That argument probably fails for lack of statutory support and lack of support in the cases.

Another is that Mohawk wasn't conducting the affairs of the separate enterprise; it was conducting its own internal affairs (hiring employees).

LawMemo publishes Employment Law Memo.

EEOC aids Rastafarian against UPS
April 03, 2006 by Ross Runkel at LawMemo

EEOC sued UPS claiming religion discrimination. The claim is that UPS refused to hire a Rastafarian as a driver helper because he wore a beard, which he wore for religious purposes.

The claim is that UPS required the applicant to shave; otherwise the only job available would be a lower-paying job with no contact with the public.

EEOC's theory is that UPS must reasonably accommodate the applicant's sincerely held religious belief and practice. [EEOC press release.]

My view:

• If the facts are true, then EEOC ought to win this one easily.
• I wonder why EEOC brought this case, given their limited resources. Probably as a signal to all employers that they have to accommodate religious practices, even practices that are "different" and that are practiced by "different" religions.
• I wonder why UPS didn't accommodate this applicant.

LawMemo publishes Employment Law Memo.

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Editor: Ross Runkel, Professor of Law Emeritus. email Ross@LawMemo.Com, Phone 503-399-8028. Copyright LawMemo, Inc. Employment Law Memo emails designed for lawyers.  Expert summaries of decisions from all federal and state appellate courts.  Direct link to full text.  Click here for free 4-week subscription