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Some Reflections on the Ledbetter Decision
May 29, 2007 by Ross Runkel at LawMemo
"Some Reflections on the Ledbetter Decision" is the title of Paul Secunda's post at Workplace Prof Blog. He argues that today's decision in Ledbetter v. Goodyear Tire & Rubber Co (US Supreme Court 05/29/2007) was wrong.
Professor Secunda has an excellent analytical eye, and has a thoughtful and generous nature, so I enjoy jousting with him.
I thought the decision was correct, and was surprised only by the fact that four Justices didn't think so.
Paul is quite correct when he says that the main question is: "Is pay discrimination a discrete act like a termination or failure to promote or is it more like a cumulative series of individual events like hostile work environment sexual harassment?"
I jump off Paul's wagon when he says pay discrimination decisions are more like hostile environment claims than they are like a discrete act such as a termination or demotion. Quoting Paul: "As with hostile work environment sexual harassment claims, individual pay decisions by themselves do not have the obvious discriminatory intent that discrete acts such as terminations or failures to promote do."
Not so. In the Ledbetter case, a pay decision was made once a year, and then implemented via paychecks. One single decision. In a hostile environment case, the claim by its very nature involves a cumulation of several events that have to be added together before the environment is sufficiently hostile for a claim to arise.
It's the difference between "wham" (pay raise) and "drip, drip, drip" (hostile environment).
I think Paul and the Supreme Court dissenters have shifted the focus to the difficulty of discovery. If everyone else's pay rate is a secret, then of course it is difficult to discove a discriminatory pay increase. But the same is true in many discharge and promotion cases. It often is difficult to discover that one gender or race has been treated differently than another, and then difficult to discover the reason for the different treatment. That has never had any effect on the statute of limitations.
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Ledbetter loses pay discrimination case
May 29, 2007 by Ross Runkel at LawMemo
Title VII's statute of limitations begins when a discriminatory pay decision was made and communicated to the employee, and does not start over with each later paycheck.
So says the US Supreme Court in a 5-4 decision announced this morning.
Ledbetter v. Goodyear Tire & Rubber Co (US Supreme Court 05/29/2007)
Lilly Ledbetter claimed her employer paid her a smaller salary than it paid male co-workers because of her sex. Her periodic paychecks were based on annual salary reviews, which she claimed were made with discriminatory intent. A jury awarded damages to Ledbetter based on a series of salary decisions going back 19 years. The 11th Circuit reversed and ordered that Ledbetter's complaint be dismissed. The US Supreme Court affirmed.
The Supreme Court held that Title VII's statute of limitation period (180 or 300 days) begins to run when "each allegedly discriminatory pay decision was made and communicated to her." The Court rejected Ledbetter's argument that each subsequent paycheck was a separate act of discrimination, and her argument that the most recent decision was unlawful because it carried forward intentionally discriminatory disparities from prior years.
My view: This is the correct decision, following the reasoning that I predicted back in November.
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Dayton v. Hanson - appeal dismissed
May 27, 2007 by Ross Runkel at LawMemo
As I expected, the Supreme Court dismissed the "appeal" in Office of Senator Mark Dayton v. Hanson on May 21, 2007. So the lower court decision remains undisturbed.
Hanson sued his ex-employer - the Office of Senator Mark Dayton. The Dayton folks argued that the suit had to be halted for fear of violating the constitution's speech or debate clause, but the DC Circuit said things could go forward.
The Office of Senator Mark Dayton filed an appeal to the US Supreme Court. That was cute trick. Most cases get to the Supreme Court by writ of certiorari, and the Court gets to pick and choose which of those cases it will allow in the door. But if a case properly gets to the Court on appeal, then the Court has no choice and must decide it.
Very few cases fit into the "appeal" category, and this was not one of them.
Here is what I predicted, and exactly what came about:
First, there is a jurisdictional question. This an "appeal," rather than a certiorari case. A small number of cases from the circuit courts qualify for "appeal," and this is not one of them. So the appeal will be dismissed for lack of jurisdiction at the Supreme Court level.
Second, the Court can, if it wishes, treat the appeal papers as if they were certiorari papers and then go ahead and grant certiorari - in which case they would have jurisdiction. I expect the Court will not do that. The decision below was not wrong, there is no split of authority among the circuits, and the whole dispute really is not particularly important.
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3.6% winners under Sarbanes-Oxley
May 27, 2007 by Ross Runkel at LawMemo
Ever wonder why so few whistleblowers win under the Sarbanes-Oxley Act of 2002?
Perhaps here's the answer: Unfulfilled Expectations: An Empirical Analysis of Why Sarbanes-Oxley Whistleblowers Rarely Win by Professor Richard Moberly, University of Nebraska College of Law. To be published in William & Mary Law Review, Vol. 49, Fall 2007.
The Abstract:
Scholars praise the whistleblower protections of the Sarbanes-Oxley Act of 2002 as one of the most protective anti-retaliation provisions in the world. Yet, during its first three years, only 3.6% of Sarbanes-Oxley whistleblowers won relief through the initial administrative process that adjudicates such claims, and only 6.5% of whistleblowers won appeals through the process.
 This Article reports the results of an empirical study of all Department of Labor Sarbanes-Oxley determinations during this time, consisting of over 700 separate decisions from administrative investigations and hearings. The results of this detailed analysis demonstrate that administrative decision-makers strictly construed, and in some cases misapplied, Sarbanes-Oxley's substantive protections to the significant disadvantage of employees. These data-based findings assist in identifying the provisions and procedures of the Act that do not work as Congress intended as well as suggest potential remedies for these statutory and administrative deficiencies. |
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Davenport v WEA developments
May 17, 2007 by Ross Runkel at LawMemo
Washington state law requires unions to get pre-expenditure permission (an "opt in" requirement) from non-members before using their agency shop payments for political purposes.
The US Supreme Court is poised to decide whether the Washington State Supreme Court erred by holding that law unconstitutional as an abridgement of free speech. Davenport v. Washington Education Association.
Now the Washington legislature has amended the statute to be more favorable to the union. So the impact of the US Supreme Court's decision will apply only to expenditures that pre-dated the amendment.
On May 11, 2007 the Washington State Legislature amended the statute by adding one sentence that clarifies the meaning of the word "use." The statutory amendment:
A labor organization does not use agency shop fees when it uses its general treasury funds to make such contributions or expenditures if it has sufficient revenues from sources other than agency shop fees in its general treasury to fund such contributions or expenditures.
All parties have filed supplementary briefs within the past few days. All briefs are here.
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Multiple medical leave claims
May 11, 2007 by Ross Runkel at LawMemo
Michael Faust filed multiple claims against his former employer, all arising out of his back pain, and a note from his chiropractor:
- discharge in violation of his right to medical leave under the California Family Rights Act (CFRA) (a part of the California Fair Employment and Housing Act (FEHA))
- retaliation
- wrongful discharge
- disability discrimination
The trial court granted summary judgment for the employer,but the California Court of Appeal reversed as to most of Faust's claims. Faust v. California Portland Cement (California Ct App 05/10/2007)
Faust was experiencing severe back pain. His treating chiropractor provided a note recommending treatment and stating that he was "unable to perform regular job duties" for a month. Faust gave the note to his employer. In an exchange of voicemails the employer requested to speak to him about the chiropractor's report. Faust stated that the employer could speak to his wife, chiropractor, or workers compensation attorney, but the employer did not. Faust did not reply to a letter detailing perceived defects in the chiropractor's report. Later the employer discharged Faust, stating that his paperwork was "insufficient to sustain an approved absence."
The California Court of Appeal held:
- There was a triable issue on Faust's CFRA claims because the employer did not post notice or give notice to Faust of his CFRA rights, Faust provided notice of his need for CFRA leave, and Faust's chiropractor's report stated the reason for CFRA leave. Although the employer claimed that Faust unreasonably failed to respond to inquiries about his health, another possible inference is that the employer unreasonably refused to communicate with his designated representatives. The court rejected the employer's assertion that Faust's chiropractor was not a qualified health care provider.
- There was a triable issue on Faust's claim of retaliation for exercising CFRA rights because he presented a prima facie case, and the employer's assertion that it discharged him for insubordination (taking an unauthorized leave) was undermined by the employer's refusal to communicate with any of Faust's representatives.
- There was a triable issue on Faust's claim of wrongful termination in violation of public policy. Because he has viable claims for violation of the CFRA, "it necessarily follows" that he has a triable issue for wrongful termination in violation of public policy.
- There was a triable issue on Faust's claim of disability discrimination. There was evidence that the employer was aware of his orthopedic condition, that the employer rejected the chiropractor's recommendation of a leave, and that the employer discharged Faust. The asserted insubordination (taking an unauthorized leave) was undermined by the employer's refusal to communicate with any of Faust's representatives.
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ADEA cert petition
May 10, 2007 by Ross Runkel at LawMemo
SCOTUSblog has this report:
Howe & Russell filed this cert. petition today in Meacham v. Knolls. Here is the questions presented page:The Age Discrimination in Employment Act (ADEA) prohibits employment practices that have an unjustified disparate impact on older workers, Smith v. City of Jackson, Miss., 544 U.S. 228 (2005), but also provides that it “shall not be unlawful for an employer . . . to take any action otherwise prohibited . . . where the differentiation is based on reasonable factors other than age.” 29 U.S.C. § 623(f)(1). The questions presented are:
1. Whether an employee alleging disparate impact under the ADEA bears the burden of persuasion on the “reasonable factors other than age” defense, as held by the Second Circuit in this case in conflict with the decisions of other circuits and a regulation of the Equal Employment Opportunity Commission.
2. Whether respondents’ practice of conferring broad discretionary authority upon individual managers to decide which employees to lay off during a reduction in force constituted a “reasonable factor other than age” as a matter of law.
We'll be watching this to see whether the Supreme Court grants review of the 2nd Circuit's decision.
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Sexual orientation, gender identity discrimination unlawful in Oregon
May 09, 2007 by Ross Runkel at LawMemo
Sexual orientation discrimination and gender identity discrimination will be unlawful in Oregon come January 1, 2008.
Senate Bill 2, the Oregon Equality Act, was signed into law today.
The bill adds "sexual orientation" as a prohibited basis for employment and housing discrimination.
"Sexual orientation" is defined as:
an individual's actual or perceived heterosexuality, homosexuality, bisexuality or gender identity, regardless of whether the individual's gender identity, appearance, expression or behavior differs from that traditionally associated with the individual's sex at birth.
Also signed into law was House Bill 2007, the Oregon Family Fairness Act, which allows "domestic partnership contracts" in Oregon. The bill was amended to change the phrase "civil union" to "domestic partnership."
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Employee or contractor?
May 08, 2007 by Ross Runkel at LawMemo
Sometimes it's a fine line between an "employee" and an "independent contractor."
What about people who make clothing at home?
Vermont's Employment Security Board determined that the individuals who make clothing at home for the Fleece on Earth company were employees for purposes of assessing unemployment taxes on the employer. The Vermont Supreme Court agreed, on a 3-2 vote. Fleece on Earth v. Dept of Employment (Vermont 05/04/2007).
The employees worked at home, were paid by the piece, owned their machines, worked at their own pace, and presented a bill at the end of each month. Fleece on Earth provided the patterns and yarn for the knitters, provided the patterns and pre-cut fabric for the sewers, designed the clothing, set the price per piece with occasional negotiations, and retained the right to reject pieces.
The primary issue was whether the individual had been and will continue to be free from the control or direction over the performance of such services, both under his contract of service and in fact (21 VSA section 1301(6)(B)(i)). The employer argued that the control test was essentially the common law master-servant test. The court disagreed. Noting that the Unemployment Compensation Act sought to protect workers and envisioned employment broadly, the court concluded that the degree of control and direction over production of a retailer's product was no different when the sweater was knitted at home at midnight than if it were produced between nine and five in a factory.
The DISSENT argued that the employer did not supervise or direct the employees' performance and that specifying a result only indicated independent contractor status.
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Wal-Mart wins religion case
May 07, 2007 by Ross Runkel at LawMemo
What to do when a pharmacist, for religious reasons, refuses to handle birth control prescriptions?
Neil Noesen went to work for Wal-Mart as a pharmacist. He had religious objections to contraceptive articles, so the boss set things up so Noesen did not have to fill birth control prescriptions, take customer orders for birth control, or handle birth control items.
That wasn't enough for Noesen. If a customer phoned in with a birth control prescription, Noesen put them on hold and walked away without alerting someone else. When a customer came to the counter with a birth control prescription, he would walk away without telling anyone that a customer needed assistance.
Wal-Mart fired Noesen, so of course he brought a federal suit claiming a violation of Title VII.
Title VII requires employers to reasonably accommodate employees' religious practices unless that would be an undue hardship.
The 7th Circuit decided it would indeed be an undue hardship on Wal-Mart, because it would require shifting all of Noesen's phone-answering duties and customer counter duties to other employees. The court said Wal-Mart should not be required to increase the duties of other employees or to re-assign other employees.
Noesen v. Medical Staffing Network (7th Cir 05/04/2007) (nonprecedential disposition).
My view: A correct decision. Title VII does not require an employer to do much in a situation like this.
Thanks to Howard M. Friedman at Religion Clause for spotting this case.
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Editor: Ross Runkel, Professor of Law Emeritus. email Ross@LawMemo.Com, Phone 503-399-8028. Copyright LawMemo, Inc.
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