Implicit Bias: A Brave New World
by Michael Fox
Implicit bias as a concept has been bubbling around the world of employment discrimination for a few years now. Although the fact that Google is seriously studying the issue as it applies to its own workforce may not mean that the concept is now main stream, I do think it means it is an issue that we will be hearing more about.
The NYT article earlier this week, Exposing Hidden Bias at Google, gives a pretty good overview of how Google is approaching the issue. And also notes that they first started looking at it way ahead of the curve in 2012.
Although I have done no in depth research, it seems that the case for implicit bias as a "fact" has been made. But what it means for employment discrimination law remains an open question. For example, see Implicit Bias Evidence and Employment Law: A Voyage Into the Unknown.
One obvious problem is that most employment discrimination cases are brought under a disparate treatment theory, which by definition involves intentional discrimination. As explained in a training class at Google:
The lecture begins with a dismal fact: Everyone is a little bit racist or sexist. If you think you’re immune, take the Implicit Association Test, which empirically measures people’s biases. Dr. Welle goes on to explain that some of the most damaging bias is unconscious; people do the worst stuff without meaning to, or even recognizing that they’re being influenced by their preferences.
Hardly a definition of intentional discrimination.
Of course, there is also a theory of discrimination, disparate impact, which can be used to challenge unintentional discrimination. It is tied to discriminatory results of a facially neutral business practice. Whether it can be wielded to really address implicit bias remains to be seen.
How implicit bias plays out in the world of employment litigation is an interesting legal issue.
Unfortunately for employers, interesting legal issues are often much more "interesting" for the lawyers than for their clients.
Tuesday, August 26, 2014
5th Circuit Weighs In On Religious Discrmination
by Michael Fox
Yesterday's post about the difficulty that courts have in dealing with religious discrimination, see Not Off to a Good Start and Onionhead: the newest religion? could not have been a better segue way to today's decision from the 5th Circuit, Davis v. Fort Bend County, (5th Cir. 8.26.14).
In a 2-1 decision, written by Judge Prado, the Court overturned summary judgment where the district court had found that Davis' absence on a Sunday to attend a ground breaking ceremony for her church was not a religious practice. As the district court found, and Fort Bend County argued before the 5th Circuit:
“being an avid and active member of church does not elevate every activity associated with that church into a legally protectable religious practice.”
Instead, the majority opinion focused on what it called a historical reluctance of court's to delve too deeply into an individual's professed religious belief:
This court has cautioned that judicial inquiry into the sincerity of a person’s religious belief “must be handled with a light touch, or judicial shyness.” Tagore, 735 F.3d at 328 .... “[E]xamin[ing] religious convictions any more deeply would stray into the realm of religious inquiry, an area into which we are forbidden to tread.” Id. .... Indeed, “the sincerity of a plaintiff’s engagement in a particular religious practice is rarely challenged,” and “claims of sincere religious belief in a particular practice have been accepted on little more than the plaintiff’s credible assertions.” Id.
Judge Jerry Smith, politely, but vigorously disagreed with the Court's limited view:
In its well-written opinion, the majority errs in holding that our inquiry is limited to the sincerity of an employee’s alleged religious belief; we must also consider whether that belief is “religious” in nature or merely a personal preference or a secular social or economic philosophy.
I can see en banc
, or perhaps even Supreme Court review written all over this one. So perhaps, at least in this Circuit, the question I raised yesterday will soon be, if it is not already, answered by Davis.
At a minimum, if you currently have a religious discrimination case pending in the 5th Circuit, you need to be aware of this decision.
Monday, August 25, 2014
Not Off to a Good Start and Onionhead: the newest religion?
by Michael Fox
Six weeks ago, on the 12th anniversary of this blog, I indicated that I would see if last year's lack of posting would continue and whether or not it was time to give this blog a formal ending. Based on the last six weeks, it is definitely on its death bed.
However, I have been recently involved in preparation and a trial of a lawsuit, so I am going to cut myself a little slack. And if you have to try a case in August, Taos, New Mexico is about as nice a venue as you can get.
One of the things that I am just now catching up on was actually announced by the EEOC on my birthday. They have sued Syossett based health network United Health Programs and its parent company, Cost Containment Group, Inc. for religious discrimination. The charge: employees are being forced to participant in what the EEOC calls "religious practices" which are part of a belief system that a family member created called Onionhead. According to the EEOC press release:
Employees were told wear Onionhead buttons, pull Onionhead cards to place near their work stations and keep only dim lighting in the workplace. None of these practices was work-related. When employees opposed taking part in these religious activities or did not participate fully, they were terminated.
This is an unusual case in a couple of ways. First, the discrimination is in the nature of proselytizing as opposed to the more frequently seen failure to accommodate. But more importantly, it raises an issue that courts have been really reluctant to deal with: what is religion?
Not exactly a new issue as almost ten years ago, I had this post: A Piercing Problem - 1st Cir. Ducks the Real Question, discussing the Cloutier v. Costco decision, involving the claim by an employee that as a member of the Church of Body Modification she had been discriminated against by not being allowed to wear a facial piercing.
The Court's language then showed the reluctance of courts to venture into this nebulous debate:
Determining whether a belief is religious is "more often than not a difficult and delicate task," one to which the courts are ill-suited. Thomas v. Review Bd. of Indiana Employment Sec. Div., 450 U.S. 707, 714 (1981). Fortunately, as the district court noted, there is no need for us to delve into this thorny question in the present case.
Hard to imagine how that question gets dodged in this litigation. See, EEOC Sues United Health Programs of America and Parent Company for Religious Discrimination.
In fact the issues seems to be getting teed up from the git-go, as we would say in East Texas, as defendants have moved to dismiss on the basis that Onionhead is not a religion. In a response, the EEOC says, "What defendants glibly call 'self-improvement workshops' and 'corporate wellness programs' were actually compelled religious activities led by their spiritual adviser, "Denali," and other management in violation of Title VII." Employment Law 360 has a story on the latest, EEOC Defends Suit Over Workers Forced to Say 'I Love You.' ($)
I have had relatively few issues involving religious discrimination over the years, but since writing about Cloutier
I have long been curious as to how this question -- what is a religion -- was going to be handled. It looks like we might begin to get an answer in the near future.
Thursday, July 17, 2014
12 Years Ago
by Michael Fox
I posted the initial post on this blog. A dozen years is a long time to keep anything going, although you could seriously question whether or not this last year it was really going as the posts were few and far between.
As I have spoken in the past, when I began I was the first labor and employment law blog, although there were some others that joined soon after. Now there are literally hundreds, so the immediate almost news type reporting is amply covered.
So I have contemplated giving this a decent burial.
However, as I near the end of my active practice, I thought maybe this would be a good space to reflect back on some of the things that have happened.
If that proves workable and meaningful, then maybe Jottings will stay alive for some time. If not, well we can cross that bridge when we get there.
Tuesday, March 25, 2014
How Disruptive Can an Aggressive NLRB Be in a Non-Union Setting? More Than You Might Think
by Michael Fox
If you are a non-union employer (and overwhelmingly most employers are) you might not have given much thought to your how your confidentiality policy stacked up against the National Labor Relations Act. In fact your policy might read something like the following:
But if it does, then according to the NLRB, now buttressed by the 5th Circuit Court of Appeals, you are in violation of the NLRA because that policy infringes on employees Section 7 rights. Flex Frac Logistics v. NLRB (5th Cir. 3/24/14).
Employees deal with and have access to information that must stay within the Organization. Confidential Information includes, but is not limited to, information that is related to: our customers, suppliers, distributors; [Company] organization management and marketing processes, plans and ideas, processes and plans, our financial information, including costs, prices; current and future business plans, our computer and software systems and processes; personnel information and documents, and our logos, and art work. No employee is permitted to share this Confidential Information outside the organization, or to remove or make copies of any [Company] records, reports or documents in any form, without prior management approval.Disclosure of Confidential Information could lead to termination, as well as other possible legal action.
The 5th Circuit review of the Board's decision finding a violation is straightforward:
- It is a violation of the NLRA to have a workplace rule that forbids discussion of confidential wage information between employees.
- The rule above does not explicitly do that, but it is also a violation if "employees would reasonably construe the language to prohibit Section 7 activity.
- Because the clause covers financial information, including costs, that "necessarily includes wages and thereby reinforces that the rule proscribes wage discussion with outsiders."
- And the rule makes no attempt exclude some personnel information such as wages, which might make it pass muster.
And less you think this is the opinion of some of the newer members of the 5th Circuit who might have a more liberal bent, the opinion is authored by Chief Judge Stewart and joined by Judges Higginbotham and Jones.
Confidentiality clauses are just one area of personnel policies that the new NLRB is putting under strict scrutiny. All employers, but particularly non-union employers, need to realize that there is a new entity around, and that not all its actions will be upended by the courts.
Monday, March 10, 2014
5th Circuit Short Circuits Plaintiff's Use of State Court
by Michael Fox
In certain parts of Texas, plaintiffs seek to avoid being in federal court at all costs. Today, the 5th Circuit clarified a procedural hurdle to that tactic in a small category of cases.
In Taylor v. Bailey Tool & Manufacturing (5th Cir. 3/10/14), plaintiff originally filed suit in state court alleging only violations of the Texas anti-discrimination statute. Unfortunately, for the plaintiff, the claim was not timely filed. Later plaintiff amended to add Title VII and a Section 1981 claim.
Defendant removed and moved to dismiss arguing all claims were untimely. Both parties agreed that the state claims were untimely. Both parties also agreed that whether the federal claims were timely depended on whether Federal Rule of Civil Procedure 15(c) or the Texas relation back rule, TEX. CIV. PRAC. & REM. CODE ANN. § 16.068 applied.
If Rule 15(c) applied, the federal claims, even though filed after the federal statute of limitations would be timely because they would relate back to the filing of the original claim. On the other hand, if the Texas rule applied, they would not be timely because § 16.068 prohibits relation back if the cause of action would have been subject to a plea of limitation when filed.
The 5th Circuit joined the two other circuits (the 6th and 9th) that had ruled on this matter, holding that the state rule applied, thus barring the claim.
The net result is that plaintiffs will have to make sure that their state claim is timely if they want to avoid federal court.
A simple and straight forward, but important, holding.
How Much Would it Take to Wet Your Whistle?
by Michael Fox
That's a 64 million dollar question, literally. JP Morgan whistleblower gets $63.9 million in mortgage fraud deal.
It seems quite likely that headlines like that are apt to make many think that rather than continuing to work as an assistant vice president, as Keith Edwards did before reporting that JP Morgan was submitting mortgages for FHA and VA approval that did not qualify, and apparently not notifying the government that its own internal review had disclosed the problem, that it might make sense to play a new version of the lottery.
Thursday, February 13, 2014
5th Circuit's View on Extraterritorial Application of SOX? Not Yet
by Michael Fox
One of the many issues still to be decided
for whistle-blowing claims under Sarbanes Oxley is how far does the law extend,
if at all, for conduct outside the United States.
A Colombian national who had alleged his
employer, an affiliate of a U.S. company, was violating Colombian tax law hoped
to find the answer to that question.
OSHA had rejected his complaint, finding that because the adverse
employment actions, the denial of a pay raise and his termination, had occurred
outside the U.S. it had no jurisdiction.
Following his appeal, the Administrative Law Judge agreed, finding §806
of SOX has no extra-territorial application. The Administrative Review Board
agreed, primarily because there was no connection between the alleged violation
of Colombian law and U.S. securities or financial disclosure law.
Undaunted, he turned to the
5th Circuit Court of Appeals, but fared no better. Agreeing his
complaint failed because it failed to allege a violation of “one of the six enumerated provisions of U.S.
The question of extraterritorial application? A decision for a
Because we affirm on this
narrower ground, we need not reach the argument, advanced by the government and
Core Labs, that § 806 does not apply extraterritoriality.
Monday, February 10, 2014
50 Years Ago, The Civil Rights Act of 1964 Passes the House of Representatives
by Michael Fox
The statute that among many other things marked the beginning of employment law as a discipline, passed a major hurdle 50 years ago today when it passed the House of Representatives by a vote of 290 to 130.
According to a study of the Civil Rights Act's legislative history, The Longest Debate by Charles and Barbara Whalen, the final vote was 290 to 130.
Hard to imagine in light of today's partisan divide in both chambers of Congress.
Supporting the bill were 152 Democrats and 138 Republicans. Opposing it were 96 Democrats (including 86 from the 11 states of the Confederacy) and 34 Republicans, including 10 from the South.
Regarding Title VII, the bill that was passed and sent to the Senate was actually stronger than the one originally introduced. It had gone beyond enforcement by persuasion to creating for the first time a private cause of action, albeit one that was much more limited than it would become with the passage of the Civil Rights Act of 1991.
While the passage by the House of Representatives was a major feat standing alone, it was by no means certain that it would amount to more than a grand gesture as the bill now went to the Senate where it awaited a certain filibuster.
I am quite certain that on this date 50 years ago when I was looking forward to the end of 8th grade at Sulphur Springs Junior High School, and the prospect of actually being in high school, I had no idea that legislation which would change the world as we knew it had achieved such a major step. And certainly no thought that legislation was moving through Congress that would create a new field of law that would ultimately be the way I would spend my entire professional life.