Supreme Court Scoreboard: Retaliation 2, Employers 0
by Michael Fox
Today the Supreme Court issued two employment related decisions -- holding that there is a cause of action for retaliation under 42 USC § 1981, CBOCS West, Inc. v. Humphrey (S.Ct. 5/27/08) and that federal employees who claim age discrimination are also protected against retaliation for doing so, Gomez v. Potter (S.Ct. 5/27/08).
It is hard to be too surprised by CBOCS West. Although § 1981 does not mention retaliation, in light of the Supreme Court finding retaliation under Title IX in the same circumstances three years ago, see Whistleblowing in the Supreme Court,A Good Day, it would have been more surprising if the decision had gone the other way.
Pile on top of that the unanimity in agreeing that § 1981 prohibited retaliation by all the appeals courts which had decided the question and the impact is negligible, except in the sense of one that employers thought might help, got away. Perhaps more interesting is that the two justices who were not around for the Title IX decision, C.J. Roberts and J. Alito, were aligned with the 7 person majority and J. Kennedy switched his view, leaving only J. Thomas to dissent, joined by J. Scalia.
The basis for the decision emphasized by Justice Breyer -- stare decisis. An argument that J. Thomas was less than enamored with:
Unable to justify its holding as a matter of statutory interpretation, the Court today retreats behind the figleaf of ersatz stare decisis. The Court’s invocation of stare decisis appears to rest on three considerations: (1) Sullivan’s purported recognition of a cause of action for retaliation under §1982; (2) Jackson’s (re)interpretation of Sullivan; and (3) the Courts of Appeals’ view that §1981 provides a cause of action for retaliation. None of these considerations, separately or together, justifies implying a cause of action that Congress did not include in the statute. And none can conceal the irony in the Court’s novel use of stare decisis to decide a question of first impression.
If as many think, there is a strong possibility that the next Congress will do away with the statutory caps of Title VII, today's decision in CBOCS West
would be of even less importance, just a timing blip. What may be of longer term significance is the 7-2 majority, which was the same in both cases and the Court's view on the importance of stare decisis.
The first is significant to employers in contemplating how employment decisions may fare at the Supreme Court level in light of the 7-2 alignment. The second -- the view of stare decisis, given its potential impact on Roe v. Wade
may well be the most significant thing to come from this decision.Update: Mea culpa.
The breakdown on the decision in Potter
was not 7-2, but 6-3 with C.J. Roberts actually writing the dissent. Although since it was about federal employers, I just skimmed the decision, I should have been much more careful in what I wrote. Probably many of my fellow commentators caught it, but the first that I read that jumped out at me was Brian Peterson's post
at the West Virginia Legal Weblog. Although it's not quite as good a story maybe as the 7-2 alignment in both cases would have been, perhaps it is as significant that J. Alito was actually the author of Potter
majority opinion. And even better, it's accurate.
Thursday, May 22, 2008
Hello GINA: Our Newest Friend
by Michael Fox
As an employment law blog, it seems almost mandatory that I post about the newest labor and employment law, which would be the Genetic Information Nondisclosure Act, signed into law by President Bush yesterday. For some reason I can't get excited about it.
Maybe I am still mellow from the two weeks in France, maybe because I thought I was going to be in trial this week and we got bumped to a future setting, maybe it's because it's not effective for 18 months, maybe it's because I don't really see the problem as I am not aware of any employers that are doing genetic testing or using the information, or maybe it's because I think the real impact will be on insurance companies which is more likely to affect me as an insured than as a lawyer representing employers.
Maybe it's knowing that I am going to be barraged for 18 months with doomsday writings about how the newest cause of action is going to mean the end of the world as we know it. Who knows why?
Which probably means I am setting myself up for a big surprise. Just for example
- the remedies are the same as Title VII which means damages are now capped, but if the damage cap goes away for Title VII, it will for GINA as well;
- it has an extremely broad definition of genetic information which includes not only genetic test information but "the manifestation of a disease or disorder in family members," which I suppose could include a comment about an employee's mother having breast cancer or father having a heart attack;
- it prohibits obtaining and disclosing such information, subject to some exceptions, which means at a minimum more confidentiality obligations on employers that are easier to implement than maintain; and
- the regulations are due a year from now which means that they will be written by a new Administration still finding its way, and from an employer standpoint, a fair chance it will be a less friendly administration than the current one.
So who knows. Fortunately, some of my colleagues at Ogletree Deakins have paid more attention than me and you can see their initial analysis here.
In the meantime, I am not going to get too excited about it until after Memorial Day, and it may well be Memorial Day 2009.
Labels: GINA, political
Tuesday, May 20, 2008
A Belated Happy Blog Anniversary
by Michael Fox
I am late, but five years of doing this is a remarkable accomplishment.
Hat's off to Michael Fitzgibbon at Thoughts from a Management Lawyer.
If It's Wednesday, Watch Your Eyes
by Michael Fox
I am finally catching up on some of the stories I wasn't reading while on vacation, and here's another one, very timely if you're reading this on Wednesday, even though it was posted two weeks ago. It's from the good folks at Lynch Ryan their blog, Workers' Comp Insider: Eye safety and eye health on the job.
The reference to Wednesday -- more eye injuries occur on the job on that day than any other.
There are not many things that I am more squeamish about than my eyes (I could never wear contacts; thank goodness for lasik). According to the story, 2,000 people a day suffer eye injuries. Ouch!!
There is FMLA Expansion and Then There Is FMLA Expansion
by Michael Fox
As I mentioned in an earlier post, I am doing a speech at the SHRM national convention on the potential impact of the 2008 elections. One of the areas I will be covering is possible expansion of the FMLA. But those bills are pikers compared to what was offered in the Connecticut legislature. Thanks to Daniel Schwartz at the Connecticut Employment Law Blog for his post, The Right to Attend Opening Day at Yankee Stadium...and Get Paid by Your Employer.
Actually it was better than just opening day, it was also for the first day of summer, and also "the first day of a sport-fishing or hunting season authorized pursuant to chapter 26 of the general statutes." But apparently it was more of a satirical offering by some Republicans opposed to paid leave than a serious offer.
I think what is scary is that I wasn't sure that it was not a serious offer until I read Daniel's post.
Labels: FMLA, political
Monday, May 19, 2008
Bush Era Ending Sooner Than You Think
by Michael Fox
At least from an administrative standpoint. Although one of the Bush countdown timers shows 246 days as of this writing, a memorandum from his Chief of Staff Josh Bolton sent to the heads of federal agencies sets an earlier end point for administrative regulations. According to the website OMB RegWatch article, Bush Sets Policy on Midnight Regulations Bolton wrote:
Except in extraordinary circumstances, regulations to be finalized in this Administration should be proposed no later than June 1, 2008 and final regulations should be issued no later than November 1, 2008.
The memo has more resonance today with me than it might have a few days ago as I just was reviewing some of the last minute actions taken in the Clinton administration for a speech I will be giving at the 60th Annual SHRM Convention
in Chicago this summer on the possible impact of the 2008 elections.
One of the most notable was a change in federal procurement laws issued on December 20, 2000 and effective January
19, 2001 (one day before President Bush was to be sworn in) which would have implemented the so called "blacklisting regulations" which would have given federal contracting officers the power to bar employers who had erred too frequently in complying with tax, labor, employment, environmental, antitrust or consumer protection laws.
Although published as a fait d'accompli
20 in Federal Acquisition Circular 97-21
, they were first suspended then ultimately repealed by the Bush Administration.
Without regard of the merits, it would be nice if we could all agree that Bolton's memorandum if carried out, is certainly a more civil, one might say democratic way of approaching the end of a Presidential administration.
Hat tip to the folks at the DLR
for spotting the story.
Heat A Few Steps Closer in Georgia
by Michael Fox
That's heat, as in "packing heat" as Georgia becomes the latest state to allow licensed gunholders to bring their guns with them to an employer's parking lot. The Business Security and Employee Privacy Act which passed both Houses of the Georgia legislature was signed on May 16 by Governor Perdue.
City of Brotherly Love? Not Always, At Least Not in the Police Department
by Michael Fox
When former Philadelphia Mayor, now Pennsylvania Governor, Ed Rendell was quoted as saying that some voters might not be ready to vote for a black candidate before the Keystone state's Democratic primary, some just thought it a bit of a political gaffe, but it may have been he just had some extraordinary insight based on his past experiences.
Or at least you could draw that conclusion from the story behind Friday's Philadelphia Inquirer headline, 3 ex-Phila. police officers win $10 million judgment. The case was reporting the result of a federal court jury verdict in favor of three former white policeman who convinced a jury that they had been retaliated against because they protested how the police department was treating black officers. The awards to the three were for $2,$3 and $5 million.
One interesting note -- the case had originally been thrown out on summary judgment. In reversing the case and sending it back for trial, the 3rd Circuit prophetically wrote:
We find that a jury might well believe that their supervisors made their lives the 'living nightmare' one supervisor promised as payment for opposing unlawful discrimination.
Reading the 41 page opinion will give you a feel for the kind of facts that led at least this jury to make its multi-million dollar finding. Moore v. City of Philadelphia
(3rd Cir. 2006)[pdf
One small but critical point, the headline references a $10 million "judgment." What the story speaks about however is not a judgment, but a verdict. The difference -- a judgment is a finding that you have to pay, once it becomes final; a verdict, is a jury's decision that after post-trial review by the Court, can be turned into a judgment. It's a key distinction, and although a $10 million dollar verdict is bad, and could possibly turn into a $10 million judgment, there is still quite a ways to go.
Still, the point remains whatever the final outcome, this was yet another case where a jury clearly was angered by what they believed happened. You can't necessarily take a verdict to the bank, but as an employer, you certainly should take it to heart.
Tuesday, May 13, 2008
So Many MDV's; So Few Posts
by Michael Fox
Although posting has been skimpy in general recently, I have been particularly lax on reporting on million dollar verdicts. Unfortunately, it is not that they have gone away, I just have not been a good reporter.
Perhaps I will catch up with them in the coming weeks as well as do updates on some that I have written about earlier. The latter is often a much harder job as the most newsworthy point of most such cases is the day the jury verdict is returned before the the rest of the legal process comes into play. Although the results are often dramatic, they rarely get reported.
In any event, the first reported in some time is a familiar fact pattern. Report of alleged wrongdoing by the company, suspension on the same day and termination less than 2 weeks later. The timing argument is a tough one to overcome, and the newspaper story, Jury awards Orkin termite technician $5.1M in whistle-blower suit doesn't have enough information to understand what the company's reason for the termination was. Clearly the jury didn't understand it either.
Plaintiff's counsel thought it was the largest verdict to date under the New Jersey Conscientious Employee Protection Act. One slight twist to this case was that four of the five million award was for emotional damages and just slightly over a million for punitive damages.
Unintended Consequences; Maybe Not
by Michael Fox
Last Wednesday, the Michigan Supreme Court agreed with a lower appellate court that a 2004 amendment to the Michigan Constitution barred governments and state colleges from providing benefits to same sex partners of its employees. National Pride at Work Inc. v. Governor of Michigan (Mich. 5/7/08) [pdf]. My first thought was -- another case of unintended consequences, which quite often seems to be a by-product of legislation, particularly legislation passed in haste.
However, a little more digging indicates that may well not be the case. Although voters were apparently told that the amendment was not about rights or benefits that obviously turned out not to be true. And a reading of the amendment itself:
To secure and preserve the benefits of marriage for our society and for future generations of children, the union of one man and one woman in marriage shall be the only agreement recognized as a marriage or similar union for any purpose.
makes it pretty clear that the Supreme Court probably had little choice but to rule the way it did.
As an editorial from the Grand
Rapids Press points out, the six words set out in bold obviously were put there for a purpose. Same-sex benefits: right ruling, wrong message
. And now that purpose has shown itself.
The ruling should not impact private sector employers in the state who remain free to do as they wish with respect to this issue.
A hat tip to soon to be Marquette professor Paul Secunda
at Workplace Prof Blog for his post, Same Sex Benefits Defeated in Michigan.