24 | August 31 |
August 14 | August
1 | July 18 | June
30 | June 22 | May
16 | April 25 | April
5 | February 24
October 24, 2000
- John Irving prepared the following paper for
the ABA last February on the NLRB difficulties in implementing
operational changes. Click here
to read the paper.
August 31, 2000
- NONUNIONIZED WORKERS GAIN THE RIGHT
TO REPRESENTATION IN AN INVESTIGATORY INTERVIEW
On July 10, 2000, the National Labor Relations
Board (NLRB) reversed a 12-year precedent, and ruled that federal
labor law protections giving unionized employees the right
to have a representative present during a disciplinary interview
should extend to employees in nonunion situations. Epilepsy
Foundation of N.E. Ohio, 331 N.L.R.B. 92, (7/10/00).
- The National Labor Relations Board reversed
a decade of precedent on July 10, 2000 by extending to non-union
employees the right to have a co-worker representative present
during an investigatory interview in the case of Epilepsy Foundation
of Northeast Ohio. For a transcript of THE
RISE OF THE CORPORATE CAMPAIGN, visit here.
August 14, 2000
- On July 10, 2000, a divided National Labor Relations Board did
an abrupt about-face and determined that employees who are not
union-represented nevertheless have a right under the National
Labor Relations Act to request the presence of a fellow employee
at an employer-conducted investigatory interview if the employee
reasonably believes that the interview may result in discipline.
Epilepsy Foundation of Northeast Ohio, 331 NLRB No. 92. A similar
right was accorded union-represented employees by the Supreme
Court in 1975. NLRB v. Weingarten, 420 U.S. 251 (1975). For more
August 1, 2000
- The National Federation of the Blind withdrew its lawsuit against
America Online Inc. in order to give the company time to make
its Internet service accessible to the blind, the company and
the Federation said Wednesday.
July 18, 2000
June 30, 2000
- The Civil Rights Division of the Department of Justice released
a report on Information Technology and People with Disabilities:
The Current State of Federal Accessibility
- An analysis by the Employment Policy Foundation found that men
and women earn about the same amount until marriage and family
are introduced. There is no pay gap among full-time workers ages
21 to 35 who live alone, for example, and never-married women
in their thirties earn more than their male counterparts. Differences
between pay of men and women are almost entirely due to the influence
of family raising.
June 22, 2000
Savvy court observers believe that the Court's holding with respect
to the ADEA will be extended to other non-discrimination statutes.
May 16, 2000
COURT CONTINUES ITS MARCH FOR FEDERALISM: ADEA NOT "APPROPRIATE"
- Both the United States Senate and House have overwhelmingly
approved legislation amending the Fair Labor Standards Act (FLSA)
to prevent inclusion of profits from certain employee stock
option programs in calculating "regular rates of pay"
for purposes of computing overtime. The President has announced
that he will sign the legislation when it reaches his desk. The
legislative fix is necessary due to a recent Wage and Hour Division
opinion that profits from employee stock option programs would
need to be factored into the equation in determining an employees
"regular rate of pay." The bills create a safe harbor
for certain employee stock option programs. This safe harbor would
be applied retroactively. A recent study by the National Center
for Employee Ownership (!) estimated that between 7 and 10 million
workers receive some form of stock options.
- Senate Rules and Administration Committee Chairman Mitch McConnell
recently announced that he will introduce legislation to give
union workers more information about the "ideological and
political causes" their unions support. Senator McConnells
announcement followed the Committees hearing on "compelled
political speech," one of several hearings on campaign finance
issues. Testimony from this hearing can be found at http://www.senate.gov/~rules/hearings/41200hrg.htm
(Practice Group President-elect David Fortney was among the individuals
testifying). The proposed Worker Information and Empowerment
Act would "make it easier for workers to determine if
they want to continue subsidizing the unions non-bargaining
related activities or whether they want to seek a refund."
The AFL-CIOs response was . . . "whatever," as
similar paycheck protection measures have died a slow death in
- Cmon, Baby, Lets Do the Ergo-Nomics! The
nationwide hearings conducted by OSHA continue, with over 1000
witnesses expected to ultimately testify on OSHAs proposed
ergonomics rule. The last round of hearings concludes on May 12,
followed by a 90-day post-hearing comment period. The Agency predicts
that the ergonomics standard will cover 27 million workers at
nearly 2 million general industry sites. Critics maintain that
OSHA is not open to questions or revisions in the draft rule.
They predict that industrys challenge to the rule will come
through litigation, with the claim that OSHA is ignoring due process
in rushing the rule through the administrative review process.
- In hearings before the Senate Labor and Human Resources Subcommittee
on Employment, Safety, and Training, the Subcommittee Chairman,
Senator Michael Enzi, and OSHA Administrator Charles Jeffress
sparred with respect to the issue of the draft regulations' work
restriction protection provision. Chairman Enzi argued that this
provision creates a "compensation program" that is superseded
by State worker compensation laws. Hearing testimony can be found
- A new book by the Employment Policy Foundation and the Society
for Human Resource Management (SHRM) Foundation argues that the
Clinton proposal to allow states to pay unemployment benefits
to parents on unpaid family leave could cost the nation's unemployment
insurance program up to $ 28.4 billion annually, pushing many
state trust funds below solvency.
- On May 4, the a subcommittee of the House Banking and Financial
Services Committee heard testimony urging legislation to address
the Federal Trade Commission's April 1999 opinion letter which
took the position that outside investigators hired by employers
to investigate employee misconduct may be considered consumer
reporting agencies and, as a result, the investigation would be
subject to the notification, reporting and damages provisions
of the Fair Credit Reporting Act (FCRA). Bills have been
introduced by Republican Pete Sessions and Democrat Janice Schakowsky.
EEOC Chair Ida Castro joined the General Counsel of the FTC in
urging a legislative fix, although both expressed some reservations
with respect to Sessions' proposal. Hearing testimony can be found
- In testimony before the House Subcommittee on Workforce Protections,
the new Wage and Hour Administrator stated that the Labor Department
will soon commence a review of the Fair Labor Standards Act's
overtime exemption for executive, administrative, and professional
employees. Both employers and employee representatives agree that
the New Deal era regulations need amending. However, they significantly
differ as to how to change them. Practice Bill Kilberg (a Practice
Group officer) provided individual testimony to the Subcommittee.
- The House Education and Workforce Committee has been busy. On
May 3, its Subcommittee on Oversight and Investigations heard
testimony regarding legislation that would prohibit union security
agreements ("compulsory unionism"). Twenty-one states
currently have right-to-work laws. The National Right-to-Work
Act is not likely to pass, but the debate is interesting.
- Bipartisan legislation has been introduced in the U.S. House
of Representatives to change the religious accommodation standard
under Title VII of the Civil Rights Act of 1964. The Act requires
covered employers to accommodate the religious needs of their
employees unless the accommodation results in "undue hardship
on the conduct" of the employer's business. The Supreme Court,
in a 1977 decision, TWA v. Hardison, 432 U.S. 63, found
that "undue hardship" is anything that results in more
than a de minimus cost to the employer. This is a much
easier standard to meet than the "undue hardship" standard
applied under the Americans with Disabilities Act. Accordingly,
many requests for leave on a worker's sabbath have been denied.
The proposed Workplace Religious Freedom Act (HR 4237) would amend
Title VII to state that "undue hardship" means "an
accommodation requiring significant difficulty or expense."
- The Office of Federal Contract Compliance Programs of
the U.S. Department of Labor published proposed rules in the Federal
Register on May 4. On the one-hand, the proposed regulations simplify
the requirements of a "workforce analysis"; reduce the
"eight-factor availability analysis" to two factors
(external availability and internal availability); and give smaller
employers (50 to 150 employees) a break in defining "job
groups." On the other hand, the proposed rules require over
half of all contractors (roughly 60,000 businesses) to complete
an "Equal Opportunity Survey," which requests detailed
information regarding the employer's compensation and personnel
data. "The administration is very serious about equal pay,"
said OFCCP Director Shirley Wilcher. "We will require you
to submit your pay information."
- Judicial Developments
- FLSA: The Eleventh Circuit Court of Appeals ruled
that an individual isn't entitled to punitive damages on his
retaliation claim under the FLSA. Snapp v. Unlimited Concepts,
Inc., No. 98-2936 (11th Cir. 4/5/00). The Snapp decision
is in conflict with a 1990 Seventh Circuit decision, Travis
v. Gary Community Mental Health Ctr. Inc., 921 F.2d 108
(7th Cir. 1990). The Supreme Court also handed down an FLSA
decision in May. It held that State and local government employers
may require their workers to take time off to reduce their
accrued compensatory time, which was allocated in lieu of
overtime pay under the FLSA. In Christensen v. Harris County,
TX, U.S., No. 98-1167 (5/1/00), the Court rejected
the Department of Labor's argument that public employers can
only direct their employees to use their accrued comp time
if there is a prior agreement between the parties giving the
employer that right. With few exceptions, Congress has not
yet entitled private sector employers to grant comp time to
workers in lieu of overtime.
- FMLA: Must an employer grant FMLA leave for a parent's
leave to take a child for medical care for an ear infection?
Under the appropriate circumstances, it may be, the Eighth
Circuit Court of Appeals ruled in Caldwell v. Holland of
Texas Inc., No. 99-2382 (3/30/00). In that case, the infection
gradually worsened and required surgery. "The employer,
who precipitously fires an employee, when the latter claims
the benefits of leave under FMLA, bears the risk that the
health condition in question later develops into a serious
health condition." Dissenting Judge David Hansen rejected
what he viewed as "the court's suggestion that 'incapacity'
under the FMLA may be defined by the sniffle standards imposed
by a local daycare center." Is an employee who gave advance
notice that she would miss work to undergo surgery entitled
to protected FMLA leave? Not if she fails to submit required
medical certification that she had a "serious health
condition" within the employer's 15-day time period.
Rager v. Dade Behring Inc., No. 99-1400 (7th Cir. 4/10/00).
In an interesting decision, a California appellate court rejected
a fired worker's claim that the California family leave act
and the FMLA warrant a grant of leave in order to assist an
elderly and chronically ill mother move to another house.
Pang v. Beverly Hosp. Inc., Cal Ct. App., No. B127999
(4/10/00). The court noted that the daughter did not "directly
or even indirectly provide or participate in medical care
for her mother."
- Sex Harassment and Sex Discrimination: There are
two opinions to report. First, a Federal jury awarded $2 million
to a former employee of Opa-locka, Florida who alleged she
had been sexually harassed and assaulted by her acting city
manager. The interesting aspect of the award in Griffin
v. Opa-locka, S.D. Fla., No. 98-1550-CIV-Seitz (verdict
4/4/00) is that the assault took place on the kitchen floor
of the employee's apartment. The jury found that the acting
city manager was acting under color of state law, as the assault
occurred following a Rotary Club meeting, for which the city
paid dues for the acting city manager. The second decision
involves the "affirmative defense" to a sexual harassment
claim. The Fourth Circuit Court of Appeals reversed summary
judgment for an employer on a supervisory sexual harassment
claim, despite the fact that management confronted the alleged
harasser the day after it received the plaintiff's complaint,
and the alleged harasser resigned. The court found that there
was evidence that the company's anti-harassment policy was
not "reasonably designed and reasonably effective,"
as the manager at issue had received no training on sexual
harassment, did not even recall any discussion of a policy,
and that senior management tolerated and participated in "lewd
conversation and publication of sexually explicit jokes and
cartoons." Williams v. Spartan Communications Inc.,
No. 99-1566 (unpublished 4th Cir., 3/30/00).
Finally, there was a pregnancy discrimination decision issued
in April that is worthy of note. The Eleventh Circuit found
that an employer is not liable under the Pregnancy Discrimination
Act (a part of Title VII) for firing a probationary employee
for poor attendance caused by pregnancy-related illness, so
long as the employer similarly treats non-pregnant employees
with comparable absences. Armindo v. Padlocker Inc., No.
99-4144 (11th Cir. 4/20/00). It was permissible to terminate
Armindo for five days of pregnancy-related absences in a three-month
period, so long as similarly situated nonpregnant employees
were treated comparably and the employer didn't violate its
own leave policies in firing her. In this case, the employee
manual did not provide any sick days until an employee completed
a three-month probationary period. What about FMLA leave?
Trick question: Armindo was not a covered employee, as she
was fired before completing a year of employment.
- ADA: Joining six other federal circuit courts of
appeals, the Second Circuit Court of Appeals ruled on March
23 that Title I of the ADA does not bar employers from offering
long-term disability plans that provide less coverage for
mental and emotional disabilities than for physical disabilities.
EEOC v. Staten Island Savings Bank, Nos. 99-6011/6035
(2d Cir. 3/23/00). The court rejected the EEOC's arguments,
finding that the ADA prohibits only discrimination between
the disabled and non-disabled, and not individualized discrimination
on the basis of a particular disability. Two Circuit Courts
of Appeals reached different conclusions with respect to the
issue of whether punctuality is an essential job duty under
the ADA. In Earl v. Mervyns Inc., No. 99-4264 (11th
Cir. 3/30/00), the court found that a retail store employee
with obsessive-compulsive disorder was not a victim of discrimination
when fired for habitual tardiness. The decision was based
on a finding that punctuality was an essential function of
the employee's job. In contrast, in Ward v. Massachusetts
Health Research Inst. Inc., No. 99-1651 (1st Cir. 4/12/00),
the court found that punctuality ("a regular and predictable
schedule") was not an essential function of the job.
The court found no evidence that the requested accommodation,
an open-ended schedule, would be an undue burden on the employer.
The court pointedly declined to hold that a flexible schedule
is "per se unreasonable."
- Eleventh Amendment: On April 17, the U.S. Supreme
Court agreed to review a decision by the U.S. Court of Appeals
for the Eleventh Circuit which found that a state is not immune
from ADA lawsuits filed by state workers. University of
Alabama at Birmingham v. Garrett, U.S., No. 99-1240 (cert.
granted 4/17/00). The Eleventh Circuit's decision found
that Congress had the power to abrogate the states' 11th
Amendment immunity under the ADA. Two earlier cases presenting
this issue were dismissed after the parties settled.
- Two Federal District Courts recently held that the 11th
Amendment provides immunity to state employers from FMLA claims
filed in federal court. The opinions in Laro v. New Hampshire,
D.N.H., No. CV-98-547-M, unpublished (3/29/00); Philbrook
v. Univ. of Conn., D. Conn., No. 3:98-CV-1706 (3/14/00)
noted that they were in accord with every other federal court
to consider the issue since 1998.
April 25, 2000
- Legislative Update
- The United States Senate unanimously approved legislation
amending the Fair Labor Standards Act (FLSA) to prevent inclusion
of profits from certain employee stock option programs
in calculating "regular rates of pay" for purposes
of computing overtime. Similar House action is expected when
Congress returns in early May. The legislative fix is necessary
due to a recent Wage and Hour Division opinion that profits
from an employee stock option program would need to be factored
into the equation in determining an employees "regular
rate of pay." The Senate bill creates a safe harbor for
certain employee stock option progams. This safe harbor would
be applied retroactively.
- Senate Rules and Administration Committee Chairman Mitch
McConnell recently announced that he will introduce legislation
to give union workers more information about the "ideological
and political causes" their unions support. Senator McConnells
announcement followed the Committees hearing on "compelled
political speech," one of several hearings on campaign
finance issues. The proposed Worker Information and Empowerment
Act would "make it easier for workers to determine
if they want to continue subsidizing the unions non-bargaining
related activities or whether they want to seek a refund."
The AFL-CIOs response was . . . "whatever,"
as similar paycheck protection measures have died a slow death
in previous Congresses. Federalist Society Labor and Employment
Law Practice Group President-elect David Fortney testified
in favor of paycheck protection measures, noting that pending
legislative efforts to codify the Supreme Courts 1988
Beck decision were "inadequate."
- Cmon, Baby, Lets Do the Ergo-Nomics! The
nationwide hearings conducted by OSHA continue, with nearly
400 witnesses testifying on OSHAs proposed ergonomics
rule. The Agency predicts that the ergonomics standard will
cover 27 million workers at nearly 2 million general industry
sites. Critics of OSHA maintain that the hearings are a "sham,"
and OSHA is not open to questions or revisions in the draft
rule. They predict that industrys challenge to the rule
will come through litigation, with the claim that OSHA is
ignoring due process in ramming the rule through the administrative
review process. One critic charged that, when pro-regulation
experts testify in favor of the rule, OSHA sets the time frame
of testimony to "minimize and nullify effective cross-examination"
of the witnesses. In contrast, when the critics of the rule
testify, OSHA and the rules defenders (i.e., labor union
leaders) are provided with time to conduct lengthy cross-examinations,
to the point that the hearing process has been likened to
a "Soviet show trial."
- Statistics: More numbers from the Department of Justices
Bureau of Justice Statistics. In a survey of contract cases
tried in state courts in the nations 75 largest counties,
data indicates that less then 10 % of these cases involve
employment disputes, including discrimination claims. This
survey also offers evidence that plaintiffs are more likely
to win and be awarded higher damages in employment discrimination
cases tried to a jury, rather than to a judge. Service industry
employers were the defendant in 21 percent of the employment
April 5, 2000
BENEATH THE (DOCKET) SHEETS: OFFICE ROMANCE AND SEXUAL DISCRIMINATION
LAW (Requires Adobe Acrobat Reader to View)
- LEGISLATION AND REGULATORY PROPOSALS
- OSHA Assistant Secretary Jeffress has been making
the rounds defending OSHA's proposed ergonomics standard.
There is significant debate as to whether the standards would
increase or decrease productivity. Jeffress conceded that
one of the most controversial portion of the standards is
the "medical removal" provision, which provides
that workers that can no longer do their jobs because of ergonomic
injuries will be paid 90 percent of their regular pay and
100 percent of benefits. It appears that these draft regulations
are on hold, and my guess is that they'll be subject to much
debate (which is what the Federalist Society is all about!),
but will not be enacted until after the November elections.
- The latest on bona fide stock option programs: DOL
officials are working with Congress on legislation that would
preclude inclusion of profits from bona-fide stock option
programs in regular rates of pay for purposes of calculating
overtime for covered employees. Legislation is expected this
- JUDICIAL DEVELOPMENTS
- FLSA: A Federal court found that an HR department benefits
analyst was exempt from the Fair Labor Standards Act's overtime
pay requirements as an "administrative" employee despite
partial-day pay deductions for leave under the FMLA, since the
company treated his leave as "intermittent leave"
under the FMLA, as a doctor released him to work part time.
The rule to remember--partial day pay docking of an exempt employee
is a no-no unless he/she is working a part-time schedule due
to FMLA leave. Furlong v. Johnson Controls World Serv. Inc.,
S.D. Fla., No. 99-1768-CIV, 3/6/00.
- Age Discrimination: Under the Older Workers Benefit
Protection Act (OWBPA), a waiver of an age discrimination claim
isn't valid unless the employee is given 45 days to review the
release/severance agreement. In a recent case involving a lay
off at Kmart (how come Rosie O'Donnell didn't tell us about
this?), the 51 year old terminated manager had the severance
agreement explained to him in part and then was told to sign
if he wanted the benefits. The employee signed the agreement
without reading it. The court found that the waiver was knowingly
and voluntarily signed, as the agreement sets forth the 45 day
review period, the terminated manager was not told that he had
to sign the agreement that day, and there is no requirement
for the employer to wait the entire 45 days. Kendrick v.
Kmart Corp., E.D. Mich., No. 99-73367, 2/25/00.
- Sex Harassment: Although the "severe and pervasive"
standard has been the subject of differing judicial interpretations
recently (certainly in the Eleventh Circuit), one must keep
in mind that, if the employee has a reasonable basis to complain
about sex harassment, the employer better be very careful about
retaliating against her. Even a transfer away from the alleged
harasser may be retaliation. The EEOC reports that the
fastest growing class of charge is retaliation charges, now
constituting 25% of the EEOC docket.
- ADA: An employee who asked to be excused from overtime
work because of back problems had no claim under the ADA, the
Eleventh Circuit Court of Appeals (which covers Florida) recently
held. The court found that overtime was an "essential function"
of the FP&L position at issue and because the employee was
unwilling to do it, he was not a "qualified" individual
under the ADA. In upholding the employee's termination, the
court rejected EEOC's view that overtime could never be an essential
function. Davis v. FP&L Co., 11th Cir.,
99-4076, 3/10/00. Another Federal appeals court found that the
employer didn't violate the ADA by requiring a former employee
to provide a medical release before rehire. Harris v. Harris
& Hart, 9th Cir. No. 98-35949, 3/13/00. The
Supreme Court recently failed to disturb the Fourth Circuit's
ruling that an employer-provided long-term disability benefits
plan did not violate the ADA even though it was more generous
in providing benefits for physical disabilities as opposed to
mental disabilities. Lewis v. Kmart, U.S., No. 99-747,
cert. denied 1/24/00.
- Statistics: A recent report at an ABA (American Bar
Association) meeting notes that new employment discrimination
claims "seem to be leveling off" in federal court,
although these cases still make up a roughly 8.6 percent of
the civil suits filed in Federal court. Some perspective: prior
to the liberalization of the civil rights laws in 1991, the
number of EEO cases filed in Federal courts were in the 8000
to 9000 range. By 1997, following the introduction of jury trials
and punitive damage awards, the figure had jumped to 24,000
cases. In 1999, it had "slipped" to 22,412. Why??
Many plaintiffs file in State Court, where it is easier to overcome
a motion for summary judgment, and damages may not be capped,
as they are in Federal Court.
- Sovereign Immunity: Earlier this year, in Kimel
v. Florida Bd. of Regents, 2000 W.L. 14165 (1/11/2000) the
Supreme Court held that Congress exceeded its authority under
the Constitution when it lifted states' immunity from lawsuits
by public workers charging age bias under the Age Discrimination
in Employment Act. The decision is in line with recent Court
decisions, including Seminole Tribe v. Florida, 116 S.Ct.
1114 (1996), which limited Congress' ability to abrogate the
States' Eleventh Immunity to suit in Federal Court, and City
of Boerne v. Flores, 117 S.Ct. 2157 (1997), which struck
down the Religious Freedom Restoration Act as an invalid exercise
of Congressional authority under the Eleventh Amendment. What
about the ADA? The Supreme Court had two cases on its docket
concerning whether Congress similarly exceeded its constitutional
authority when it made the ADA applicable to state employers.
However, within a matter of days earlier this year, both cases
were settled and dismissed by the Court. The Eleventh and Eighth
Circuits had reached contrasting conclusions on this issue.
A third case, University of Alabama in Birmingham v. Garrett,
may be considered by the Court next term.
- The Eleventh Circuit Court of Appeals has been very busy of
late dealing with State immunity cases. Last December, it held
that States are not immune from disparate impact race discrimination
claims arising under Title VII. It held, in Crum v. Alabama,
11th Cir. No. 98-6600, 12/29/99, that in enacting
the disparate impact provisions of Title VII, Congress unequivocally
expressed its intent to abrogate the states' Eleventh Amendment
immunity and acted pursuant to a valid exercise of its enforcement
power under the Fourteenth Amendment. A couple of months later,
the Eleventh Circuit also held that the Eleventh Amendment does
not bar state workers from suing their employers for violations
of the Equal Pay Act of 1963. Hundertmark v. Florida Dep't
of Transp., 11th Cir. No. 98-4924, 3/7/00. Civil
Rights statutes and the Eleventh Amendment: Sounds like a great
issue for a Federalist Society panel!
- Sex Harassment: In Louisiana, a Federal court rejected
a race discrimination claim filed by a CFO who was fired after
having an "intimate romantic relationship" with a
subordinate employee. The court rejected the claim that management
set the CFO up for termination by arranging the affair with
the subordinate (I'll call this the "The Bitch Set Me Up"
defense). Triplett v. Belle of Orleans L.L.C., E.D. La.,
No. 98-2885, 3/8/00. On the other hand, a woman who claimed
that she was fired after spurning a supervisor's entreaties
could have her quid pro quo harassment and retaliation claims
heard by jury, even without evidence that she suffered additional
hostility after the rejected advance. Farrell v. Planters
Lifesavers Co., 3d Cir., No. 98-6410, 3/3/00.
- Sexual Favoritism: In New York, a Federal judge dismissed
a complaint filed by a woman fired after her boss's wife discovered
the boss's affair with the employee. The affair was consensual.
The boss fired the "other woman" due to his wife's
disapproval, suggesting that the fired employee "call his
wife at her therapist's office and 'beg' for her job back."
The wife didn't budge and the boss explained "if he couldn't
be intimate with [the fired woman] he no longer wanted her around."
The judge rejected sex discrimination claims and sex harassment
claims, as the relationship was voluntary. Kahn v. Objective
Solutions Int'l, S.D. N.Y., No. 99 Civ. 9067, 3/13/00.
- This decision is in line with a long line of judicial precedent.
Last March, the Florida Bar Journal (http://www.flabar.org/newflabar/publicmediainfo/TFBJournal/mar99-2.html)
featured an article on the subject of sexual favoritism and
sex discrimination law, written by the Labor and Employment
Law Practice Group's Vice Chairman for E-Communications, Alan
Orantes Forst. LOVE BENEATH THE (DOCKET) SHEETS: OFFICE ROMANCE
AND SEXUAL DISCRIMINATION LAW.
February 24, 2000
- On January 11th, 2000, the Court handed down its opinion in Kimel
v. Florida Board of Regents. The Court held that Eleventh
Amendment immunity barred suits for money damages by employees
against their state employers for age discrimination under
the Age Discrimination in Employment Act. Seven
of nine Justices held that Congress had unmistakably intended
to abrogate state immunity. Justices Thomas and Kennedy dissented
from this portion of the opinion, arguing that Congress had not
made the requisite "unmistakably clear" indication. They would
thus hold that the suit was barred without reaching the constitutional
Five of nine Justices held that even if Congress had
unmistakably intended to abrogate state sovereign immunity, it
lacked the power to do so. They noted that the ADEA was enacted
pursuant to Congress' Article I Commerce Clause power. See EEOC
v. Wyoming. Article I, however, does not empower Congress to subject
States to suit at the hands of private individuals. See Seminole
Tribe of Florida. v. Florida. Section 5 of the Fourteenth Amendment,
moreover, does not apply. That section does give Congress the
power to abrogate state immunity. But because Congress' powers
under Section 5 are remedial, there must be "a congruence and
proportionality" between the injury to be prevented and the means
adopted to that end. See City of Boerne v. Flores. The ADEA does
not meet this test because its substantive requirements are disproportionate
to any unconstitutional conduct that the Act could conceivably
target. Age is not a suspect class. States may thus treat individuals
differently on the basis of age as long as their reasons for different
treatment are rationally related to legitimate state interests.
The ADEA's broad restrictions, however, prohibit substantially
more state employment decisions than would be prohibited under
rational basis review. The ADEA is thus not "appropriate legislation"
under Section 5. Justices Stevens, Souter, Ginsburg & Breyer
- On January 21, 2000, the Court granted certiorari in Florida
Department of Corrections v. Dickson. This case asks whether
Congress exceeded the scope of its "enforcement" authority
under Section 5 of the 14th Amendment when it made Title
I of the Americans with Disabilities Act applicable to the States.
The Court's decision to review Dickson is surprising and has led
to much speculation. Just 10 days earlier, in Kimel, Court had
held that Congress did exceed the scope of its enforcement authority
when it made the ADEA applicable to the States. That Act was not
appropriate Section 5 legislation because its substantive restrictions
on state employment decisions prohibited much more than would
be unconstitutional (age discrimination is subject to rational
basis review). Disability-based discrimination, likewise, is subject
only to rational basis review. And, the ADA, like the ADEA, constrains
state employers' decisions much more than is called for by rational
basis review. The Court's usual course would thus be to remand
the Dickson case to the circuit court with instructions to reconsider
it in light of Kimel. That this did not occur could indicate that
one of the five Justices in the Kimel majority may question whether
that reasoning should also apply to the ADA.
- On January 28, 2000 a House Subcommittee chaired by Congressman
Pete Hoekstra heard testimony about OSHA's recent issuance,
and subsequent retraction, of a letter stating that it considered
inspections of the home offices of telecommuters within its purview.
Of particular interest to the Subcommittee were some e-mails circulated
internally within OSHA which suggested that their abandonment
of the policy was simply a public gesture aimed to appease the
public outcry over the issue, and not a genuine change of heart
at OSHA. The general tone of the testimony was that intrusions
into the home by OSHA inspectors was a terrible idea, and would
promptly reverse the salutary trend of workplace flexibility that
increased use of telecommuting has afforded single mothers, persons
with disabilities, not to mention countless others whose work
and personal lives are enhanced by being able to work effectively
Testimony from the Hoekstra hearings can be found at: http://www.house.gov/ed_workforce/hearings/106th/oi/telework12800/wl12800.htm
- On February 9, 2000 the Subcommittee on the Constitution of the
House Judiciary Committee, chaired by Congressman Charles
Canady, heard testimony from a variety of technical, legal
and policy sources concerning the Americans with Disabilities
Act and the Internet. Proposed regulations requiring conformity
to certain accessibility standards by public (i.e.,governmental)
web sites are due to be released in March, and a lawsuit alleging
that America Online has violated the ADA has been filed by the
National Federation of the Blind. Betsy Dorminey, a Georgia attorney
and vice-chairman for programs of the Federalist Society's Labor
& Employment practice group, testified (on her own behalf
and in her capacity as an employment lawyer) that she did not
believe that the ADA's definition of public accommodations should
be read to include the Internet, Internet Service Providers, or
private web sites and that prescribing the form for private web
sites would violate the First Amendment. Walter Olson, an author
and fellow at the Manhattan Institute and a frequent participant
in Federalist Society programs, also testified about the perils
of regulation. Charles Cooper of Cooper, Carvin & Rosenthal,
former chair of the Federalist Society's Civil Rights Practice
Group, testified on behalf of the National Federation of the Blind
and stated that he did not believe the First Amendment risks were
- In an April 1999 opinion letter, a staff attorney at the Federal Trade
Commission (FTC) interpreted the Fair Credit Reporting Act
(FCRA) as giving the FTC authority to regulate employee misconduct,
e.g. the investigation of harassment allegations. Under
this interpretation, which has been approved by the FTC Commissioners,
sexual harassment investigations, as well as investigations of
other suspected employee activity (such as discrimination, workplace
violence, fraud and theft, and on-the-job accidents), conducted
by outside entities, will be considered an "investigative consumer
report" under the FCRA. Consequently, employers would be required
to: (1) obtain prior written consent from the accused before an
investigation can proceed, (2) provide notice and disclose the
scope of the investigation to the accused, and (3) provide a copy
of any report, which would include the sources of all information
obtained, before any adverse action is taken. Legislation is being
considered to address this FCRA interpretation, and the issue
has yet to be addressed by the courts.
- Another hot item is the Department of Labor's proposed regulations,
which allow Unemployment Insurance (UI) funds to be used
for paid parental leave. Under the proposed regulations, States
could (it's voluntary) use unemployment insurance funds as a partial
wage replacement for workers who take leave during the first year
after the birth or adoption of their child, for a maximum of 12
weeks. Heretofore, recipients of UI benefits had to be able and
available to work. Officials of SHRM and the U.S. Chamber of Commerce
have strenuously objected to the proposed regulations, and threatened
legal action. Moreover, Congress is being urged to enact technical
corrections legislation such as S.1530, the Family Medical Leave
Clarification Act. In essence, the present administration is being
criticized for circumventing Congress to divert UI dollars to
claimants who aren't looking for work, with Congressional action
- Late last year, the Department of Labor issued an advisory letter
stating that home offices were subject to OSHA laws and review.
After receiving an overwhelming hostile response, OSHA rescinded
its advisory letter. The Administrator of OSHA announced that
OSHA did not contemplate inspection of home offices, but would
inspect homes where manufacturing hazards might arise. Just
to be sure, Congress is contemplating legislation to exempt
telecommuters and home offices from OSHA jurisdiction.
- Last October, the House of Representatives passed the Norwood-Dingell
managed care reform bill. The bill includes a broad right-to-sue
provision; patients would be allowed to sue health plans for damages
in state court if they are injured by denials or delays of medical
care. Currently, such suits are preempted by ERISA. A recent survey
conducted by the American Association of Health Plans found that
many small employers would cut back coverage and/or raise employee
premiums. Meanwhile, Senate Majority Leader Lott noted that what
the House came up with is unacceptable to the Senate.A final bill
is expected to emerge from a Senate-House conference committee
- The Department of Labor's Occupational Safety and Health Administration
(OSHA) recently published a proposed ergonomics standard. Congress
has blocked such standards in the past, and Congressional leaders
have reacted negatively to the publication of the proposed standard.
The proposed rule would require employers in manual handling and
manufacturing to implement an ergonomics program in their workplaces,
and the provisions of the standard would be triggered in any workplace
(other than agriculture, maritime operations or construction)
so long as one instance of signs or symptoms of a musculoskeletal
disorder is reported. The Administrator of OSHA maintains a final
rule will be forthcoming within a year. The proposed rule has
not been received with great enthusiasm. Thousands of letters
of protest have been mailed, and the comment period has been extended.
- EEOC Guidance on Vicarious Employer Liability for Unlawful Harassment
by Supervisors: This Guidance was issued last summer, in response
to the 1998 Supreme Court sexual harassment decisions. The Guidance
is applicable to all forms of prohibited discrimination, not merely
sexual harassment. Per the Guidance, employers are per se liable
for harassment by supervisors that result in a tangible employment
action (i.e., termination, demotion, undesirable reassignment,
denial of promotion). If the harassment didn't culminate in a
tangible employment action (unfulfilled threats, hostile environment
without economic harm), the employer may raise the affirmative defense
outlined by the Supreme Court. An effective affirmative defense
relies upon the employer developing and implementing a comprehensive
antidiscrimination policy and complaint procedure in advance of
the alleged discrimination.
- Statistics: The EEOC recently announced that it gained $ 307.3
million in benefits for alleged victims of discrimination (a new
record!), while cutting the backlog of pending cases to a 15-year
low. Some 5000 cases were resolved through EEOC mediation, for
$ 58 million. There were 77,400 discrimination charges filed with
the EEOC last fiscal (Oct-Oct) year; 37.3 % were race discrimination
charges, 31% sex discrimination, 22% disability discrimination,
9.2 % national origin and 18 % age. Meanwhile, the U.S. Department
of Justice announced that the number of employment discrimination
cases pursued in federal court between 1990 and 1998 nearly tripled,
to 23,735 complaints. However, only 5 % of these cases were disposed
of by trial, with plaintiffs receiving a positive verdict in only
1.6% of all cases filed. Roughly 39 % of the employment discrimination
cases settled out of court, and 14 % were dismissed voluntarily
(the rest were resolved primarily through summary judgment orders).
However, woe to the employer whose case goes to trial--in 1998,
plaintiffs won 35.5 % of the 1,083 cases disposed of by trial
for which a winner was reported, with a median award of $137,000.
Nonetheless, nearly 11 % of these verdicts were for over
$ 10 million. Over 75 % were for less than $ 500,000.
- The Clinton Administration has requested $ 27 million for an Equal
Pay Initiative, for Aincreased efforts at lowering the earnings
gap between men and women and toward strengthening enforcement
of the Equal Pay Act. House leadership labeled the request
Aflawed and asserted it Awould serve primarily to ensure full
employment for lawyers.