News 2000

October 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


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 information, click here.

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
  • Protect the Veils of Privacy:
    Gender harassment law and high tech combine for  ‘jurisprurience.’
    Steve France reviews Jeffrey Rosen’s book THE UNWANTED GAZE: The Destruction of Privacy in America in the ABA Journal.

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

  • Supreme Court Rejects "Pretext-Plus"
    Reeves v. Sanderson Plumbing Products, Inc.
    On June 12, 2000, a unanimous United States Supreme Court overturned the Fifth Circuit Court of Appeals, finding that the court had misperceived a plaintiff-employee's evidentiary burden in an ADEA case. In so holding, the high court also resolved a circuit split. The Fifth Circuit, along with the First and Second Circuits, had been using a variant of St. Mary's Honor v. Hicks, where the plaintiff's burden of proof in an ADEA case was not only to show that the employer's reason was pretextual, but also that the real reason was discrimination. The Supreme Court held that it is enough for the plaintiff to cast doubt as to his employer's proffered reason (i.e. that it is false or not worthy of credence) in order to present his/her case to the jury. Per the Supreme Court's decision in Reeves, the employee-plaintiff need not always introduce additional, independent evidence of discrimination ("pretext-plus") in order to survive summary judgment or a judgment on the pleadings (although the Court noted that there will be instances where, although the plaintiff has established a prima facie case and introduced sufficient evidence to reject the employer's explanation, no rational factfinder could conclude that discrimination had occurred).

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

  • 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 employee’s "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 McConnell’s announcement followed the Committee’s hearing on "compelled political speech," one of several hearings on campaign finance issues. Testimony from this hearing can be found at (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 union’s non-bargaining related activities or whether they want to seek a refund." The AFL-CIO’s response was . . . "whatever," as similar paycheck protection measures have died a slow death in previous Congresses.
  • C’mon, Baby, Let’s Do the Ergo-Nomics! The nationwide hearings conducted by OSHA continue, with over 1000 witnesses expected to ultimately testify on OSHA’s 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 industry’s 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 at
  • 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 at
  • 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 employee’s "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 McConnell’s announcement followed the Committee’s 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 union’s non-bargaining related activities or whether they want to seek a refund." The AFL-CIO’s 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 Court’s 1988 Beck decision were "inadequate."
    • C’mon, Baby, Let’s Do the Ergo-Nomics! The nationwide hearings conducted by OSHA continue, with nearly 400 witnesses testifying on OSHA’s 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 industry’s 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 rule’s 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 Justice’s Bureau of Justice Statistics. In a survey of contract cases tried in state courts in the nation’s 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 discrimination cases


April 5, 2000

    •  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 year.
    • 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 ( 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

  • Judicial Developments
  • 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 issues.
    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 dissented.
  • 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 from home.
    Testimony from the Hoekstra hearings can be found at:
  • 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 so grave.
  • 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 urged.
  • 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 in April.
  • 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.



2003 The Federalist Society