• The issue of genetic discrimination is starting to become a major issue that Congress is beginning to address. A bill getting a lot of attention, the Genetic Nondiscrimination in Health Insurance and Employment Act, H.R. 602, sponsored by Rep. Louise Slaughter (D-NY), has been criticized by some
  in the business community for being too broad in its definition of "genetic information" and creating the possibility of unlimited liability for employers and health plans. The legislation, with 255 sponsors, would prohibit health plans and insurers from discriminating in enrollment, eligibility, contribution rates, and premium rates based on genetic information. It also would make it an unlawful employment practice to discriminate based on protected genetic information.

  Text of H.R. 602: http://thomas.loc.gov/cgi-bin/query/z?c107:H.R.602:
  Co-sponsors of H.R. 602: http://thomas.loc.gov/cgi-bin/bdquery/z?d107:HR00602:@@@P
  
  To view a full copy of the latest Watch Report in PDF format, please visit:
  http://www.nlcpi.org/books/pdf/jlwr_Nov01.pdf. News and Analysis of Major Legal and Policy Issues Affecting the Private Sector written by Daren Bakst, Policy Counsel, NLCPI.
  

• Raymond J. LaJeunesse of the National Right to Work Legal Defense Foundation recently testified to Congress concerning Beck enforcement. Find his testimony here: http://www.nrtw.org/b/rjltestimony.htm.
  
• Read John Irving's paper on the re-employment rights of members of the armed services and reserves HERE.
  

September 18, 2001

• Conference: Labor & Employment Policy and the Law of Unintended Consequences
  
  
  

• Reversing himself, a federal judge has ruled that states and their agencies are immune from suits under Title II of the Americans with Disabilities Act, the section that covers discrimination by any "public entity" in its provision of "services, programs or activities."

  Judge Harvey Bartle III of the U.S. District Court for the Eastern District of Pennsylvania had previously refused to dismiss Jones v. Commonwealth of Pennsylvania, saying that a "strong majority" of the federal appellate courts had concluded that states have no 11th Amendment immunity under Title II.

  But Bartle said he was forced to reconsider his ruling after the U.S. Supreme Court handed down its decision in Board of Trustees of the University of Alabama v. Garrett in which the justices held that states are immune from suit under Title I of the ADA, the section that covers employment discrimination.

  See http://www.law.com/cgi-bin/gx.cgi/AppLogic+FTContentServer?pagename=law/View&c=Article&cid=ZZZB50-Y71RC&live=true&cst=1&pc=0&pa=0&s=News&ExpIgnore=true&showsummary=0

• "Squeamish Librarians"

• University of Alabama at Birmingham Board of Trustees, et al. v. Patricia Garrett, et. al.,

On February 21, 2001 the United States Supreme Court decided the consolidated Americans with Disabilities Act (ADA) cases filed by two state employees against the State of Alabama. A registered nurse, Patricia Garrett, and a security officer, Milton Ash, alleged violations of the ADA because the state employer would not accommodate their disabilities. Alabama argued that it should be immune from such suits, and while the District Court agreed, the Court of Appeals for the Eleventh Circuit reversed this decision.

Following a familiar five-to-four split decision pattern, the United States Supreme Court reversed and held that the Eleventh Amendment barred state employees from suing a state employer for damages under Title I of the ADA. The Chief Justice’s majority opinion was joined by Justices Sandra Day O'Connor, Antonin Scalia, Anthony M. Kennedy and Clarence Thomas. Justice Kennedy, joined by Justice O’Connor, also filed a concurring opinion. Justices John Paul Stevens, David H. Souter and Ruth Bader Ginsburg joined Justice Breyer's dissenting opinion. The Court declined to consider the Title II claims (relating to access to programs).

The Court found that the Eleventh Amendment barred these claims for monetary damages because Congress lacked the power to create substantive rights pursuant to the Fourteenth Amendment. Rather, Congress could enact remedial legislation that prohibited otherwise lawful state conduct only where there was pattern of constitutional violations by the states. The ADA’s legislative record failed to establish such a pattern. In effect, the Court ruled that the instances of discrimination were not sufficiently numerous to constitute a "pattern" of conduct by the states. Thus the Court did not reach the issue of whether the particular discriminatory acts in the legislative record arose to the level of "irrational" discrimination precluded by the Cleburne decision. See Cleburne v. Cleburne Living Center, Inc., 473 U.S. 432 (1985) (holding that legislation that discriminates against the disabled must meet "rational basis" review).

The Court’s ruling was limited to the portion of the ADA requiring employers to make "reasonable accommodations" for disabled employees, but may foreshadow future decisions regarding accessibility of government services and programs. Title II claimants will find it difficult, in light of Garrett, to show that Congress had an adequate record of a pattern of constitutional violations by the states against the disabled. This ruling continues a trend in recent Supreme Court Eleventh Amendment decisions limiting the power to Congress to create substantive rights pursuant to its powers under Section 5 of the Fourteenth Amendment.

• "Midnight Regulations" Affect Affirmative Action, Government Contractors
• On November 22, 2000, the United States District Court for the Eastern District of Virginia ruled that a large international union can no longer force railroad and airline employees nationwide to endure a burdensome annual objection scheme in order to reclaim forced union dues used for politics. The ruling was issued in a federal class-action lawsuit National Right to Work Legal Defense Foundation http://www.nrtw.org/ attorneys filed last February in the U.S. District Court for the Eastern District of Virginia for six United Airlines passenger service employees against the International Association of Machinists & Aerospace Workers (IAM). On October 12, 2000, the court had allowed the case to be maintained as a class action on behalf of more than 1000 nonmembers forced to pay dues to the IAM as a condition of employment under the Railway Labor Act. Lutz v. IAM, 196 F.R.D. 447 (E.D. Va. 2000). Under the IAM's scheme, union officials required railroad and airline employees to file an annual written objection to paying forced union dues for politics, instead of allowing employees to make their ongoing objections known only once. The court held that "the annual objection requirement fails First Amendment scrutiny because the requirement is without a valid justification and imposes an undue burden that creates a risk that funds 'will be used... to finance ideological activities unrelated to collective bargaining.'" Lutz v. IAM, 121 F. Supp. 2d 498, 507, 2000 U.S. Dist. LEXIS 17360 (E.D. Va. 2000) (quoting Teachers Local 1 v. Hudson, 475 U.S. 292, 305 (1986)). The court reasoned that the union's "refusal to honor continuing objections imposes an unjustifiable barrier for nonmembers seeking to maintain a status quo ante of objecting nonmembership, and instead has, as a default, the unconstitutional exaction of fees." Id.

Raymond J. LaJeunesse, Jr.

Staff Attorney

National Right to Work Legal Defense Foundation, Inc.

8001 Braddock Rd., Suite 600

Springfield, VA 22160

(703) 321-8510 or (800) 336-3600

FAX (703) 321-9319

• National Right to Work Foundation issues statement regarding McCain-Feingold's impact on labor law
  
• OVERCOMING MISSISSIPPI’S COMMON LAW HOSTILITY TO ARBITRATION

January 16, 2001

• Labor Secretary-designate Elaine Chao statement on civil rights