Employment Law

  • June 29, 2009
    Guest Post


    By Charles A. Rothfeld, Special Counsel, Mayer Brown JSM. Mr. Rothfeld's analysis of Ricci v. DeStefano is part of an ACS online symposium, "Experts on Ricci," being published here.

    Very few observers can be surprised by the outcome of Ricci v. DeStefano, perhaps the most anticipated and controversial of this Term's Supreme Court decisions. It was widely predicted that the Court would rule for the white firefighter plaintiffs. There was every reason to expect that the vote would be 5-4, divided on the usual conservative-liberal lines. And history suggested that the majority opinion would be written by Justice Anthony Kennedy, who on the current Court casts the decisive vote in cases involving issues of race.

    But four things about the decision are notable.

    First, the Court announced what it acknowledged to be a new test to determine when Title VII allows employers to engage in avowedly racial decision-making with the aim of minimizing racial disparities in the workforce. The Court began with the premise that New Haven's action - refusal to certify civil service exam results that would have excluded all African-American candidates for promotion - "would violate the disparate-treatment prohibition of Title VII absent some valid defense" because it was "express, race-based decisionmaking." This understanding rejected the Obama Administration's argument that an employer acting with the intent to comply with Title VII's disparate impact provisions is not discriminating on the basis of race at all. The Court also rejected the government's argument that "an employer's good-faith belief that its actions are necessary to comply with Title VII's disparate-impact provision" is enough to justify race-conscious conduct. Such an approach, the Court warned, "would encourage race-based action at the slightest hint of disparate impact," "would amount to a de facto quota system," and would allow employers to discard test results (or engage in other employment practices) "with the intent of obtaining the employer's preferred racial balance."

  • June 29, 2009
    The Supreme Court today ruled that New Haven, Conn., officials violated the civil rights of a group of white firefighters when they set aside results of a promotion test because not enough minority candidates fared well on it.

    Minority candidates had threatened to sue New Haven for discrimination if it did not set aside the results. Following public debate on the issue, New Haven officials nullified the test results. But that action prompted a lawsuit from white and Latino firefighters, who performed well on the promotion test, arguing that the city had discriminated against them in violation of Title VII of the Civil Rights Act of 1964. A U.S. District Court and the U.S. Court of Appeals for the Second Circuit ruled against the white firefighters, upholding the city's decision to toss aside the test results.

    In Ricci v. DeStefano, Justice Anthony Kennedy, writing for the 5-4 majority, reversed course and sided with the white firefighters. "We conclude that race-based action like the City's in this case is impermissible under Title VII unless the employer can demonstrate a strong basis in evidence that, had it not take the action, it would have been liable under the disparate-impact statute," Kennedy wrote. Kennedy was joined by Chief Justice John Roberts and Justices Samuel Alito, Antonin Scalia and Clarence Thomas.

    Justice Ruth Bader Ginsburg filed a dissent, joined by Justices Stephen Breyer, David Souter and John Paul Stevens. Ginsburg, who read her dissent from the bench, wrote, "The white firefighters who scored high on New Haven's promotional exams understandably attract this Court's sympathy. But they had no vested right to promotion."

    Ginsburg also wrote that the Court's majority opinion "leaves out important parts of the story." She wrote that, "Firefighting is a profession in which the legacy of racial discrimination casts an especially long shadow. In extending Title VII to state and local government employers in 1972, Congress took note of a U.S. Commission on Civil rights (USCCR) report finding that racial discrimination in municipal employment even ‘more pervasive than in the private sector.'" Ginsburg went on to note that in New Haven "racial disparity" in the firefighting ranks was "even more pronounced."

    The BLT: The Blog of the Legal Times has early reaction to Ricci here. Sen. Patrick Leahy, chairman of the Senate Judiciary Committee, said in a statement that, "It is less likely now that employers will conscientiously try to fulfille their obligations under this time-honored civil rights law. This is a cramped decision that threatens to erode these protections and to harm the efforts of state and local governments that want to build the most qualified workforces."

    The high court also issued its opinion in Cuomo v. The Clearing House, which found that states can combat discrimination in mortgage lending. The justices did not rule in Citizens United v. Federal Election Commission, involving whether a negative movie about Hillary Rodham Clinton aired during last year's presidential campaign should be regulated as a campaign advertisement The justices announced they would rehear arguments in the case in early September.

    Check ACSblog later for an online symposium regarding today's Ricci v. DeStefano decision. The symposium will include a series of expert commentaries on the decision.

  • June 1, 2009
    Guest Post

    By Kathrine Jack, staff attorney at National Advocates for Pregnant Women

    Abortion, Roe v. Wade and the extent to which fetuses should be afforded legal protection are key issues for many groups examining President Obama's first nominee to the Supreme Court, Judge Sonia Sotomayor. But as the court's decision last week in AT&T v. Hulteen illustrates, while public debate focuses on abortion and the rights of the fetus, we too often forget that the court has never fully recognized or protected the rights of pregnant women.

    In Hulteen, Noreen Hulteen and three other women sued AT&T for reducing their pension benefits because they took time off work for pregnancy and childbirth. Two of the women were actually required by AT&T to take time off - a reflection of workplace practices at the time that presumed that all pregnant women were unfit to work or unwelcome because of their "condition." AT&T provides pension benefits based on a seniority system calculated based on years of employment minus uncredited personal leave time. Until the late 1970s, AT&T treated pregnancy and childbirth leave as uncredited personal time even though all other medical leave resulted in full service credit for the entire period of absence. Decades later, Ms. Hulteen and the other women learned that they were receiving a smaller pension benefit because of the uncredited pregnancy leave. The women argued that this calculation violated Title VII as amended by the Pregnancy Discrimination Act (PDA) in 1978.

    The Hulteen majority opinion acknowledged that a company's failure to credit women for pregnancy leave taken today would be unlawful gender discrimination under the PDA. However, the court found that AT&T's practice was part of "bona fide seniority system" that, when adopted, "as a matter of law, as Gilbert held, was not gender-based discrimination." In other words, since pregnancy discrimination did not violate U.S. law before the PDA, AT&T was free to carry forward that discrimination in its current calculation of pension benefits.

  • April 16, 2009
    Guest Post
    By Melissa Hart, Associate Professor, University of Colorado Law School.

    An en banc panel of the Ninth Circuit recently heard arguments in Dukes v. Wal-Mart, the largest employment law class action in U.S. history, alleging gender discrimination against as many as 1.5 million female employees of the retail giant. The oral arguments came nearly eight years after the case was first filed in 2001, five years after the district court certified the class and four years after the case was first argued to a panel of the Ninth Circuit.

    Thus far, both courts to consider the question have decided that the plaintiffs (some of which are pictured below) should be able to pursue their claims against the retail giant as a class. The case raises some of the most central questions in both class litigation and sex discrimination law, and the Ninth Circuit's en banc decision stands poised to contribute significantly in both areas.