ACSBlog

by Jeremy Leaming

Once again a right-wing controlled federal appeals court has dealt a blow to workers’ rights. The Koch brothers and their staunch defenders of an unwieldy corporate America have yet another court action to celebrate.  

In National Association of Manufacturers v. National Labor Relations Board, a three-judge panel of the U.S. Court of Appeals for the District of Columbia invalidated a rule issued by the National Labor Relations Board (NLRB) requiring employers to post notices containing information about rights pursuant to the National Labor Relations Act (NLRA). For instance a flyer, poster or notice could inform workers of their rights to create a union, engage in collective bargaining, advocate for safe working conditions, or wage a strike. The NLRB rule also stated that companies failing to post such notices were engaging in unfair labor practices.

The three-judge panel, all consisting of Republican-appointed judges, invalidated the NLRB rule, saying it went beyond the Board’s authority, the Los Angeles Times reports. The D.C. Circuit also complained the NLRB rule amounted to government-controlled speech, saying employers covered by the NLRA cannot be forced in all circumstances to post or disseminate workers’ rights spelled out under the law. The D.C. Circuit called this “compelled speech” and said the employers “see the poster as one-sided, as favoring unionization, because it ‘fails to notify employees, …, of their rights to decertify a union, to refuse to pay dues to a union in a right-to-work state, and to object to payment of dues in the excess of the amounts required for representational purposes.’”

The D.C. Circuit is often considered the second most important court in the country because it hears an array of weighty constitutional matters, including the creation of federal regulations, like those aimed at enforcing the NLRA. The eleven-member court has four vacancies and Senate Republicans have blocked President Obama’s attempts to fill the vacancies. Earlier this year, the Senate, led by Minority Leader Mitch McConnell (R-K.Y.), again blocked the nomination of Caitlin Halligan to a seat on the bench. She has subsequently withdrawn her nomination.

The Senate Judiciary Committee has conducted a hearing on another Obama nominee to the D.C. Circuit, Sri Srinivasan. But during that hearing, Ranking Member Chuck Grassley (R-Iowa) announced legislation to cut the number of judges serving on that bench to 8. If Grassley has his way, Obama will be fortunate to get one judge placed on the D.C. Circuit.

by Fatima Goss Graves & Amy K. Matsui, National Women's Law Center

This week the Senate HELP Committee will vote on the nomination of Thomas Perez to be the next Secretary of Labor.   In the midst of the many unfair and unfounded attacks lobbed against Mr. Perez in recent weeks, an important legal doctrine for combating sex discrimination has also come under attack: disparate impact. Under Mr. Perez’s leadership as the Assistant Attorney General for Civil Rights at the Department of Justice, the Department has employed the longstanding disparate impact analysis to combat employment discrimination.  Its application is not only legally sound, but exceptionally important to eliminate discrimination and further justice.

The Supreme Court and Congress have long made clear that Title VII of the Civil Rights Act “prohibits employers from using employment practices that cause a disparate impact” based on sex and other protected classes. The doctrine of disparate impact allows for a remedy when an employment practice that may be neutral on its face has an unjustified adverse effect on members of a protected class.

Disparate impact has been crucial to addressing entrenched discriminatory employment practices.  Indeed, women’s entry into high-wage, nontraditional occupations has been made possible in large part by challenges to unfortunate employment practices that disproportionately disadvantage women, which would have otherwise remained unchanged but for the Title VII’s disparate impact doctrine.  Courts, for example, have struck down height, weight or strength requirements implemented by employers in police departments, fire departments, in construction and in correctional facilities because the requirements were not related to job performance, but instead reflected stereotypes about the skills required for a position.  Moreover, there are often alternative practices that may both satisfy job performance demands and allow for a diverse workforce.