Judge Gorsuch and the ‘Frozen Trucker’ case

I write a lot about very bad court decisions. Here’s one from U.S. Supreme Court nominee Judge Neil Gorsuch that rivals the very worst.

Judge Gorsuch wrote a dissent in Transam Trucking, Inc. v. Administrative Review Board, U.S. Department of Labor in which he said a trucker should be fired because he left a big truck rig with frozen brakes that was stranded by the side of the road late at night in frigid weather, three hours after his employer failed to arrive to fix the truck. The cabin was unheated and the trucker was showing signs of hypothermia. He unhooked the trailer and drove the cab to a gas station where he warmed up, and then he returned. He was fired.

“It might be fair to ask whether TransAm’s decision was a wise or kind one. But it’s not our job to answer questions like that” wrote Gorsuch.”There’s simply no law anyone has pointed us to giving employees the right to operate their vehicles in ways their employers forbid.”

Do we really need a law saying you can save your life if its 14 degrees below zero,  your torso is numb and your speech slurred, and your employer has failed to rescue you after several hours time?

Under the questioning of U.S. Sen. Al Franken (D-Minn), the true absurdity and senselessness of Judge Gorsuch’s dissent is on full display. (See below)

Sen. Dick Durbin (D-IL) also noted at today’s confirmation hearings: “According to [the truck driver’s] recollection, it was 14 degrees below. So cold, but not as cold as your dissent, Judge Gorsuch.”

It’s hard to imagine Judge Gorsuch, a Georgetown Prep/Harvard Law School grad, sitting in that freezing, stranded big rig late at night. But  one wonders why he can’t empathize with the poor schmuck who chose to save his life rather than die alone for no good reason just because his employer told him that he couldn’t leave. Gorsuch’s dissent leaves one  wondering if Judge Gorsuch is just another member of the American aristocracy who is ascending to the imperial throne, where he will spend the rest of his life showing a complete lack of empathy and regard for the right of workers to be treated with basic dignity and respect in the workplace.

How Can the U.S. Senate Special Committee on Aging Be So Clueless about Age Discrimination?

Why is it left to the Attorney General of Illinois to address the national problem of blatant and destructive age discrimination in hiring?

Illinois Attorney General Lisa Madigan this week warned six national career and job search companies that some of their search functions could violate state and federal age discrimination laws. The job sites are Chicago-based CareerBuilder, Indeed, Beyond, Ladders, Monster Worldwide and Vault.

Kudos to Ms. Madigan but this issue demands a national response, especially since the U.S. Court of Appeals for the 11th Circuit in Atlanta  ruled that job applicants are not entitled to the protection of the federal Age Discrimination in Employment Act (ADEA).

Yet, for years, the EEOC and members of the U.S. Senate Special Committee on Aging have sat on their hands while older workers have been mired in chronic unemployment due to  blatant age discrimination in hiring.  Why? The picture became clearer recently when Sen. Robert P. Casey, Jr. of Pennsylvania , a ranking member of the Special Committee on Aging, issued a press release on the committee’s web site that was stunningly uninformed about the ADEA.

Casey announced that he and several other committee members recently “introduced” the Protecting Older Workers against Discrimination Act (POWADA), which would remove  the higher burden workers alleging age discrimination currently face in the court system relative to workers alleging discrimination based on race, sex, national origin, or religion. In actuality, the POWADA  is a proposed law that literally has been languishing in various Congressional committees since  2009, which was  the year that the U.S. Supreme Court issued a ruling establishing the higher burden for age discrimination plaintiffs.

Worse, Sen. Casey says the POWADA would “level the playing field” for older workers. This statement is so profoundly wrong that one must wonder whether the special committee employs any professional staff who know anything at all about the federal law governing age discrimination.

Contrary to what Sen. Casey states, the POWADA would not “level the playing field for older workers.” Not by a long shot.

The POWADA would merely restore the status quo that existed before the 2009 Supreme Court ruling, which raised the burden of proof in age discrimination cases far above that of Title VII of the Civil Rights Act, which prohibits discrimination on the basis of race, sex, religion, gender, color and national origin. But even with that long overdue fix, older workers will remain second class citizens under federal law.

For example, the ADEA – unlike Title VII – does not permit victims of age discrimination to collect compensatory or punitive damages.  The damages portion of the ADEA is patterned after the federal Fair Labor Standards Act, which governs minimum wages and overtime. Age discrimination  literally is treated like a violation of federal overtime or minimum wage rules. Victims of age discrimination are entitled only to recover monetary damages (perhaps doubled if they can show willful discrimination). They (and their attorneys) get nothing at all if there are no monetary damages.

Systemic discrimination is treated far more leniently under the ADEA than it is under Title VII. An employer can engage in “reasonable” discrimination under the ADEA, whereas Title VII in race and sex discrimination cases requires an employer to show “business necessity” and employers must use the least discriminatory alternative. The U.S. Supreme Court has ruled that employers who engage in “reasonable” age discrimination do not have to use the alternative that is least harmful to older workers.

Several times in recent years, I have offered to brief the special committee about the inherent problems with the ADEA. I never received a response. I  also sent the committee  a free copy of my book, Betrayed: The Legalization of Age Discrimination in the Workplace. Again, no response. It’s all there. It’s indisputable. But Sen. Casey, I can’t read it for you.

Here’s the bottom line – Passing the POWADA is long overdue. But this does not alleviate the responsibility of the U.S. Senate Special Committee on Aging to take  immediately steps to insure that older workers are accorded equal rights under the law. I have proposed repealing the ADEA and adding age as a protected class under Title VII of the Civil Rights Act.

Missouri bill would make it harder to sue for discrimination

If you don’t like getting sued for discrimination, just make it harder to sue.

That seems to be the theory underlying a bill pending in Missouri House of Representatives that was recently endorsed by the University of Missouri system.

The proposed bill would make it harder to sue by raising the level of proof in lawsuits alleging discrimination in employment, housing and public accommodations. It also would bar the award of punitive damages against “public entities.”

The University of Missouri Backs the Controversial Measure

The Missouri legislature’s Special Committee on Litigation Reform, which held a hearing on the bill last week, appears to be less than interested in opposing views. Committee Chairperson Bill Lant cut off the microphone of Missouri NAACP President Rod Chapel, who said the measure would expand discrimination and represents a form of “Jim Crow.”   Lant, a Republican, also refused to allow a committee member to ask questions of Chapel.

Minutes before Chapel was silenced,  the Columbia Daily Tribune reports that Marty Oetting, lobbyist for the University of Missouri, told the committee that UM supports the bill, especially the part barring anyone winning a lawsuit from receiving punitive damages from public entities. The university system is currently facing two discrimination lawsuits,

The university claims workers receive sufficient protection under federal law and do not need the enhanced protections of the state’s anti-discrimination law.

The driving force behind the bill is Missouri State Sen. Gary Romaine, the owner of a “rent-to-own” furniture business that is currently a defendant in a race discrimination lawsuit.  Romaine couched the bill as a way of “reforming Missouri’s legal climate and improving our ability to grow existing businesses and attract new employers.”

The proposed bill would essentially adopt the current standard of the federal Age Discrimination in Employment Act of 1967 for all victims of race and sex discrimination. Workers would have to show that discrimination occurred “because of” discrimination rather than meeting the lesser standard of showing that discrimination was a motivating factor.

Trump’s Short-Sighted Pick for Labor

Note: Andrew Puzder withdrew his nomination for Labor Secretary on 2/15/17. He also admitted to hiring an undocumented  housekeeper and his ex-wife appeared on Oprah in 1990 in disguise and  accused him of domestic violence. She later recanted. PGB

For all of his supposed  business acumen, President Donald Trump is doing some really dumb things.

For one thing,Trump  has proposed Andrew (Andy) Puzder, CEO of CKE Restaurants, as the next Secretary of Labor.

CKE operates the “fast food” restaurants Carl’s Jr. and Hardees and  has been sued multiples times for discrimination, failing to pay overtime and firing workers who protest poverty wages.

And  it is not insignificant that CKE sells burgers with advertising that many of Trump’s middle class voters would rightly consider to be soft-core porn. One controversial ad features Paris Hilton wearing a skin-tight bikini while soaping up a Bentley and crawling all over it before taking a long, lingering bite of a juicy burger. This ad drew the ire of the Parents Television Council and was  banned in New Zealand. According to CNN Money, Puzder was less than sympathetic to the concerns of parents, telling them to “get a life …  there is no nipple in this. There is no nudity, there is no sex acts — it’s a beautiful model in a swimsuit washing a car.” One suspects that Puzder does not have his finger on the pulse of Trump’s voter base.

Whether or not Puzder is qualified to enforce the nation’s labor laws, he obviously lacks good judgment and political acumen. The job of labor secretary is sensitive and politically charged. Puzder promises to be the equivalent of a bull in the china shop. Isn’t this like asking for trouble?

It is also baffling that Trump reportedly is seeking to rein in the Consumer Financial Protection Bureau, a federal consumer watchdog group that was created in the wake of the worst recession in 100 years. The agency serves as a check on the financial services industry and has returned about $11.8 billion to some 29 million consumers since 2011. What’s the upside to de-fanging an organization that could  help prevent future financial upheaval that could make Trump look bad?

Trump is not a politician. He is an outsider who wants change. But Trump’s middle class voters want positive change that benefits them, not the already too comfortable one percent. Trump needs better advice than he is getting from son-in-law and political novice Jared Kushner, erratic advisor Kellyanne Conway and laid-back Chief of Staff Reince Priebus.  Which is another thing.