Lots of Work for New Labor Secretary

Perez Faces Daunting Obstacles

Labor Secretary Tom Perez pledged this week to aggressively defend workers rights in a speech to the AFL-CIO but it may be a bit early to break out the balloons and confetti.

For one thing, Perez, who was appointed by President Barack Obama in July, has little power to overcome some of the daunting obstacles facing both the labor movement and American workers generally.

Research earlier this year documented what many casual observers already knew – the U.S. Supreme Court is, in fact,  the most anti-employee rights court in modern U.S. history.

In the past two years, the Court has issued decisions that make it far more difficult for plaintiffs to prevail in employment discrimination lawsuits, retaliation lawsuits and class action lawsuits. See One-Two Punch by Anti-Worker Court and Wal-Mart Doges Bullet.

Congress has done little or nothing to repair these devastating blows to worker rights.

Congress has not even addressed the Court’s absurd 2009 decision in Gross v. FBL Financial Services  to treat plaintiffs in age discrimination lawsuits less favorably than plaintiffs in race or sex discrimination lawsuits.

Finally, Congress’ so-called budget compromise – the sequester  – threatens to devastate the U.S. Department of Labor, which faces a potential budget cut of up to 26 percent in 2014.

Still …  Let the wind be at his back as Perez defends collective-bargaining rights, aggressively enforces wage laws and takes steps to improve workplace safety.

He also plans to crack down on employers who unlawfully misclassify workers as contractors instead of as employees and extend wage protections—such as overtime pay—to groups like home health-care workers who now have limited protections. Mr. Perez also said the DOL also will focus on job-training skills, calling he agency the “Department of Opportunity.”

And there’s no time like the present!

Union membership is down from a high of 20 percent in 1983 to 11.3 percent in 2012 (of which only 6.6 percent are private sector workers).


One-Two Punch by Anti-Worker Court

The U.S. Supreme Court continued its march toward being the most anti-employee rights court in modern U.S. history by issuing two decisions this week that make it more difficult for workers to gain the protection of federal discrimination laws.

In both decisions, the Court was divided along the same ideological lines. Voting in the majority were  Chief Justice John Roberts and Justices Antonin Scalia, Clarence Thomas, Anthony M. Kennedy  and Alito.  Dissenting were Justices Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor and Elena Kagan.


In the first case, the Court threw out a lawsuit filed by a Maetta Vance, a black catering worker at Ball State University in Indiana. who said a white colleague whom she regarded as a supervisor slapped and intimidated her. Vance also said she was generally subjected to racially offensive  epithets in the workplace.

 The Court said the alleged harasser didn’t meet the legal definition of supervisor, even though the woman’s job description said she was a supervisor, because she couldn’t fire Vance.  

Justice Samuel Alito, writing for the majority in Vance v. Ball State University, said workers qualify as supervisors only if they can take  “tangible employment actions” against the alleged victim (i.e., hire,  suspend, transfer, demote, fire, discipline). 

The issue is important because employers are vicariously liable under Title VII of the Civil Rights Act of 1964  for discrimination by supervisors (but not co-workers) that culminates in a tangible employment action.

The dissent questioned why the majority chose to articulate its restrictive  definition of a supervisor:

“Not even Ball State, the defendant-employer in this case, has advanced the restrictive definition the Court adopts …  Yet the Court, insistent on constructing artificial categories where context should be key, proceeds on an immoderate and unrestrained course to corral Title VII.”

 The  opinion completely rejects an approach adopted more than a decade ago by the U.S. Equal Employment Opportunity Commission and several appellate courts that a supervisor is an employee who has the authority to recommend tangible employment decisions or is authorized to direct the employee’s daily work activities.

The majority also rejects the common dictionary definition of the term:

su·per·vise:  to oversee (a process, work, workers, etc.) during execution or performance; superintend; have the oversight and direction of.  (Dictionary.com)

Under the decision, victims of illegal harassment by non-supervisors can still sue an employer for negligence if they can show the employer failed to monitor the workplace, respond to complaints or effectively discouraged complaints from being filed. The majority also said an employer can be held to have “delegated” the power to take tangible employment actions to employees upon whose recommendation it relies. The majority upheld the lower court finding  that Ball State was not negligent because it took “reasonable steps” to halt the discrimination.


In the second 5-4 ruling, the Court made it much more difficult for workers  to win claim o f retaliation against employers in discrimination lawsuits.

The plaintiff  in University of Texas Southwestern Medical Center v. Nassar,  Dr. Naiel Nassar, a physician, said he was denied a faculty position with a University of Texas medical center because he complained he was  the victim of discrimination on the basis of his Middle Eastern background.

 Justice Anthony M. Kennedy, writing for the majority, said a worker must show that retaliation was the “but for” reason that  the employer took action, not merely one of several motives.  In other words, the  plaintiff must show the retaliation would not have occurred “but for”  the defendant’s discriminatory conduct. 

Justice Kennedy cites the Court’s somewhat notorious ruling in  Gross v. FBL Financial Services, Inc., 557 U. S. 167, 176.  In that case, the Court  distinguished  the Age Dis­crimination in Employment Act of 1967 from other discrimination claims by requiring plaintiffs to prove that age discrimination was the “but for” cause of any adverse employment action.  It is a rare case that an employer cannot point to at least one other factor to justify an adverse employment action. The Gross decision has made it exceedingly difficult for plaintiffs to win age discrimination claims.

In her dissent, Justice Ginsburg wrote:

“The ball is once again in Congress’s court to correct the error into which the court has fallen and to restore the robust protections against workplace harassment the court weakens today.”

The American Council on Education and five other higher-education groups urged the justices, in a friend-of-the-court brief, to base their test of whether someone is a supervisor on the amount of authority possessed by the worker rather than workplace titles or worker perceptions.

A recent study published in the Minnesota Law Review determined that the Court is  the most pro-business Court since World War II.

* See earlier coverage of Vance case.




U.S. Supreme Court Decidedly Pro-Business

justice-scale-761665_1This blog has questioned whether employees who file discrimination lawsuits get a fair shake from federal judges who have lifetime tenure barring bad behavior.

Now there is a comprehensive study that shows the U.S. Supreme Court is the most pro-business court since World War II.

An article in The Minnesota Law Review reviews some 2,000 U.S. Supreme Court decisions and ranked the 36 justices who served on the court from 1946 to 2011 by the proportion of their pro-business votes.

Supreme Court Chief Justice John G. Roberts, Jr., and Justice Samuel A. Alito, Jr., both appointed by GOP President George W. Bush, are the most likely to vote in favor of business interests of any of the 36 justices who has served since 1946. 

And three other current conservative justices are in the top ten of most pro-business justices since 1946.  They are Justices Clarence M. Thomas, Antonin Scalia and Anthony M. Kennedy.

Also on the Court are Justices Ruth Bader Ginsburg, Stephen G. Breyer, Sonia M. Sotomayor and Elena Kagan, all appointed by Democratic presidents.

The study was prepared by Lee Epstein, a law professor at the University of Southern California; William M. Landes, an economist at the University of Chicago; and Judge Richard A. Posner, of the federal appeals court in Chicago, who teaches law at the University of Chicago.

In the eight years of Chief Justice Robert’s tenure, workers have lost ground while corporations have gained ground. Some of the pro-business decisions include:

  • In Genesis HealthCare Corp. v. Symczyk, the Court in a 5-4 vote in April 2013 dismissed a proposed class action case filed by a nurse who alleged her employer docked employees for meal breaks even when they worked through the shift  in violation of the Fair Labor Standards Act.  The Court ruled the nurse’s lawsuit was moot because the company offered her a settlement – even though she rejected the settlement – and therefore could not be the basis for a class  action lawsuit..
  • In Wal-Mart v. Dukes, the Court in  2011 by a vote of 5-4, refused to certify a class action of 1.6 million female employees who alleged discrimination  in pay and promotion policies and practices in Wal-Mart stores. The Court said the plaintiffs did not have enough in common to be a class.
  • In Knox v. Service Employees International Union, Local 1000,  the Court in 2011 effectively curtailed a union’s ability to raise money for political purposes. The Court in a 7-2 vote overturned a longstanding rule that  that  non-union members covered by union contracts be given the chance to “opt out” of the assessment of special union fees for political expenses. The Court said the First Amendment requires that non-members should be sent a notice giving them the chance to “opt in” to the special assessment.
  • In  Gross vs. FBL Financial Service, Inc.,  a 5-4 decision issued in 2009, the Court made it much more difficult for plaintiffs to win age discriminations lawsuits by requiring workers to show that age discrimination was the “but for” cause of the adverse employment action (i.e. termination) they suffered. In other discrimination cases, the discriminatory motive need only be one factor in the adverse employment decision.

The study in Minnesota Law Review looked at cases with a business on one but not both sides. The adversary might be an employee, job applicant, shareholder, union, environmental group or government agency. A vote for the business was counted as a pro-business vote.

The study concluded, “the Roberts court is indeed highly pro-business — the conservatives extremely so and the liberals only moderately liberal.”

The New York Law School Law Review and The Employee Rights Advocacy Institute For Law & Policy co-sponsored a symposium on April 23, 2012 to examine the high failure rates of plaintiffs in employment discrimination cases in federal courts. These cases are dismissed at a  significantly higher rate than non-employment cases before they ever to get a jury.

EEOC Settles1st Genetic Discrimination Suit

GenesThe U.S. Equal Employment Opportunity Commission has settled its first  lawsuit alleging genetic discrimination.

 Fabricut, Inc., one of the world’s largest distributors of decorative fabrics, has agreed to pay $50,000 to a woman who  applied  unsuccessfully for a position of memo clerk at the company.

The Tulsa, Oklahoma corporation “allegedly” violated Genetic Information Nondiscrimination Act of 2008  when it asked job applicant Rhonda Jones for her family medical history in its post-offer medical examination. Jones was required to fill out a  questionnaire asking about “the existence of heart disease, hypertension, cancer, tuberculosis, diabetes, arthritis and ‘mental disorders’ in her family.”

The EEOC filed the lawsuit and the settlement on May 7 in U.S. District Court for the Northern District of Oklahoma. The EEOC called it  the first lawsuit ever filed by the EEOC alleging a violation of GINA. 

“Fitness for Duty”

 This may be the first EEOC lawsuit alleging genetic discrimination but it follows a controversy last year when the EEOC sought to enforce an administrative subpoena seeking genetic information collected by Nestle Prepared Foods.

The EEOC was investigating a complaint of genetic discrimination by Nestle employee Michael Peel, who was fired a month after he was required to complete a “fitness-for-duty” medical examination that included the collection of his family medical history.

 Nestle and the National Chamber of Commerce objected to the subpoena.

 A federal judge in Kentucky refused to enforce the subpoena after concluding he was “ not persuaded that [the EEOC] has free reign to conduct a broad, company-wide investigation based upon a single  allegation of an isolated act of discrimination.”

Disability Issue 

Fabricut also was charged with violating the Americans with Disabilities Act (ADA) because it  deemed Jones unsuitable after concluding that she had carpal tunnel syndrome even though Jones’ physician said she did not have carpal tunnel syndrome. The ADA prohibits discrimination against qualified individuals with disabilities and  individuals who are incorrectly regarded as having disabilities.

After working a temporary position as a memo clerk for 90 days, Jones applied for a permanent job. Fabricut made Jones an offer of permanent employment on Aug. 9, 2011, and sent her to its contract medical examiner, Knox Laboratory, for a pre-employment drug test and physical. Jones was required to fill out a questionnaire seeking disclosure of medical disorders in her family’s medical history.

 The examiner concluded that further evaluation was needed to determine whether Jones suffered from carpal tunnel syndrome. Fabricut told Jones she needed to be evaluated for CTS by her personal physician and to provide the company with the results. Jones’s physician gave her a battery of tests and concluded that she did not have carpal tunnel syndrome. Despite this Fabricut, rescinded its job offer because Knox Labs indicated that she did have carpal tunnel syndrome.

 Fabricut  also agreed to disseminate anti-discrimination policies to employees and provide anti-discrimination training to employees with hiring responsibilities.

 Title II of GINA prohibits employers with more than 15 employees, employment agencies, labor organizations, and joint labor-management training and apprenticeship program committees from using genetic information when making employment decisions (e.g. hiring, firing, promotions, placement, compensation, privileges, seniority, etc.).



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