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).

 

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 & Age Discrimination: Then and Now

Chart going downWhen the Age Discrimination in Employment Act (ADEA) was 20 years old in 1987, the U.S. Senate Special Committee on Aging sharply criticized the U.S. Equal Employment Opportunity Commission for failing to enforce the ADEA.

What would  Senators Melcher, Heinz, Chiles, Chafee, et. al, say about the EEOC today?

The 1987 Senate  Committee blasted the EEOC in 1987 for, among other things, filing too few lawsuits and  hiring too few experienced staff to evaluated cases.

Today, there are fewer full-time staff members working at the EEOC than there were in 1987 during the Republican administration of Ronald Reagan (who was widely perceived to be hostile to civil rights).

There were 2,941 full-time employees working at the EEOC in 1987, compared to 2,505 in 2011.

And it appears the EEOC filed many more lawsuits in 1987 than it did last year.

Clarence Thomas, now a U.S.  Supreme Court Justice, was appointed to the EEOC in 1982 and was serving as its controversial chairperson in 1987.  Thomas  told the  Committee that the EEOC filed  526 actions in federal district courts in 1986. Of these, he said, a record 109 were lawsuits filed under the ADEA.  More than 25 percent of all cases filed in 1986 were class actions, said Thomas.  And  more than 40 percent of the class action lawsuits were age cases.

The EEOC recently reported that in fiscal year 2012 it filed only 122 lawsuits in federal court,  including 86 individual suits, 26 multiple-victim suits (with fewer than 20 victims) and 10 “systemic suits.”

Does lack of funding account for the paltry  number of lawsuits filed by the EEOC in 2012 compared to 1987?  No. The EEOC budget was $165,000 million in 1987 compared to $360,000 million in 2012.

The 1987 commitee generally was not satisfied with the EEOC’s performance. “It’s all well and good to have a strong bill on the record protecting the aged and preventing discrimination based on age in the work force but if the law isn’t enforced, then we haven’t got much,” said committee member John Chafee, then a senator from Rhode Island.

It appears that no one is criticizing the EEOC’s performance today.

Successor Committee

Interestingly, there is still a U.S. Senate Special  Committee on Aging in existance – though it  appears to lack the diligence of the 1987 committee.

Today’s Senate Select Committee on Aging does not mention the problem of age discrimination on its web page. Nor does it mention age discrimination as an issue of concern on its issue page. And it has no schedule listed for hearings in 2013.

The  issues of interest to the modern-day U.S. Senate Committee on Aging are elder abuse and fraud, long-term care, Social Security and Medicare, prescription drug costs and retirement security.

The Committee explains the retirement security problems this way: “Saving for retirement has shifted dramatically in recent decades, and seniors now increasingly face retirement with little money saved or little guaranteed income due to the shift away from traditional pension plans toward the 401(k) plan.

Of course, this explanation fails to acknowledge that many people over the age of 40 consider age discrimination to be a problem that has serious implications for retirement security.

In 2012, the EEOC received 22,857 complaints of age discrimination – 23 percent of  the 99,412 discrimination complaints it received that year.

According to a  report last year in  the New York Times, a “startling proportion” of older people report they’ve experienced discrimination –  63 percent –  in a study recently published in Research on Aging.  Age is the most commonly cited cause, followed by gender, race or ancestry, disabilities or appearance.

 Cases Harder to Win

Meanwhile, it is considerably more difficult today for older workers to win an age discrimination lawsuit, no matter how egregious the discrimination, because of a  decision by the U.S. Supreme Court,  Gross v. FBL Fin. Servs., 557 U.S. 167 (U.S. 2009).

The Supreme Court held in Gross that a plaintiff in an age discrimination case must prove that  “but for” age discrimination, he or she would not have suffered the adverse job action (i.e. demotion, dismissal).   In most other types of discrimination, the plaintiff must only show the existence of age discrimination — not that it was the cause of the adverse action.

Interestingly, Supreme Court Justice Thomas, the first African-American to head the EEOC and to serve on the U.S. Supreme Court,  wrote the Gross  opinion.

Older Workers Vulnerable to Age Discrimination

daggerThe U.S. Supreme Court stuck a dagger in the heart of the Age Discrimination in Employment Act a few years ago in its decision, Gross v. FBL Financial Services, Inc., 129 S. Ct. 2343 (2009).

Prior to Gross, the same standard of proof applied equally to all workers who faced illegal discrimination on the job. The Court in Gross established a far higher standard of proof for plaintiffs in age discrimination cases than exists for plaintiffs in cases alleging discrimination based on race, sex, national origin and religion.  This has left older workers more vulnerable to age discrimination.

A bi-partisan bill was introduced in the U.S. Senate in March to rectify this wrong. Under the Protecting Older Workers Against Discrimination Act , if a victim can show that age discrimination was a “motivating factor” behind a decision, the burden shifts to the employer to show it complied with the law. The bill is co-sponsored by Iowa Senators Tom Harkin (D-IA) and Chuck Grassley (R-IA) and Vermont Senator Patrick Leahy (D-VT).

After Gross, older workers who filed age discrimination cases were required to prove that age discrimination was the “but for” cause of their termination (i.e., “but for” age discrimination, they would not have been demoted or fired.)

Alternatively, employers could point to any other “legitimate non-discriminatory” reason for firing the Plaintiff to avoid liability.  (“Sure we thought the old fogey was an over-paid dinosaur but he failed to follow company procedure when he called in sick one day so he’s gotta go!”)

Under the proposed bill, it wouldn’t matter if the employer had more than one motivating factor – if one of those motivating factors was age discrimination, the employer could be held liable.

The  Court reasoned backwards in Gross.  The Court said that Congress amended Title VII of the Civil Rights Act of 1964 to permit mixed-motive claims in discrimination claims involving race, color, religion, sex and national origin. So the fact that Congress failed to amend the ADEA to permit mixed-motive claims meant that Congress intended to disallow mixed -motive claims.  The Court threw out decades of precedent that treated age discrimination like every other invidious form of discrimination and left countless older workers without real protection against age discrimination.

The Gross decision has also had reverberations in a wide range of civil cases in addition to age discrimination, including discrimination based on disability.

Harkin is Chairman of the Senate Health, Education, Labor and Pensions (HELP) Committee while Leahy and Grassley are the Chairman and ranking member respectively of the Senate Judiciary Committee.

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