(Un)Equal Protection: Why Gender Equality Depends on Discrimination

kcpI just read a wonderful article: (Un)Equal Protection: Why Gender Equality Depends on Discrimination,  by Willamette Law Professor Keith Cunningham-Parmeter.

The key to the piece is advocacy for “fatherhood bonuses” — laws that give families additional parental leave when fathers stay at home with their newborns. The basic idea is that laws that may on their face appear to favor men actually are beneficial to women as well.

Professor Cunningham-Parmeter points out that in countries where such fatherhood bonuses exist, women with children spend more time at paid work, advance in their careers, and get higher wages. Well, of course they do.

The article spends plenty of time and creativity chewing on US Supreme Court decisions with the goal of persuading us that fatherhood bonuses would not be unconstitutional. I’m persuaded.

The big deal is in the last few pages, where we are told how such fatherhood bonuses could be crafted so as to satisfy (or at least mollify) various constituencies.

The take-away quote from the article: “The masculine norm that directs men to avoid domestic work causes a large number of women to assume a disproportionate share of that work.”

SCOTUS puts pregnant workers on more equal footing

Or is it “an interpretation that is as dubious in principle as it is senseless in practice”?

How does the Pregnancy Discrimination Act work? If a pregnant woman can’t do her regular job and asks for a light duty assignment, and many (but not all) other workers get light duty as an accommodation for a disability or on-the-job injury, must the employer also accommodate the pregnant woman? The two word answer: Probably yes.

Young v. United Parcel Service (US Supreme Court 03/25/2015) (6-3).

  • Pregnancy Discrimination Act clause #1: Title VII’s prohibition against sex discrimination applies to discrimination “because of or on the basis of pregnancy, childbirth, or related medical conditions.”
  • Pregnancy Discrimination Act clause #2: Employers must treat “women affected by pregnancy . . . the same for all employment-related purposes . . . as other persons not so affected but similar in their ability or inability to work.”

Lots of folks have struggled with that second clause. It make a great law school exam question. The US Supreme Court rejected all three potential answers provided by the litigants:

  • The woman said she should be accommodated if any other workers are accommodated. The Court said that’s too broad, and would apply if only one or two “others” were accommodated.
  • The employer said the second clause simply defines sex discrimination to include pregnancy discrimination. The Court said that can’t be so, because the first clause already does that.
  • The Government was pushing a recently-adopted EEOC interpretation, which the Court rejected because it was an unexplained deviation from prior interpretations.

So, how does the PDA work?

Well, the Court came up with a modification of the well-known McDonnell Douglas framework: Plaintiff’s prima facie case, employer’s “legitimate, nondiscriminatory” reasons, plaintiff’s showing that the employer’s proffered reasons are in fact pretextual. Way too long for a blog post. In the end, the Court sent the case back, saying that there is a genuine dispute as to whether the employer provided more favorable treatment to at least some employees whose situation cannot reasonably be distinguished from Young’s.

Three dissenting Justices ripped the majority decision, saying it displayed “Inventiveness posing as scholarship—which gives us an interpretation that is as dubious in principle as it is senseless in practice.”

My view: A long overdue recognition that the PDA usually requires employers to accommodate pregnant women on the same basis that they accommodate other employees. Pregnancy has a cause that is different from an ADA disability or an on-the-job injury, yet the impact on the individual is essentially the same. The PDA was designed to recognize this.

SCOTUS: Notice-and-comment unnecessary for DOL change in interpretive rule

Huge power shift to administrative agencies.
Mortgage-loan officers do not qualify for FLSA administrative exemption.

Unanimous decision: Perez v. Mortgage Bankers Assoc. (US Supreme Court 03/09/2015.

The Administrative Procedure Act (APA) establishes the procedures federal administrative agencies use for “rule making,” defined as the process of “formulating, amending, or repealing a rule.” The APA distinguishes between two types of rules: So-called “legislative rules” are issued through notice-and-comment rulemaking, and have the “force and effect of law.” “Interpretive rules,” by contrast, are “issued . . . to advise the public of the agency’s construction of the statutes and rules which it administers,” do not require notice-and-comment rulemaking, and “do not have the force and effect of law.”

In 1999 and 2001, the Department of Labor’s Wage and Hour Division issued letters opining that mortgage-loan officers do not qualify for the administrative exemption to overtime pay requirements under the Fair Labor Standards Act. In 2004, the Department issued new regulations regarding the exemption.

Mortgage Bankers Association (MBA) requested a new interpretation of the revised regulations as they applied to mortgage-loan officers, and in 2006, the Wage and Hour Division issued an opinion letter finding that mortgage-loan officers fell within the administrative exemption under the 2004 regulations.

In 2010, the Department again altered its interpretation of the administrative exemption. Without notice or an opportunity for comment, the Department withdrew the 2006 opinion letter and issued an Administrator’s Interpretation concluding that mortgage-loan officers do not qualify for the administrative exemption.

MBA filed suit contending that the Administrator’s Interpretation was procedurally invalid under the D.C. Circuit’s decision in Paralyzed Veterans of Am. v. D.C. Arena L. P., 117 F. 3d 579. The Paralyzed Veterans doctrine holds that an agency must use the APA’s notice-and-comment procedures when it wishes to issue a new interpretation of a regulation that deviates significantly from a previously adopted interpretation.

The District Court granted summary judgment to the Department, but the D.C. Circuit applied Paralyzed Veterans and reversed.

The US Supreme Court unanimously reversed and held that the Paralyzed Veterans doctrine is contrary to the clear text of the APA’s rulemaking provisions and improperly imposes on agencies an obligation beyond the APA’s maximum procedural requirements.

We’re supposed to read and follow the statute.
Who would have guessed?

Law school death spiral

As Pogo said, “We have met the enemy and he is us.”

Emory law prof Dorothy A. Brown has joined the chorus: “While faculty could be part of the solution to legal education’s woes, we are actually the problem.”

Her Washington Post article, “Law schools are in a death spiral. Maybe now they’ll finally change.“, contains some great quotes:

Law schools are currently in a bidding war for the students with the highest LSATs and GPAs because U.S. News heavily emphasizes those factors in its rankings.

poorer law students lose out on scholarships and end up paying full tuition, financed through student loans, subsidizing their richer classmates.

While law firms can fire lawyers, law schools cannot cut their largest expense: faculty.

Legal scholarship is in a terrible state, with counter-intuitive incentives for faculty. Status comes with publishing, but more publishing means less teaching and interacting with fewer students.

very few articles are cited for their ideas.

Law schools are run by the faculty for the faculty.

In three years, a top law school will close. Then watch how quickly things change.

Movie review: Leviathan


I can see why this elegant film won the Golden Globes award for best foreign language film, and a host of other awards for cinematography, director, actor, actress. Although the Russian Ministry of Culture partially funded it, the Minister says he doesn’t like it. Hard to imagine any Putin-appointed official saying otherwise.

Set on the edge of the spectacularly beautiful Barents Sea, in and near a not-so-charming fishing village that features elegant government buildings and rundown Soviet style apartment buildings.

Kolya runs an auto repair shop next to his ancestral home on the edge of the sea. His teen son is typically rebellious and makes it clear that Kolya’s wife – Lilya – is not his mother. The wife cleans fish at the fish factory, and seems somewhat distant from Kolya and the boy.

The well-fed and fabulously corrupt mayor – who rules with a stereotypical combination of Russian law and raw thuggery – has brought condemnation proceedings against Kolya’s property so the city can build one more government palace. Kolya’s old army buddy, now a slick Moscow lawyer, arrives just before the mayor-dominated court reads out the decree that will take away everything Kolya owns.

The lawyer understands both law and blackmail, and has arrived with a damning dossier of dirt on the mayor. The mayor also knows more than law, and rallies both city employees and loyal thugs to his cause.

The lawyer and Lilya are attracted to each other, and we are aware of an off-screen scene in which Kolya catches them in the act. Kolya threatens to kill them both. Still, everyone tries to keep themselves in their life roles, and the strain is palpable.

Kolya and his pals are determined to drink up all the vodka in Russia while using photos of former Soviet leaders for target practice. Orthodox priests dispense advice on truth, God’s will, and the moral of the Book of Job. The courts dispense mechanical justice. The cops live on bribes. The mayor’s trophy wife has the only fur coat in town. Whales play in the sea.

The mayor’s hooligans beat up the lawyer, and he scoots back to Moscow. Lilya thinks about joining him, but stays with Kolya. She wants a baby with him, yet he is strangely silent.

Closing scenes: Lilya stands on a cliff, watching a whale. Lilya’s body washes up on shore. The local prosecutor charges Kolya with murder. Lilya’s best friend takes the son under her wing. A Swedish backhoe moves in on Kolya’s house.

Russian with English subtitles.

OK for arbitrator to award punitive damages

Finding: willful and malicious misappropriation of plaintiff’s trade secrets.

NXEGEN won an arbitration award against John Carbone, its former chief operations officer. After finding that Carbone maliciously misappropriated trade secrets in violation of the Connecticut Uniform Trade Secrets Act, the arbitrator awarded punitive damages.

Carbone went to court, claiming that the arbitrator had acted in manifest disregard of the law. The trial court affirmed the award, and the Connecticut Court of Appeals affirmed. NXEGEN v. Carbone (Conn Ct App 02/03/2015).

To get punitive damages under the Trade Secrets Act, you have to prove willfulness and malice. Carbone claimed that the arbitrator used the wrong definition for “malice,” and therefore acted “in manifest disregard of the law.”

The court said there were three things Carbone had to prove in order to vacate the award under the “manifest disregard of the law” doctrine:

(1) the error was obvious and capable of being readily and instantly perceived by the average person qualified to serve as an arbitrator;

(2) the arbitration panel appreciated the existence of a clearly governing legal principle but decided to ignore it; and

(3) the governing law alleged to have been ignored by the arbitration panel is well defined, explicit, and clearly applicable.

Here, the arbitrator set forth the reasons he found that Carbone’s conduct was malicious. So there was no obvious error, and the arbitrator did not consciously ignore the law.

This case is another example that shows that courts do not review arbitration awards the same way they review lower court decisions. In reviewing a lower court decision, an appellate court will reverse if the lower court was wrong on the law. In reviewing an arbitration award, it is not enough to show that the arbitrator was wrong. You also have to show that the arbitrator appreciated the existence of a clearly governing legal principle but decided to ignore it.

Lifetime benefits? Not so fast.

“Ordinary contract principles” apply to collective bargaining agreements.

It should be no surprise that the US Supreme Court reversed M&G POLYMERS USA, LLC, ET AL. v. TACKETT (US Supreme Court 01/26/2015).

A collective bargaining agreement  provided that certain retirees, along with their surviving spouses and dependents, would “receive a full Company contribution towards the cost of [health care] benefits”; that such benefits would be provided “for the duration of [the] Agreement”; and that the agreement would be subject to renegotiation in three years.  The 6th Circuit had held that this  created a vested right to lifetime contribution-free health care benefits.

The Supreme Court said that the 6th Circuit reached its conclusion by using  principles that are incompatible with ordinary principles of contract law. In particular, the 6th Circuit followed the reasoning in its famous International Union, United Auto, Aerospace, & Agricultural Implement Workers of Am. v. Yard-Man, Inc., 716 F.2d 1476 case.

The Court had this to say about Yard-Man:

Yard-Man violates ordinary contract principles by placing a thumb on the scale in favor of vested retiree benefits in all collective-bargaining agreements. That rule has no basis in ordinary principles of contract law. And it distorts the attempt “to ascertain the intention of the parties.”

And the decision was unanimous.


NLRB tightens deferral to arbitration

 As expected, the NLRB has narrowed the standard for deferral to arbitration.

The issue comes up when an employer disciplines an employee and there is a claim that the discipline violates both a collective bargaining agreement (CBA) and the National Labor Relations Act (NLRA). Two separate cases can get going in two separate forums. The CBA claim goes before a private arbitrator. The NLRA claim goes to the National Labor Relations Board.

The question is: Should both cases be allowed to play themselves out? Or should the NLRB simply drop its proceedings (“defer”) and let the arbitrator’s decision take care of things?

The new rules go like this: If the arbitration procedures appear to have been fair and regular, and if the parties agreed to be bound, the Board will defer to an arbitral decision if the party urging deferral shows that: (1) the arbitrator was explicitly authorized to decide the unfair labor practice issue; (2) the arbitrator was presented with and considered the statutory issue, or was prevented from doing so by the party opposing deferral; and (3) Board law reasonably permits the award. Babcock & Wilcox Construction Company (NLRB 12/15/2014).

Employer advocates are moaning that this new standard will lead to far fewer deferrals (true), unduly delay the final resolution of issues (true), and change the dynamics at the bargaining table (not likely).

I’m curious about whether the new rule will alter the parties’ tactics during the arbitration proceedings. Up until now it has been rare for the parties to explicitly authorize an arbitrator to decide a statutory unfair labor practice issue. Will they now start doing so?

NLRB: Employees can use the boss’ email system for union organizing

emailThis is a game changer.

The NLRB has reversed course, allowing employees to use the employer’s email system on non-working time to communicate about working conditions, unionizing, and other Section 7 protected matters.

Purple Communications (NLRB 12/11/2014):

At issue in this case is the right of employees under Section 7 of the National Labor Relations Act to effectively communicate with one another at work regarding self-organization and other terms and conditions of employment. The workplace is “uniquely appropriate” and “the natural gathering place” for such communications, and the use of email as a common form of workplace communication has expanded dramatically in recent years. Consistent with the purposes and policies of the Act and our obligation to accommodate the competing rights of employers and employees, we decide today that employee use of email for statutorily protected communications on nonworking time must presumptively be permitted by employers who have chosen to give employees access to their email systems. We therefore overrule the Board’s divided 2007 decision in Register Guard to the extent it holds that employees can have no statutory right to use their employer’s email systems for Section 7 purposes.

$1 in nominal damages plus $300,000 in punitive damages

moneyFor Title VII case, this does not violate due process.

A jury found the employer liable for sexual harassment and awarded only nominal damages (one dollar) plus $868,750 in punitive damages. The trial court cut the punitive damages to $300,000 due to a statutory cap. On appeal to the 9th Circuit, a three judge panel found the amount of punitives was constitutionally excessive and reduced the award to $125,000.

The en banc 9th Circuit resinstated the $300,000 punitive damages award. State of Arizona v. ASARCO LLC (9th Cir en banc 12/10/2014).

The 9th Circuit explicitly declined to “rigidly apply” the three guideposts set out by the US Supreme Court in BMW v. Gore, 517 U.S. 559 (1996). Why? Because the 9th Circuit was dealing with a statute that “rigidly dictates the standard a jury must apply in awarding punitive damages and narrowly caps hard-to quantify compensatory damages and punitive damages.” Thus, there is a satisfaction of the Supreme Court’s concern that a defendant “receive fair notice not only of the conduct that will subject him to punishment, but also the severity of the penalty” that may be imposed.

AS the 9th Circuit summarized it:

The statute [42 U.S.C. § 1981a] provides specific notice of proscribed conduct. It specifies the maximum amount of damages that can be awarded, and incorporates both specified compensatory and punitive damages within the cap. The $300,000 dollar amount of the cap provides an extremely limited potential for recovery, and has not changed, nor been adjusted for inflation, since its adoption in 1991. There is nothing in our consideration of the Gore factors that would alter that conclusion.