Between a busy trial schedule and the other distractions of summer, we have been a little delinquent in keeping you up to date during the past couple of weeks. We apologize for the inactivity on the blog, as there have been many developments in the employment law world since our last posting at the end of June. The following is a brief summary of four of the more interesting and important current events:
1. Ricci v. DeStefano.
The Supreme Court issued its opinion on June 29. This is a significant case dealing with the sensitive and controversial issue of reverse discrimination. The case is notable not only for the subject matter, but because Sonia Sotomayor, whose Senate confirmation hearings are now underway, was one of the judges on the Second Circuit Court of Appeals who decided the case below.
The case was about firefighers in New Haven, Connecticut who applied to be on the promotion list for captain and lieutenant positions. A candidate’s rank on the list was determined by process that included written and oral exams. After the testing process, only white and Hispanic candidates qualified for a promotion to captain, and only white candidates for lieutenant. The City’s Civil Service Board refused to certify the test results because it would result in no black candidates being eligible for promotion.
The Ricci case presents a clash between two types of discrimination, disparate treatment and disparate impact. Disparate treatment is intentional discrimination based upon race or some other legally protected classification. Disparate impact, on the other hand, is not necessarily intentional discrimination, but occurs when job criteria that are neutral on their face have an adverse impact on certain groups. In this case, the black firefighters contended the testing process was discriminatory because it resulted in no black candidates qualifying for the promotions list. The City’s defense in the lawsuit brought by the white firefighters was that it could not certify the list because if it did, it would be subject to disparate impact liability. In other words, the City did not believe it could promote only white candidates because it would be sued by the non-white candidates who did not qualify for promotion.
The Supreme Court held it was unlawful for the City to refuse to certify the results of the promotional exam based solely upon the relative racial make-up of the candidates who qualified versus those who did not qualify. The Court sympathzed with the City’s position that it would be liable for disparate impact discrimination if the test results had been certified. However, Justice Kennedy, writing for a 5-4 majority, held that, at least in this case, such concerns did not justify denying promotions to candiates who had the highest scores because no black candidates were in that group.
Is is ever permissible to make an employment decision based upon an employee’s race because of the fear of disparate impact liability to persons of another race? The Court concluded such a decision would be permissible only if there is a "strong basis in evidence" it would be subject to disparate impact liability. In the Ricci case, the Court concluded, the evidence showed the City had taken great care to ensure its testing process was free from discriminatory impact and reasonably related to the jobs for which it tested. Therefore, there was insufficient basis for the City to conclude its tests had an unlawful disparate impact.
For detailed discussion, analysis, and contrasting arguments on the Ricci case, I recommend the following posts: First, for a local flavor, Connecticut Employment Law Blog provides a good summary of the lessons to be learned from the case. Employee rights attorney Ellen Simon opines at Employee Rights Post that the Ricci decision was not only wrongly decided, but is bad for both employers and employees. Finally, for an analysis without the rhetoric, try SCOTUSblog.
2. Employers and Social Networking
Facebook, Linked In, and other social networking sites have exploded in popularity in recent years. Are employers entitled to make employment decisions based upon information an employee posts on the internet outside of work time? Should an employer allow or even encourage employees to use the social networking on the internet?
For a detailed analysis of some of the issues surrounding social networking, I recommend the following:
- In "The Voice", a weekly publication of the Defense Research Institute, attorney Helen Adams writes about the employment implications of "Doocing", a new slang word to describe terminations based upon an employee’s activities on the internet.
- The Delaware Employment Law Blog discusses reasons employers should have a policy covering social networking sites.
- The National Law Journal reports that some management side lawyers have warned about the use of Linked In to make recommendations of employees, for fear it will be used against the employee in the event of a termination.
- Locally, The Des Moines Register reported on the case of a police officer who was asked to resign because of photographs she posted on Myspace.
Suffice it to say that social networking is not going away any time soon, and employers would be well advised to develop practices and policies for dealing with its impact on the workplace.
3. Al Franken Certified as the Winner of the Senate Race in Minnesota
This is imporant because Mr. Franken becomes the 60th Democratic Senator, giving the party a filibuster proof majority. The Senate thus constituted is in a better position to pass EFCA, or the so-called "Employee Free Choice Act." EFCA would have a substantial impact on labor law in the United States and present many challenges for employers. I recommend the the blog at Laborpains.org to keep track of the latest developments on EFCA and other labor union matters.
4. WARN Act
The WSJ Law Blog notes that litigation relating to layoffs is heating up, particularly under the heretofore seldom utilized WARN Act. WARN requires employers under certain circumstances to provide at least 60 days notice of plant shutdowns or significant layoffs. A violation means the employer has to pay wages to the laid off employees for the sixty period, plus other potential penalties. However, the fact that the downturn occurred so swiftly and is protracted may provide a defense to a WARN Act claims.