Apparently tired of being the only circuit to hold that Title VII claims were not subject to arbitration agreements, two judges of the 9th Circuit hold that the Supreme Court's decision in Circuit City implicitly overruled Duffield. The vehicle for this decision is EEOC v. Luce, Forward, Hamilton & Scripps [pdf]. A legal secretary who had refused to agree to arbitration had been terminated and the lower court had enjoined the practice based on Duffield.
Of course some in California just can't let it go, including not only the dissenting judge, but the California legislature. It recently sent S.B. 1538, prohibiting mandatory arbitration under the FEHA, the state equivalent to Title VII, to the Governor for his signature. Watch now for a request for en banc consideration for Luce, Forward, what the governor does with S. B. 1538, and if he signs it, for the quick challenge that it is pre-empted by the FAA.
September is a busy month for speeches. First up is the University of Houston Law Foundation Employment Law Seminar. Spoke last Thursday and again next Thursday in Dallas. Actually will be switching times, but not topics, with Gregg Rosenberg. Talking about the impact of Sarbanes-Oxley on employers. Seemed to get a lot of interest Thursday, more notes than normal being taken. Not sure many have focused on the employment law aspects of Sarbanes-Oxley.
The new whistle blower cause of action is potentially a big issue for publicly traded companies, and their officers and employees, although of more general interest and perhaps trouble is the criminalization of whistle blowing. The potential impact and how we got that particular section of the Act are probably worth a post of their own.
Although the Texas Supreme Court has been a reliable haven for employers, the intermediate courts of appeal are not always so. In Texas Farm Bureau Mutual Insurance v. Sears, decided on August 30th, the Court reversed a lower court's decision that could have proved enormously troublesome to employers. The fired employee had won because the lower appeals court held that an employer, even in the context of an at will employee, has a duty of ordinary care in conducting an investigation as to the employee's misconduct. Finding that such a duty would prove to be the total undoing of the long established and treasured 'employment at will' doctrine, the Supreme Court rejected it, finding that no such duty exists.
Arguably, the Court found that any negligence type claim tied to a termination will not be valid. ("Engrafting a negligence exception on our at-will employment jurisprudence would inevitably swallow the rule.")
The Court was also once again forced to substitute its opinion of what is outrageous conduct in denying the employee's intentional infliction of emotional distress claim. This time, a unaminous Supreme Court had to overturn a decision that certain conduct was outrageous. That decision was made by a jury, the trial judge and the court of appeals. That such decisions have to be made, quite often, argues strongly for the abolition of the intentional infliction of emotional distress, at least in the employment context. It too runs the risk of being the exception that swallows the at will rule. The Court will perhaps have its chance, or at least a chance to limit its reach in sexual harassment cases, in Roche v. Zeltwanger, currently pending before the Court.
The Fifth Circuit issued a writ of mandamus where a defendant's motion to transfer venue in a Title VII case was denied. Although both parties, almost all witnesses, the records and all of the acts occurred in the Western District of Louisiana, the suit was filed in the Middle District. Rather than being heard in Shreveport, it would have been heard in Baton Rouge, more than 220 miles away, making most of the witnesses outside the 100 mile subpoena range. The Court was clearly not pleased with either the result below or the fact that it had taken over 13 months to rule on the motion. In rejecting the plaintiff's argument that it basically got its choice of any district within a particular state, the Court eliminated what could have been substantial amounts of forum shopping if the case had gone the other way. In Re Horseshoe Entertainment [pdf](9/10/02).