ENDA Back Into the Congressional Mix Soon

Jillian Weiss' post at Trangender Workplace Diversity, Federal Bill on Employment Non-Discrimination Moving Forward has a link to the Washington Blade's interview with Congressman Barney Frank, the sponsor of ENDA who indicates he will be introducing it into this Congress soon.

According to the article, he intends on going with the full version of the Act which would extend Title VII protection not only for sexual orientation but for gender identity. It was the latter provision which caused a breakdown in negotiations between its proponents and the business community in the last Congress, and perhaps more importantly, set off a divide int the LGBT community itself.

Although it seems the general feeling is that most workplace legislation will await a resolution EFCA, given that a compromise was almost reached on this legislation in the last Congress, it could be one that moves on a slightly different and faster track.

Some reasons:

• many states already have extended such protection, more on sexual orientation, but a substantial number on gender identity as well,
• many large employers have extended their own internal protections, and combined with the state statutes means it is not as big a cause for that group;
• the constituencies behind EFCA and ENDA are not necessarily the same, although there is considerable overlap; and
• my sense that same sex marriage, not workplace rights, now seems to be the focal point for those for whom sexual orientation is a political issue.

Gender identity is still much less understood, a point that Representative Frank seems to understand, as he is looking to Congressional hearings for purposes of education on that part of the legislation. Dr. Weiss will be doing her part at her blog as she intends a series of educational postings on the issue.

Ironically, although it is much less understood, it is individuals who can make a claim of gender identity discrimination who have fared much better under at least some circuit's view of Title VII than those with a sexual orientation claim. See 9th Circuit Joins 6th on Transgender Cases and Transgendered Workers in the Mainstream Press.

Texas Legislature Takes Care of an Irritant in Texas Arbitration Law

When the law of arbitration in Texas was relatively unsettled, it was common for state district judges to deny motions to compel. To ensure that you were protected on appeal, an employer had to both file an interlocutory appeal AND file a mandamus action under the Federal Arbitration Act.

The reason, if the Texas Arbitration Act were applicable then the proper route to the appellate court was appeal; however, there was no comparable provision for the appeal of an action governed by the Federal Arbitration Act, mandamus was the only route. Since it was often unclear which act would control, the safe course was to appeal and file mandamus.

A few applicants were felled by this oddity, but for the most part, the parties and courts just put up with duplicative filings which caused more work and expense.

With yesterday's passage of SB 1650 by both houses of the Texas legislature, that irritant has been removed. If arbitration is denied a party will be entitled to an interlocutory appeal even if the FAA controls. The bill still has to be signed by the Governor but I can't imagine that there is any reason it will not be signed. The effective date is September 1, 2009.

Although it is certainly a nice fix, now that the law on enforcement of arbitration actions is fairly well settled -- bottom line, the motion to compel should be granted in all but the most unusual circumstances -- it may get very little use.

Still if for no reason other than it just didn't make sense, it is nice to see it cleaned up.

First Obama Supreme Court Nominee - Sonia Sotomayor

President Obama makes the first of what is expected to be multiple Supreme Court nominations by going to a jurist with a long history, Judge Sonia Sotomayor from the 2nd Circuit Court of Appeals. Although he had talked of selecting someone who had not been a judge, instead his choice has a long track record. She was initially appointed to the district bench in 1991 by the first President Bush and then elevated to the appellate court in 1997 by President Clinton.

She fills the 'singles' seat being vacated by Justice Souter, although unlike Souter she is divorced. Although I have not checked all the biographies, I believe if confirmed she will be the only current justice who has served on the trial bench. (Justice Souter had also served on a state trial bench).

Given her long judicial history, her confirmation hearings will no doubt be full of talk about various decisions. A quick search of the BNA labor and employment library shows more than 100 labor and employment opinions in cases heard by Justice Sotomayor.

Although Judge Sotomayor was part of the 3 judge panel that affirmed the district court's opinion in the New Haven police department case which will be decided this term by the Supreme Court, she did not author an opinion. She also voted against hearing the case en banc.

Here is a first quick list of opinions that Judge Sotomayor has authored in employment law cases on the 2nd Circuit.

2nd Circuit opinions:

1. Singh v. City of New York, 524 F.3d 361 ( 4/29/08) - An FLSA case where the Court affirmed a district court opinion denying a claim for commuting time. There is a discussion of de minimis time. Relying on 2nd Circuit precedent that requires three factors to be considered: "(1) the practical administrative difficulty of recording additional time; (2) the size of the claim in the aggregate; and (3) whether the claimants performed the work on a regular basis." Although it is not always a winner for the employer, this time it was.
2. Rolon v. Henneman, 517 F.3d 140 (2nd Cir. 2/25/08). Affirmed a finding that a police chief had absolute immunity for his testimony in a disciplinary proceeding even if it was perjury.
3. *Hankins v. Lyght, 483 F3d 163 ( 2/16/06). Judge Sotomayor dissented from a decision sending an age discrimination case back to the district court to consider the effect of the Religious Freedom and Restoration Act. She would have found the plaintiff waived raising the RFRA and affirmed the district court's dismissal of the age discrimination claim under the ministerial exception.
   
4. Moore v. Consolidated Edison Co., 409 F. 3d 506 (6/2/05) - Affirmed denial of a temporary injunction in a case brought by a terminated employee.
5. *Washington v. County of Rockland, 373 F.3d 310 (6/24/04). Affirmed summary judgment in a racial discrimination and retaliation case brought by corrections officers.
   
6. Clarett v. National Football League, 369 F.3d 124 (5/24/04). Reversed a district court holding that would have allowed Ohio State football player Maurice Clarett to enter the NFL draft early.
7. Williams v. R.H. Donnelley Corp. 368 F.3d 123 (5/13/04). Affirmed district court summary judgment in discrimination case.
8. EEOC v. J.B. Hunt Transport, Inc., 331 F.3d 69 (2/5/03). Dissented to the upholding of a summary judgment for a defendant in an ADA perceived as case.
9. Higgins v. Metro-North R.R. Co., 318 F.3d 422 (1/28/03). Concurred in upholding an FELA summary judgment motion for the defendant employer. She would have applied a different test from the majority, but reached the same result.
10. Brown v. Parkchester South Condominiums, 287 F.3d 58 (4/12/02). Reversed a district court dismissal of a discrimination claim and remanded for an evidentiary hearing on whether or not the filing deadline should be equitably tolled.
11. Martens v. Thomann, 273 F.3d 159 (11/20/01). Appeal in a class action case sorting out a number of procedural issues, including a motion to reassign the case to a different district judge which was denied.
12. Leventhal v. Knapek, 266 F.3d 64 (9/26/01). Upheld summary judgment ruling against a government employee's claim that his privacy rights were violated during a search of his computer.
13. Raniola v. Bratton, 243 F.3d 610 (3/19/01). Reversed a trial court's grant of a judgment as a matter of law in a discrimination case.
14. White v. White Rose Food, 237 F.3d 174 (1/10/01). Reversed a trial court's ruling against an employer after a bench trial in a §301 case.
15. Parker v. Columbia Pictures Industries, 204 F.3d 326 (1/28/00). Reversed trial court's summary judgment for employer in ADA case.
16. Cruz v. Coach Stores, 202 F.3d 560 (1/20/00). Reversed summary judgment for employer on harassment claim, but affirmed summary judgment for discrimination and retaliation claims.
17. Neilson v. Colgate-Palmolive Co. , 199 F.3d 642 (12/2/99). Dissented from opinion affirming a trial court's appointment of a guardian ad litem and approving settlement of case. Would have found trial court did not give due process before appointing guardian ad litem.
18. Norville v. Staten Island University Hospital, 196 F.3d 89 (11/2/99). Affirmed summary judgment for employer on race and age claims, but reversed jury verdict in favor of employer on ADA claim because court improperly charged jury on that issue.

Before being appointed to the 2nd Circuit, Judge Sotomayor served as a district court judge on the Southern District of New York. In her six years she had a number of employment law cases with written decisions. BNA's Labor and Employment Law Library alone has approximately 30 such decisions. A good number, but not all, have also been reported in the official reporter systems.

District court decisions (all FEP, AD, WH and LRRM Case citations require a BNA subscription $) and are from the Southern District of New York.

1. Greenbaum v. Svenska Handelsbanken, 979 FSupp 973, 75 FEP Cases 265 (9/23/97). Jury trial of gender discriminination under Title VII and New York state law. The jury awarded plaintiff $320,000.00 in back pay and $1,250,000.00 in punitive damages. Court order entering judgment for those amounts but denying pre-judgment interest, reinstatement and front pay were denied.
2. Greenbaum v. Svenska Handelsbanken, 998 FSupp 301, 79 FEP Cases 635 (3/6/98). Attorneys' fee award in case with large punitive damages award. Reduced hourly rate of one attorney from $325 to $250 and disallowed certain travel expenses noting, "there is no reasonable explanation, other than nepotism, for Ronald Sapir to have chosen his brother, whose office is so distant from Manhattan, when equally experienced employment discrimination lawyers are available in New York City." Did not grant lodestar enhancement as requested by plaintiffs.
3. Greenbaum v. Svenska Handelsbanken, 26 F.Supp. 649, 78 FEP Cases 1198 (11/12/98). On motion to re-consider reverses earlier holding that damages under Title VII were limited to $50,000 and increased to $500,000. Turned on how employees are counted and was based on 2nd Circuit decision subsequent to original opinion. In the opinion, Court noted that it had earlier affirmed a punitive damage award of $1,250,000 under the New York state discrimination statute.
4. Bartlett v. NYS Board of Law Examiners, 970 F.Supp 1094, 6 AD Cases 1766 (7/3/97). Suit by individual seeking accommodation under the ADA to take the New York Bar. In the opinion the Court noted:

   This case, tried to the bench in 21 days of testimony accompanied by exhibits and briefs aggregating to more than 5000 pages, principally devolves to the meaning of a single word-- substantially--as used in the Americans with Disabilities Act (the “ADA“), 42 U.S.C. §§12101-12213 (1995) and the Rehabilitation Act, 29 U.S.C. §§701-796 (1985) (“Section 504“ or the “Rehabilitation Act“). Both Acts define a disability as “a physical or mental impairment that substantially limits one or more of“ an individual's “major life activities.“ 42 U.S.C. §12102(2)(A) (1995 Supp.); 29 U.S.C. §706(8)(B) (1996 Supp.) (emphasis added).

   At the conclusion, the Court ordered the following accommodations if Bartlett took the bar again:

   (1) double time over four days;

   (2) the use of a computer;

   (3) permission to circle multiple choice answers in the examination booklet; and

   (4) large print on both the New York State and Multistate Bar Examinations.

5. Bartlett v. NYS Board of Law Examiners, 2 F.Supp2d 388, 8 AD Cases 996 (9/14/98). On motion for reconsideration by defendant, explains her consideration of reliance on the major life activity of "working" under the ADA. With respect to motion for sanctions, Judge Sotomayor wrote: "Because I find that defendant's motion, while perhaps in poor judgment, is not frivolous, I hereby deny plaintiff's motion for sanctions under Rule 11."
6. Seepersad v. D.A.O.R. Security Inc., 83 FEP Cases 1056 (8/12/98). Finds factual issue exists as to whether employer reasonably responded to sexual harassment complaints and thus denies employer's motion for summary judgment.
7. Lanahan v. The Mutual Life Ins. Co., 15 F.Supp2d 381, 77 FEP Cases 1289. Grants summary judgment for employer in age discrimination case. Age related comment by manager who terminated employee did not evidence corporate policy of termination at 55.
8. Realite v. Ark Restaurants, 7 FSupp2d 303, 4 WH Cases 2d 1207 (5/19/98). Reaffirms order granting conditional class certification and sending of notice in FLSA collective action.
9. Bloomingdale's v. SEIU Local 32E, 158 LRRM 2379 (5/7/98). Found arbitrator exceeded his authority in determining arbitrability.
10. A. Terzi Productions v. Local One, 2 FSupp2d 485, 158 LRRM 2550 (4/20/98). Detailed opinion considering viability of causes of action brought by non-union company arising out of picket line misconduct.
11. Archie v. Grand Central Partnership, 997 FSupp 504, 4 WH Cases 2d 783 (3/19/98). Applies FLSA to a drop-in center for homeless. Found liability in a bench trial. The judge wrote:

    The work the plaintiffs performed competed with other business enterprises paying minimum wages. Despite the attractive nature of the defendants’ program in serving the needs of the homeless, the question of whether such a program should be exempted from the minimum wage laws is a policy decision either Congress or the Executive Branch should make. The defendants had the right to apply for an exemption from the minimum wage requirements of the FLSA and the New York Minimum Wage Act, and should have done so. The Court, however, cannot grant an exemption where one does not exist in law.

12. Cartagena v. Ogden Services Corp. , 995 FSupp 459, 83 FEP Cases 357 (3/11/98). Denies motion for summary judgment in national origin discrimination case. Discusses concept of "direct evidence" in the context of prima facie case.
13. Schepis v. Carpenters Local 17, 989 FSupp 511, 157 LRRM 2871 (1/9/98). A case brought by a convicted union official against his union for indemnity for his expenses in his criminal trial was removed to federal court arguing federal question jurisdiction. Court remanded to state court and awarded fees against the Union:

    This case is an appropriate one for the granting of fees and costs. The Union removed the case solely on the basis of LMRDA §501, despite the Second Circuit's recent and unambiguous determination in Doyle v. Kamen-kowitz that §501 provides union officials with no federal cause of action for reimbursement of their criminal defense costs. 114 F.3d at 375. Moreover, both the Court's holding in Doyle and the disclaimer in LMRDA §603(a) made it crystal clear that plaintiffs are free to pursue such claims on alternative state law grounds. Most charitably, the Union failed to consult Doyle before filing its removal notice. More likely, however, is that defendant understood that Schepis had no federal claim to reimbursement under §501(b), and for that very reason tried to recast Schepis’ state law claims as federal ones, to set them up for dismissal. The Union's argument under LMRA §301 was equally contrived and raised only as an afterthought in opposing remand. Under these circumstances, Schepis is entitled to costs and reasonable attorney's fees in connection with this motion.

14. Baba v. Japan Travel Bureau, 75 FEP Cases 1283 (12/30/97). Re-affirms order dismissing pro se plaintiff's Title VII case because of "repeated refusal to comply with the Court's discovery orders."
15. Baba v. Japan Travel Bureau, 67 FEP Cases 276 (1/30/95). Dismisses suit by pro seplaintiff against the EEOC.
16. Baba v. Japan Travel Bureau, 67 FEP Cases 278 (1/30/94). Dismisses case against New York State Division of Human Rights brought by pro se plaintiff.
17. Hoffman v. Sbarro, Inc., 982 FSupp 249, 4 WHCases2d 335 (10/23/97). Grants motion for notice in FLSA collective action and denies defendant's motion for summary judgment as premature.
18. Taylor v. NYC Transit Authority, 75 FEP Cases 366 (10/7/97). Grants summary judgment in same-sex sexual harassment case against a pro se plaintiff.
19. Gorwin v. Local 282, 156 LRRM 2896 (4/1/97). Motions for summary judgment filed by both parties in a fair representation case were denied.
20. Heaning v. NYNEX, 945 F.Supp. 640, 154 LRRM 2336 (11/13/96). Plaintiff's claim that his termination for placing offensive advertisement in "Swinging Times" was pre-empted by §301 of the Labor Management Relations Act.
21. Black v. NYU Medical Center, 71 FEP Cases 266 (5/24/96). Case for pay equity brought by medical center faculty member. Dismissed Equal Pay Act claim but found Title VII claim was timely brought.
22. EEOC v. Doremus Co., 921 F.Supp 1048, 69 FEP Cases 449 (10/26/95). Denied employer's motion for summary judgment in age discrimination case. Holds that where factual evidence of pretext is shown, no requirement to show acts were based on discriminatory animus.
23. Silverman v. MLBPRC, 880 F.Supp 246, 148 LRRM 2922 (4/3/95). The major league baseball case referred to in President Obama's introduction of Judge Sotomayor.
24. Local 300 v. U.S. Postal Service, 149 LRRM 2634 (11/21/94). Found that court lacked jurisdiction over complaint by union because of its failure to resort to grievance-arbitration procedure of national bargaining agreement.
25. Corporate Printing Co. v. Union No. 6, 147 LRRM 2918 (7/14/94). Court affirms arbitration award against employer.
26. Modeste v. Local 1199, 850 F.Supp 1156, 147 LRRM 2596 (1/25/94). Case brought by non-strikers who alleged they were abused by other members of Local 1199 during a strike. Certain claims were dismissed and others remanded to the state court.
27. Zveiter v. Brazilian Superintendency, 833 F.Supp 1089, 68 FEP Cases 1429 (10/14/93). Court denies employer's motion for summary judgment in sexual harassment case. Also has issues on validity of release and Foreign Sovereign Immunities Act.
28. McNeil v. Augilos, 831 F.Supp 1079, 66 FEP Cases 789 (831 F.Supp. 1079). An interesting case brought by an English speaking nurse because her fellow nurses spoke in Tagalog. As introduced by Judge Sotomayor:

    At the heart of this action are the allegations by pro se plaintiff Juanita McNeil, an English-speaking African-American, that Filipina-American nurses spoke Tagalog in her hospital workplace in order to isolate and harass her, and that their communication in Tagalog impeded her ability to perform her job effectively. The questions in this case are troubling, and the issues and problems are likely to become more pervasive as our society grows increasingly multiracial and polyglot. There is no simple solution, for just as a workplace English-only policy potentially violates the rights of non-English speakers, plaintiff here contends that allowing co-workers to communicate in a foreign language violates her rights, as a native English speaker.

    The pro-se plaintiff's motion for summary judgment was denied, but she was permitted to move for appointment of pro bono counsel.
29. Fisher Scientific Co. v. New York City, 812 F.Supp 22, 147 LRRM 2892 (1/29/93). Court refused to enjoin city counsel from considering a resolution that expressed a negative view about the company's labor negotiations with Teamsters Local 810.
30. James v. NYS Office of Mental Health, 63 FEP Cases 672 (1/13/93), dismissed pro se plaintiff's case because his failure to file with state FEP agency within 300 days deprived the court of jurisdiction to hear his claim.
    

My first read indicates a judge who does seem to merit the comments that have been made so far about her intelligence.

Although I have only skimmed the large majority of these opinions, nothing jumps out as markedly out of the mainstream. I welcome comments about that conclusion from readers of the blog.

One thing that is interesting is the rather large number of traditional labor decisions which Judge Sotomayor has written in her time on the bench. Perhaps not all that unusual for the jurisdictions in which she sits, but it at least indicates a familiarity with the subject matter that would not be true of all with similar experience in less organized parts of the country.

*Update: As I find other opinions by Judge Sotomayor that fit within the labor and employment law field I will add them to the above list, but do so in bold for anyone who comes back for a 2nd look at the list.

U.S. v. European Labor Model - Time to Reconsider?

I think it will take a lot more than one article from the New York Times to set off much of a discussion on whether or not the European or U.S. labor model is better. Although it might be a more fitting subject for a Labor Day weekend, if you have a few minutes over this three day break, you might read, U.S. Unemployment Rate May Soon Top Europe’s, and give some thought to the differences between the two models.

Those differences go beyond the flexibility inherent in hiring and firing, with the European model being based on more of a human rights notion of fair treatment as opposed to the U.S.'s anti-discrimination model. Although that difference may not always be apparent, in some areas, whether or not to have legislation focusing on bullying behavior in the workplace, for example, the difference is significant, It at least partly explains why such legislation is much more readily received in jurisdictions outside the U.S.

NLRB Speaks on Two Member Decisions

It might seem a little like inside baseball, but Jeffrey Hirsch at Workplace Prof Blog has a good explanation on the NLRB's statement that notwithstanding the DC Circuit's recent decision that it did not have the authority to issue two member decisions, it intends to continue to do so. NLRB's Reponse to Circuit Split on Two-Member Decisions.

For more background see Legality of 2 Member NLRB Decisions -- A Split Decision.

In many ways this is an attempt to keep the Board functioning notwithstanding the political neglect from past administrations (and Congress) which has too frequently treated the NLRB as unimportant.

No Early Supreme Court View on Lily Ledbetter Act

What was always a long shot did not pan out as the Supreme Court today issued its decision in AT&T Corp. v. Hulteen (S.Ct. 5/18/09) [pdf] without giving any guidance on how it would view the Lily Ledbetter Act. At issue was the present effect of a seniority system which treated pregnancy adversely that was used only before the Pregnancy Discrimination Act, although it had on ongoing consequences. In a 7-2 decision written by retiring Justice David Souter, the Court concluded that it did not.

The basic reason, the decision was not illegal when it was made and seniority systems have their own treatment under Title VII, which recognizes their importance in maintaining stability. That was the same reason the Lily Ledbetter Act was not relevant, even though the Supreme Court had allowed supplemental briefing on its potential impact. Quoting from the statute, the Court answered plaintiff's argument that it revived her cause of action:

For the reasons already discussed, AT&T’s pre-PDA decision not to award Hulteen service credit for pregnancy leave was not discriminatory, with the consequence that Hulteen has not been “affected by application of a discriminatory compensation decision or other practice.” §3(A), 123 Stat. 6.

In a spirited defense that was really more of an attack on the original Gilbert decision that led to the passage of the Pregnancy Discrimination Act than anything, Justice Ginburg's dissent (joined by Justice Breyer) does not even mention the Ledbetter Act.

If the case had gone the other way, it is possible to imagine how it could have had broad ramifications. However, given its narrow holding, it seems unlikely to be very important beyond its impact on the parties.

Sometimes Overlooked in the Hullabaloo Over EFCA

This from the good folks at BNA who collect statistics and do analysis on union election success rates:

Unions won 66.8 percent of representation elections conducted by the National Labor Relations Board in 2008, the highest win rate since BNA PLUS, BNA's research division, began analyzing NLRB data in 1984.

For BNA's special report see the May 5, Daily Labor Report. ($)

Change Coming to Human Resources

Michael VanDervort who has a cleverly titled blog, Human Race Horses, makes a good point about how change can and will happen regardless of the passage of any legislation, 7 People Who Will Change Human Resources in 2009.

All seven named by Michael hold positions within the Department of Labor or at the NLRB. I was not aware that Mary Beth Maxwell, who was the Executive Director of American Rights at Work, a pro-EFCA group had been named as a Senior Adviser to Secretary of Labor Solis. Maxwell's name had been bantered about for the Secretary position itself.

Legality of 2 Member NLRB Decisions -- A Split Decision

The D.C. Circuit says no, the 7th Circuit says yes. For the details, see Ross Runkel's post, Is 2-Member NLRB authorized to issue orders? Opposite decisions on the same day.

To make matters even more complicated, the 1st Circuit in March held the 2 member decisions were valid, see Two Member NLRB Legal, At Least in the First Circuit.

This kind of circuit split usually ends up in the Supreme Court, but it may also speed up the confirmation process for the Board nominations of Craig Becker and Mark Pearce. Even when they are confirmed, there will still be one vacancy on the five member board.

Congrats to Another Old Timer

Mike Fitzgibbons who had the first Canadian labor and employment law blog, Thoughts from a Management Lawyer, has just had his 6th anniversary, Another Day Another Blog Anniversary.

If this blog was even in part an inspiration for his, as he so nicely says, then I have assuredly made one clearly positive contribution to the blogosphere.

Congratulations Mike and please keep posting.