Archives for June 2013

It’s been a busy week for employment law and civil rights.  The impact of the past week’s Supreme Court decisions on these two areas of law cannot be understated.  The Voting Rights Act was gutted, killing protections put in place to prevent discrimination at the ballot box.  The Civil Rights Act was substantially weakened, stripping minority employees across the country from access to Title VII remedies. And although the news for same-sex couples was brighter, the Court’s narrow decisions on that front leave much work to be done in the struggle for equality.

Wednesday, the Supreme Court released its decisions in United States v. Windsor (the “DOMA” case) and Hollingsworth v. Perry (the “Prop 8” case).  These two cases each had the potential to become landmark civil rights precedent, with monumental significance for gay and lesbian Americans; they were heralded by pundits as the most important civil rights cases of our generation.

Indeed, the decision in Windsor will go down as one of the most significant decisions in Supreme Court history; it struck at the heart of DOMA and declared gay and lesbians deserving of equal protection under the law.  The Court’s decision in Perry, on the other hand, will soon be brushed into the dusty corners of irrelevance; in that case, a group of five strange bedfellow Justices entirely ducked the question of whether same-sex couples are entitled to marriage equality.  Thus, the struggle for gay civil rights marches on – and there is a lot of ground to cover. (more…)

Today, the United States Supreme Court, in a 5-4 vote, struck down a key provision of the Voting Rights Act (“VRA”), which is considered by many to be the most important civil rights law to have ever been authored by Congress. In short: the Supreme Court gutted our country’s chief mechanism for preventing the South from engaging in racially discriminatory voting practices.

From Justice Ginsburg’s dissent in Shelby County v. Holder:

Congress approached the 2006 reauthorization of the VRA with great care and seriousness. The same cannot be said of the Court’s opinion today. The Court makes no genuine attempt to engage with the massive legislative record that Congress assembled. Instead, it relies on increases in voter registration and turnout as if that were the whole story. See supra, at 18–19. Without even identifying a standard of review, the Court dismissively brushes off arguments based on “data from the record,” and declines to enter the “debat[e about] what [the] record shows.” Ante, at 20–21. One would expect more from an opinion striking at the heart of the Nation’s signal piece of civil-rights legislation.

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The Court has time and again declined to upset legislation of this genre unless there was no or almost no evidence of unconstitutional action by States. See, e.g., City of Boerne v. Flores, 521 U. S. 507, 530 (1997) (legislative record “mention[ed] no episodes [of the kind the legislation aimed to check] occurring in the past 40 years”). No such claim can be made about the congressional record for the 2006 VRA reauthorization. Given a record replete with examples of denial or abridgment of a paramount federal right, the Court should have left the matter where it belongs: in Congress’ bailiwick.

Instead, the Court strikes §4(b)’s coverage provision because, in its view, the provision is not based on “current conditions.” Ante, at 17. It discounts, however, that one such condition was the preclearance remedy in place in the covered jurisdictions, a remedy Congress designed both to catch discrimination before it causes harm, and to guard against return to old ways. 2006 Reauthorization §2(b)(3), (9). Volumes of evidence supported Congress’ determination that the prospect of retrogression was real. Throwing out preclearance when it has worked and is continuing to work to stop discriminatory changes is like throwing away your umbrella in a rainstorm because you are not getting wet.

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The sad irony of today’s decision lies in its utter failure to grasp why the VRA has proven effective. The Court appears to believe that the VRA’s success in eliminating the specific devices extant in 1965 means that preclear­ ance is no longer needed. Ante, at 21–22, 23–24. With that belief, and the argument derived from it, history repeats itself. The same assumption—that the problem could be solved when particular methods of voting discrim­ ination are identified and eliminated—was indulged and proved wrong repeatedly prior to the VRA’s enactment. Unlike prior statutes, which singled out particular tests or devices, the VRA is grounded in Congress’ recognition of the “variety and persistence” of measures designed to impair minority voting rights. Katzenbach, 383 U. S., at 311; supra, at 2. In truth, the evolution of voting discrim­ination into more subtle second-generation barriers is powerful evidence that a remedy as effective as preclear­ance remains vital to protect minority voting rights and prevent backsliding.

Beyond question, the VRA is no ordinary legislation. It is extraordinary because Congress embarked on a mission long delayed and of extraordinary importance: to realize the purpose and promise of the Fifteenth Amendment. For a half century, a concerted effort has been made to end racial discrimination in voting. Thanks to the Voting Rights Act, progress once the subject of a dream has been achieved and continues to be made.

The record supporting the 2006 reauthorization of the VRA is also extraordinary. It was described by the Chairman of the House Judiciary Committee as “one of the most extensive considerations of any piece of legisla­ tion that the United States Congress has dealt with in the 271⁄2 years” he had served in the House. 152 Cong. Rec. H5143 (July 13, 2006) (statement of Rep. Sensenbrenner).

After exhaustive evidence-gathering and deliberative process, Congress reauthorized the VRA, including the coverage provision, with overwhelming bipartisan support. It was the judgment of Congress that “40 years has not been a sufficient amount of time to eliminate the vestiges of discrimination following nearly 100 years of disregard for the dictates of the 15th amendment and to ensure that the right of all citizens to vote is protected as guaranteed by the Constitution.” 2006 Reauthorization §2(b)(7), 120 Stat. 577. That determination of the body empowered to enforce the Civil War Amendments “by appropriate legis­lation” merits this Court’s utmost respect. In my judg­ment, the Court errs egregiously by overriding Congress’ decision.

From Justice Ginsburg’s dissent in today’s Supreme Court Decision in Vance v. Ball State, which narrowly defined “supervisor” so as to limit employer liability (thus, employee protection) in workplace harassment cases:

Exhibiting remarkable resistance to the thrust of our prior decisions, workplace realities, and the EEOC’s Guidance, the Court embraces a position that relieves scores of employers of responsibility for the behavior of the supervisors they employ. Trumpeting the virtues of simplicity and administrability, the Court restricts supervisor status to those with power to take tangible employment actions. In so restricting the definition of supervisor, the Court once again shuts from sight the “robust protection against workplace discrimination Congress intended Title VII to secure.”

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Regrettably, the Court has seized upon Vance’s thin case to narrow the definition of supervisor, and thereby manifestly limit Title VII’s protections against workplace harassment. Not even Ball State, the defendant-employer in this case, has advanced the restrictive definition the Court adopts. See supra, at 5. Yet the Court, insistent on constructing artificial categories where context should be key, proceeds on an immoderate and unrestrained course to corral Title VII. Congress has, in the recent past, intervened to correct this Court’s wayward interpretations of Title VII. See Lilly Ledbetter Fair Pay Act of 2009, 123 Stat. 5, superseding Ledbetter v. Goodyear Tire & Rubber Co., 550 U. S. 618 (2007). See also Civil Rights Act of 1991, 105 Stat.1071, superseding in part, Lorance v. AT&T Technologies, Inc., 490 U. S. 900 (1989); Martin v. Wilks, 490 U. S. 755 (1989); Wards Cove Packing Co. v. Atonio, 490 U. S. 642 (1989); and Price Waterhouse v. Hopkins, 490 U. S. 228 (1989). The ball is once again in Congress’ court to correct the error into which this Court has fallen, and to restore the robust protections against workplace harassment the Court weakens today.

In employment lawsuits, preserving, finding, and utilizing electronic evidence can mean the difference between winning, winning big, or losing on summary judgment.  Electronic discovery (“e-discovery”) is an important source of critical evidence that can help you establish proof of discrimination, retaliation, and pretext.  Because such evidence can be digitally buried in complex servers and information systems, it is important that your employment law attorney be as sophisticated as possible during the discovery phase of your employment lawsuit.

Does your attorney know all the places your employer stores email and other potentially relevant data?  Does your employer’s attorney?  At the onset of litigation, the answer to the first question is a definitive no.  And it may surprise you that the answer to the second question is often the same.  (more…)

On May 24, 2013, Governor Mark Dayton signed HF 542, a bill adding additional protections for whistleblowers.  The Minnesota Whistleblower Act (MWA) was originally passed in 1987, and the purpose was to prohibit employers from acting in a retaliatory manner against employees who made a good faith report of any federal or state law or rule adopted pursuant to law.[1]  Ambiguities in the language of the statute have allowed for many different interpretations on statutory meaning throughout the years.  In Anderson-Johanningmeier v. Mid Minnesota Women’s Center, Inc., the Minnesota Supreme Court dealt with conflicting case law in determining the applicability of a public policy requirement in relation to whistleblower claims.[2]  The court concluded that public policy requirement relating to all whistleblower claims was not in accordance with the statutory language.  While the additional protections signed into law by Governor Dayton do not deal with the public policy requirement, the additions help to clear up other potential ambiguities within the statute.

HF 542 serves two purposes in aiding the original whistleblower act.  First, the new law provides a definitional framework for several key terms that were left for interpretation.  Three sections of § 181.931 have terms that are defined in the new law, in an attempt to reduce conflicting interpretations, and to clearly exemplify the laws intent in protection of whistleblowing reports.  Second the bill expands the scope reported violations that are protected. (more…)

A civilized society depends on a well-maintained police force dedicated to service and protection.  However, when officers stray from the duties sworn in their oath, the citizens must have some method of redress.  The current approach in Minneapolis ignores the importance of deterring unacceptable officer behavior and instead focuses on mitigating bad press and decreasing financial liabilities.  Unfortunately, neither of these goals is being achieved and that is because the police department needs to refocus its goals and institute a system that encourages deterrence.

A recent article in the Star Tribune adequately summarizes the problems our police department has created for itself. [1]  “Despite nearly $14 million in payouts for alleged police misconduct over the past seven years, the Minneapolis Police Department rarely concluded that the officers involved did anything wrong…  Of 95 payouts from 2006 to 2012… eight resulted in officers being disciplined…”[2]  These facts show that the Minneapolis Police Department is not decreasing financial liability, nor is it avoiding negative media exposure.  What is the cause of such large payouts?  Finding this root will help focus a solution.  Are Minneapolis residents overly litigious?  Are Minneapolis police officers overly confrontational and unreasonable?  Rather, if the root of the problem is not within the players, could it be the system in which the players must participate?  What is that system anyway? (more…)

Early last month, a federal jury in the Southern District of Iowa awarded a $240 million verdict to 32 mentally disabled men that suffered through years of slave-like employment in a turkey slaughterhouse operated by Henry’s Turkey Service, also known as Hill Country Farms.  Hill Country, a Texas based company, operated the slaughterhouse in Iowa and had been employing mentally disabled men for over four decades.  Hill Country offered room and board in an old schoolhouse without central heat.  Room and board was part of the employment benefits and calculated as earnings on top of the $2 per day salary.  Supervisors that cared for the employees doled out verbal abuse, occasional physical abuse, and manual labor as punishment.  The civil trial uncovered one such instance when an employee was handcuffed to his bed and left screaming and crying.[1]

The $240 million verdict was awarded after the Equal Employment Opportunity Commission proved harassment and discrimination violations of the Civil Rights Act and the Americans with Disabilities Act.  The award granted each of the 32 men about $5.5 million in compensatory damages, plus $2 million as punitive damages because Hill Country acted with malice or reckless indifference.  Unfortunately, Hill Country “is believed to have no more than $4 million in assets, and… damages awarded by the jury go ‘well beyond’ what is allowed by the Civil Rights Act of 1991.”[2]  The EEOC attorney, Robert Canino, said, “I can tell you the EEOC is going to explore every option, and with great diligence, to ascertain every possible source of revenue… to satisfy the judgment.”[3]  Hill Country is also liable for over $4 million in fines for violating federal, and state, labor and wage laws.

And so, the mentally disabled ex-employees of Hill Country savored sweet justice for all of about two weeks.  (more…)