Results matching “eeoc”

The Federalist Society has a new blog called "Executive Branch Review." Interesting early posts include Peggy Little on the CFPB and Allison Somin on EEOC's use of disparate impact theory to challenge employers' use of criminal background checks. We've certainly spoken out on the latter.

Charles Hugh-Smith and Jim Geraghty note that if an employee cannot generate revenue to cover his or her wages plus overhead costs, he or she won't be hired. This is absolutely true, but both understate the problem, and the degree to which the Obama administration has made it worse, and is planning on exacerbating it.

One of the biggest overhead expenses is the expected litigation expense of an employee. Employees have a wide variety of rights under federal and state law to sue their employer—not just for the hiring and firing decision, but for promotions or work conditions. A dishonest employee can impose a great deal of cost on an employer by bringing a meritless suit; whether the employer takes a hard line or pays the Danegeld, these are very real expenses. (For example, defending against the notorious meritless Jamie Leigh Jones suit cost KBR $2 million.) It's little surprise that California, where employees can sue for a variety of technicalities in a lawyer-friendly litigation environment, has a much higher unemployment rate than the rest of the nation, despite a dynamic technology industry and being so attractive to millionaires that the state thinks it can raise revenue rather than drive away taxpayers with a 13.3% tax rate.

That overhead cost isn't just awards to plaintiffs with meritorious, or even plaintiffs with unmeritorious, grievances. It's the lawyers, on both plaintiffs' and defense sides, who collectively receive more than employees take home from litigation victories and settlements. But it's also the (as-far-as-I-know yet-unmeasured) compliance costs: the vast human resources bureaucracy that keeps track of these laws and maintains the paperwork to protect the company in the event of future litigation. The compliance costs can have non-monetary effects as well. But take, for example, something as simple as employee appearance. Even something as simple as "It's not good for the corporate image to have someone with a Maori face tattoo interacting with customers" has an litigation minefield overlay, including EEOC litigation. That costs money, and that money comes at the expense of hiring.

So it's worth noting that these laws, on balance, hurt the average employee. Plaintiffs' attorneys' fees often outstrip the returns to the clients; add to that the defense attorneys' cost, and the cost of a human resources apparatus to ensure compliance, and the vast majority of the benefits of employment litigation is going to white-collar professionals, and most of that going to attorneys in the top decile, or even the top 1%. That overhead cost may add up to more than 10 percent of wages: a $30/hour employee is, instead of being paid $33/hour, getting a $3+/hour "benefits" package, most of which ends up in the pockets of people wealthier than him or her. Now, perhaps we as a society are willing to accept these costs to vindicate the relatively rare cases where a bigot or predator unfairly treats an employee and management acts against the company's interest in letting qualified employees be chased away. (One of the silliest things about the Wal-Mart employment litigation was the premise that the most aggressive cost-cutting company in the world would systematically choose to throw money out the window just to discriminate against qualified women in promotion decisions.) But these costs are rarely ever acknowledged in the policy debates in the first place.

And, even as structural unemployment rises to scary levels, this administration has sought to increase these overhead expenses to make hiring more expensive. The Lilly Ledbetter Fair Pay Act makes it easier to bring meritless suits by obliterating the statute of limitations. (Statutes of limitations are important for justice. Without a statute of limitations, someone can sue for very old alleged injuries, and a defendant would not have a fair chance to defend herself. (Ledbetter sued over her pay after she was retired!) Memories fade, evidentiary documents are discarded, people change employers. If an employee can wait until a middle manager of years ago died before accusing the company of discrimination, justice is impossible.) The EEOC has become increasingly intrusive. Though courts have largely rejected the move as arbitrary and capricious, Obama's NLRB appointments have sought to abolish arbitration agreements as an unfair labor practice. All in the supposed name of increasing workers' rights, but with the effect of exacerbating inequality and unemployment.

The State of the Union bodes more of the same. Not just the proposed minimum wage increase from $7.25 to $9, which will fall disproportionately upon unskilled workers who already have a double-digit unemployment rate. But the administration is reiterating its proposal for a "Paycheck Fairness Act that will surely increase unemployment as well. (More from Hans Bader.)

It's not clear why BAE Systems Tactical Vehicle Systems fired 680-pound $21/hour forklift operator Ronald Kratz II; the EEOC alleges that he was told he was too obese to perform his job, and was thus fired because of a "disability." BAE denies this, saying that Kratz "was not able to perform the functions of his job without posing a direct threat to his own health and safety or the health and safety of others," and that no accommodation was asked for or even possible. But the stakes were too small to litigate; the $55,000 BAE paid in settlement was less than it would have cost them to win the case on summary judgment, so future employers will not have a clear statement of the law, and the EEOC can continue to engage in ADA-creep at taxpayer expense. And employers have to account for that litigation risk when they hire, which deters job creation. [Houston Chronicle via ABAJ]

The case is EEOC v. BAE Sys., Inc., No. 4:11-cv-03497 (S.D. Tex.).

Comparative negligence combined with joint and several liability resulted in a variety of absurd cases where the deep pocket with 1% responsibility paid for the negligence or intentional torts of others, so many states, Indiana among them, limited joint and several liability for the minimally responsible.

Abu Rahmatullah's Super 8 Motel, adhering to the non-discriminatory EEOC principle of not performing criminal background checks, hired criminal Joseph Pryor. Unfortunately, Pryor was a recidivist, and robbed and murdered paying guest James F. Santelli. A jury reasonably assigned 97% of the fault to Pryor (currently serving an 85-year sentence), 2% to Rahmutallah for following EEOC guidelines' preference for indifference to criminal history, and 1% to Santelli for reasons that are unclear. This would limit Rahmatullah's liability under the statute, but an Indiana appeals court says it didn't care what the legislature said about the subject, and remanded for a new trial where a jury would not be allowed to assign comparative fault to the intentional wrongdoer. [Santelli v. Rahmatullah (Ind. App. 2012) via Oliver via OL]

Speaking of upside-down preemption, the United States faced a lot of skepticism from the Supreme Court yesterday over its aggressive attempt to strike down Arizona's anti-illegal-immigration law, SB 1070. As Michael Greve argues, "far from conflicting with federal law, S.B. 1070 complements it." More: Levey; Reason; WaPo; SCOTUSblog.

Earlier on POL: Shapiro podcast; Romney campaign; upside-down preemption; rule of law and the Obama administration.

Yesterday, the EEOC issued "guidance" (h/t P.T.) on the ability of employers to use conviction and arrest records in hiring. (We'd previously noted EEOC enforcement actions in that regard.) In another example of the Obama Administration's upside-down approach to preemption, the EEOC purports to preempt local laws and regulations forbidding the hiring of criminals if the EEOC believes they contradict Title VII's disparate impact rules; employers are thus in a damned-if-they-do, damned-if-they-don't situation if they follow or don't follow those state laws since they can get sued either way, including massive tort liability for the criminal acts of their employees. And that surely won't have any effect on employers willingness to create jobs, will it?

As Michael Greve notes (h/t OL), administrative agencies have taken advantage of the Chevron and Chevron II framework to evade judicial review of administrative law. This "guidance" outside of formal administrative rule-making is a prime example of that tactic, and validates Greve's argument that "increased judicial conflict over the administrative state" with more rights for the regulated against the regulator needs to be in the offing.

Seventy percent of African-American children are born to single mothers. Moreover, children growing up in the African-American community face the peer pressure of gangsta culture: success in school results in ostracism for "acting white."

With such dysfunction in the African-American community one would expect African-American children to have more disciplinary problems than average. And indeed they do: "black students were three and a half times as likely to be suspended or expelled than their white peers".

These problems are certainly difficult: how do you change the culture? Unfortunately, the Obama administration is proposing counterproductive policies that would reduce personal responsibility.

According to the Obama administration, the disparity in discipline is a "civil rights" issue of "equity." The Department of Education is threatening "disparate impact" inquiries on school districts that discipline blacks more than whites or Asians. School districts could only comply by failing to discipline poorly-behaving African-American students; disciplining well-behaving whites to get the numbers up will just result in lawsuits. The consequences would be disastrous. Poorly-behaving African-Americans are most likely to be attending majority-minority schools. The ultimate effect is a wealth transfer from well-behaved African-American students trying to learn to thugs interfering with that process, only adding to the dysfunction of public schools and the African-American community.
[Via Sailer; related at Overlawyered, 2003.]

The Obama administration obsession with disparate impact has led to other counterproductive policy choices because of its unreasonable presumption that disparate impact can only result from illegal discrimination, as we've discussed elsewhere: Jan 2012; Nov 2011; Aug 2011; Jul 2011; Mar 2011.

The EEOC has settled a suit against Pepsi for $3.1 million: Pepsi was neutrally using criminal background checks "indiscriminately," including excluding applicants with pending criminal charges, and the EEOC alleged that this had an impermissible disparate impact against African-Americans. Pepsi immediately caved. [EEOC press release]

Earlier.

In his piece Obama EEOC Wipes Out Jobs By Making Hiring More Difficult featured on examiner.com, Hans Bader, senior attorney and counsel for special projects at the Competitive Enterprise Institute, outlines his position that President Obama's Equal Employment Opportunity Commission appointees are expanding the agency's enforcement authority via overly broad statutory interpretation. Such interpretation, according to Hans, in effect creates a Catch-22 where businesses attempting to avoid EEOC suits by taking compliance measures get sued anyway for violating other conflicting laws or regulations in their effort to employ those very compliance measures. Such aggressive enforcement has already deterred businesses from hiring new employees.

Hans points to some interesting examples, such as the following:

The EEOC has sued employers who sensibly refuse to hire as truckers people with a history of heavy drinking and alcoholism. It has done so even though if employers do hire alcoholics for such safety-sensitive positions, they will be sued under state tort laws when the alcoholic driver has an accident. The EEOC's demand that such employers disregard histories of alcoholism is based on an extremely expansive, and dubious, interpretation of the Americans with Disabilities Act.

The EEOC is suing employers over the use of criminal histories in hiring, and harassing employers who conduct criminal background checks, even though employers who hire criminals end up getting sued when those employees commit crimes while on the employer's payroll. The EEOC's demands thus place employers in an impossible dilemma where they can be sued no matter what they do.

The EEOC is also suing employers who don't bend sensible workplace rules to accommodate the obese, claiming that obesity is a disability. And it is suing employers who take into account bad credit and financial histories in hiring, even though failure to take that into account can lead to lawsuits against banks and property managers by customers.

• More on MI's proxy access report. [Daily Caller; earlier]
• Costless economic stimulus: tort reform. [Stoll; me in 2009]
• Cuomo signs objectors' fee bill. [NYLJ (h/t E.T.); earlier]
• MSNBC at least gives the opposing viewpoint a few sentences this time in another piece putting forward the false proposition that recent Supreme Court jurisprudence on arbitration and class actions hurts consumers. Note that it's not true that consumers fare poorly in arbitration. [MSNBC; earlier]
• Why is Tennessee Governor Haslam supporting a trial-lawyer plan to stack the state supreme court? As my experience in Missouri demonstrates, creating that kind of hellhole judiciary can effectively undo civil justice reform. [Severino]
• "Lawyers Use Ban on Unauthorized Practice of Law to Restrict Speech & Competition" [Bader; WSJ Law Blog; see also TOTM symposium on unlocking the legal market]
• EEOC threatens Arizona for judging teacher hires on whether they can speak English correctly. [Olson]
• Speed limits can kill. [MR]

Bloomberg's victory in a pregnancy discrimination case is once again bringing out the "feminists" who say that demanding hard work discriminates against women. [NYT; The Hill; Reuters; Careerist] Judge Loretta Preska disagrees:

At bottom, the EEOC's theory of this case is about so-called work/life balance. Absent evidence of a pattern of discriminatory conduct . . . the EEOC's pattern or practice claim does not demonstrate a policy of discrimination at Bloomberg. It amounts to a judgment that Bloomberg, as a company policy, does not provide work/life balance.

I guess I can officially declare a trend on the work-life balance issue. Employers and employees can certainly negotiate the appropriate scope of work-life balance; if judges or juries are permitted to hold certain work-life options impermissible, the effect on the economy from the social engineering would be disastrous. Especially since there is no indication that the legislature made any sort of decision that they were outlawing the requiring of hard work when they passed Title VII.

The EEOC has brought a lawsuit in the Northern District of Ohio against favorite Obama Administration whipping boy Kaplan Higher Education Corporation. Kaplan investigates and uses credit history in employment decisions, and the EEOC alleges impermissible discriminatory impact.

Somebody should tell the Transportation Security Administration, which also performs credit checks: they reject job applicants if they have more than $5000 in overdue debt. Many other employers find using credit histories helpful in hiring; if the EEOC makes hiring employees riskier and more expensive, we can expect less hiring to happen, which can't be good for the unemployment rate.

• After the leak of this Larry Tribe letter, we perhaps know who bad-mouthed Sonia Sotomayor to Jeff Rosen. The bad-mouthing of Justices Breyer and Kennedy (and smear of Diane Wood) are also in there. Don't miss the last-paragraph flattery. Above the Law unusually ignores the juicy story. [Whelan @ NRO; more; more]
• State attorneys general demand that banks be more lenient with mortgage foreclosures, sue banks for being too lenient. [Jenkins @ WSJ via Stoll]
• Credit scores are handy ways to predict job performance in hiring. So the EEOC is naturally against it. [OL]
• New York state retroactively rewrites every mortgage in the state to forbid one-way fee-shifting. [NYLJ]
• Happy birthday, Drug and Device Law Blog! [Abnormal Use]
• Elizabeth Warren doing end-around Dodd-Frank procedures, checks and balances. [Freire @ Examiner]
• Obama administration expected to shift to regulatory process after mid-term losses in granting trial-lawyer earmarks that expand liability. [WSJ]
• A must-read article and book on the counterproductiveness of humanitarian aid: "If you use enough violence, aid will arrive, and if you use even more violence, even more aid will arrive." [New Yorker ($); The Crisis Caravan]
• An entertaining polemic from a master of the art against Richard Blumenthal, but his Senate-race lead appears insurmountable. [Coulter]
• I'm shocked, shocked, to find Paul Krugman being intellectually dishonest. [Cafe Hayek]

• Iowa federal judge hits EEOC with $4.5 million attorney fee award over "sue first, ask questions later litigation strategy" in sex bias case against trucking company CRST [McCormick/Workplace Prof, Coyle/NLJ, Hyman]
• Bayer vitamin case: court says piggybacking on FTC, consumer-group allegations isn't enough to support class action [Wajert, Mass Tort Defense]
• "Arizona Toughens Burden of Proof in Malpractice Cases" [Latner, Renal & Urology News]
  
• "EEOC Discrimination Complaints Near Record Highs in 2009" [LaCroix, NLJ]
• "UK Asbestos Working Party More Than Doubles Estimate to 11 Billion Euros" [Hartley, with more here and here on the British government's continuing deliberations on asbestos claim reform]
• Mess in Albany: lawmakers can hold outside jobs (mostly at law firms) with scant disclosure [Greenfield]

• Towers Perrin/Tillinghast survey predicts pickup in tort costs [Mark Hofmann, Business Insurance; Daniel Hays, National Underwriter; report in PDF]
• New $23 million slug of money for EEOC enforcement is couched as backlog reduction so that must be okay [NLJ]
• Ameet Sachdev of Chicago Tribune interviews Mark Herrmann on law blogging; why most blogs that come out of big law firms aren't very good [Beck & Herrmann]
• Illinois Supreme Court reverses economic damages Baycol class certification [Drug & Device Law, Jackson] "Federal Court Refuses to Certify Personal Injury Class in Suture MDL" [Jackson] "Federal Court Allows Nationwide UCL Class Action via California's Unfair Competition Law" [Cal Civil Justice]
• Ninth Circuit accuses Jerry Brown's office of making false statements to court in pharmacist case [Egelko, SF Chronicle via Legal Ethics Forum]
• "Erosion of ownership rights" [Quin Hillyer, Washington Times]

• Sen. Chris Dodd's financial services bill would overturn Stoneridge, establish aiding-and-abetting securities liability [WSJ editorial]
• "Card Check: Canada is the Model, But a Failed, Unpopular Model" [Carter at ShopFloor on our new John Endean labor-law paper]
• Media Matters and TV talker Rachel Maddow advance cheap smear against Heritage Foundation's valuable overcriminalization project [Radley Balko and again]
• Other courts have generally declined to follow that lamentable California decision of a year ago imposing liability on name-brand pharmaceutical manufacturer for injuries allegedly caused by its generic competitors [Jeff Pilkington & Geoff Klingsporn, Beck & Herrmann at Drug and Device Law and more, earlier here and here]
• More from the Connecticut lawmaker: "Sen. Dodd To Introduce Emergency Paid Sick Leave Bill" [Daniel Schwartz, earlier]
• Age discrimination complaints to EEOC unexpectedly decline 7% [Adjunct Law Prof via Workplace Law Prof]

Democrats in Congress are preparing a bill to overturn the Supreme Court's 5-4 ruling requiring age discrimination plaintiffs to prove that age was the decisive factor in a negative job decision [Boston Globe, New York Times "Room for Debate"] EEOC retaliation claims are on the rise, notes the WSJ [Workplace Prof]. The Senate has adopted an amendment by Sen. Franken (Minnesota) to ban federal defense contractors from using arbitration clauses to resolve a wide variety of discrimination and other claims [Houston Chronicle, Schwartz] And President Obama's nomination of veteran Georgetown lawprof (and ADA drafter) Chai Feldblum will add a strongly liberal voice to the EEOC [Workplace Prof]

• Indiana: "Lawyers file challenge to end state's malpractice cap" [Indianapolis Star, Shelby News]
• "Sears Roebuck Agrees to Record $6.2M ADA Settlement With EEOC" [ABA Journal] And a flurry of litigation activity: "EEOC announces 32 suits in past seven days" [Runkel via Fox]
• Judge nixes class action against Toshiba over its defense of HD-DVD format [Russell Jackson]
• Card check in lieu of union-representation elections has a track record in New York public employment [Bill Herbert, SSRN via Workplace Prof]
• "Up Next: Securities Suits Against Municipalities?" [LaCroix]
• Accusations fly in Neurontin litigation between Pfizer lawyers and David Egilman, Mark Lanier [American Lawyer]

According to the EEOC, "As a result of the ADAAA [ADA Amendments Act], it will be much easier for individuals seeking the law's protection to demonstrate that they meet the definition of 'disability....'" Jon Hyman and Daniel Schwartz have details.

• Hill committee jurisdiction: if tort expansion (Medicare secondary payor) can go through Ways & Means, why must tort reduction (med mal) go only through Judiciary? [ShopFloor]
• In the mail, lively and readable if unsettling book: "Courtroom Cowboy: The Life of [Philly lawyer] Jim Beasley" [on Amazon]
• "Drug companies say there are bogus Digitek suits" [WV Record, more, Wajert/Mass Tort Defense]
• EEOC suit: AT&T violates age-bias law by not rehiring early-retirement-takers [Schwartz, ABA Journal]
• Oklahoma lawprof Patricia Hatamyar, evidently no enthusiast of litigation reform, takes a look at filings in that state [Mass Tort Lit]
• We seem to be going pretty strong at five-years-plus: "The Life Expectancy of a Legal Blog" [Beck & Herrmann & followup]