May 7, 2008

Genetic Information Nondiscrimination Act, cont'd

Eric Posner finds the consensus in favor of this bad new law "puzzling". Earlier here.

May 1, 2008

Genetic Information Nondiscrimination Act Passes

H.R. 493, the Genetic Information Nondiscrimination Act, has passed the House in the form approved last week by the Senate. The vote was 414-1 (roll call vote available here). The bill outlaws insurance companies or employers from discriminating on the basis of genetic information.

Other interesting provisions are included:

(Sec. 302) Amends the Fair Labor Standards Act of 1938 to increase the maximum employer penalty for violations involving oppressive child labor provisions or certain child labor safety requirements. Establishes an additional civil penalty for any such violation that causes the death or serious injury of an employee under the age of 18, which may be doubled for a repeated or willful violation.

Defines "serious injury" as: (1) permanent loss or substantial impairment of one of the senses or of the function of a bodily member, organ, or mental faculty; or (2) permanent paralysis or substantial impairment that causes loss of movement or mobility of a body part.

Increases the maximum civil penalty for any repeated or willful violation of minimum wage or maximum hours requirements.

The President will certainly sign the legislation, which CQ Politics calls "a landmark ban." Also CQ:

Liability concerns of employers and the White House held up the bill until the Senate this month made changes to strengthen a "firewall" between the employer and insurer provisions of the legislation, so that businesses couldn't be hit with penalties under both sections.

April 28, 2008

Eric Posner on Ledbetter Act

Slate's Eric Posner provides a devastating rebuttal to the overwrought claims of Dahlia Lithwick about the misnamed Lilly Ledbetter Fair Pay Act. He leaves out an important argument, which I noted for the Justice Talking blog: existing law, the Equal Pay Act, already permits lawsuits with a longer statute of limitations than 180 days, and Ledbetter's suit failed because she used the wrong statute.

April 27, 2008

Immunity for the King, Prosecutors and Smithsonian, Too

We'll admit to being amused by the phrase "jerked on her lanyard" in a Washington Post story about a personal injury lawsuit against a Smithsonian executive, but the article also highlights an application of the Federal Tort Claims Act that comes up with some frequency inside the Beltway. From "Suit Against Smithsonian Executive Dismissed":

The suit by former custodian Mary T. Majano against Smithsonian Business Ventures Vice President Jeanny Kim was tossed out late Wednesday by U.S. District Judge Rosemary M. Collyer, who found that Kim was covered by a law that protects some federal employees from injury lawsuits.

Collyer determined that Majano had exaggerated the violence of the encounter, but she also said that "neither was the incident as tame as Ms. Kim would like to portray; she was definitely angry and rude to Ms. Majano."

In other sovereign immunity news, Radley Balko of Reason analyzes the issues raised by the U.S. Supreme Court's decision to hear Goldstein v. City of Long Beach on appeal from the U.S. Court of Appeals for the Ninth Circuit. Thomas Goldstein spent 24 years in prison for a murder he didn't commit, a conviction based on testimoy from jailhouse snitches. Goldstein is suing John Van de Camp, the district attorney who supervised that prosecutor for violating his civil rights under 42 U.S.C. 1983. Balko concludes in "Suing the DA":

We shouldn't allow every aggrieved defendant to sue his prosecutor. But in cases where someone is exonerated after being convicted of a crime, where there's clear evidence that something went terribly wrong at trial, and certainly where a single prosecutor has overseen more than one exoneration, allowing civil rights suits against these government officials in their capacity as government employees might shine some needed--if uncomfortable--sunlight on a part of the criminal justice system that has for too long been immune from real accountability.

April 24, 2008

No Doubt on Genetic Nondiscrimination Act

The Senate voted 95-0 (roll call vote) to pass H.R. 493, the Genetic Information Nondiscrimination Act. The text of the substitute amendment is available here.

Genetic Nondiscrimination: Sounds Good, Right?

The Senate is scheduled this afternoon to debate H.R. 493, the Genetic Nondiscrimination Act, with the new legislation in question being a "bipartisan compromise" substitute introduced by Senators Snowe, Kennedy, and Enzi. According to Senator Kennedy's news release:

With regard to health insurance discrimination, the Act will:

PROHIBIT enrollment restriction and premium adjustment on the basis of genetic information or genetic services;

PREVENT health plans and insurers from requesting or requiring that an
individual take a genetic test; and

COVER all health insurance programs, including those under ERISA, state
regulated plans, and the individual market.

With regard to employment discrimination, the Act will:

PROHIBIT discrimination in hiring, compensation, and other personnel
processes;

PROHIBIT the collection of genetic information, and allow genetic testing only
to monitor the adverse effects of hazardous workplace exposures;

REQUIRE genetic information possessed by employers to be confidentially
maintained and disclosed only to the employee or under other tightly controlled
circumstances; and

COVER employers, employment agencies, labor organizations, and training
programs.

Because it's new and scary? Hans has surveyed the scene again today and still doubts the need for legislation.

In any case, news coverage doesn't indicate a lot of controversy and we anticipate overwhelming passage. Here's the AP story and The Washington Post.

UPDATE (2:05 p.m.): CQ Politics reports, "[Sen.] Coburn argued that the [House] bill would expose companies and insurers to undue risk of lawsuits, an objection shared by the White House. ...The compromise headed for Senate passage Thursday addressed those concerns and won approval from the White House."

April 23, 2008

Ledbetter: Cloture Fails

To finish off the day's posting on H.R. 2831, the Ledbetter Fair Pay Act (earlier posts here and here and here): The Senate voted 56-42 (roll call vote), failing to invoke cloture, which allowed everyone to cast his or her vote for the record. Senator Clinton and Senator Obama were the last two speakers before leadership had its turn.

Majority Leader Reid voted no, preserving his parliamentary options; Senator Kennedy is talking about today's vote being "an early skirmish." All the other Democrats voted yes, as did the following Republicans: Collins and Snowe of Maine, Smith of Oregon, Coleman of Minnesota and Sununu of New Hampshire. All save Snowe are up for re-election this year.

Meanwhile, tomorrow is the vote on the Genetic Information Nondiscrimination Act.

Fair Pay, Fair Play and Fair Limitations

Hans Bader of the Competitive Enterprise Institute takes a look at today's Washington Post editorial, "Fair Pay, Fair Play," calling for passage of the Ledbatter Fair Pay Act, and finds certain facts and legal context missing. Again. From the Open Market blog:

The Post seems completely unaware of the existence of another law, the Equal Pay Act, that already has a generous deadline (3 years) for bringing pay discrimination claims.

In Ledbetter v. Goodyear (2007), the Supreme Court enforced the explicit 180-day deadline for bringing discrimination claims under Title VII, ruling that Lilly Ledbetter's pay discrimination suit under Title VII was untimely because she brought it long after 180 days had elapsed. But the court specifically noted in a footnote that the plaintiff had (for unknown reasons) dropped her claim under the Equal Pay Act -- which has a longer deadline (3 years) for suing. Liberal court reporters deliberately ignored the footnote and the very existence of the Equal Pay Act in order to cynically create the false impression that the Supreme Court's enforcing the Title VII deadline as written would leave women without any redress for sex-based pay discrimination after 180 days had passed.

As for the political context, from FoxNews.com, "McConnell Complains About Delay in Senate Vote So Candidates Can Return." From the minority leader:

Now, look, we understand people have to run for president and are not likely to be here much of the time. But to have the schedule of the Senate completely revolve around the schedule of the Democratic presidential candidates strikes me as particularly ridiculous.

Ledbetter: The Politics of Scheduling

The Senate rolls into action at 5 p.m. this evening, thanks to a scheduling maneuver by Senate Majority Leader Harry Reid, D-NV. In order to have the Democratic presidential candidates, Sens. Clinton and Obama, back in town for the cloture vote on H.R. 2831, the Majority Leader had to postpone the usual morning convening, since a cloture vote is supposed to follow one hour after the Senate is called into order.

That's politics and nothing to get too excited about, especially since the tactics make it clear the bill is not intended to become law. No, it's just another way just to measure loyalty to the agenda of organized labor, trial lawyers and various grievance groups. Although....Senate Republican have a point about being cynically criticized for going slow on a veterans benefits bill. Where the demand for alacrity now? (The Swamp from The Baltimore Sun has a good rundown of the machinations, and The Corner relates the Republican objections.)

Just as long as the legislation goes down. Contrary to what editorialists at The Washington Post ("Fair Pay, Fair Play") and the New York Times ("Pass the Fair Pay Act") claim, this bill does not correct a faulty Supreme Court ruling, this bill opens the floodgates to discrimination lawsuits ad infinitum nauseum. As the NAM's Key Vote letter makes clear, statutes of limitations were written into the law for a reason -- one being the prevention of decades of increasingly tenuous employment discrimination suits.

It won't come to that, but the President is indicating a veto. The White House released its Statement of Administration Policy on the bill yesterday, which you can read here. A good statement, emphasizing the value of statutes of limitations.

This legislation does not appear to be based on evidence that the current statute of limitations principles have caused any systemic prejudice to the interests of employees, but it is reasonable to expect the bill's vastly expanded statute of limitations would exacerbate the existing heavy burden on the courts by encouraging the filing of stale claims.

April 22, 2008

Another Ledbetter Observation

In writing about the Ledbetter "fair pay" legislation to be considered in the U.S. Senate tomorrow, we neglected to link to a good analysis of the bill that Ted Frank wrote for NPR's "Talking Justice" blog last February. His conclusion:

Employers are not stupid. To the extent every employee is a potential lawsuit, that is a cost of hiring an employee. As those costs go up, employers will hire fewer employees, and charge "insurance" to the employees they do hire by reducing their wages to account for the possibility of a future lawsuit. If the misnamed "Lilly Ledbetter Fair Pay Act" passes, the vast majority of workers will be worse off, as money that would have gone to pay employees will instead go to pay attorneys. There should be a better reason to pass such harmful legislation than the fact that Ms. Ledbetter's attorney sued under the wrong statute. If Congress really wishes to help workers, they should reject this legislation, and aim a closer eye at the liability system that hurts our economy.