Friday, March 16, 2012

Discrimination Against the Unemployed: D.C. Follows New Jersey and Prohibits Discrimination Against the Unemployed

            On March 6, 2012 the D.C. City Council unanimously passed the District of Columbia Unemployed Anti-Discrimination Act of 2012.  Once the opportunity for Congress to override under the Home-Rule Act lapses and it is published in the D.C. Register, the law becomes effective.  Recently, New Jersey became the first state to enact such a law.  New Jersey Statutes, Title 34, Chap. 8B, § § 1-2-C.34B-1 to 34:8B-2 (A.3359/S.2388, approved March 29, 2011).  The Congress is considering federal legislation.  See Fair Employment Opportunity Act of 2011, H.R. 2501, S. 1471, 112th Cong. (2011).  The National Employment Law Project (NELP) issued a report on the subject of discrimination against the unemployed.  See NELP, Hiring Discrimination Against the Unemployed, Briefing Paper (July 12, 2011) (online at: (the “NELP Report”).  And, the EEOC held a public hearing on the subject.  See Media Advisory, EEOC to Examine Treatment of Unemployed Job Seekers, (February 16, 2011) (online at:  

            In addition to an overview of unemployment discrimination and legislative attempts to address this problem, the NELP report provided a sampling of job postings and employers explicitly requiring in their posted announcements that applicants be currently employed.  The list includes such employers as Allstate Insurance (Licensed P&C Team Member), Johns Hopkins University (Research Program Supervisor), McGuire Woods, LLP (Legal Secretary), and the University of Phoenix (Professor).  NELP Report at pp. 8-11 (online at nocdn=1).  

            Given the demographics of the 8.3% unemployed (7.3% among Caucasians and 14.1% among African Americans), it would seem that an across-the-board prohibition on considering the unemployed may very well have a statistically significant disparate impact on African American job applicants, Hispanic job applicants, and older job applicants.  See Bureau of Labor Statistics, Employment Status of the Civilian Population by Race, Sex, and Age (online at; Media Advisory, EEOC to Examine Treatment of Unemployed Job Seekers, Testimony of William E. Spriggs, Assistant Secretary for Policy, U.S. Dep’t. of Labor, (February 16, 2011) (online at:  Thus, I would expect, if they have not already been filed, for a spate of lawsuits to be initiated against companies that have such absolute bans.  

            I dare not predict whether federal legislation will pass, but, as I practice in D.C., the new D.C. law banning discrimination against the unemployed, will quickly bring some troublesome issues to my desk.  For example, I often say to clients an aphorism: “Whoever has a job is more likely to find a new job.”  And, I add in the dialogue with clients the reality that he/she who does not have a job has less bargaining power compared to those applicants who are employed in terms of their initial compensation package.  So, given the new law, I wonder how the Courts will address the claim that undoubtedly will be made that offering a lower compensation package to an unemployed applicant than one offers to an employed applicant constitutes discrimination against the unemployed.  

            All of this also leads me to grind my teeth about the fact that, for some two decades now, employers cannot obtain from an applicant’s former employers a meaningful job reference.  Former employers will provide no meaningful information regarding either the high performers or the ne’er-do-wells.  Thus, the job applicants who have demonstrated proficiency at work and who have an excellent work ethic cannot get a reference.  And, the “bad guys” oftentimes slip under the radar screen because prospective employers can obtain little or no information.  So, in the neutral reference world in which we live, prospective employers have to guess about the reasons a job applicant is unemployed.  Was the applicant really RIF’ed, or is that just a ruse?  Did the applicant really resign to seek other opportunities, or is that just a tissue-thin disguise for an involuntary termination?  How will these new laws banning discrimination against the unemployed affect human resources departments who are on the front line winnowing through scores of applications, attempting to identify those who may be productive.  The new D.C. law explicitly states: “Nothing in this act is intended to preclude an employer or employment agency from examining the reasons underlying an individual’s status as unemployed in assessing an individual’s ability to perform a job or in otherwise making employment decisions about that individual.”  See D.C. Unemployed Anti-Discrimination Act of 2012, Legis. No. B19-0486 § 5(b).

            Few, and not I, would quibble with the new laws’ prohibition on advertisements, like some of those uncovered in the NELP study, that blatantly exclude the unemployed from any consideration for employment.  Having said that, one cannot help but wonder whether, other than that salutary effect, the new legislation will be of any benefit to the unemployed.  Time will tell.

Thursday, March 15, 2012

Federal District Court Expresses Skepticism Regarding D.R. Horton: Horton Hears a Wu

I was just a no one only yesterday.
You showed up and showed me something more.
Now I've become a someone
Who has someone to believe in
And to be there for...

“Notice Me Horton”
Lyrics by Lynn Ahrens & Stephen Flaherty
Based on the writings of Theodor Geisel (Dr. Seuss)

            In Johnmohammadi v. Bloomingdale’s, Inc., No. 11-cv-6434 (C.D. Cali. Jan. 26, 2012) (tentative ruling), Judge Wu issued a Tentative Ruling with regard to Bloomingdale’s motion to compel arbitration and Plaintiff’s contention that Bloomingdale’s internal dispute resolution program, which precludes class action arbitrations, is unenforceable in light of the NLRB’s decision in D.R. Horton and Michael Cuda, NLRB Case No. 12-CA-25764 (Jan. 3, 2012) (online).  Judge Wu tentatively held that D.R. Horton is only applicable where the arbitration agreement was a condition of employment.  Judge Wu notes that the NLRB, in D.R. Horton, considered “whether an employer violates Section 8(a)(1) of the [NLRA] when it requires employees covered by the Act, as a condition of their employment, to sign an agreement that precludes them from filing joint, class, or collective claims addressing their wages, hours, or other working conditions against the employer in any forum, arbitral or judicial[,]” and found “that such an agreement unlawfully restricts employees’ Section 7 right to engage in concerted action for mutual aid or protection, notwithstanding the [FAA], which generally makes employment-related arbitration agreements judicially enforceable.”  Id. at 1.  Judge Wu noted that the NLRB had expressly limited the reach of its decision, and that it had not decided “the more difficult question[] of…whether, if arbitration is a mutually beneficial means of dispute resolution, an employer can enter into an agreement that is not a condition of employment with an individual employee to resolve either a particular dispute or all potential employment disputes through non-class arbitration rather than litigation in court.”  Id. at 13 n.28 (emphasis added).  Further, Judge Wu noted that the Board recognized that, in certain circumstances, an employee can voluntarily waive otherwise-protected substantive Section 7 rights.  Id. at 10.  

            The defense additionally had argued that “concerted activity” under the NLRA does not encompass class actions in pursuit of wage and hour labor rights.  Judge Wu, in his tentative ruling, declined to opine on that issue.  

            Judge Wu indicated that the Court “would find that a voluntary waiver of class representation in an employee arbitration agreement where the waiver does not function as a condition of employment would not run afoul of the NLRA.”  See Webster v. Perales, No. 3:07-cv-00919, 2008 U.S. Dist. LEXIS 7503 (N.D. Tex. Feb. 1, 2008) (employer required its employees to sign a waiver and arbitration agreement not as a condition of employment but in order to participate in an employee injury benefit plan).  

            Judge Wu found that the plaintiff in the instant case could not establish that enforcement of the representative/class action waiver in this case would violate her Section 7 rights, as plaintiff mades no argument that she was coerced into entering into the arbitration agreement.  

            So, Judge Wu’s decision, albeit tentative, leaves open the question of what or who is in the egg that Horton is hatching.  With apologies to Judge Wu, I just couldn’t resist.

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Pregnancy and Pregnancy-Related Conditions Continue to Engage the Attention of the Courts, Regulators, Employers, and Employees

            There has been an extraordinary amount of activity of late regarding pregnancy and pregnancy-related issues, and this post will refer to but a few.  

I.                 Pregnancy Discrimination

            On February 15, 2012, the EEOC held a hearing where speakers discussed unlawful discrimination against pregnant workers and workers with caregiving responsibilities.  The testimony can be found at  At the hearing, written testimony was received from both Ms. Peggy Mastroianni, Legal Counsel with the EEOC, and Ms. Melvina Ford, Senior Policy Advisor in the Wage and Hour Division of the Department of Labor.  Ms. Ford in particular addressed the issue of nursing mothers, noting that the Affordable Care Act, P.L. 111-148 § 4207 amended section 7 of the Fair Labor Standards Act, 29 U.S.C. § 207(r) to require employers to provide nursing mothers with break time and private space in which to express breast milk.  Furthermore, in December of 2010 the Wage and Hour Division published a Request for Information at 75 Fed. Reg. 80073 (Dec. 21, 2010) seeking comments to certain questions on the Department’s preliminary interpretations of the law.  See also 29 U.S.C. § 207(r)(3) (undue hardship exemption from the FLSA); 75 Fed. Reg. 80075, 80076, 80078 (regulations relating to time, space, and enforcement of the requirements).  A follow-up blog will appear in this space once the full transcript of the hearing becomes available.  

            Professor Jeannette Cox has posted her forthcoming Boston College Law Review article entitled Pregnancy as “Disability” and the Amended Americans with Disabilities Act (online) in which she argues that even though pregnancy, while more often than not a healthy biological state, can be viewed as a workplace “disability.”  Based on that premise, Professor Cox argues that the duty to accommodate may extend to pregnancy.  

            In Been v. New Mexico Dep’t of Information Tech., No. 6:09-cv-00726, 2011 U.S. Dist. LEXIS 114982 (D.N.M. Sept. 30, 2011), a state employee who was fired while absent to deal with pregnancy complications established disputed issues of material fact on gender discrimination and FMLA claims.  The court allowed plaintiff’s claim to proceed despite the fact that she had failed to identify any similarly situated, non-pregnant, individuals who were treated more favorably, holding that such “comparison evidence” is not necessary to establish a prima facie case.  Following the Tenth Circuit’s opinion in Dodd v. Riverside Health Sys., Inc., 76 F.3d 392 (10th Cir. 1996), the court found that to make out a prima facie case of discrimination “a plaintiff need only show that her position remained open and was ultimately filled by a non-pregnant employee.” 

II.              Breastfeeding or Expressing/Pumping Breast Milk 

           In EEOC v. Houston Funding II, Ltd., CA H-11-2442, 2012 U.S. Dist. LEXIS 13644 (S.D. Tex. Feb. 2, 2012) (as amended Feb. 9, 2012), a case that has occasioned extensive commentary (see here, here, and here for a small sampling), Judge Lynn N. Hughes held that “[f]iring someone because of lactation or breast-pumping is not sex discrimination.”  (footnote omitted).  Judge Hughes relies on Puente v. Ridge, No. M-04-267, 2005 U.S. Dist. LEXIS 46624, at *11-12 (S.D. Tex. July 6, 2005) (on the facts before it, breast feeding did not qualify for protection under the Pregnancy Discrimination Act, 42 U.S.C. § 2000e(k)); Martinez v. NBC Inc., 49 F. Supp. 2d 305, 311 (S.D.N.Y. 1999) (prohibition on breast pumping did not show that female employee was treated differently than non-pregnant men who were similarly situated); Jacobson v. Regent Assisted Living, Inc., No. CV-98-564-ST, 1999 U.S. Dist. LEXIS 7680, at *29-30 (D. Or. Apr. 9, 1999) (to the extent that plaintiff based her claims on employer’s prohibition on breast pumping, she failed to state a claim); Wallace v. Pyro Mining Co., 789 F. Supp. 867, 869 (W.D. Ky. 1990) (so long as employees are treated the same under benefits plan, no disparate impact claim despite exclusion of coverage for uniquely female condition of pregnancy).

In Puente, the federal district court for the Southern District of Texas reviewed several opinions from courts which have addressed this issue and concluded that:
 Those few courts which have addressed the issue have generally held that breast-feeding is not a condition within the scope of the PDA. See Fejes v. Gilpin Ventures, 960 F. Supp. 1487 (D. Colo. 1997)(Based on the language of the PDA, its legislative history, and decisions from other courts interpreting the Act, the district court held that breast-feeding is not a condition within the scope of the PDA; breast-feeding is not a medical condition related to pregnancy or childbirth within the meaning of the PDA); Vachon v. R.M. Davis, Inc., 2004 U.S. Dist. LEXIS 6339 (D. Me., 2004). While these opinions are not controlling on this Court, the Court will follow the holdings of these cases. As a result, Plaintiff's decision to breast feed in the present case does not afford her protection under the PDA [and as a result neither under Title VII.] See e.g. Molero v. Port Cargo Enters., LLC, 2005 U.S. Dist. LEXIS 5519, *9 (E.D. La. 2005)(Generally in order to support a hostile work environment sexual harassment claim, an employee is required to show that (1) she belongs to a protected group; (2) she was the subject to unwelcome sexual harassment; (3) the harassment complained of was based on sex; (4) the harassment complained of affected a term, condition, or privilege of employee; and (5) the employer knew or should have known of the harassment and failed to take prompt remedial action.). As a consequence, even viewing Plaintiff's allegations in a light most favorable to her, Plaintiff's claims of gender discrimination, hostile work environment, and disparate treatment fail to state a claim upon which relief can be granted. Accordingly, the Court orders that Plaintiff's claims of gender discrimination, hostile work environment and disparate treatment be DISMISSED.

III.            Protection for Pre-Eligibility Activity Under the FMLA

As we have previously noted, not all courts have taken this path in determining the pregnancy-related protections afforded to women.  In Pereda v. Brookdale Senior Living Cmtys., Inc., No. 10-14723, 2012 U.S. App. LEXIS 492 (11th Cir. Jan. 10, 2012), the Court ruled on two issues relevant here:

1)     The Court found that plaintiff’s interference claim could proceed “because the [Family Medical Leave Act] contemplates notice of leave in advance of becoming eligible, i.e., giving birth to a child, the FMLA regulatory scheme must necessarily protect pre-eligible employees, such as [plaintiff], who put their employers on notice of a post-eligibility leave request.” 
2)     In addition, the Court found that plaintiff could also state a cause of action for retaliation, holding that “a pre-eligible request for post-eligible leave is protected activity because the FMLA aims to support both employees in the process of exercising their FMLA rights and employers in planning for the absence of employees on FMLA leave.” 

See our blog post on Pereda and related cases for further discussion of these issues. 

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District Courts Diverge over Application of State “Anti-SLAPP” Statutes in Federal Court

            Conflicting holdings issued by federal District Courts located in the Eastern District of Louisiana and the District of Columbia deepen a growing divide over the application of state “anti-SLAPP” statutes to claims before federal courts sitting in diversity.  The crux of the disagreement is whether the laws are “substantive” or “procedural” under the Supreme Court’s decision in Erie and, also, whether they conflict with the Federal Rules of Civil Procedure.

            In Louisiana Crisis Assistance Ctr. v. Marzano-Lesnevich, No. 11-2102, 2011 U.S. Dist. LEXIS 135374 (E.D. La. Nov. 23, 2011), the Court, following decisions of the First and Ninth Circuits, held that Louisiana’s Anti-SLAPP law was applicable in federal court.  See Godin v. Schencks, 629 F.3d 79 (1st Cir. 2010); U.S. ex rel Newsham v. Lockheed Missiles & Space Co., 190 F.3d 963 (9th Cir. 1999).  The “primary thrust” of the argument that Louisiana’s Anti-SLAPP law could not apply in federal court, as identified in Marzano-Lesnevich, was that it placed a heightened burden on plaintiff opposing a special motion to strike above that required by either Rule 12 or Rule 56.  However, the Court held that the “vast majority” of authority suggested that “the burden imposed on a plaintiff opposing a special motion to strike is functionally equivalent to the burden imposed on the non-movant in a motion for summary judgment.”

            By contrast, in 3M Co. v. Boulter, No. 11-cv-1527, 2012 U.S. Dist. LEXIS 12860 (D.D.C. Feb. 2, 2012), the federal District Court for the District of Columbia found that D.C.’s anti-SLAPP law did “directly conflict” with the Federal Rules of Civil Procedure, rendering it inapplicable to actions before the Court sitting in diversity.  In so holding, Judge Wilkinson explained that D.C.’s Anti-SLAPP act “operates greatly to a defendant’s benefit by altering the procedure otherwise set forth in Rules 12 and 56…by setting a higher standard upon the plaintiff to avoid dismissal”.  Id. at *42-*43.  Indeed, the court determined that “that is the precise reason that the District enacted the statute and why Defendants so vigorously seek its protections.”  Id.  Concluding a “careful examination” of the Act, Judge Wilkinson held that “it squarely attempts to answer the same question that Rules 12 and 56 cover and, therefore, cannot be applied in a federal court sitting in diversity.”  Id.

While no Circuit Court has found a state anti-SLAPP law inapplicable in these circumstances, Judge Wilkinson’s decision is in accordance with decisions from district courts in the First, Seventh, and Eleventh Circuits.  See Stuborn Ltd. P’ship v. Bernstein, 245 F. Supp. 2d 312, 316 (D. Mass. 2003)(concluding that Massachusetts' anti-SLAPP statute directly conflicts with the Federal Rules 12 and 56); S. Middlesex Opportunity Council, Inc. v. Town of Framingham, CA No. 07-12018, 2008 U.S. Dist. LEXIS 85764, 2008 WL 4595369, at *11 (D. Mass. Sept. 30, 2008)(agreeing with the holding in Stuborn, Ltd. that Massachusetts' anti-SLAPP statute directly conflicts with Federal Rules 12 and 56); Satkar Hospitality Inc. v. Cook Cnty. Bd. of Review, No. 10 C 6682, 2011 U.S. Dist. LEXIS 61554, 2011 WL 2182106, *5 (N.D. Ill. June 2, 2011)(concluding that Illinois anti-SLAPP motion which allowed assertion of a defense in lieu of filing an answer directly conflicted with Federal Rule 12); 1524948 Alberta Ltd. v. Lee, No 1:10-cv-02735, 2011 U.S. Dist. LEXIS 77365, 2011 WL 2899385, at *3 (N.D. Ga. July 15, 2011)(holding that Georgia's anti-SLAPP statute directly conflicts with Rule 8).
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When Is Employee Acquisition of Employer Information, Contrary to Workplace Rules, Nonetheless Protected Activity

            Plaintiffs have long contended that removal of documents and electronically stored information from their employer, even though ordinarily viewed as misconduct, can constitute “protected activity” under retaliation statutes where the information was removed as part of the employee’s efforts to gather evidence against the employer.  The most dramatic court decision on this issue in recent times is that of the New Jersey Supreme Court in Quinlan v. Curtiss-Wright, 8 A.3d 209 (N.J. 2010).  In Quinlan, the Court held that while defendant could terminate plaintiff for the act of taking documents, it could not terminate her for using them in support of her claim against the company.  

            The Seventh Circuit’s brief opinion in Loudermilk v. Best Pallate Co., LLC, 636 F.3d 312 (7th Cir. 2011) is also instructive on this topic.  In Loudermilk, the Court was faced with a situation in which plaintiff was terminated for violating the employer’s policy against taking pictures in the workplace.  Chief Judge Easterbrook, writing for the panel, held that if the reason that the plaintiff took pictures of the work site was to bolster his claim of discrimination, “then forbidding picture-taking looks a lot like an attempt to block the gathering of evidence during an investigation.”  Plaintiff, an African American, had alleged that he was assigned to work alone on one side of a piece of equipment; whereas two or more Hispanic employees were assigned to work on the other side, and that when he could not keep up with the work, he was criticized.  While Plaintiff was talking with the EEOC about filing a charge, he took some pictures of the work area, apparently to show the EEOC (and, if necessary, a court) how the machine was set up and why it needed two employees on each side.  When plaintiff was observed taking the pictures, he was fired on the spot.  

            In finding that the picture-taking was protected activity, Judge Easterbrook hastened to add the following: “We don’t say that § 2000e-3(a) allows workers to break locks and rifle managers’ desk drawers in search of evidence; our point is that a ‘policy’ that may have been devised to curtail an investigation is not the sort of neutral rule that would adequately explain a discharge.” 

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Thursday, March 1, 2012

When Is A Time Limit Jurisdictional And When Is It In The Nature Of A Statute of Limitations?

Within just the past week, three circuits have addressed this question in the wake of the Supreme Court’s recent decision in Henderson ex. rel Henderson v. Shinseki, 131 S. Ct. 1197, 1202-03 (2011). On February 24th, the Fifth Circuit, in a case under the Tax Equity and Fiscal Responsibility Act (“TEFRA”), addressed whether 26 U.S.C. § 6226(a)’s time limit is jurisdictional or a claim-processing rule. The Court, Judge Garza writing for the panel, in A.I.M. Controls, L.L.C. v. Comm’r of Internal Revenue, No. 11-60044, 2012 U.S. App. LEXIS 3713 (5th Cir. Feb. 24, 2012), held that the 90 day period within which to petition from the government’s determination that the plaintiff was a sham partnership formed to avoid tax liability was jurisdictional.

The same day, the Seventh Circuit in McReynolds v. Merrill Lynch, Pierce, Fenner & Smith, Inc., No. 11-3639, 2012 U.S. App. LEXIS 3683 (7th Cir. Feb. 24, 2012), addressed whether Civil Rule 23(f)’s 14 day period to take an appeal from the denial or grant of class action status was jurisdictional. Judge Posner, writing for the panel,  held that the time limit, “having been created by the Court rather than by Congress… is governed by the ‘competence’ standard and therefore is not jurisdictional…” See also In re IFC Credit Corp., 663 F.3d 315, 319-20 (7th Cir. 2011).

On February 29th, the Tenth Circuit, in United States v. McGaughy, No. 11-2030, 2012 U.S. App. LEXIS 4102  (10th Cir. Feb. 29, 2012) addressed whether Federal Rule of Criminal Procedure 35’s 14 day window for correction of a sentencing error was jurisdictional. Judge Tymkovich, writing for the panel, and noting that the Tenth Circuit as recently as 2005 had held that the time limit was jurisdictional, joined the Ninth, First, Third, Sixth and Seventh Circuits reaffirming that the time limit in Rule 35 is jurisdictional.

All of this activity has been generated by the 2011 Supreme Court decision in Henderson. In Henderson, the Court clarified when procedural rules should or should not be considered jurisdictional requirements. There, the Court dealt with a 120-day statutory deadline to appeal the denial of federal benefits to the Veterans Court under the Veterans’ Judicial Review Act. The Court held that the filing deadline was not Jurisdictional. In doing so, the Court reiterated earlier cases in which it had sought “to bring some discipline to the use” of the jurisdictional label. 131 S. Ct. at 1202; See also Arbaugh v. Y & H Corp., 546 U.S. 500, 515 (2006) (“Jurisdiction… is a word of many, too many, meanings.”) (quoting Steel Co. v. Citizens For Better Env’t, 523 U.S. 83, 90 (1998)); Reed Elsevier Inc. v. Muchnick, 130 S. Ct. 1237, 1244 (2010) (“Our recent cases evince a marked desire to curtail such ‘drive-by jurisdictional rulings’… [W]e have encouraged federal courts and litigants to ‘facilitat[e]’ clarity by using the term ‘jurisdictional’ only when it is apposite.”).

In Henderson a unanimous Court held that “filing deadlines… are quintessential claim-processing rules” that “should not be described as jurisdictional” unless “there is any ‘clear’ indication that Congress wanted the rule to be ‘jurisdictional.’” 131 S. Ct. at 1203 (quoting Arbaugh, 546 U.S. at 515). The Court in Henderson emphasized that the “bright line rule for deciding such questions” turns on clear Congressional intent. 131 S. Ct. at 1203 (“with these principles in mind, we consider whether Congress clearly prescribed that the deadline for filing a notice of appeal with the Veterans Court should be ‘jurisdictional’”).

I direct readers’ attention to Henderson and the recent spate of activity in the circuits as, quite obviously, Henderson and its progeny impact on employment law which contains a plethora of time limits, many of which have, historically, been loosely characterized as “jurisdictional”. Henderson teaches us that most of these time limits are not jurisdictional and should be treated as claims-processing rules, that is, in the nature of statutes of limitations which can be waived and tolled depending upon the particular facts. 

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