EEOC Wins Summary Judgment in Religious Head Scarf Case

Image courtesy of crochetascarf.com

We have written often on the banning of religious garb, whether in the workplace or otherwise.  See, e.g., our article on banning the wearing of burquas (here), our article on the push in France to ban the wearing in public of Muslim veils (here), and our article on the Third Circuit affirming a workplace head scarf ban (here).

In a recent development on this issue, the EEOC recently won a motion for summary judgment, in a religious discrimination case involving the wearing of a religious head scarf. See EEOC v. Abercrombie & Fitch Stores, Inc., No. 11-cv-03162-YGR, 2013 U.S. Dist. LEXIS 125628 (N.D. Cal. Sept. 3, 2013).  The defendant in that case, Abercrombie & Fitch, Inc., operates retail stores across the country under the brand names Abercrombie & Fitch, Hollister Co., Abercrombie Kids, and Gilly Hicks. Id. at 4.  The case revolved around Abercrombie’s “Look Policy”, which sets forth certain rules regarding employee appearance, including a prohibition on wearing any form of headwear. Id. at *6-7.  All in-store Abercrombie employees were required to comply with the Look Policy, are to be informed of the Look Policy during the job interview process, and are required to sign an acknowledgement of the Look Policy when they are hired. Id. at *7.  The Look Policy also appears in Abercrombie’s handbook. Id.

Plaintiff, Ms. Umme-Hani Khan, a Muslim, believes that Islam requires her to wear a head scarf, also known as a hijab, when in public or in the presence of men who are not immediate family members. Id. at *7-8.  For more on the practice of wearing a hijab among Muslim women, see Kim Parker, Women, Islam, and Hijab, Postcolonial Studies @ Emory (May 2012) (available here); Islam’s Women: Jewels of Islam, The Virtues of Hijab (available here); Al-Islam.org, The Qur’an and Hijab (available here).  At the time Ms. Khan was hired, she had fully adopted the practice of wearing a head scarf on the above occasions, and she therefore wore a head scarf when she interviewed for the position. Id. at *8.  She acknowledged the Look Policy, and agreed to abide by it. Id. 

Ms. Khan worked for Abercrombie from October 2009 to February 2010, all the time wearing her head scarf. Id. at *9.  Local supervisors allowed her to wear her head scarf so long as it matched company colors (the Look Policy was a part of Abercrombie’s marketing strategy, aimed at “communicating the spirit of” the store’s brand). Id. at *6-7, *9.  Her store managers never informed her that she was not complying with the Look Policy. Id. at *9.

In February of 2010, a District Manager made a regularly scheduled visit to the store at which Ms. Khan worked, noted that Ms. Khan was not in compliance with the Look Policy, informed Ms. Khan of same a few days later, and asked Ms. Khan if she could take her head scarf off. Id. at *10.  Ms. Khan responded that she could not take the head scarf off because it was part of her religion.  Within weeks, Abercrombie suspended and then fired Ms. Khan, solely due to her non-compliance with the Look Policy. Id. at *10-11.  Eleven days after the termination, Abercrombie offered Ms. Khan an unconditional offer of reinstatement with the accommodation of being allowed to wear her head scarf to work, but Ms. Khan declined the offer of reinstatement. Id. at *11.

At the time that Ms. Khan filed her charge of discrimination with the EEOC, the EEOC was involved in two other cases against Abercrombie in connection with the wearing of headscarves – one case alleging a refusal to hire an applicant for an associate position because she wore a hijab, and the other alleging a refusal to hire a woman as a model because she wore a hijab. Id. at *11-12.  The EEOC found reasonable cause to believe that Abercrombie had discriminated against Ms. Khan in violation of Title VII. Id. at *13.  The EEOC unsuccessfully attempted to jointly settle all three cases with Abercrombie.  Id. at *12-13, *15. The EEOC, as a part of a conciliation effort, attempted to get Abercrombie to agree to modify its policies to allow the wearing of head scarves by all employees, but Abercrombie rejected that proposal, as the EEOC’s proposed policy modification did not allow for a case-by-case consideration of whether employees should be permitted to wear head scarves. Id. at *13-14.  After continued unsuccessful efforts at conciliation and settlement, EEOC filed suit on behalf of Ms. Khan as Plaintiff-Intervenor. Id. at *15-16.

In litigation, Abercrombie raised a number of affirmative defenses, including that the EEOC failed to engage in conciliation in good faith, Id. at *19, that Abercrombie’s Look Policy is protected commercial free speech, Id. at *24, that accommodating Ms. Khan’s religious beliefs would constitute an undue hardship, Id., and that punitive damages and injunctive relief were not warranted, Id. at *46-47, *50.  Judge Yvonne Gonzalez Rogers of the U.S. District Court for the Northern District of California granted the plaintiffs’ motion for summary judgment (and denied Abercrombie’s cross-motion) as to all of those issues, as well as to the issue of liability. Id. at *23-24, *41, *45, *50, *56.

Abercrombie did not dispute that the plaintiffs had established a prima facie case of unlawful discrimination. Id. at *29.  As to liability, setting aside the procedural issues about good faith conciliation and whether punitive and injunctive relief was available, Abercrombie based its defense solely on its undue hardship and commercial free speech defenses.

Abercrombie’s undue hardship defense was that the Look Policy was “key to Abercrombie’s success and/or that deviations from the policy ‘detract from the in-store experience and negatively affect [the] brand.’” Id. at 32.  Judge Gonzalez Rogers rejected that argument, as it was based only on the testimony of Abercrombie employees as to their “beliefs” based on “personal experience” about the effects of the Look Policy, and not on any hard data.  Id. at *35-37.  The Judge therefore found the employees’ “beliefs” to be “speculative and purely subjective in nature,” and that “[a] reasonable jury could not conclude that Abercrombie would be unduly burdened by allowing Khan to continuing [sic] wearing her hijab as she had been prior to February 2010.”  Id. at *38, *41.

Abercrombie’s commercial free speech defense, which Judge Gonzalez Rogers characterized as a “novel argument,” was that “the store associates should be classified as ‘living advertisements’ for [Abercrombie’s] brand and therefore their appearance is protected as commercial free speech.” Id. at *42.  The standard for a finding of commercial free speech was succinctly summarized by the Court as follows:

Commercial speech is that ‘which does 'no more than propose a commercial transaction.’’ Valle Del Sol Inc. v. Whiting, 709 F.3d 808, 818 (9th Cir. 2013) (quoting Va. State Bd. of Pharmacy v. Va. Citizens Consumer Council, Inc., 425 U.S. 748, 762, 96 S. Ct. 1817, 48 L. Ed. 2d 346 (1976)). The test for determining whether commercial speech exists is set forth in Bolger v. Youngs Drug Products Corp. There, the Supreme Court held that commercial speech can be found where the speech: (i) is an advertisement; (ii) refers to a particular product; and (iii) the speaker has an economic motivation for the speech. 463 U.S. 60, 66-67, 103 S. Ct. 2875, 77 L. Ed. 2d 469 (1983) (holding that the ‘combination of all these characteristics’ provided ‘strong support’ that the pamphlets at issue were properly characterized as commercial speech). Commercial speech is entitled to constitutional protection, albeit a lesser degree of protection than is afforded to other forms of speech. See Central Hudson Gas & Elec. Corp. v. Public Service Comm'n of New York, 447 U.S. 557, 562-63, 100 S. Ct. 2343, 65 L. Ed. 2d 341 (1980).

Id. at *41-42.  The Court concluded that Abercrombie had not provided any authority to support its “novel argument”, and concluded that Abercrombie had failed in any event to satisfy the above standard to establish commercial free speech. Id. at *43. The Court based this decision primarily on the fact that the employees in question did much more than just purportedly “representing the brand,” given that “the employees’ responsibilities consist of ensuring shipments are complete, folding clothing, and placing/replacing clothing on the floor,” duties which were “primarily performed in the stockroom.” Id. at *44.  And, while the Look Policy restricted what employees could and could not wear, it did not require employees to wear only Abercrombie’s products. Id.

After also dispensing with Abercrombie’s argument about good faith conciliation, Judge Gonzalez Rogers granted the plaintiffs’ motion for summary judgment as to liability, “[t]here being no viable defense” thereto. Id. at *45.

As to Abercrombie’s arguments about the plaintiffs’ entitlement to injunctive relief, the Court explained the applicable standard as follows:

‘Generally, a person subjected to employment discrimination is entitled to an injunction against future discrimination, unless the employer proves it is unlikely to repeat the practice.’ E.E.O.C. v. Goodyear Aerospace Corp., 813 F.2d 1539, 1544 (9th Cir. 1987) (citations omitted). ‘[V]oluntary cessation of allegedly illegal conduct does not deprive the tribunal of power to hear and determine the case, i.e., does not make the case moot.’ County of Los Angeles v. Davis, 440 U.S. 625, 631, 99 S. Ct. 1379, 59 L. Ed. 2d 642 (1979) (quoting United States v. W. T. Grant Co., 345 U.S. 629, 632, 73 S. Ct. 894, 97 L. Ed. 1303 (1953)). However, an injunction may be unnecessary where there is no reasonable expectation that the alleged violation will recur and ‘interim relief or events have completely and irrevocably eradicated the effects of the alleged violation.’ County of Los Angeles, 440 U.S. at 631. To obtain an injunction, the ‘necessary determination is that there exists some cognizable danger of recurrent violation, something more than the mere possibility which serves to keep the case alive.’ W. T. Grant Co., 345 U.S. at 633.

Id. at *46. The plaintiffs sought an “injunction enjoining Abercrombie from engaging in practices which discriminate on the basis of religion, and an order that Abercrombie institute policies, practices, and programs providing employment opportunities for employees of all religions and which ‘eradicate’ effects of past unlawful practices”. Id. at *45.  Abercrombie opposed such an injunction, arguing that (a) Abercrombie had offered Ms. Khan unconditional reinstatement with the accommodation of wearing her hijab; (b) there was no threat of future, recurring violations, as Abercrombie had made “significant policy changes” since the events in question; and (c) the injunction was overbroad. Id. at *46-47.  The Court denied Abercrombie’s summary judgment motion on this issue, finding triable issues as to whether the changes in Abercrombie’s policies “completely and irrevocably eradicated the effects of the alleged violation.” Id. at *49.  The Court pointed to evidence that Abercrombie had changed its policies due to the instant litigation rather than because of the law, and on the fact that several of Abercrombie’s witnesses continued to believe that wearing religious headwear harmed Abercrombie’s image and brand. Id. at *49-50.  As to Abercrombie’s argument as to the breadth of the contemplated injunction, Judge Gonzalez Rogers concluded that the record was not sufficiently developed to determine that issue. Id. at *50.

Finally, the Court rejected Abercrombie’s summary judgment motion regarding the availability of punitive damages, finding that “[r]easonable jurors could determine that by offering Khan one option – to remove her hijab despite her religious beliefs – Abercrombie acted with malice, reckless indifference or in the face of a perceived risk that its actions violated federal law.” Id. at *55.  As to Abercrombie’s anti-discrimination policies, the Court concluded that triable issues existed as to whether those policies were implemented in good faith, and that there was insufficient information in the record to determine whether deterrence or punishment would be necessary. Id. at *56.

 

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Can an Employer in the Employment Application Shorten the Statute of Limitations for Anti-Discrimination Claims?

The answer, rather uniformly, is affirmative. Recently, in Dunn v. Gordon Food Services, Inc., 2011 U.S. Dist. LEXIS 13387 (W.D. Ky. Feb. 10, 2011), Chief Judge Russell upheld the employer's shortening of the statute of limitations where the employment application with Ms. Dunn, on its last page, had eleven clauses to which the applicant had to agree as a condition of being considered for employment, and the fourth clause stated that the applicant agreed "that any action or suit against [the employer] arising out of any employment or termination of employment, including but not limited to claims arising under the State or Federal civil rights statutes, must be brought within one year of the event giving rise to the claim or be forever barred."  This clause went on to state that the applicant "waive[d] any statute of limitations to the contrary."  The Court, citing a plethora of authorities, both inside and outside the Sixth Circuit upholding such provisions, sustained the defense motion for summary judgment based on that clause.  See also Ravenscraft v. BNP Media, Inc., No. 09-C-6617, 2010 U.S. Dist. LEXIS 37919, 2010 WL 1541455, at *1 (N.D. Ill. Apr. 15, 2010); PSC Info Group v. Lason, Inc., 681 F. Supp. 2d 577, 587 (E.D. Pa. 2010); Cole v. Federal Exp. Corp., No. CV-06-3485, 2008 U.S. Dist. LEXIS 71431, 2008 WL 4307090, at *9 (E.D. Pa. Sept. 19, 2008); Vincent v. Comerica Bank, No. H-05-2302, 2006 U.S. Dist. LEXIS 28613, 2006 WL 1295494, *5-6 (S.D. Tex. May 10, 2006); Badgett v. Federal Express Corp., 378 F. Supp. 2d 613 (M.D.N.C. 2005); Fink v. Guardsmark, LLC, No. CV 03-1480-BR, 2004 U.S. Dist. LEXIS 16970, 2004 WL 1857114, at *1 (D. Or. Aug. 19, 2004); Johnson v. DaimlerChrysler Corp., No. C.A. 02-69 GMS, 2003 WL 1089394, at *1 (D. Del. Mar. 6, 2003).

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Metadata: Some practical advice

Baseball

"I ain't ever had job. I just always played baseball." - Leroy Robert "Satchel" Paige

Hangman's Noose

As I mentioned on Friday, it seems like hardly a day goes by without some idiot insulting African-Americans with a display of a hangman's noose. The latest incident involves a "stupid little prank" that occurred at the construction site for the new baseball park in Washington, DC. See http://www.washingtonpost.com/wp-dyn/content/article/2008/01/25/AR2008012503068_pf.html
- and -
http://www.washingtonpost.com/wp-dyn/content/article/2008/01/24/AR2008012403173.html

DOL to Propose FMLA Regulatory Changes

Late last week, DOL officials reported that they have forwarded to OPM proposed new regulations that eventually will be published for public comment. Apparently, the proposals address, among other issues, the notice that employees generally would be required to provide to employers requesting a leave before actually taking the leave. Current regulations allow employees to take off for two days before even requesting FMLA leave. In addition, apparently the proposed regulations would permit employers to require health care providers to recertify annually that an employee has a serious health condition. Current regulations provide that healthcare providers can submit a multiyear certification of a serious health condition. As of the weekend, no one yet had an actual copy of the proposed regulations. Once we have them, we will comment further.

New Leave Law in Defense Authorization Act


The Defense Authorization Act provides that family members would be allowed to take up to six months of unpaid leave to care for wounded military personnel. The Act also would allow for employees to take up to twelve weeks of unpaid leave "for any qualifying exigency" related to a family member's call-up to active duty or deployment. See http://www.govtrack.us/congress/bill.xpd?bill=h110-4986.

The Power of One


In the last few weeks, there has been a hue and cry about the power of words alone to inspire change. Over the past few days, I have been reading a wonderful book published in 1941 by A.J. Cronin entitled The Keys of the Kingdom. Apparently within four months of the original publication, the book sold more copies than the publisher, a major publishing house, had sold since its foundation shortly after the turn of the century. I got interested in the author, and started to do a little research. One of his books, The Citadel, resulted in the establishment in the United Kingdom of the National Health Service. Wikipedia reports that "the popularity of his novels played a substantial role in the Labour Party's landslide 1945 victory." Having said that, I cannot recommend more highly the book that I am reading, The Keys of the Kingdom. Great read.

Corporate Social Responsibility


In the January / February 2008 issue Foreign Affairs, Klaus Schwab has an interesting article on CSR entitled "Global Corporate Citizenship: Working with Governments and Civil Society." Mr. Schwab is the Executive Chair of the World Economic Forum which just met Davos, Switzerland. See http://www.foreignaffairs.org/20080101faessay87108/klaus-schwab/global-corporate-citizenship.html.

Metadata

I thought that I would share with our readers, a very thorough analysis of the metadata problem that a colleague recently sent to me.

Starting with the facts in your email, it appears that you are interested in understanding the obligations of the producer and also the recipient of a document containing metadata that is exchanged during the negotiations (including grant requests and proposals) of a business transaction. With this in mind, my initial observation of your use of the term "metadata" is that you are concerned primarily with the feature in Microsoft's Word that is commonly known as "track changes," but should also include the data within the "properties" tab and "comments" of a document.

Reflecting first upon the recipients' obligations with respect to receiving a document that contains metadata available for review, currently I am not aware of any law that prohibits review of the metadata by the recipient. I am aware of a few state bars and an initial position paper from the ABA (that was later revised) that would suggest it is unethical for an attorney to review and/or "mine" for such metadata, in a business document, but the majority of the state bar associations would suggest that no ethical violation has occurred in such cases.

Since it is too difficult for a recipient to determine whether the "track changes" metadata was intentionally available for review, my opinion is that the recipient does not have either a legal or ethical obligation to refrain from reviewing the metadata available in these documents, nor does he or she have the responsibility of informing the producer of the availability of such data. I would add, however, that it has been a courtesy practice of mine to inform the producer in obvious cases that such metadata exists in their files.

From a producer's perspective, while from a practical and strategic perspective it may be devastating, I do not know of any law (other than the foregoing bar association opinions) that directly prohibits a producer from distributing documents with metadata. There may be, however, some ethical rules that may apply here, such as Rule 1.6 concerning the confidentiality of client information in those cases where the metadata contains client information. This rule along with the varying levels of knowledge among attorneys regarding metadata, and of the tools used to prevent the "leakage" of metadata, suggest that the vehicle that will be used in the near future is malpractice to establish a minimum standards on what steps should be taken by attorneys to mitigate the likelihood of distributing a document with metadata, which frankly is how these issues should be analyzed. I am certain that this standard will evolve in a manner similar to the standard used by attorneys in adopting the use of the internet, which was once feared for possibly disclosing confidential client information during the transmission of data and has now become commonly used by nearly all attorneys in their practice.

However, having said that, on a practical side, the easiest way to clean any of these files is to run them through one of the third party cleaners to remove any unwanted metadata and to "accept all" changes if track changes is not intended to be included, as well as checking the document for comments. These "scrubbers" are software programs that may be initiated either manually by a user or automatically by a system and it removes known metadata, such as the author, hyperlinks, track change information, comments etc. Most organizations will typically use these scrubbers to remove metadata that can be found in the "properties" tab of a document (and rely on the decision of the attorneys with respect to other forms of metadata such as comments and track changes), before transmitting a document to the other side.

While I do not endorse any scrubber product over any other, you may find that some work better than others in your environment, and they have different features that you may or may not find helpful. It is important to note, that while stripping down a document to the bare text will leave a document free of metadata, it will, in the most extensive examples of scrubbing, leave only raw text and thus, lose most, if not all of its formatting. Since we all need to have documents formatted in a coherent human readable form, there will always be a small amount of metadata that could be retrieved by someone, but the changes to a document that you refer to can be stripped out by the use of one of these scrubbers, and this combination of "accepting" all changes and using the software scrubber (to eliminate metadata stored in the properties field and, if selected, comments) can leave your formatting of the document untouched.

While the process you refer to of converting a document into a pdf file will remove most forms of metadata (except for track changes that have been left visible), the pdf produced by your method will create its own metadata viewable in the properties menu of the file. So in a situation that is highly sensitive, I might use this process and then run the pdf file through one of the scrubbers to eliminate the file property information. I agree that this process (as it does with discovery in litigation) results in a less efficient process when making revisions between parties during negotiations, and often frustrates business participants who want to make changes to the documents.

In the context of redaction, do not use any of the more advanced features of Adobe Acrobat like the redaction feature, because the redaction can be stripped out and then everything you redacted becomes visible. If trying to redact a document, I would use the NSA document and follow the directions on it for the best and wisest approach.

I hope I have clarified the issues for you, and while your colleagues had some valid suggestions, the answer to the metadata question is that it depends on the situation, the content of the metadata and what the desired result is to know which solution or combination of solutions is the best.

One note that might be of interest to you, is that the newest version of Microsoft Word (Word 2007) has included features that help to deal with the ever growing concern over metadata by including a stripping function that gets rid of the most common metadata attached to documents.

American "Can Do"

The Man Who Thinks He Can
by Walter D. Wintle


If you think you are beaten, you are.
If you think you dare not, you don't.
If you'd like to win, but think you can't,
It's almost a cinch that you won't.


If you think you'll lose, you're lost,
For out in the world we find
Success begins with a fellow's will.
It's all in the state of mind.


If you think you're outclassed, you are,
You've got to think high to rise.
You've got to be sure of yourself before
You can ever win a prize.


Life's battles don't always go
To the stronger or faster man,
But soon or late, the man who wins,
Is the man who thinks he can.


- Walter D. Wintle


Rick Majerus and Sayed Parwiz Kambakhsh

Two stories from different parts of the globe seem to have, in a sense, some striking similarities. Rick Majerus, basketball coach at St. Louis University, a Catholic institution, stated at a Hillary Clinton rally that he, a Catholic himself, is pro-choice. The St. Louis archbishop, Raymond Burke, has demanded that he be disciplined by the University and denied Holy Communion. See http://www.stltoday.com/stltoday/news/stories.nsf/religion/story/
30545D6CFAE202E1862573D90017AE3B?OpenDocument.

Thousands and thousands of miles away in Afghanistan, a court sentenced Sayed Parwiz Kambakhsh, a 23-year-old journalism student, to death for blasphemy for distributing an article from the Internet that was considered to be an insult to the Prophet Mohammad. See http://www.nytimes.com/2008/01/24/world/middleeast/24afghan.html?ref=todayspaper.

I leave it to you to judge whether there is or is not a striking similarity in terms of fundamentalism. 'Nough said before I lose the few readers that we have.


Hangmen's Nooses

It seems like hardly a day goes by without some idiot insulting African Americans with the display of a hangman's noose. Now, the EEOC announced a $465,000 settlement with a North Carolina furniture company, Henredon Furniture Industries, in a case arising, in part, out of the display of a hangmen's noose. See http://www.eeoc.gov/press/1-24-08.html.


In California, You Can Have Your Ganga, but Not Your Job

A divided California Supreme Court yesterday in Ross v. Ragingwire Telecommunications, Inc. 2008 Cal. LEXIS 784 (3d Dist. Ct. App., #C043392, 9/7/05) upheld the employer's termination of an employee who tested positive for ganga and who argued that to do so was disability discrimination because, pursuant to California's Compassionate Use Act of 1996, a doctor had recommended ganga for medical purposes.


Privacy and the Company Computer

Recently, in Scott v. Beth Israel Medical Center, 2007 WL 3053351, 2007 N.Y. App. Div. LEXIS 7561 (NY Sup. Oct. 17, 2007), the hospital and a doctor who had been formerly employed there, locked horns over emails on the hospital's computer system between the doctor and his attorney. The hospital argued that the privilege status of those communications had been waived by the doctor by virtue of the fact that he had used the hospital's email system to communicate with his lawyer. The court, utilizing the test articulated by the Bankruptcy Court of the Southern District of New York in In re: Asia Global Crossing, Ltd. 322 B.R. 247, 2005 Bankr. LEXIS 415 (Bankr. S.D.N.Y. 2005), concluded that no privilege attached to the doctor's emails with his attorney as the court determined that the doctor had actual or constructive notice of the hospital's policy which stated that its communications systems were its property and were to be used "for business purposes only," and that employees "have no personal privacy right in any material created, received, saved or sent" using those systems. See also Long v. Marubeni America Corp., 2006 WL 2998671, 2006 U.S. Dist. LEXIS 76594 (S.D.N.Y. Oct. 19, 2006) (court held that employees had waived privilege even though employees, in communicating with their counsel, used personal, password-accessed email accounts).


Leave Home Without It

Recently, in In re: Boucher, 2007 WL 4246473, 2007 U.S. Dist. LEXIS 87951 (D. Vt. Nov. 29, 2007), Magistrate Judge Niedermeier quashed a subpoena which would have required a Mr. Boucher to provide the password to encrypted files on his laptop, holding that to do so would violate his Fifth Amendment right against self-incrimination. This case is on appeal to the First Circuit.

In United States v. Arnold, 454 F. Supp. 2d. 999 (C.D. California, 2006), Judge Pregerson also refused to authorize a search of a laptop. Judge Pregerson's decision was argued on appeal before the Ninth Circuit last October, and some are predicting a reversal based on the oral argument. United States v. Arnold, No. 06-50581 (9th Cir. 2007).

The Fourth Circuit in 2005 in United States v. Ickes, 393 F.3d 501, 504 (4th Cir. 2005) upheld a conviction in circumstances somewhat similar to the above cases.


Corporate Social Responsibility

For those advising clients regarding CSR policies, read the Maquila Solidarity Network report on Corporate Social Responsibility available at http://en.maquilasolidarity.org/en/node/749.

AT&T Corp. v. Hulteen, 07-543; 498 F.3d 1001 (9th Cir. 2006)

On January 22, 2008 the Court invited the Solicitor General to submit a brief in this case as to whether or not the Court should take cert. The issue in this case is whether Title VII permits an employer, when setting retirement benefits, to discriminate between those employees who took pregnancy disability leave before the Pregnancy Discrimination Act came into effect and other employees who took any other kind of temporary disability leave during that same period.

Centerior Energy v. Mikulski, 07- ; 501 F.3d 555 (6th Cir. 2007)

A petition for cert was filed this past Friday in this case which involves interesting questions regarding federal jurisdiction predicated on a state law claim that turns on a disputed issue of federal law. The Federal Circuit in Immunocept, LLC v. Fulbright & Jaworski, LLP, 504 F.3d 1281 (Fed. Cir. 2007) held that arising under jurisdiction extends to any case in which the plaintiff's right to relief necessarily depends on resolution of a substantial question of federal patent law, in that patent law is a necessary element of one of the well-pleaded claims. In Immunocept the plaintiff brought a state law malpractice claim based on alleged errors in the prosecution of a patent. The case required resolution of a dispute over the scope of a patent claim. The Federal Circuit held that the case arose under federal law because federal law was a necessary element of the state law claim, and the federal law question thus was substantial. The court also noted that litigants will benefit from federal judges who are used to handling these complicated rules.

Allison Engine Co., Inc. v. United States ex rel. Sanders, 07-214; 2007 U.S. LEXIS 11916 (2007).

In the past few days, a raft of briefs have been filed in this case which is a False Claims Act case presenting the so-called Totten presentment issue. See, U.S. ex rel. Totten v. Bombardier Corp., 363 U.S. App. D.C. 180, 380 F.3d 488, 496 (D.C. Cir. 2004). (Roberts, J.). Ted Olsen filed on behalf of petitioners: (http://www.abanet.org/publiced/preview/briefs/pdfs/07-08/07-214_Petitioner.pdfSCOTUS cite).
The United States filed an amicus brief supporting respondents (http://www.taf.org/opinions/07-214bsacUnitedStates.pdf); Senator Grassley filed an amicus brief (http://grassley.senate.gov/public/releases/2008/01222008.pdf) and Taxpayers Against Fraud filed an amicus brief (http://www.taf.org/opinions/Taxpayers%20Against%20Fraud%20amicus%20brief.pdf). This case is scheduled for oral argument on February 26, 2008.


Class Action Employment Litigation

Seyfarth Shaw LLP has issued its "Annual Workplace Class Action Litigation Report: 2008 Edition," which analyzes some 508 class action rulings on a circuit-by-circuit and state-by-state basis. The 468-page report is available free from the firm at seyfarthshaw@seyfarth.com.


Virginia Worker's Compensation Act Does Not Trump "Horseplay" Personal Injury Claim

On January 11, 2008, the Virginia Supreme Court issued its decision in Hilton v. Martin, 2008 Va. LEXIS 18 (Va. Sup. Ct. January 11, 2008) which was a personal injury action resulting from the death of Ms. Rhoton as a result of an assault by a fellow employee "in the course of" their mutual employment with Highlands Ambulance Service, Inc. As one of the company's ambulances was returning, after lunch, to the company office, defendant Martin took a cardiac defibrillator, and accidentally struck Ms. Rhoton, shocking her, leading to a seizure. Ms. Rhoton never regained consciousness and died of the electrocution and cardiac arrest caused by the charged defibrillator. The Virginia Supreme Court found that the assault was personal to the employee and not directed against her as an employee or because of her employment, and that therefore her resulting death did not arise out of her employment, and thus the worker's compensation exclusivity doctrine did not preclude the claim. The court rejected the so-called "positional risk" test, and adhered to the "actual risk" test, under which the injury comes within the Worker's Compensation Act only if there is a causal connection between the employee's injury and the conditions under which the employer causes the work to be done.


Major SOX Opinion on Scope of Protected Conduct

With permission, set forth below is a summary of the Fifth Circuit's decision from Tuesday of this week in Allen v. Administrative Review Board, 2008 U.S. App. LEXIS 1236 (5th Cir. 2008) prepared by Jason Zuckerman, a plaintiff's attorney:

On January 22, 2008, the Fifth Circuit issued an opinion providing significant guidance about the parameters of protected conduct under Section 806 of the Sarbanes-Oxley Act. See Allen v. Administrative Review Board, (5^th Cir. Jan. 22, 2008). Affirming the ARB’s decision that the plaintiff did not engage in protected conduct, the Fifth Circuit established the following standards for assessing whether a SOX whistleblower engaged in protected conduct:

• “Reasonable Belief’ Standard Protects a Mistaken Belief That an Employer Violated an SEC Rule. Consistent with the plain meaning of Section 806, which requires a plaintiff to demonstrate only a “reasonable belief” that there was a violation of one of six enumerated categories of protected conduct (not an actual violation), the Allen Court held: “Importantly, an employee’s reasonable but mistaken belief that an employer engaged in conduct that constitutes a violation of one of the six enumerated categories is protected.” This is significant because it counters a popular defense contention that a SOX whistleblower must demonstrate that shareholders have been harmed by the SEC violation or other misconduct about which the whistleblower complained.

• “Objective Reasonableness” is Not Solely a Question of Law. In Welch v. Cardinal Bankshares Corp., 2003-SOX-15 (ARB May 31, 2007), the ARB erroneously held that objective reasonableness is a question of law. That decision is pernicious because it encourages ALJs who lack knowledge of securities law to determine prior to trial whether a SOX whistleblower engaged in protected conduct. The Allen Court, however, has held that while the objective reasonableness of an employee’s belief can be decided as a matter of law in some cases, “the objective reasonableness of an employee’s belief cannot be decided as a matter of law if there is a genuine issue of material fact . . . . [and if] reasonable minds could disagree on this issue,” the objective reasonableness of an employee’s belief should not be decided as a matter of law.”

• SOX Protects a Disclosure About a Reasonably Perceived Violation of “Any Rule or Regulation of the SEC”. Although the plain language of Section 806 protects an employee who provides information to a person with supervisory authority over the employee related to a violation of “any rule or regulation of the SEC,” many employers continue to argue that protected conduct is limited to disclosures about shareholder fraud. The Fifth Circuit has rejected that tortured construction of SOX, holding that a disclosure about a violation of any SEC rule is protected.

• Consult a Securities Law Expert Before Engaging in Protected Conduct. Unfortunately, the Fifth Circuit appears to be requiring SOX complainants to become experts in securities law in order to engage in protected conduct. In particular, the Fifth Circuit held that because the plaintiff was a licensed CPA, “the objective reasonableness of [plaintiff]’s belief must be evaluated from the perspective of an accounting expert” and she therefore should have known that internal consolidated financial statements need not be compliant with SAB-101, which prohibits publicly-traded companies from recognizing sales revenue before they deliver merchandise to the customer. Under this decision, complaining to management about internal accounting reports overstating gross profit is not protected conduct because the relevant SEC rule does not technically apply to internal financial statements. This aspect of the Allen Court’s holding completely misses the point of Section 806. As Judge Levin pointed out in Morefield v. Exelon Servs., Inc., 2004-SOX-2 (ALJ Jan. 28, 2004), Section 806 “is largely a prophylactic, not a punitive measure” designed to encourage employees to “head off the type of ‘manipulations’ that have a tendency or capacity to deceive or defraud the public. By blowing the whistle, they may anticipate the deception buried in a draft report or internal document, which if not corrected, could eventually taint the public disclosure.” Section 806 is not a private right of action to enforce SEC rules, but instead is a retaliation action designed to ensure that employees can disclose accounting fraud and reasonably perceived violations of SEC rules without fear of reprisal, before shareholders are defrauded. Blowing the whistle on deceptive or inaccurate draft financial statements should be protected because if left uncorrected, the draft statements will be distributed to shareholders. If an employee is retaliated against for blowing the whistle on misleading internal financial statements, then the employee will not take the risk of blowing the whistle on publicly-filed financial statements. Finally, a SOX whistleblower should not need to consult a securities lawyer in order to engage in protected conduct.

Although Section 806 of SOX has been narrowed by some courts, it continues to afford robust protection to whistleblowers and does not require proof of an actual violation of an SEC rule. The lesson of Allen is that SOX whistleblowers need to plead protected conduct in detail and be prepared to establish a strong link between their disclosure and a reasonably perceived violation of an SEC rule, which in some cases will require expert witness testimony.

For a defense perspective on the Allen decision see:

http://employerslawyer.blogspot.com/

Intentional Infliction of Emotional Distress

The District of Columbia Circuit on Tuesday, January 22, issued a significant intentional infliction of emotional distress (IIED) decision in Kassem v. Washington Hospital Center (2008 U.S. App. LEXIS 1174 (D.C. Cir. January 22, 2008). The complaint alleged that defendant made false statements about the plaintiff to the Nuclear Regulatory Commission with the intent of inducing the NRC to initiate disciplinary action against him. After the NRC completed an investigation and hearing, it dismissed charges against plaintiff who had worked as a nuclear medical technologist at the defendant hospital. Plaintiff sued, alleging, among other claims, an IIED claim which the trial court dismissed on the ground that his allegations were based on "purely occupational concerns with purely occupational consequences,"which the district court found did not satisfy the elements of the tort of IIED under DC law.

Judge Garland, writing for the panel, reversed, relying on Carter v. Hahn, 821 A.2d 890, 895 (D.C. 2003) where the D.C. Court of Appeals held that reporting false information to the police can constitute outrageous conduct for the purpose of stating an IIED claim. Defendant hospital argued that Kerrigan v. Britches of Georgetown, Inc., 705 A.2d 624 (D.C. 1997) precluded the IIED claim. In Kerrigan the plaintiff had alleged that his employer "targeted him for a sex harassment investigation, manufactured evidence against him in order to establish a false claim of sexual harassment, leaked information form the investigation to other employees, and unjustifiably demoted him to the position of store manager in order to promote a woman to his position." 705 A.2d at 628. The Court of Appeals found that those allegations did not rise to the level outrageous conduct sufficient to state an IIED claim. Judge Garland distinguished on the grounds that that case did not involve a false report to government authorities, but rather concerned exclusively actions that took place within the workplace. In Kassem in contract, defendant hospital, after it fired plaintiff, intentionally filed a false charge against him with this NRC -- a charge that could have prevented him from working as a nuclear technologist and could have subjected him to criminal penalties.

Anonymous Blogger

Tip of the hat to the Electronic Frontier Foundation (EFF) which successfully moved to quash a subpoena in the superior Court for Monmouth County, New Jersey in a case where the plaintiff Township had issued a subpoena to Google demanding the identity of an anonymous critic who blogged as "datruthsquad", along with datruthsquad's contact information, blog drafts, emails, and any and all information related to the blog. On December 21, 2007 Superior Court Judge Terance Flynn granted EFF's motion to quash. See:
http://www.blogger.com/Mikulski%20v.%20Centerior%20Energy%20Corp.,%20501%20F.3d%20555%20(6th%20Cir.%202007)


GLBT Discrimination

For employers who are considering putting in place a corporate non-discrimination policy, banning discrimination against gays, lesbians, bisexuals and the transgendered, see Dupont's policy a copy of which can be found at:
http://www.dupontbglad.com/Policies/SAFE_SPACE.pdf


Hi-Ho, Hi-Ho, Its Off to Work We Go!

With apologies to Walt Disney, we report that some 41 District of Columbia employees have been fired or suspended after visiting pornographic websites, using their office computers on office time. Of the fired employees' estimated 200 workdays per year, the city's investigation that allegedly they had visited pornographic websites 100 times per day. One wonders what the numbers would have been like were it not for coffee and lunch breaks. The investigation by the Office of the Chief Technology Officer revealed 20,000 hits from pornographic websites on the 9 fired employees' computers in 2007 alone.

I heard someone once say that one of the few perks for underpaid federal judges was "having" to review alleged pornographic material in order to make judgments as to whether or not it crossed the line. So, I guess some administrative judge at the Office of Employee Appeals of the District of Columbia will be singing: "O Joy, O Rapture unforeseen" when the examiner is "required" to review this material.

And, it brings back memories of representing a soon-to-be hall of fame pitcher in arbitration, and billing at my hourly rate research in Baseball Today and Baseball America. I now imagine the lucky lawyer who gets to view all this stuff and bill at the same time.

For the Washington Post story see:
http://www.wtopnews.com/?nid=25&sid=1331641

Comical Statistics

The January 28th issue of Newsweek has a brief blurb about the number of African-American cartoonists. There are more than 200 syndicated comic strips in U.S. newspapers, and some 15 feature regular African-American characters drawn by African-American cartoonists. On February 10th, a little more than one-half of the 15 will engage in a protest against alleged discrimination against African-American cartoonists. The protesters will each draw a version of the same comic strip in order to underscore their point that allegedly readers and editors view all of their work alike. One interesting allegation is that there is a pattern in the news media that whenever an African-American strip is eliminated, it is then replaced by another African-American strip, the allegation being that there is a limit to the number of such strips.

Have I fallen down the rabbit hole?

As I recall, some years back, a segment of the political spectrum was accusing banks/mortgage lenders of not extending credit in low income neighborhoods, predominantly African-American and Latino neighborhoods. The banks were accused of so-called "redlining" where they drew red lines around certain low income neighborhoods, and wrote very little business in those neighborhoods. Because many of these neighborhoods were predominantly African-American and Latino, there was a so-called "disparate impact" on the basis of race and ethinicity.

So, the then powers that be cajoled the banks to loosen their lending standards, and the sub-prime business took off like a rocketship. The big boys, Fannie Mae and Freddie Mac, created programs to support this subprime business.

Then, the house of cards began to collapse. And we now have the subprime mortgage fiasco which has resulted in the big boys declaring billions in losses, and now the even bigger boys, the Arabs and the Chinese, buying up substantial stakes in the big American financial institutions at low prices. And, some say we haven't even begun to see the bad news in terms of losses because of the subprime mortgage fiasco, much less the coming predicted disaster in credit default swaps, where the losses could make the subprime fiasco look like a walk in the park.

All of the above, I intellectually understand and am quite concerned that there is no "stimulus package" that is going to forestall more and more bad news here at home, and ripple effects in overseas markets. But, along comes a story that takes my breath away. The mayor and city council of Baltimore have filed suit in federal district court against Wells Fargo Bank alleging "reverse red lining." The theory of this new lawsuit (Mayor and City Council of Baltimore v. Wells Fargo Bank, N.A., Civil No. LO8cv 062(D. Md)) is that Wells Fargo violated the Fair Housing laws by targeting minority neighborhoods and placing borrowers there into loans that they could not afford, leading to racially disproportionate foreclosures. In a forty page complaint the City, arguing that it has standing to sue, articulates this theory. A similar suit was recently filed in Cleveland, predicated on a nuisance theory.

We will continue to follow developments in both the Cleveland and the Baltimore cases.

For more information, see:

Dina ElBoghdady, "Baltimore Sues Subprime Lender Over Race", The Washington Post, January 9, 2008, Financial Section, Pg. D04.
http://www.washingtonpost.com/wp-dyn/content/article/2008/01/08/AR2008010804382.html

Al Lewis, "Cleveland Suit Smells Like a Pig", The Denver Post, January 15, 2008, Business Section, Pg. C-01.
http://www.denverpost.com/search/ci_7971836

Thomas J. Sheeran, "Cleveland Sues Banks Over Foreclosures", available at www.washingtonpost.com/wp-dyn/content/article/2008/01/22/AR2008011102311.html?sub=AR.

Christopher Maag, "Cleveland Sues 21 Lenders Over Subprime Mortgages", available at http://www.nytimes.com/2008/01/12/us/12cleveland.html?_r=1&scp=1&sq=cleveland+sues+21+lenders&st=nyt&oref=slogin.

Dr. King's Birthday

We are closed Monday and will not be blogging Monday as we celebrate Dr. King's birthday.

My favorite quotation from Dr. King is: "The arc of the moral universe is long, but it bends toward justice." The quote was actually first uttered by Theodore Parker, an American Transcendentalist, referring then to the abolitionist movement.

Last October the world lost one its great voices, who was clearly inspired, in part, by Dr. King. I refer to the South African reggae singer Lucky Dube. One of my favorite lyrics of his are from his song "Different Colours / One People." One refrain goes as follows:

They were created in the image of God
And who are you to separate them
Bible says, he made man in his image
But it didn't say black or white
Look at me you see BLACK
I look at you I see WHITE
Now is the time to kick that away
And join me in my song


The Psychology of Race in America

I am not a big fan of Bill Moyers, but his interview last Friday evening, January 11th, with Shelby Steele regarding the racial psycho-dynamics of the Obama campaign was spot on. The transcript is available at http://www.pbs.org/moyers/journal/01112008/transcript2.html?print.


Supreme Court Update

Today's conference

The Court granted cert. in MetLife v. Glenn, 06-923; 461 F.3d, 660 (3rd Cir. 2006).

The Solicitor General had filed an invitation-brief (available at http://www.usdoj.gov/osg/briefs/2007/2pet/6invit/2006-0923.pet.ami.inv.pdf) in support of the petition for cert. in this case, which presents the recurring ERISA issue as to the standard of review that the trial court's should utilize in ERISA benefit cases when the plan administrator is the employer, and thus evaluates whether or not to pay claims out of its own pocket. The first question that the Solicitor recommended the Court grant cert. on is whether or not that constitutes a conflict of interest that must be considered in determining the standard of judicial review. The Solicitor also recommended to the Court that it order the parties to brief how the Courts should weigh such conflicts of interest in reviewing discretionary benefit determinations made by such a "dual-role administrator."

The courts have struggled with the delineation of a meaningful standard ever since Firestone Tire & Rubber Co. v. Bruch, 489 U.S. 101 (1989). As a commentator noted in the fall 2007 issue (vol. 37, no. 1) of The Brief, the publication of the Tort Trial & Insurance Practice Section of the ABA, "This sliding scale approach is hopelessly imprecise . . . " See Teresa S. Renaker, "State Regulation of Discretionary Clauses In Insured ERISA Plans," The Brief, Fall 2007, page 51. Ms. Renaker's fascinating article called my attention to developments occurring at the state regulatory and state legislative levels regarding discretionary clauses, like the one at issue in MetLife. The National Association of Insurance Commissioners and several states have moved to disallow discretionary clauses in certain insurance policies. On December 5, 2004, NAIC voted unanimously to adopt model legislation banning the use of discretionary clauses in disability insurance policies. This model legislation amended the NAIC's Model Act 42 of 2002, which banned discretionary clauses in health insurance policies, expanding it to reach disability policies as well. The article points out that the Federal District Courts are now grappling with the effect in those states that have by regulation banned discretionary clauses, on the standard of review in ERISA cases like MetLife. Some courts have found discretionary clauses invalid, and have applied de novo review. Other courts have continued to apply discretionary review. And, some courts have held that the states do not have the authority to regulate in the area of discretionary clauses.So, if you represent a client in a benefit determination case, in addition to keeping your eye on MetLife, you need to determine what, if any, action the applicable state insurance commissioner has taken in light of NAIC's model legislation.


The Court also granted cert. in Meacham v. Knolls Atomic Power Lab., 06-1505; 461 F.3d 134 (2d Cir. 2006).

The Solicitor General had filed an invite-brief with the Court on December 21, 2007 (available at http://www.scotusblog.com/wp/wp-content/uploads/2007/12/meachamcvsg.pdf) in Meacham v. Knolls Atomic Power Lab., No., recommending that the Court grant cert., limited to the issue of which party has the burden of persuasion in an ADEA disparate impact case to establish "reasonable factor other than age." The government's brief argues, in contrast to the Second Circuit's decision, that the burden should be upon the employer. The government's brief argues that the Court should not accept cert. on the second issue presented by the plaintiffs' petition which is whether an employer's practice of conferring broad, discretionary authority upon individual managers to decide which employees to lay off during a reduction in force constitutes a "reasonable factor other than age."If the Court accepts cert. in Meacham, this will be its second visit to the Supreme Court. When the Court issued its decision in Smith v. City of Jackson, 544 U.S. 228 (2005), holding that disparate impact claims are cognizable under the ADEA, the Court granted the petition for cert. in Meacham I (381 F.3d 61) and remanded it for reconsideration in light of Smith. 554 U.S. 957 (2005).On remand, the Second Circuit held that the employee had the burden of persuasion with respect to the "reasonableness" of the employer's proffered business justification under the ADEA disparate-impact framework. This holding was in agreement with the Tenth Circuit's opinion in Pippen v. Burlington Res. Oil & Gas Co., 440 F.3d 1186, 1200 (10th Cir. 2006). The Second Circuit also found that employment practices based on discretionary decisionmaking are generally immune from challenge under the ADEA, stating: "Any system that makes employment decisions in part on such subjective grounds as flexibility and critically may result in outcomes that disproportionately impact older workers; but at least to the extent that the decisions are made by managers who are in day-to-day supervisory relationships with their employees, such a system advances business objectives that will usually be reasonable."Judge Pooler dissented, holding that the RFOA creates an affirmative defense upon which the defendant bears the burden of persuasion.


The Court also granted cert. in Crawford v. Metro. Gov't of Nashville & Davidson County, 06-1595; 211 Fed. Appx. 373, 2006 U.S. App. LEXIS 28280 (6th Cir. 2006) (petition for cert. available at http://www.scotusblog.com/movabletype/archives/06-1595_pet.pdf).

The 6th Circuit held that the anti-retaliation provisions of Title VII were not violated by the employer’s allegedly retaliatory discharge of plaintiff who had cooperated in the employer’s internal investigation of a co-worker’s sexual harassment allegations against a supervisor, where there was no pending charge with the EEOC.


AT&T Corp. v. Hulteen, 07-543; 498 F.3d 1001 (9th Cir. 2006)

The Court had this case on for decision at conference today whether to grant cert., and, as best I can determine, took no action today one way or the other. The issue in this case is whether Title VII permits an employer, when setting retirement benefits, to discriminate between who took pregnancy disability leave before the Pregnancy Discrimination Act came into effect and other employees who took any other kind of temporary disability leave during that same period.


January 11th Conference

Taylor v. Progress Energy, Inc., 493 F.3d 454 (4th Cir. 2007), re-aff’g 415 F.3d 364 (4th Cir. 2005, vacated and remanded by 2006 U.S. App. LEXIS 15744 (4th Cir. June 14, 2006), petition for cert. filed on October 22, 2007, available at http://www.scotusblog.com/wp/wp-content/uploads/2007/10/progresspetitionappendix.pdf.

The Fourth Circuit, on rehearing and now with the benefit of the amicus brief from the Department of Labor, which disagreed with the Court’s interpretation of a DOL regulation prohibiting waivers of FMLA claims, nonetheless reaffirmed its earlier ruling. Judge Duncan dissented. The Fourth Circuit, disagreeing with the Fifth Circuit’s holding in Faris v. Williams WPCI, Inc., 332 F.3d 316 (5th Cir. 2003), held DOL regulation that prohibits waivers of FMLA claims absent DOL or court approval should be upheld. The Fifth Circuit had held that the regulation only barred the prospective waiver of substantive FMLA rights; whereas the Fourth Circuit held that the regulation applied to all waivers, both retrospective and prospective. In addition, the Fourth Circuit held that the regulation applies to all FMLA rights, both substantive and proscriptive, the latter preventing discrimination and retaliation.

At the Court's January 11th conference, the Court had requested that the Solicitor General file an invitation-brief. Now, this should get real interest. The Solicitor of Labor filled an amicus brief at the Fourth Circuit when the petition for rehearing was filed, and the panel rejected the Department's interpretation of the statute. The Supreme Court, in Auer and Coke, deferred to the Department's interpretation as expressed in Supreme Court briefs. In Auer, the Department's interpretation was first expressed in the Supreme Court brief, and the Court genuflected to it. The Fourth Circuit in Progress Energy, did not genuflect. Should be interesting.


Engquist Redux

When the Supreme Court took Engquist the other day (http://robertfitzpatrick.blogspot.com/2008/01/we-have-been-silent-for-few-days-as-we.html), it passed on a fascinating second issue that the cert. petition presented, that is whether a state "split recovery" punitive damages statute violates the Takings Clause of the Constitution.

The supreme courts in six states have upheld the statutes against federal takings challenges. Cheatham v. Pohle, 789 NE 2d 467, 474075 (Ind. 2003); Evans v. State, 56 P.3d 1046, 1058 (Alaska 2002); Mack Trucks, Inc. v. Conkle, 263 Ga 539, 436, SE 2d 635, 639 (1993); Gordon v. State, 608 So 2d. 800, 801-02 (Fla. 1992) (per curiam); Shepherd Components, Inc. v. Brice Petrides-Donohue & Associates, 473 NW 2d 612, 619 (Iowa 1991). But two state supreme courts have held the statutes violate the federal Takings Clause. Kirk v. Denver Publishing Co. 818 P 2d 262, 273 (Colo. 1991); Smith v. Price Development Co., 125 P 3d 945 (Utah 2005). One U.S. District Court has held that a split recovery statute violates the Excessive Fines Clause. McBride v. Gen. Motors, Corp., 737 F. Supp 1563, 1578 (MD Ga. 1990).


Customer Preference

There is a recent customer preference case, Simple v. Walgreen's Co., 2007 U.S. App. LEXIS 29729 (7th Cir., Nov. 14, 2007), where Walgreen's attempted to defend assignments to its stores based upon racial demographic data, attempting to justify the denial to an African American of a promotion to manage a store in Pontiac, Michigan because Pontiac was not ready to have a black manager. Judge Posner rejected this bit of nonsense out of hand.

Historically, the courts have been loathe to bless customer preference as a justification for employment practices based on a protected characteristic. See Diaz v. Pan Am. World Airways, 442 F.2d 385 (5th Cir. 1970); Gerdom v. Continental Airlines, Inc., 692 F.2d 602 (9th Cir. 1982); Fernandez v. Wynn Oil Co., 653 F.2d 1273 (9th Cir. 1981); 29 C.F.R. 1604.2(a)(1)(iii) (preferences of co-workers or customers are not a BFOQ).

Now, what's interesting is what is going on beneath the radar screen in the interaction between law firms and their clients. Increasingly, I hear reports of clients insisting that, if the law firm wants their business, the law firm must assign African Americans to work on the account. Why is this not as odious in the eyes of the law as Walgreen's saying that Pontiac is not ready for a black manager at its store there?


Background Checks

The Ninth Circuit in Nelson v. National Aeronautics and Space Administration, 2008 U.S. App. LEXIS 498 (9th Cir., Jan. 11, 2008), issued an opinion allowing scientists at NASA's Jet Propulsion Laboratory to continue working until the question of their privacy challenge to the requirement of a new domestic security rule that they submit to background checks was decided.


Black Holes

Some can't sleep nights for fear that an asteroid or meteorite will collide with Earth during the night. Well, for those of you who comfortably sleep despite asteroid phobia and meteorite phobia, let me share with you the latest scientific discovery which undoubtedly will lead to more insomnia. Professor Kelly Holley-Bockelmann of Vanderbilt University has just presented at the American Astronomical Society's annual meeting about renegade black holes roaming the Milky Way. She says that there are breakaway black holes, that have broken away from that giant black hole that sits at the center of our galaxy, and they are, as best she can discern, indiscriminately roaming the Milky Way. They are, of course, invisible, although they do emit Hawking radition. So, any second now, we could be sucked in to a black hole, and no longer exist. The title alone of an article from the Australian News is disquieting -- "Hundreds of hungry black holes may me lurking in our milky way galaxy, waiting to gooble unsuspecting planets and stars that cross their paths." Night, night.