Tag: employment law

Between the Scylla of Disparate Impact and the Charybdis of Disparate Treatment

If federal statutory law expressly commands that all covered federal employees shall be “free from any discrimination based on … race,” does that forbid the federal government from adopting race-based affirmative action plans? That is one of the important—and seemingly obvious—questions posed by Shea v. Kerry, a case brought by our friends at the Pacific Legal Foundation. William Shea is a white State Department Foreign Service Officer. In 1990, he applied for his Foreign Service Officer position and began working in 1992 at a junior-level post. At the time, the State Department operated a voluntary affirmative action plan (read: voluntary as “mandated by Congress”) whereby minorities were able to bypass the junior levels and enter the mid-level service. The State Department attempted to justify its racial plan by noting that there were statistical imbalances at the senior Foreign Service levels, even though the path to the senior levels is unrelated to service at the lower levels.

In 2001, Shea filed an administrative complaint against the State Department for its disparate treatment of white applicants under its 1990-92 hiring plan, complaining that he did not enter at as high a grade as he may have and that the discrimination cost him in both advancement opportunities and earnings. After exhausting administrative remedies, Shea took his complaint to the courts, resulting in this case. The Cato Institute has joined with the Southeastern Legal Foundation, the Center for Equal Opportunity, and the National Association of Scholars to file an amici curiae brief calling for the Supreme Court to take up the case and reverse the federal appellate court below.

In fairness to the court below, Title VII jurisprudence, as it stands, is both unclear and unworkable. The text of Title VII expressly prohibits discrimination on the basis of race—what’s called “disparate treatment.” Indeed, in the specific provisions on federal hiring, Title VII employs very expansive language to ensure that disparate treatment is not permitted. But such a “literal construction” of the Title VII statute was eschewed by Justice William Brennan in 1979, writing for the Court in United Steelworkers v. Weber. Relying on cherry-picked statutory history, Brennan found that Title VII’s plain text did not prohibit collectively bargained, voluntary affirmative action programs that attempt to remedy disparate impact—statistical imbalances in the racial composition of employment groups—even if such plans used quota systems. Later, in Johnson v. Transportation Agency, Santa Clara County, Cal. (1987), the Court exacerbated the issue by extending the Weber rule from purely private hiring to municipal hiring. In Shea, the U.S. Court of Appeals for the D.C. Circuit extended the rule from Johnson and Weber to federal hiring, not just municipal and private employment.

And on the Seventh Day You Can Rest (If You Want)

For 122 years, the California Labor Code has said that employees in all industries are “entitled” to a day of rest “one day therefrom in seven.” The statute also provides that “No employer shall cause his employees to work more than six days in seven.” Mendoza, a former Nordstrom employee, is arguing to the California Supreme Court that the Labor Code should be construed as flatly prohibiting employers from allowing an employee to work on the seventh day of a workweek. To make that argument work he must also convince the Court that the Labor Code prohibits employees from voluntarily choosing to work on a day otherwise scheduled for rest. This radically paternalistic argument not only flies in the face of the plain language of the statute, but it would hurt employees who may wish work on the seventh day of a workweek for innumerable reasons. In a brief filed in support of Nordstrom, Cato, joined by the National Federation of Independent Business, the Reason Foundation, and a handful of California employees, argues that there are many legitimate reasons why an employee might want to work on the seventh day of a workweek: to meet financial goals, to accommodate personal schedules, or simply to maintain flexibility to work when he wants.

Mendoza also argues that employers must require written waiver from employees before allowing them to work on the seventh day of a workweek. But nothing in the Labor Code suggests that there is any requirement for a waiver to be in writing, or for employers to maintain records whenever an employee should elect to work on a day otherwise scheduled for rest. We argue that it would be improper to read language into the statute that would impose such burdensome requirements on employers—both because it would violate first principles of statutory construction and because it would open unwitting businesses up to lawsuits. Moreover, such a paperwork requirement would be wholly impracticable when, for example, an exempt employee might choose to check a few emails on a Sunday evening, something that could be construed to violate the day of rest law.

Finally, we argue that the plaintiff advocates a theory that would hold his employer liable for conduct that California state regulators had long permitted in official agency guidance. Just as there would be significant due process concerns with Congress passing a statute to retroactively hold businesses liable for conduct that was permissible at the time, there would be serious constitutional problems with giving a statute a retroactive interpretation that would impose ruinous penalties on individuals or businesses that acted in good faith reliance on best available guidance at the time. The California Supreme Court should not heed Mendoza’s paternalistic arguments and upset 122 years of treating California’s workers like responsible adults.

‘Why Your Boss Should Be Able To Fire You Over Facebook’

Suzanne Lucas, who blogs as Evil HR Lady, isn’t really evil, she’s just uncomfortably candid about many workplace truths that her fellow HR professionals tend to gloss over.

One of those truths is that in general no one owes you tenure in your job, even if you do it well. In our society, the principle of employment at will is still (fortunately) given much legal weight, meaning that an employment relationship continues only if both sides want it to.

And a consequence of that might just be that the law creates no right to slag your employer on your Facebook page one evening and demand that your employer overlook it the next morning:

So, why am I in favor of companies being able to terminate an employee for online behavior? (These things, of course, aren’t limited to Facebook. Myspace, Twitter, and blogs are all good candidates for firing). Here are 3 Reasons.

Easy firing=easy hiring. I want companies to hire people. In fact, my fondest wish is that all my readers who are searching for jobs find one this year. The more restrictions government places on terminating employees, the more hesitant companies are to hire new people.

Bad judgment isn’t limited to online behavior. Companies need employees they can trust to make good decisions. If you lack the critical thinking skills to say, “Hmmm, if I post that my boss is a jerk, my boss just might find out about it,” then you probably lack the critical thinking skills to do your job. Yes, people vent. But the internet is not private. And anyone who thinks they can trust all their 476 friends to keep something quiet isn’t someone I want on my staff.

Companies should be able to presume loyalty. I know, I know, your company doesn’t care much about your career and they have no problem firing you, so why should you care about them? Because they pay you to care about them….

You can read the whole thing, including the rest of her reasoning, here.