SENATE HEALTH, EDUCATION, LABOR & PENSIONS COMMITTEE (HELP) HOLDS HEARING ON PAYCHECK FAIRNESS ACT (PFA)

by Art Gutman Ph.D., Professor, Florida Institute of Psychology

The meeting, held on March 11, 2010 was chaired by Senator Harkin, with testimony from Congresswoman Rosa DeLauro, an original sponsor of the bill in the House, EEOC Acting Chairman Stuart Ishimaru, Heather Boushey, Senior Economist for the Center for American Progress, Deborah L. Brake, Professor of Law at the University of Pittsburgh, Deborah L. Frett, CEO of the Business and Professional Women’s Foundation, and Jane McFetridge, Partner at Jackson Lewis LLP, a major law firm that represents management in employment discrimination cases. The written text from these contributors is available here.

To refresh your memory, the House passed the PFA in 2008 and it died in the Senate. It actually had more votes in the House (256) than the Ledbetter Act (250). There were five major points in the House’s version of the PFA.

First, the House bill would rename the factor other than sex (FOS) defense to “bona fide factor other than sex (BFFOS) --- such as education, training or experience.” Additionally, the BFFOS defense borrows from the Title VII adverse impact defense, mandating that it is:

(i) not based upon or derived from a sex-based differential in compensation;
(ii) job-related with respect to the position in question; and
(iii) consistent with business necessity.

Consistent with the Title VII adverse impact cases, BFFOS does not apply “where the employee demonstrates that an alternative employment practice exists that would serve the same business purpose without producing such differential and that the employer has refused to adopt such alternative practice.”

Second, the House bill would broaden the definition of “establishment” so that individuals are deemed to work for the same employer “at workplaces located in the same county or similar political subdivision of a State.”

Third, the House bill would incorporate the “opposition clause” (complaining about a practice) and the “participation clause” (filing an actual claim) from Title VII statutory language on retaliation. It would also proscribe retaliation by employers if an employee “has inquired about, discussed or disclosed the wages of the employee or another employee.”

Fourth, the House bill would the remedies in the EPA to be consistent with those in Title VII and the ADA. These include compensatory damages for pain and suffering and punitive damages “where the employee demonstrates that the employer acted with malice or reckless indifference.” However, there is no apparent statutory cap on damages as there is in Title VII.

Fifth, the House bill would change the rule for class action lawsuits from currently existing “opt in” rules to “opt out” rules used in the Federal Rules for Civil Procedure, as well as in Title VII.

A blow-by-blow description of the hearing is provided here by AAUW, and woman’s rights group, albeit a source favoring the FPA. A sample of an opposing view may be found here. Clearly, Democrats (most notably Harkin & Dodd) favor the PFA and Republicans (most notably Enzi and Isakson) oppose it. All witnesses but one (Jane McFetridge) favored the FPA in their testimony.

Chairman Ishimaru focused on PFA’s pay data provisions. He emphasized that the EEOC has no way of knowing about private-sector pay data because of the pressure on employees not to talk about their pay. He emphasized that the PFA would better enable the EEOC to help employees and provide data standards to help employers

In general, the opposing view is that:

• PFA threatens employee bonus or incentive pay that, by definition, provides some employees a higher wage than others


• It prohibits employees from negotiating higher pay either before being hired or during employment,


• It allow employees’ wages to be disclosed to peers, friends, family and competitors,


• It requires employers to submit pay data on their employees to the Federal government,


• It forces the Labor Department to reinstate a flawed and duplicative pay grade survey that has proven ineffective at enforcing civil rights laws among federal contractors,


• It makes it easier for trial lawyers to file large class actions against employers, and


• establish unlimited punitive and compensatory liability under the Equal Pay Act against employers of every size.

There are several good sites for recommendations for employers to cope with the PFA, should it pass. One that I particularly like is by Huntington Law & Employment, which recommends the following proactive steps:

• Establish a well organized plan for identifying vulnerabilities, assessing employment policies and practices, monitoring outcomes of decisions on a statistical basis, and identifying solutions to address risk,


• Establish this plan under the protection of attorney-client privilege.


• Establish systems and tools to help ensure the most informed and defensible decision making.


• A privileged compensation audit can help employers meet all of these needs.

We at DCI Consulting Group will continue to monitor and report any future developments on the PFA.

EEOC STEPPING UP PRESSURE ON DISABILITY CLAIMS?

by Art Gutman Ph.D., Professor, Florida Institute of Psychology

Perhaps. or perhaps it’s coincidental. I’ll let you judge. Between March 2 and March 12, 2010, the EEOC announced settlements in 5 ADA cases. Here they are.

On March 2, the EEOC announced a $90,000 settlement with a McDonalds franchise in Philadelphia, PA on grounds that an employee (Timothy Artis) was harassed because of an intellectual disability. The allegations were that Artis was called offensive and degrading names, was physically shoved and threatened (on one occasion by a co-worker who threatened him with a box cutter), even though he was performing his job duties successfully. The victim’s mother repeatedly complained to store officials who, apparently, took no corrective actions. Artis ultimately quit in what reads like a constructive discharge.

On the same day, the EEOC announced a $50,000 settlement with Direct Wines, a beverage distribution company in Lake Forest, ILL. At issue here was a company policy that limited employee leaves to 2 time periods (Feb 15 to May 15 & July 15 to Oct 15) when business is slow. An employee (Pamela Stokes) requested a 6-week leave for heart surgery outside these windows, and was told she would effectively be resigning. She took her leave on Nov 20, 2006 and, as promised, was terminated.

On March 3, the EEOC announced a $32,500 settlement with Valley Isles Motor, Ltd. located in Maui, HA. The allegation was that Valley Isles rescinded a job offer after a urine test revealed the applicant was taking prescribed medication. The charge was that the applicant erroneously perceived the applicant as being “too disabled” despite other medical evidence to the contrary. The case presents a failure on the part of the employer to “flexibly interact” with plaintiffs to determine what, if any reasonable accommodations are required in relation to actual or perceived disabilities. Or noted by Timothy Riera, director of the EEOC’s Honolulu Local Office, stated “Employers should heed the lesson learned by Valley Isle Motors and be mindful to judge a candidate by his or her qualifications, not some ill-informed presumption. Communication with prospective employees is the key in determining whether one’s actual or perceived condition will interfere with work. Businesses should take advantage of appropriate training opportunities that are available to learn how to appropriately engage in that interactive process.”

On March 10, the EEOC announced a $17,000 settlement with A&A Contracting, a St. Louis, MO construction company. The allegation was that an employee (Rick Wells) was terminated when his application for health insurance coverage revealed a history of liver and kidney problems, including cancer. Additionally, A&A agreed to implement a comprehensive anti-discrimination policy in which it would train all management employees and designate an HR professional to consult and participate in HR-related matters. As noted by James R. Neely, District Director of the EEOC’s St. Louis District Office: “Even small employers need to keep themselves educated and informed of the law’s requirements. At the time Mr. Wells was fired, A&A Contracting had approximately 20-25 employees. Any business with that size work force needs to make sure that they have clear, effective anti-discrimination policies and that they provide thorough, comprehensive anti-discrimination training to its managers and employees on a regular basis.” I would add that it is unlikely that Wells would have satisfied that statutory ADA requirement for an impairment that significantly restricts a major life activity. In other words, by regarding Wells as being disabled, they gave him a free pass to fit the definition of being disabled within the meaning of the law.

And on March 12, the EEOC announced a $33,000 settlement against Kali Bottling Company, a large Arizona bottling/distribution company on behalf of a now deceased employee (Gerald Nez). Nez was a diabetic. Kali had a 30-year policy of requiring federal DOT medical certification for driving trucks that are 10,000 pounds or more. The DOT expressly forbids people who take insulin from driving such trucks. However, Nez was a merchandiser, and as such, was required to drive his own vehicle (a compact pickup truck) to do his job. Therefore, Nez was not required by DOT policy to obtain the medical certification. This is another instance in which the employer regarded the employee as being disabled. Also, there is case law supporting reasonable accommodations of insulin-dependent Diabetics to drive lighter vehicles (e.g., chocolate candy bars on the dash).

WHITE FIREFIGHTERS LOSE IN DISPARATE TREATMENT REVERSE DISCRIMINATION RULING

by Art Gutman Ph.D., Professor, Florida Institute of Psychology

On March 12, the 7th Circuit affirmed a district court summary judgment ruling favoring the City of Harvey, Illinois in a case in which four white firefighters were passed over for promotion. There were 8 eight applicants for Deputy Chief, including three of the four plaintiffs, and 9 applicants for Assistant Chief, including all four plaintiffs. All but three applicants were white. A three-person interview committee evaluated each applicant on a 5-point scale based on "Initial impression, decorum, and appearance"; "Interest, dedication and commitment"; "Character and Honesty"; "Personality and Teamwork Ethic"; "Overall poise and general ability to Communicate" and "Education and Certifications." The City claimed that these interviews were score independently by each member of the committee, but the Fire Chief (Bell) made the final decisions, and only his scores were included in the record. Ultimately, three blacks and one white were promoted.

After reading the district court (U.A. Dist. Lexis 355539) and circuit court rulings, I googled the case and found several blogs that were misleading, making it sound as if this was a case in which four higher scoring white applicants were passed over in favor of the three black applicants. That’s not exactly what happened. Here are the facts. Read carefully --- took me several readings to figure it out.

The plaintiffs were four white applicants (R. Stockwell, G. Stockwell, DeYoung & Ciecierski). Before any of the interviews, the Deputy Chief position was offered to Gorman, a white Captain who did not apply. Gorman declined. Among those who did apply, the four highest scores belonged to three blacks (Buie, Tyler & Patterson) and one white (Climpson). The Deputy Chief position was offered to Buie, and two of the Assistant Chief positions were offered to Tyler and Patterson. Climpson, the lone white among the top four, was offered the last Assistant Chief position, but he declined, as did the next highest scoring applicant (Canavan) also white. Before turning to the 6th highest score and below, Chief Bell offered the last position to another non-applicant, who was white (Cook). Cook declined, and Chief Bell passed over R. Stockwell, one of the four white plaintiffs who was ranked 6th. The relative ranking of the other three plaintiffs is unclear in the rulings, but ultimately, all four white plaintiffs were passed over in favor of a black applicant for the third Assistant Chief position.

This was a disparate treatment case decided under McDonnell Douglas v. Green (1975) [411 U.S. 792] rules. Under these rules, plaintiffs establish a prima facie case with easy to generate presumptive facts (they are protected by Title VII, they are qualified for the job, they were passed over, and the search continued). The burden then shifts to the defendant to articulate (or explain), without have to prove, a legitimate nondiscriminatory reason for passing over the plaintiffs. The only burden of proof in this scenario then falls to the plaintiffs to prove with direct or indirect evidence that the explanation(s) offered are a pretext for racial discrimination (i.e., baloney). Ultimately, Chief Bell cited specific reasons for not promoting each plaintiff, all relating to what were essentially personality flaws based on past conduct. The plaintiffs could not discredit the explanations offered. They offered only assertions that the rating process was rigged (which is not evidence) and that among the City’s last 32 police promotions, 31 of them were black. The trial judge ruled that police actions have nothing to do with firefighter actions, and affirmed the summary judgment ruling of the trial judge.

This is not to say Chief Bell did not like these guys. Given the text of the rulings, it seems clear he might have even had it out for them. The key, however, is that his feelings were likely personal, not racial, which A-OK in disparate treatment theory. The plaintiffs would have needed direct evidence (e.g., witnesses willing to provide reasons why any part of the process was tainted by racial concerns), or indirect evidence (e.g., that one or more chosen black applicants had flaws and/or a past history similar to the plaintiffs). Neither was present in this case --- but be careful what you read. Blogs favorable to the plaintiffs will point to such factors even though they too lack the evidence. In my opinion, the ruling would have been the same had the plaintiffs been four blacks claiming preference for white applicants.

PENDING LEGISLATION RELATED TO EEO ISSUES

by Art Gutman Ph.D., Professor, Florida Institute of Psychology

According to a BNA report dated March 26, 2010, congress is likely to turn its attention to three important piece of EEO legislation. For BNA subscribers, the report is available here.

The first two pieces of legislation are long anticipated. They are (1) the Paycheck Fairness Act (H.R. 12, S. 182), passed by House passed in January 2009 as part of the Lilly Ledbetter Act, which the Senate has not yet voted on and (2) overturning the Supreme Court’s ruling in Gross v. FBL (129 S.Ct. 2343), which invalidated the “mixed-motive” defense with respect to the Age Discrimination in Employment Act (ADEA). In that ruling, the Supreme Court ruled that mixed-motive is the unique province of Title VII. The third piece of legislation is the Employment Non-Discrimination Act (ENDA), which would add “gender identity” as a protected class in Title VII. We will keep you abreast of any developments in each of these areas, so stay tuned.

DOL SECRETARY SOLIS TESTIFIES ON FY 2011 BUDGET

by Art Gutman Ph.D., Professor, Florida Institute of Psychology

On March 12, 2010, Labor Secretary Hilda Solis testified in front of the House Appropriations Subcommittee on Labor, Health and Human Services, Education, and Related Agencies regarding the DOL’s FY 2011 budget. Text of Secretary Solis’s prepared testimony is here. ”U.S. Secretary of Labor Testifies Before House Appropriations Subcommittee on Fiscal Year 2011 Budget,” DOL Press Release, 3/10/10.

As part of her prepared testimony, Solis reiterated the OFCCP’s continuing intention to focus on both individual and systemic discrimination. Individual discrimination topics will include harassment, retaliation, termination, and failure to promote. Solis added that the OFCCP will step up monitoring of self-audit and self-correction as part of its enforcement of Executive Order 11246.

HARASSMENT AND RETALIATION: TWO INTRIGUING RULINGS

by Art Gutman Ph.D., Professor, Florida Institute of Psychology

Generally, there are three prongs to a retaliation claim: (1) plaintiffs must establish engagement in protected activity (either opposing an employer practice and/or filing a formal claim of discrimination); (2) they must establish a materially adverse action; (3) they must establish a casual connection between engaging in the protected activity and the materially adverse action. In its 2006 landmark ruling in Burlington Northern Santa Fe Railway Company (BNSF) v. White [548 U.S. 53], the Supreme Court endorsed a relatively light standard for proving the materially adverse action (Prong 2): that any actions that would dissuade a reasonable person from engaging in lawfully protected activities is materially adverse.

Eric Dunleavy and I have discussed this case in several articles (see Gutman, 2006; Dunleavy, 2007; and Gutman, 2007). One of the issues we have wondered about is what happens in sexual harassment cases where there is (a) no harassment, but retaliation for the complaint versus (b) harassment, but no retaliation for the complaint. Two fresh cases deal with these issues.

On March 10, 2010 the 11th Circuit agreed to review a same-sex (male on male) en banc. The case is Corbett v. Home Depot. The case involved complaints by two male store managers that a gay male regional HR manager engaged in flirtatious actions (including touching). The male store managers complained and were terminated. The district court judge granted summary judgment for Home Depot on both the sexual harassment and retaliation claims. A three-judge panel of the 11th Circuit supported the sexual harassment ruling, but overturned on the retaliation claim (589 F.3d 1136).

In the other case [Peoples v. Marjack Co., D. Md., No. 8:08-cv-178, 3/5/10], the U.S. District Court for the District of Maryland favored summary judgment for the defendant (Marjack) on retaliation, but not sexual harassment. As in the prior case, the plaintiff (Peoples) was terminated. On the harassment claim, Marjack had a policy to prevent and quickly correct sexual harassment violations. But in this instance, Peoples complained about harassment to her immediate supervisor and the supervisor failed to forward the complaint to the HR department. That left a triable issue as to whether Marjack acted reasonably to “prevent” harassment, since the alleged harasser was a repeat offender about whom Marjack had prior notice. Peoples claimed retaliation on grounds that she was terminated 10 months later for falsifying a time card. However, the causal connection was weak because Marjack was consistent on its policy of firing for time card falsification in three other cases in which there were no initial complaints of discriminatory behaviors.

STOP THE NAME CALLING --- OR ELSE

by Art Gutman Ph.D., Professor, Florida Institute of Psychology

On March 17, 2010, the EEOC announced a settlement of $115,000 with Administaff, a nationwide staffing employer (EEOC v. Administaff Inc., D. Md., No. L09-cv-2881, consent decree entered 3/15/10) A link to this settlement may be found here. The case involved harassment of two Jewish employees (the Jacobson brothers). Some of the language here is pretty salty, such as “dirty Jew,” “dumb Jew,” and other anti-Semitic epithets by managers and co-workers. The EEOC alleged that the harassment occurred over a two-year time fame beginning in September 2005. Other acts included defacing Scott Jacobson’s care with a swastika, and one incident in which he was forced into a dumpster while managers watched on a surveillance camera. Administaff agreed to post notices describing the settlement and to provide at least two hours of training to employees and supervisors. IMO, it should be more like a group-wide week-long training seminar.

E.O. 13496 FINAL RULE SUBMITTED TO OMB; FINAL ACTION POSSIBLE BY MAY

by Fred Satterwhite, Senior Consultant, DCI Consulting Group

(UPDATE: Final rule published on May 20, 2010)

The U.S. Department of Labor (DOL) has submitted to the Office of Information and Regulatory Affairs (OIRA) a final rule prescribing the details of the notice of employee rights under Federal labor laws required by Executive Order 13496. OIRA, part of the Office of Management and Budget (OMB), reviews draft proposed and final regulations and develops and oversees the implementation of government-wide policies in the areas of information policy, privacy, and statistical policy.

The final rule was received by OIRA on February 17, 2010, and is currently under review. Executive Order 12866, which governs the process under which OIRA reviews agency draft and proposed final regulatory actions, limits the OIRA review period to 90 days (there is no minimum review period). As such, OIRA’s final action would be expected by mid-May; however, the review period may be extended indefinitely by the head of the rulemaking agency (in this case, the DOL’s Office of Labor-Management Standards). Also, the OMB Director may extend the review period on a one-time basis for no more than 30 days.

President Obama signed Executive Order 13496 (“Notification of Employee Rights Under Federal Labor Laws”) on January 30, 2009. E.O. 13496 required the Secretary of Labor to prescribe the size, form, and content of the notice to be posted by a contractor describing the rights of employees under Federal labor laws, consistent with the policy set forth in section 1 of the order. The DOL published its proposed rule on August 3, 2009, and the subsequent public comment period ended on September 2, 2009.

The proposed rule stated that OFCCP may enforce the Order through either a review specifically targeting E.O. 13496 compliance only, or during the course of a regular compliance evaluation, or in response to a complaint. No specifics were given regarding the selection of contractors for an E.O. 13496-only review.

The proposed rule also noted that employees of covered contractors can file written complaints that the contractor has failed to comply with the Order to either OLMS or OFCCP. Complaints will be investigated by OFCCP, and the DOL estimates that they will receive approximately 50 such complaints per year. If non-compliance is not resolved through conciliation, OFCCP must refer the case to OLMS, who then may take it to the Solicitor of Labor for enforcement. The ultimate penalties for non-compliance can include cancellation or suspension of current contracts, or debarment from future contracts including extension of existing contracts.

Contractors should stay tuned to see what changes, if any, are made to the final rule based on the comments received by the DOL. Given OFCCP’s recent increase in scheduling on-site compliance reviews and repeatedly stated new interest in fielding and investigating individual employee complaints, the final implementation of the E.O. 13496 posting requirements will be germane to contractors’ compliance efforts.

SUPREME COURT AFFIRMS “NERVE CENTER” APPROACH TO “DIVERSITY JURISDICTION” IN HERTZ V. FRIEND

by Art Gutman Ph.D., Professor, Florida Institute of Psychology

Generally, federal courts can only hear claims arising under federal law. However, statutory law empowers federal courts to exercise “diversity jurisdiction” over state law civil claims between citizens of different states. In this case, two plaintiffs sued Hertz Corporation in California state court for wage/hour violations on behalf of other potential class members. Hertz argued the federal courts have “diversity jurisdiction” because it is a Delaware corporation with corporate headquarters in New Jersey. The plaintiffs argued that Hertz is a “California Citizen” like themselves. In Hertz v. Friend [2010 U.S. LEXIS 1897], decided February 23, 2010, the Supreme Court sided with the plaintiffs, ruling that the "principal place of business" is “where the corporation's high level officers direct, control, and coordinate the corporation's activities”, or what lower federal courts have called a company’s “nerve center.”

EEOC PROPOSES NEW ADEA REGULATION FOR RFOA STATUTORY ADEA DEFENSE TO ADVERSE IMPACT

by Art Gutman Ph.D., Professor, Florida Institute of Psychology

In Smith v. City of Jackson (2005), the Supreme Court ruled that adverse impact is a valid ADEA claim and that the Factors Other Than Age (RFOA) defense, which is lighter than the job-relatedness defense in Title VII, is the proper defense in age discrimination cases. The Supreme Court further ruled in Meacham v. Knolls Atomic Power Lab (2008) that the RFOA is an affirmative defense, meaning it requires proof. A comprehensive account of the Smith and Meacham rulings is provided by Gutman & Dunleavy (see http://www.siop.org/tip/Oct08/PDFs/462_073to079.pdf). The proposed regulation may be viewed at http://edocket.access.gpo.gov/2010/2010-3126.htm. The EEOC proposes to define an RFOA as “one that is objectively reasonable when viewed from the position of a reasonable employer under like circumstances” and that it is “ one that would be used in a like manner by a prudent employer mindful of its responsibilities under the ADEA.”

ADEA RULING OVERTURNED BASED ON THE SUPREME COURT’S RULING GROSS V. FBL FINANCIAL SERVICES

by Art Gutman Ph.D., Professor, Florida Institute of Psychology

In Gross v. FBL (2009) (see http://laws.findlaw.com/us/000/08-441.html), the Supreme Court struck ruled the “mixed-motive” scenario for the ADEA. This was generally seen as a defeat for older workers with strong evidence of age discrimination because mixed-motive rules force defendants to prove they would make the same selection decisions even in the face of provable illegal motives. However, in Mora v. Jackson Memorial Foundation [2010 U.S. App. LEXIS 3668], decided on February 23, 2010, the Gross v. FBL ruling benefited the plaintiff. Mora, who was terminated at age 62, alleged that the foundation’s chief executive, who terminated her, made ageist remarks against her during the termination meeting. Following mixed-motive rules, the trial judge ruled there was sufficient evidence of an illegal motive to discriminate against Mora, but the foundation had sufficient evidence to prove the termination was, nonetheless, based on legal reasons. Therefore, the judge granted summary judgment for the defense (SJD). However, the 11th Circuit, acknowledging that Gross v. FBL outlawed mixed-motive rules for the ADEA, nevertheless ruled there was sufficient evidence under more traditional disparate treatment rules to overcome SJD. The 11th Circuit ruled that “making all reasonable inferences in [Mora’s] favor” that a “factual issue exists on this record whether [Jackson] discriminated against her.” Note to employers --- discourage ageist remarks!

EEOC ORDERED TO PAY OVER 4.5 MILLION TO DEFENDANT

by Art Gutman Ph.D., Professor, Florida Institute of Psychology

In EEOC v. CRST Van Expedited [2010 U.S. Dist. LEXIS 11125], decided February 9, 2010, a trial judge for the Northern District of Iowa struck down a pattern or practice sexual claim on behalf of 68 women and awarded $4,004,371.65 in attorneys' fees and $463,071.25 in expenses to CRST. The crux of the ruling was that the EEOC investigated the claim of one woman, and filed the lawsuit before it knew of or investigated the claims of the other 67 women. The judge ruled that the EEOC used the discovery process to find the additional women, and therefore, that “the EEOC wholly abandoned its statutory duties as to the remaining 67 allegedly aggrieved persons in this case.” The ruling implies that the EEOC abused its powers as a hammer to force conciliation. Clearly, the EEOC can conciliate and litigate, but it cannot make affected class rulings, whereas the OFCCP can. Food for thought?

SUPREME COURT HEARS ORAL ARGUMENTS IN LEWIS V. CHICAGO

by Art Gutman Ph.D., Professor, Florida Institute of Psychology

The case was about a firefighter entry-level exam administered to 26,000 applicants in July 2005 and scored in January 2006. Scores were banded into three categories: “well qualified” (89 or greater), “qualified” (65 to 88) and “unqualified” (65 to 68). There were 1,800 scores at 89 or greater for 600 to 700 anticipated initial hires, and there was adverse impact among the “well qualified” (12.6% white and 2.2% black), as whites were 5.4 times more likely to be in this band than black, but were only 1.3 times more likely to score between 65 and 88. Hires were ultimately made randomly from the “well qualified” band both before and after the adverse impact lawsuit was filed in March 2007, and more than 400 days after the results were reported. The district court ruled there was adverse impact in the highest band and that the City did not carry its defense burden [Lewis v. City of Chicago, No. 98 C 5596 (N.D. Ill. Mar. 22, 2005)]. The City appealed, arguing that the statute of limitations (300 days) for filing the lawsuit was exceeded based on the date the results were reported. The plaintiffs argued that there were continuing violations every time a hire was made in accordance with the Ledbetter Act of 2009. The 7th Circuit sided with the City [Lewis v. City of Chicago, 528 F. 3d 488 (2008)]. The Supreme Court heard oral arguments on the 7th Circuit ruling on February 22, 2010. The district and circuit court rulings in this case are discussed in detail by Dunleavy & Gutman (2010) (see http://www.siop.org/tip/jan10/08gutman.aspx). The oral arguments are at http://www.supremecourtus.gov/oral_arguments/argument_transcripts/08-974.pdf.
The key question addressed at oral arguments was:

Where an employer adopts an employment practice that discriminates against African Americans in violation of Title VII's disparate impact provision, must a plaintiff file an EEOC charge within 300 days after the announcement of the practice, or may a plaintiff file a charge within 300 days after the employer's use of the discriminatory practice?

Favorable questions for the plaintiffs were asked by Justices Breyer, Ginsburg, Sotomayor and Stevens during oral arguments. Unfavorable questions were asked by Justice Scalia, Justice Thomas asked no questions, and Justice Kennedy, the deciding 5th vote in recent close 5-4 rulings, asked only a couple of questions that were relatively neutral. Justice Alito asked questions that seemed to pressure both sides. Interestingly, it was Justice Roberts who asked the most critical question relating to potential hires in the “qualified” group. Accordingly:

What if the letter said, Look, we didn't get, you are not well-qualified but we really do expect to hire a lot more, so, you know, keep your fingers crossed. There is a good chance that you are going to be hired. And you say those people should have sued right then?

The defense attorney replied:

Correct. Because the impact, at a minimum, is the delay in hiring. And the Court has made quite clear that you don't -- a complainant or Plaintiff does not have to feel all the consequences right at the outset.

To which Justice Roberts replied:

Well, that's kind of a bad policy, isn't it, you are telling people who may probably not be injured at all, you are saying, Well, you still have to go to the federal court and sue.

Stay tuned for the ruling, which should be in late spring or early summer.

DC CIRCUIT COURT RULES THAT LEDBETTER LAW CANNOT BE USED TO REVIVE PROMOTION CLAIMS UNDER ADEA

by Art Gutman Ph.D., Professor, Florida Institute of Psychology

The case is Schuler v. PricewaterhouseCoopers, decided on February 16, 2010. The case may be viewed online at http://op.bna.com/dlrcases.nsf/r?Open=kmgn-82qpgx. Schuler alleged he was discriminated against in a partnership decision. The problem was that the allegation related to an employment action that was time-barred by the 300-day statute of limitations to file a claim. Schuler argued that the prior partnership decision limited his subsequent pay, much like Lilli Ledbetter claimed in Ledbetter v. Goodyear Tire & Rubber Co (2007). Schuler had cited statutory language in the Ledbetter Act that “discriminatory compensation decision or other practice” affecting an individual's pay. The D.C. Circuit rejected this argument, ruling we do not understand ‘compensation decision or other practice' to refer to the decision to promote one employee but not another to a more remunerative position.”

EEOC ISSUES NEW DATA ON JOB PATTERNS IN PRIVATE SECTOR

by Art Gutman Ph.D., Professor, Florida Institute of Psychology

In a press release dated February 5, 2010, the EEOC reported the following facts based on EEO-1 data extracts in 2008. Key facts include:

• Of the approximately 62 million private sector employees nationwide covered by the 2008 survey, about 30 million (48%) were women and 21 million (34%) were minorities;


• The rate of minority employment tripled between 1966 and 2008 from 11% to 34%;


• Among the four minority groups continuously measured, the employment rate for Black or African Americans increased steadily from 8% in 1966 to 14% in 2008;


• Hispanics or Latinos had the fastest growth rate in the private sector, increasing from 2.5% to over 13% between 1966 and 2008;


• Women’s overall participation rate in the private sector jumped from 31% to 48% between 1966 and 2008.

The report in its entirety is available on the EEOC’s website (http://www.eeoc.gov/).

SHRM ONLINE WEIGHS IN ON CHICAGO TEST RUMORS

by Art Gutman Ph.D., Professor, Florida Institute of Psychology

As noted in a prior DCI Update, it was reported in the Chicago newspapers that the Chicago Police Department is considering scrapping its police entry exam (see http://www.policeone.com/patrol-issues/articles/1986463-Chicago-police-may-scrap-entrance-exam/ and http://www.suntimes.com/news/steinberg/1979744,CST-NWS-stein08.article). On February 1, 2010, Diane Cadrain reported results she obtained by interviewing several individuals for their reactions to the newspaper reports. Among others, yours truly (Art Gutman) and DCI Principal Consultant Mike Aamodt were interviewed. Several good reasons for not scrapping the tests were discussed, including alternative selection procedures that produce less or no adverse impact, alternative liabilities for municipalities that would make such a decision, and strategies for developing tests that best limit potential liabilities in general. The article is available here for SHRM subscribers. I will gladly forward a copy of Cadrain’s report to any interested non-subscriber (artgut@aol.com).