A growing trend among employers is requesting applicants’ usernames and passwords to gain access to restricted social media in order to investigate applicants during the hiring process.  In response to this trend, Illinois and Maryland have each recently proposed laws that would essentially ban employers from requesting this type of information.  The main arguments for and against the proposed laws are centered around constitutional privacy concerns, however,  employers should consider that restricting their hiring personnel’s access to this type of information is not as harmful as some opponents have argued.

Recently, Montana’s chief federal judge admitted to forwarding an email from his court email account that included a racist “joke” involving bestiality and President Barack Obama's mother.  Judge Richard Cebull has since issued a formal apology to President Obama and has asked for a formal judicial review of his actions.  Earlier this week, two members of the House Judiciary called for a hearing to examine the judge’s conduct.  Representatives John Conyers of Michigan and Steve Cohen of Tennessee told Committee Chairman Lamar Smith in their letter that the committee has a duty to investigate the potential consequences of Judge Richard Cebull’s email.   “At a minimum, forwarding this email illustrates poor judgment and of conduct that was unbecoming of a federal judge,” they wrote.  “More troubling, however, is the possibility that public disclosure of the judge’s conduct may not only undermine the public’s view of his personal credibility and impartiality as a judge, but also the integrity of the ... federal judiciary.”

More than 70 percent of President Obama's confirmed judicial nominees during his first two years were "non-traditional," or nominees who were not white males.  That far exceeds the percentages in the two-term administrations of Bill Clinton (48.1 %) and George W. Bush (32.9 %), according to Sheldon Goldman, author of the authoritative book Picking Federal Judges.  "It is an absolutely remarkable diversity achievement," said Goldman, a political science professor at the University of Massachusetts at Amherst.  Are Judge Cebull’s actions an isolated incident or an indication that we still have a long way to go with regard to diversity efforts in the legal profession?

The U.S. Equal Employment Opportunity Commission ("EEOC") recently announced the adoption of a four-year strategic plan that focuses on, among other things, continued efforts to address "systemic discrimination" in the workplace.  

Not surprisingly, the EEOC's strategic plan sets forth a primary objective (which the EEOC acknowledges will exhaust the majority of its resources) to combat employment discrimination through administrative (e.g., investigation and conciliation) and litigation enforcement mechanisms with regard to private employers, labor organizations, employment agencies, and state and local government employers and through adjudicatory and oversight mechanisms Congress has given the EEOC with regard to federal employers.  

Based upon the EEOC's admittedly limited resources, the strategic plan states a need "to think strategically about how best to target its efforts to ensure the strongest and broadest impact possible in its efforts to stop unlawful employment discrimination."  In this regard, the strategic plan asserts that a top priority will be to continue the EEOC's 2006 "Systemic Initiative" designed to identify, investigate and litigate cases of alleged systemic discrimination (which the EEOC describes as "pattern or practice, policy, and/or class cases where the alleged discrimination [often by a single charging party] has a broad impact on an industry, profession, company, or geographic area").  

We look forward to gaining insight on how the EEOC intends to marshal its resources over the next several years - such as through the use of Commissioner charges, directed investigations, and empirical data - to address allegedly discriminatory policies or other instances of "systemic discrimination" from EEOC Commissioner Victoria A. Lipnic during DRI's 35th annual Employment & Labor Seminar, to be held May 2-4, 2012 in Chicago, IL.  If you have not already registered for this event, please access the registration information here and secure your spot today. 

The Supreme Court of the United States will reconsider the issue of affirmative action in higher education for the first time since its 2003 decision in Grutter v. Bollinger.  In Grutter the Court held that, “The Equal Protection Clause does not prohibit the [University of Michigan] Law School’s narrowly tailored use of race in admissions decisions to further a compelling interest in obtaining the educational benefits that flow from a diverse student body.”  Today, the Court agreed to hear the appeal of Abigail Fisher, a white student, who alleges she was denied admission to the University of Texas because of the color of her skin.  At issue in the Fisher case is whether the Court’s decisions interpreting the Equal Protection Clause of the Fourteenth Amendment, including Grutter, permit the University of Texas at Austin’s use of race in undergraduate admissions decisions.

The Texas case will be argued in the fall and the changed makeup of the Supreme Court could foretell a different outcome.  Chiefly, Justice Sandra Day O’Connor, who wrote the majority 5-4 decision, has been replaced by Justice Samuel Alito.  Further, Justice Elena Kagan has been recused from the case.  Her recusal is likely a result of the Justice Department’s participation in the case in the lower courts at the time when she served as solicitor general.

What impact, if any, will the changed makeup up of the Supreme Court have on its decision?  Is there a compelling interest in obtaining educational benefits from a diverse student body?  Could a reversal of the Court’s decision in Grutter result in resegregation in public colleges and universities?

As was recently reported, tomorrow a federal district court in California will consider whether the Wal-Mart v. Dukes class action lawsuit recently reversed and remanded by the U.S. Supreme Court may proceed in the form of multiple class action lawsuits involving narrower classes.

On June 20, 2011, the Supreme Court issued its opinion in Wal-Mart v. Dukes. That decision, among other things, held that the proposed nationwide class of some 1.5 million female employees was not consistent with Rule 23(a) of the Federal Rules of Civil Procedure. Specifically, the Court concluded that Rule 23(a)(2) requires a party seeking class certification to prove that the class has common questions of law or fact, i.e., the claims must depend upon a common contention of such a nature that it is capable of classwide resolution. On remand, an open question remains whether the commonality requirement can be met if the gargantuan class action is broken down into hundreds if not thousands of smaller class actions.

Where do trial courts go after Wal-Mart v. Dukes? What do the "new and improved" classes look like if they are to pass the standard announced by the Supreme Court? As a matter of policy, what is the right outcome for our system of justice?

Today the U.S. Supreme Court will hear argument in Wal-Mart Stores, Inc. v. Dukes, the largest employment class action in American history.  The Court’s decision will address the standards for certifying a nationwide class action and when a class action for monetary relief can be certified as a mandatory, non opt-out class.

The debate has already begun on the arguments to be made today and what the likely outcomes will be.  DRI has joined the debate, and will provide post-oral argument reaction and commentary in an April 5, 2011, web cast entitled "Reaction to Oral Argument in Wal-Mart v. Dukes.”  The two presenters are dynamite:  Carter G. Phillips, Managing Partner of the Washington D.C. office of Sidley Austin LLP and a frequent Supreme Court advocate, wrote the DRI amicus brief in the Dukes case; and Professor Martin H. Redish, an esteemed law professor at Northwestern University School of Law, has written extensively on class actions.
 
For DRI members like us, it’s only $150 - and that is per site, not per person. For complete details, you can download the brochure.  Also, to make it easy, if you want to register, click here. 

Despite significant progress for women in the legal profession, there are some differences in the way men and women are expected to behave that may not change until societal norms and expectations change as a whole.  In a recent article in the ABA Journal, Justice Sotomayor provided some thoughts about the differing expectations of male and female judicial candidates  She remarked that she was offended by some of the questioning that took place during her confirmation hearings, especially questions related to her dating history.  Her dating history was a hot topic because Justice Sotomayor has been divorced since 1983 and never remarried.  For a male federal court judge that fact may not matter.  But for a female judge this fact along with who you have dated, how often, and who you choose to bring to public events easily becomes a source of scrutiny. 

It’s a classic double standard that is unfortunate and unfair.  Proposing a ban on personal questions in confirmation hearings and interviews is probably not enough to change things because you can’t stop people from making assumptions about a woman’s professional ability based on her behaviors in her personal life.  Personal opinions, assumptions and expectations are bred into us through society and the media – many on a subconscious level.  Ultimately, societal and cultural views would have to change before women can feel free to act in the same manner as men without the worry that they will risk their professional reputations.  Whether that can happen depends a lot on those with the power to shape the parameters of what is or is not acceptable within their own offices and professions – be that law partners or politicians. 

The Supreme Court has confirmed that an employer may be liable for workplace discrimination or retaliation even though it is undisputed that the ultimate decision-maker himself or herself has no bias or retaliatory motive. How can this be possible? According to the Court, the logic behind the "cat's paw" theory can play out as follows: (1) a supervisor takes a step for a biased or retaliatory reason with the intention of getting the employee fired, demoted, and penalized; and (2) the supervisor's step is the "proximate cause" of the ultimate decision, even if the person making the final decision had no discriminatory bias, retaliatory motive, or even any knowledge of the alleged protected activity. In the case before the Court, the plaintiff alleged that his supervisors placed unfavorable entries in his personnel record and created special work rules just for him, all because of their hostility towards the time missed due to his military service. The VP of Human Resources later terminated the plaintiff after receiving a report from the same supervisor that the plaintiff had violated the terms of a previously issued corrective action.

The "cat's paw" theory is not novel, and has been recognized by courts in various forms. The Supreme Court's adoption of a "proximate cause" standard, however, will be a challenge to employers, who may now be liable for the unknown biases and motives of first level supervisors. The Court even noted that the decision-maker's own investigation may not necessarily absolve the employer from liability. In other words, the person making an adverse employment decision cannot blindly rely upon the discriminatory acts and recommendations of supervisors.

The issue of the lack of racial diversity in the National Hockey League (“NHL”) is not a new one, but with the filing of a new lawsuit in California on January 25, 2011, it appears that the NHL may have other discrimination issues to worry about as well.  Jason Bailey, a Jewish hockey player drafted by the Anaheim Ducks and assigned to play with their minor league affiliate the Bakersfield Condors, is suing the Ducks for religious discrimination and failure to prevent harassment.  According to the Orange County Register, Bailey’s Complaint alleges that he was subject to severe harassment from both the Condors’ head coach and assistant head coach relating to his religious beliefs.  In response to Bailey’s complaints about the harassment, both coaches were briefly suspended and made to write letters of apology, a penalty that Bailey alleges was not stiff enough.  Bailey was subsequently traded by Anaheim to the Ottawa Senators organization where he plays for their minor league affiliate, the Birmingham Senators.  Both coaches remain with the Condors although the Ducks cut their ties with the team last year.

In a much-anticipated opinion released today, a unanimous U.S. Supreme Court held that Title VII’s retaliation provisions protect third parties from retaliation in addition to complainants.

In Thompson v. North American Stainless LP, (Case No. 009-291), Eric Thompson and his fiancée Miriam Regalado were employees of North American Stainless (NAS).  Regalado filed a charge of discrimination against NAS alleging sex discrimination; 3 weeks later Thompson was fired.  Thompson then filed a charge alleging he was terminated in retaliation for his fiancée’s filing of her charge of discrimination.  The district court granted NAS summary judgment on the ground that third-party retaliation claims were not permitted by Title VII, and this was affirmed by the 6th Circuit.

Writing for the Court, Justice Antonin Scalia recited the retaliation standard previously enunciated by the Court in White, i.e., Title VII”s anti-retaliation provisions prohibit any employer action that “well might have ‘dissuaded a reasonable worker from making or supporting a [discrimination] charge.’”  Applying this standard to the facts in Thompson led the Court to conclude that it was “obvious that a reasonable worker might be dissuaded from engaging in protected activity if she knew that her fiancée would be fired.”

Given the Court’s prior decisions giving a broad construction to retaliation protections, is anyone surprised by this decision?  How does it affect how we, as practitioners, advise our employer and EPLI insurer clients?