Author: Michael Zimmer


14 Penn Plaza v. Pyett and the Fairness in Arbitration Act

Thanks to Dan, Sarah and all for inviting me to continue as a guest for awhile. They did not even require me to promise not to say any more about Ricci!

I finished my Labor Law class with 14 Penn Plaza v. Pyett. My position is that the case represented dysfunctional litigation in a number of ways. First, and foremost, Justice Thomas’ opinion appears to fail to understand anything about how collective bargaining arbitration works. The provision pouring statutory discrimination claims into arbitration is the basis for his conclusion that this “requires union members to submit all claims of employment discrimination claims to binding arbitration.”  Collective bargaining agreements, including arbitration provisions, have only two parties to them – the union and the employer. The employees covered by the collective bargaining agreement are decidedly not parties to the agreement and nothing in the provision Justice Thomas quotes does anything to make them parties to the collective bargaining agreement, the arbitration agreement, or the particular grievance of any individual employee. One wonders if any Justice or any clerk of any Justice has actually taken labor law. A problem was that the union was not a party to the case and did not weigh in until it filed an amicus brief at the Supreme Court.

 Second, the fig leaf of “consent” or voluntary agreement to arbitrate employment claims in individual employment contracts that are contracts of adhesion has been ripped away in 14 Penn Plaza. There is simply no basis for finding that the employees whose discrimination claims now can only go to arbitration ever agreed to that. So, arbitration has been deprived of any claims to being voluntary as to the employees whose claims are being determined. Finding that a union can waive the statutory right of employees simply does not make the resultant arbitration voluntary as to the employee.

 Third, once the union withdrew the grievance from arbitration because it claimed that it had agreed to the change that disadvantaged the employees, the employees should have filed a discrimination claim against the union in addition to the claim it had filed against the employer. With the two parties to the arbitration agreement now both respondents to discrimination claims, it seems hard to conclude that the arbitration process, controlled by these two parties, could be found to be fair. The conflict between the employees on one side and the employer and union on the other should have allowed the employees to seek a neutral forum in the courts.

Fourth, the opinion references the union’s duty of fair representation but the standards of proof for that are so high that a straight discrimination claim might work better for the employees. The employees should, however, have filed duty of fair representation charges with the NLRB on the chance that it would have pursued their claims on their behalf. In sum, it is my position that 14 Penn Plaza is another, in a long line of cases that is transforming voluntary arbitration into a private justice system that is inconsistent with the idea that we follow a rule of law.

The students raised some interesting points that did not necessarily agree with my position. Read More


Ricci: The Equal Protection Implications


The question presented for decision in Ricci had two elements, a Title VII aspect and an Equal Protection one:

“When a content-valid civil-service examination and race-neutral selection process yield unintended racially disproportionate results, do a municipality and its officials racially discriminate in violation of the Equal Protection Clause or Title VII when they reject the results and the successful candidates to achieve racial proportionality in candidates selected?” 

By deciding the Title VII question, that the City had engaged in disparate treatment discrimination that violated Title VII, the Court said it had avoided deciding the equal protection question: “In light of our ruling under the statutes, we need not reach the question whether respondents’ actions may have violated the Equal Protection Clause.”

The Court went further to emphasize that it was leaving the constitutional claim for another day and that its decision in Ricci on Title VII grounds was not in fact deciding any equal protection claim:

“Our statutory holding does not address the constitutionality of the measures taken here in purported compliance with Title VII. We also do not hold that meeting the strong-basis-in-evidence standard would satisfy the Equal Protection Clause in a future case. As we explain below, because respondents have not met their burden under Title VII, we need not decide whether a legitimate fear of disparate impact is ever sufficient to justify discriminatory treatment under the Constitution.”

Based on what the Court said about the constitution in Ricci, this would be the end of the post. But equal protection doctrine is a powerful background issue in Ricci. See, Richard Primus, in The Future of Disparate Impact,, for a further development of this argument. Read More


Ricci: The Interaction of Disparate Treatment and Impact Discrimination

Until Ricci, the interrelation between intentional disparate treatment discrimination and unintentional disparate impact discrimination had not been worked out very thoroughly by the courts. Nevertheless, as Justice Ginsburg put it in her dissent, no conflict existed between the two theories:

 “Neither Congress’ enactments nor this Court’s Title VII precedents (including the now-discredited decision in Wards Cove) offer even a hint of “conflict” between an employer’s obligations under the statute’s disparate treatment and disparate-impact provisions. Standing on an equal footing, these twin pillars of Title VII advance the same objectives: ending work place discrimination and promoting genuinely equal opportunity.” 

In the pre-Ricci period, employers were tasked with not making employment decisions with an intent to discriminate. Acting based on knowing the race of the individuals affected by the decision, however, was not sufficient proof that the employer acted with an intent to discriminate. At the same time, the employer was also tasked with avoiding using employment practices that had a disproportionate impact on members of minority groups unless that practice was job related and consistent with business necessity. Knowing the racial consequences of the use of an employment practice was the first, and necessary, step toward avoiding disparate impact liability. But an employer, acting with that knowledge did not trigger disparate treatment liability without more. So, as long as the employer did not act with an intent to discriminate against anyone on the basis of race, it avoided disparate treatment liability and, if it acted on the known racial consequences of its employer practices to avoid disparate impact liability, that was not disparate treatment discrimination.

What created the conflict between the two concepts that emerged in Ricci is the new notion that acting with knowledge of the racial consequences of the decision is acting with  an intent to discriminate, at least in certain circumstances. In Justice Kennedy’s view, the employer does not act with an intent to discriminate, if, before a practice is used, the employer undertakes to review its likely racial consequences in order to shield itself from disparate impact liability. If, however, the employer has used the practice and its use has created reliance interests in others, it is too late to abandon the outcomes of that practice because that is disparate treatment discrimination unless the employer has a “strong basis in the evidence” of its disparate impact liability if it went ahead and use the practice.   Read More


Ricci: Color-Blind Standards in a Race Conscious Society?

While the Court’s decision in Ricci v. DeStefano focused mostly on disparate impact law, much of the subsequent discussion has focused on the threshold finding that the City of New Haven’s decision not to use the test scores to promote firefighters was, as a matter of law, disparate treatment discrimination against some white firefighters who would be promoted if the test scores were used. Recent events suggest that the issues raised in those discussion may have to be decided since African-American testtakers have now challenged the use of the test scores as both disparate treatment and disparate impact discrimination.

The Court described the factual basis for finding that the City’s decision not to use the test scores was disparate treatment discrimination against those testtakers — the 17 whites and two Hispanic who would have been promoted if the test scores were used:

“When the examination results showed that white candidates had outperformed minority candidates, the mayor and other local politicians opened a public debate that turned rancorous. Some firefighters argued the tests should be discarded because the results showed the tests to be discriminatory. They threatened a discrimination lawsuit if the City made promotions based on the tests. Other firefighters said the exams were neutral and fair. And they, in turn, threatened a discrimination lawsuit if the City, relying on the statistical racial disparity, ignored the test results and denied promotions to the candidates who had performed well. In the end the City took the side of those who protested the test results. It threw out the examinations.”

The Court later describes why those facts support, as a matter of law, a finding of disparate treatment discrimination:

“The City’s actions would violate the disparate-treatment prohibition of Title VII absent some valid defense. All the evidence demonstrates that the City chose not to certify the examination results because of the statistical disparity based on race—i.e., how minority candidates had performed when compared to white candidates. . . . Whatever the City’s ultimate aim—however well intentioned or benevolent it might have seemed—the City made its employment decision because of race. The City rejected the test results solely because the higher scoring candidates were white.”

In sum, because the City knew the distribution by race of the test scores and knew that if the scores were used to promote firefighters to lieutenant and captain positions, no African American testtakers and all but two Hispanic testtakers would not get promoted to fill the openings that then existed.  (Over the two year lifetime of the test, three African Americans might be considered for promotion to lieutenant if there were new openings.) While the Court appeared to focus on two racial groups of testtakers – whites and African-Americans — in fact there were six different groups based on three racial groups members which were represented in two groups — those affected favorably by the decision not to use the test scores and those affected unfavorably. Read More


Ricci and Briscoe as Disparate Impact Cases

UPDATE: Seven African-American testtakers in Ricci have moved to intervene in Ricci, which is back at the district court for implementation of the Supreme Court decision. Also, African-American testtakers have filed disparate treatment and disparate impact discrimination charges with the EEOC. All this reported in the Connecticut Employment Law Blog,

The main thrust of Ricci focused on the disparate impact issue and its implications will likely be worked out in Briscoe v. City of New Haven, a disparate impact case brought against the City because it has now used the test scores challenged in Ricci. In Ricci, the City argued that its decision not to use the test scores was made to avoid the risk of disparate impact liability to the African-American testtakers who would not be promoted if the test scores were used.  The Court conceded, as did all the parties, that the use of the test scores would have resulted in a disparate impact on African-American testtakers. Using the “pass rate,” or cutoff score that was set for the test, less than 80% of the minority testtakers passed. More important, the actual use of the test among those who passed would have excluded from immediate promotion all the African Americans and all but two of the 22 Hispanic testtakers. (Three African Americans might have some chance for promotion if new openings occurred in the future during the life cycle of the test.) With that prima facie case of disparate impact discrimination conceded, the focus moved to the business necessity and job relatedness affirmative defense and the plaintiff’s surrebuttal possibility of showing that an alternative was available that served the interests of the City but resulted in less impact.

Given the posture of the case – using the risk of disparate impact liability as a defense to a disparate treatment claim – the City had the burden to prove that it would not be likely to carry its burden of proving the test’s business necessity and job relatedness or that disparate impact plaintiffs would likely be able to prove an alternative way promote to promote firefighters that had less impact. The Court rejected the arguments that the City had to prove it would actually lose such a disparate impact case or that its good faith belief sufficed. Instead, the City had to have a “strong basis in evidence” for believing it would be liable for disparate impact discrimination. In other words, it should be somewhat easier for the City to win the issue of its potential risk of disparate impact liability than it would be if disparate impact plaintiffs actually had to prove the City liable for disparate impact discrimination.

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Is Ricci a Significant Procedural Case?

Much of the buzz about Ricci v. DeStefano before it was decided was that it raised an important equal protection question of the validity of Title VII’s disparate impact definition of discrimination because it requires employers to know and act on the racial consequences of its use of  employment practices, such as employment tests. The Supreme Court, in a 5-4 decision, did not reach the question, though Justice Scalia, in his concurring opinion, said that the day is coming when the Court will have to address the question. In that regard, Ricci may be the Title VII analog to Northwester Austin Municipal Utility District No. One (NAMUDO) v. Holder. In NAMUDO, the Court avoided the question of the constitutionality of §5 of the Voting Rights Act by its interpretation of the statute. Richard Primus has an article coming out in the Michigan Law Review, The Future of Disparate Impact,, that discusses that issue. But, even without that issue, Ricci presents some significant questions. I will start with its procedural aspects. They will likely be worked out in Briscoe v. City of New Haven, a disparate impact case brought by an African-American testtaker who has been disadvantaged because New Haven has now used the test scores at issue in Ricci.

Proceduralists might see Ricci as of interest for two reasons. The first is that the Supreme Court reversed summary judgment for the defendants but, rather than remanding, the Court went ahead to grant summary judgment for the plaintiffs. How often does that happen? With 93 pages of  slip opinions of which about two-thirds involved recitation of facts and the application of law to those facts, one would think at least on material issue of fact could be found. Is it that the Court lacked trust in the lower courts to ever get it right?

Some support for my hunch is based on the second procedural issue raised by a somewhat inscrutable sentence in the second last paragraph of Justice Kennedy’s opinion for the Court:

“If, after it certifies the test results, the City faces a disparate-impact suit, then in light of our   holding today it should be clear that the City would avoid disparate-impact liability based on the strong basis in evidence that, had it not certified the results, it would have been subject to disparate-treatment liability.”

Why this is inscrutable is that in Ricci, white plaintiffs ultimately prevailed by claiming they were victims of intentional disparate treatment when the defendant decided not to use the results of a promotion test. The City’s defense was that using the test scores would cause a disparate impact on minority testtakers. But the African-American, Hispanic and white testtakers who were benefited by the City’s decision not to use the test scores were not party to Ricci. How can their rights have been decided in that case?

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The War is Over But What Impact Will the Restatement of Employment Law Have?

When, a number of years ago, the Council and the Director of the American Law Institute announced that the Institute was undertaking a project in the area of labor and employment law, it followed its long tradition of deciding the project’s subject, its type and who would be the Reporters without input from the membership at large. That the topic was employment law was not a surprise. After all, Lance Liebman, the ALI’s Director, is a well known teacher and scholar of employment law. The nature of the project, a Restatement, was, however, somewhat of a surprise. Restatement projects look to the common law in a particular area. A problem with a Restatement of the common law of employment is that the common law plays a small role in a large, ungainly, some would say, disorganized jumble of state and federal laws, statutes and common law covering a wide range of issues that bear on employment. There is little apparent coherence to it. So, in the admittedly small world of labor and employment academics, it was no surprise that the idea of a Restatement provoked widespread protest. Some feared that a Restatement of Employment Law would “cement” in place law that was woefully inadequate for present much less future times. For some, that fear was exacerbated by the choice of the Reporters and the initial Advisory Group. I liked the idea of an ALI project but, given the mishmash that is labor and employment law, hoped for a Principles project to develop a policy basis that could be used to develop a coherent body of labor and employment law.

In face of the protests, the project moved slowly at first as some Reporters left and others joined the project. Once three chapters had been completed and approved by the ALI Council, the opposition got organized to try to stop those chapters, and indeed the whole project, from proceeding any further. Many of those opposed undertook the unusual move toorganize and hold a well- attended meeting at Hastings to present and to develop critiques that argued that the Restatement project should be abandoned. The work of 18 employment law academics was presented at the meeting. The results of that meeting and the critiques prepared for it were sent to all ALI members for their consideration before last May’s annual meeting that had the first three chapters on the agenda for adoption. The critiques were also published in a special issue, volume 13, issue #1 of the Employment Rights and Employment Policy Journal,

Given the heated nature the whole issue had become, it should be no surprise that the dispute became personal. The lines were drawn with the ALI on one side and the Labor Law Group on the other. While the debate at the ALI meeting this past May was heated, the membership, as it generally does, accepted the recommendation of the Council and approved the first three chapters more or less intact. Read More


Doe v. Wal-Mart: Must Common Law be Reformed to Protect Workers?

Outsourcing, with or without offshoring, through extended supply chains of goods and services has come to be a common way to organize a business. Using contract law to divide and subdivide what was once a single enterprise (or start one from scratch) into separate legal entities is ever more useful to businesses as they try to cut their costs to become ever more competitive. If vertical integration was once the norm – e.g., Ford’s River Rouge plant where iron ore, coal, sand, rubber came in one end and Ford cars came out the other – the norm is now to have flat and horizontal relation-based groups of legally independent entities that can stretch around the world. The business entities farthest from the core of the enterprise frequently are almost ephemeral in to their organization, ownership and even life span. These frequently operate at the fringe of the formal economy and often in the informal economy where they escape coverage by the domestic labor and employment laws of the place where the work is performed. “Middlemen” operated as a bridge between the core enterprise and the far end of the supply chain where the productive work is actually performed.

The common law generally favors this type of private ordering in part because it looks at so many issues through a lens that sees only the two parties immediately involved in the transaction. The common law does not generally take too much account of the effects on third parties, including workers participating in the full enterprise from one end of the supply chain to the other. What is becoming ever more clear is that the common law leaves labor and employment interests in the dust, unable to keep up, incapable of protecting workers.

A recent common law case demonstrates the freedom enterprise has to organize its affairs to its own interests while escaping any obligation to workers down line in the supply chain. In Doe v. Wal-Mart Stores, Inc., plaintiffs were employees of enterprises located around the world that make and sell goods to Wal-Mart. Wal-Mart’s contracts with plaintiff’s employers all incorporate Wal-Mart’s Code of Conduct obliging these suppliers to provide basic labor standard protections to their employees and allowing Wal-Mart to monitor compliance including canceling contracts if the suppler “fails or refuses to comply” with the Code. Requiring suppliers to agree to the Code shields Wal-Mart from attack, including consumer boycotts, for selling goods made by child labor or under other sweatshop conditions. Nevertheless, the workers at the ends of the supply chain were in fact not provided the labor protections the Code claimed to mandate. Claiming injury from their employers’ mistreatment, plaintiffs sued Wal-Mart because it failed to either monitor or enforce compliance with its Code. The Ninth Circuit, applying traditional common law, rejected all four of plaintiffs’ claims. First, plaintiffs were not third party beneficiaries of the contracts between plaintiffs’ employers and Wal-Mart. Second, Wal-Mart was not a joint employer of these employees with their employers. Third, Wal-Mart owned no duty to plaintiffs and so it could not to be held to be negligent. Fourth, Wal-Mart was not unjustly enriched by the employers’ mistreatment of the plaintiffs. In short, independent contractor law allows Wal-Mart to arrange its legal relationship with its supplier to their mutual advantage while also cutting off the claims of the employees of the suppliers. As has been true from the earliest sweatshop days in the garment business, the actual producers are completely contingent, ready to disappear and to reappear in a new format at a new location at a moment’s notice in order to avoid any obligations owed the workers. Sweatshop conditions have grown far beyond the garment industry to include electronics and many other labor intensive businesses.

So, ironically, those interested in workers’ rights might need to start thinking about reforming the common law, at least as it applies to employees, if law is to be relevant to worker protections. For the purposes of worker protection, enterprises may have to be reconceptualized so that the Wal-Marts of this world are viewed as a single enterprise from the beginning to the end of the supply chains, without regard to the private ordering they engage in to divide the whole into many parts. In fact, if not law, they do form a functional whole, despite the present law that separates them into many independent legal entities. The normative basis for such a new approach is that, if the Wal-Marts of this world are not responsible for labor standards to workers to the very end of the supply chain, then no one is.

If enacting the Employee Free Choice Act and the various civil rights bills pending in Congress face tremendous challenges to be enacted, the question is whether legislation to reconceptualize workers’ rights in these subdivided enterprises has any chance at passage. In the recent era, the common law courts have also retreated from the advances made when what we call “employment law” was just beginning to blossom.


The Employer’s Strategy in Gross v. FBL Financials

Last Term in Gross v. FBL Financials, a 5-4 decision written by Justice Thomas, the Court decided that a plaintiff bringing a claim of individual disparate treatment age discrimination — an ADEA action — must prove, by a preponderance of evidence, that age was the “but-for” cause of defendant’s treatment of plaintiff. Thus, unlike Title VII, the burden of persuasion never shifts on the issue of linking what happened to plaintiff— “an adverse employment action” — to defendant’s intent to discriminate, even if plaintiff had produced evidence that age was “a motivating factor” of the defendant. This is an important discrimination case since the Court appears to be adding age cases to discrimination cases under the ADA (before its recent amendments) that deserve lesser enforcement than the Title VII claims of race, color, sex, national origin and religion discrimination. It will have ramifications in other areas of discrimination law, including retaliation cases and cases brought under 42 U.S.C. 1981. It even raises the question whether the iconic McDonnell Douglas v. Green approach to proving defendant’s intent to discriminate applies in age act cases. (So far, the two circuits deciding that question continue to apply McDonnell Douglas).

For those not interested in employment discrimination law, of which I suppose there may be a few, this may not seem a startling decision. But for those attuned to discrimination litigation and to Court watchers generally, the decision came as a quite a surprise. Most surprising is that the Court answered a question not presented to it for decision. In most situations when the Court determines that some question other than the one presented has come to the fore, certiorari is dismissed as improvidently granted or the case is remanded to the lower courts to decide this new question.

The question originally presented in Gross was: “Must a plaintiff present direct evidence of discrimination in order to obtain a mixed-motive instruction in a non-Title VII discrimination case?” What this referred to was Title VII authority that allowed burden shifting to the defendant of the issue of linkage between defendant’s intent to discriminate – the employer’s motivation for its action —  and plaintiff’s harm and how that burden shifting might apply in age discrimination cases. Long story short, the Justice O’Connor’s concurring opinion back in a 1989 Title VII sex discrimination case, Price Waterhouse v. Hopkins, came to be viewed by the lower courts as the holding since her opinion was seen as the narrowest basis for the decision in which there was no majority. She required plaintiff to introduce “direct” evidence of discrimination in order to rely on a “substantial factor” test of linkage that shifted the burden of persuasion to the defendant to prove a same-decision defense. The 1991 Civil Rights Act then amended Title VII so that plaintiffs established liability by showing defendant’s intent to discriminate was only “a motivating factor,” with the burden then shifting to the defendant to prove the same-decision defense to full remedies, not to liability. The new provisions did not mention “direct” evidence and so Title VII was interpreted in Desert Palace v. Costa as not requiring any “direct” evidence threshold to the use of the new “a motivating factor” standard.

The question presented in Gross was how that all worked out in an age discrimination case. Up until the employer filed its reply brief, the case proceeded on the assumption that burden shifting applied, with the question being whether or not the plaintiff needed to point out “direct” evidence to take advantage of that shift in the burden of persuasion. Raised for the first time in its reply brief to plaintiff’s brief on the substance, the employer argued that a prior question needed to be answered before that question could be decided: Was burden shifting ever available in an ADEA case?  The Court agreed that it should answer that question instead of the one presented and answered it in favor of defendant. Thus, the original question presented was mooted out.

For Court watchers, the more interesting question is why the employer decided so late in the game to try to shift the focus of the case.

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Drafting the 28th Amendment

With only 27 amendments so far in our long history with our present Constitution, a colleague and I asked all of our Constitutional Law students in the fall of 2005 to propose a 28th Amendment. This was to celebrate Constitution Day, so we opened the exercise to everyone in the law school community. There was a range of responses across different areas of Constitutional law, including several structural proposals and the expansion of negative as well as of positive individual rights. Starting at number 10 and moving to number 1, here are the top 10 proposals:

10. A tie:

Equal protection because of sexual orientation. This adds to the idea that, at least in this group of law students, issues over sexual orientation should be resolved in favor of gay and lesbian rights.

Repeal of the Second Amendment. This was before Heller but the issue obviously was on the horizon for some. Since both classes used the Chemerinsky casebook that started with the problem of the Second Amendment even before Heller, that might explain the focus. I wonder if the response would be different if the law school was not located in the heart of a major city.

The right to equal education. Each year that I have taught San Antonio v. Rodriguez, a number of students express absolute shock that this is not already a protected individual right. Law students seem to be committed to education, though sometimes their contribution to it might appear a little weak on any particular day.

Constitutional protection for broad campaign finance legislation. Given the way our federal government operates, or fails to, this one is no surprise.

6. Equal protection because of sex or gender. The Equal Rights Amendment still lives in the hearts of some students, despite the expansion of the equal protection clause to cover sex discrimination.

5. A tie:          

Make explicit a constitutional right to privacy.

Prohibit the death penalty.

3. Guarantee universal health care. This may just show how long this issue has been on the agenda.

2. Presidential election by direct vote. Bush v. Gore still had impact five years later.

1. Legalize same-sex marriage or civil unions. While phrased somewhat differently, proposals on this topic constituted more than twice as many amendments as the next most popular proposal. Not one proposal was made to restrict same-sex marriage or civil unions. 

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