disparate impact

Many New Job-Killing Regulations from the Obama Administration

by Hans Bader on August 30, 2011 · 1 comment

in Economy, International, Legal, Regulation

Andrew Stiles describes “Ten Job-Destroying Regulations” from the Obama administration that will wipe out hundreds of thousands of jobs. Another job-killing regulation is the Obama administration’s recent demand that trucking companies employ alcoholics as truckers rather than assigning them to less safety-sensitive positions — a demand that will lead to costly lawsuits against trucking companies by accident victims, and thus discourage anyone from setting up new trucking companies.

Still another is the Obama EEOC’s current practice of suing some employers who consider applicants’ arrest records and criminal convictions in hiring — a practice it is now considering broadening, through agency guidance further restricting consideration of applicants’ criminal histories in hiring decisions. If you were thinking of starting a new business, wouldn’t you be less likely to do so if you thought you would have no freedom as to whom you could hire, and no freedom to consider someone’s dangerousness or the content of their character before hiring them? If you don’t hire a criminal, the EEOC may sue you for “disparate impact”; but if you do hire the criminal, you may later be sued under a state law for “negligent hiring” if the criminal harms someone on the job or while doing errands for your company.

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Serial Rapists Roam Free in D.C. as the D.C. Government Shields Ex-Cons from Discrimination

by Hans Bader on January 6, 2010

in Deregulate to Stimulate, Economy, Employment, Legal, Personal Liberty, Politics as Usual, Precaution & Risk, Regulation, Sanctimony

The D.C. government sometimes has more empathy for criminals than for their victims.   In December 2007, the D.C. Council voted to turn ex-cons into a protected class.

Now, it turns out that serial rapists are roaming free in the District of Columbia, since “Three thousand untested rape kits are sitting in a warehouse,” and D.C. has not even set up its own crime lab to nab rapists and other criminals using their DNA.

The D.C. Council hasn’t done anything about that.  But in December 2007, it voted to curtail employers’ and landlord’s freedom of association by banning job and housing discrimination against ex-cons, even though there’s a huge difference between discriminating based on someone’s skin color, and judging them based on the “content of their character.”  Even the Washington Post opposed the bill, noting that it “would undermine public safety.”

A Washington, D.C. law called the D.C. Human Rights Act also bans employers, including ideological and political organizations, from using political affiliation as a hiring criterion, or even adopting neutral policies that have an inadvertent “disparate impact” based on such criteria (with a completely different, and radically broader, definition of “disparate impact” than federal law).  Such mandates are of dubious constitutionality.  Contrary to the D.C. Council’s apparent belief, the government’s power to ban employers from engaging in reasonable job-related “discrimination” is not infinite.  See Nelson v. McClatchy Newspapers, 936 P.2d 1123 (Wash. 1997) (First Amendment barred application of state law holding newspaper liable for discharging reporter based on political activities).

Supreme Court Rules in Favor of White and Hispanic Firefighters in Ricci v. DeStefano

by Hans Bader on June 29, 2009 · 3 comments

in Economy, Employment, Features, Labor, Legal, Personal Liberty, Politics as Usual, Regulation, Zeitgeist

The Supreme Court has just ruled in favor of white and Hispanic firefighters, who were denied promotions when the City of New Haven threw out the exam they scored highest on, citing the fact that no black firefighter scored high enough. In Ricci v. DeStefano, the Court reversed a decision by the Second Circuit Court of Appeals, including Judge Sonia Sotomayor, whom Obama has nominated to the Supreme Court.

The appeals court, in an unpublished ruling designed to avoid scrutiny, had held that the City could throw out the test simply because the test excluded more blacks than whites, meaning it gave rise to a “prima facie” case of unintentional “disparate impact” discrimination (disparate-impact is when a test excludes substantially more members of one race or gender than another). The Supreme Court held that this was not reason enough to use race, at least where the test measures useful job skills.

“Frank Ricci, a firefighter in New Haven, Conn., worked hard, played by the rules, and earned a promotion to fire lieutenant. But the city denied him the promotion because he is not black. Ricci sued, along with 16 other whites and one Hispanic firefighter. After a 7-6, near-party-line vote by a federal Appeals Court to dismiss the lawsuit,” the Supreme Court decided to review the case. A three-judge panel including Judge Sotomayor had “dismissed” of Ricci’s case in an unpublished ruling, “in a process so peculiar as to fan suspicions that some or all of the judges were embarrassed by the ugliness of the actions that they were blessing and were trying to sweep the case quietly under the rug, perhaps to avoid Supreme Court review or public criticism, or both,” says the National Journal.

The lower courts have divided on how much public employers can use race-based affirmative action to offset tests or selection criteria with “disparate impact” without violating the Constitution. Some courts, like the moderate Seventh Circuit, have said that that public employers can’t use race at all to offset such tests or criteria, since the purpose of affirmative action is to remedy constitutional violations, and the Constitution (unlike some civil rights statutes) isn’t violated by disparate impact, but rather requires a showing of racism or intentional discrimination. Others, like the more liberal First Circuit, say that race can be used to offset tests’ “disparate impact” even if the test measures useful job skills and thus is “job-related,” as long as substantially more minorities fail it than whites — meaning that the “disparate impact” is only a “prima facie” or half-proven case, which doesn’t actually rise to the level of illegality (the civil-rights statute, Title VII, only bans tests with a “disparate impact” if they are not “job-related”).

In the Ricci case decided today, the Supreme Court took a middle path, saying that a mere racial imbalance (or “prima facie” case of disparate impact) is not enough to use race, but that disparate impact can be enough reason if there is “strong evidence” that the test not only excludes more blacks than whites, but also is not “job related” in the sense of requiring knowledge irrelevant to the job. Since the City of New Haven had no strong evidence that the test was not job-related, its decision to throw out the test was illegal.

However, it cautioned that this standard only limited statutory challenges to affirmative action, as opposed to Constitutional challenges, applying this standard to Title VII claims so that employers won’t face a discrimination claim no matter what they do (for intentional discrimination against whites if they throw out the test, or unintentional “disparate impact” discrimination if they keep the test that no blacks passed). It said that public employers might face additional requirements before they could use race under the Constitution (which, unlike Title VII, does not recognize “unintentional” discrimination or “disparate-impact” liability): “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.”

Thus, the Court’s decision does not abrogate the rulings of the federal appeals court in Chicago, the Seventh Circuit, which ruled in People Who Care v. Rockford Board of Education, 111 F.3d 528, 534 (7th Cir. 1997) Biondo v. Chicago, 382 F.3d 680, 681 (7th Cir. 2004), and Builders Association v. Chicago, that to defeat a constitutional lawsuit brought by victims of affirmative action or reverse discrimination, a public employer cannot rely on a test or selection criterion’s disparate impact. For example, Chief Judge Posner ruled in People Who Care v. Rockford Board of Education, 111 F.3d 528, 534 (7th Cir. 1997), that to use race to favor minorities, a school district must show that it once “discriminated intentionally” against them, since that is “the only kind of discrimination that violates the equal protection clause.”

Today’s decision does, however, effectively abrogate court rulings saying that a test’s mere “prima facie” disparate impact is enough to justify using race, given that the Supreme Court in United Steelworkers v. Weber, 443 U.S. 193, 206 fn. 6 (1979) said that the limits on affirmative action are tougher under the Constitution than under civil-rights statutes like Title VII, which was “not intended to incorporate” the tougher “commands of the Fifth and Fourteenth Amendments.” (The rulings allowing race to be used to offset tests’ racial imbalances are also hard to square with the Supreme Court’s recent ruling that race-based affirmative action is supposed to be a “last resort,” see Bartlett v. Strickland, 129 S.Ct. 1231, 1247 (2009)).

Justice Alito, in his concurring opinion, noted that there was an additional, independent ground for reversing the appeals court decision throwing out the white and Hispanic firefighters’ lawsuit: that the whole issue of tests’ alleged “disparate impact” was a red herring and a “pretext” because the appeals court ignored evidence that the City’s motivation was not a sincere desire to avoid “disparate impact” but rather just an excuse to engage in racial favoritism towards blacks.

Even if the City had legitimate motives for throwing out the test, if it also had illegitimate or mixed motives, that would render it liable under Title VII (and potentially the Constitution), under the Supreme Court’s “mixed-motives” precedents. (See Mount Healthy Bd. of Educ. v. Doyle (1977), and Price Waterhouse v. Hopkins (1989)). The city could only rely on the test’s “disparate impact” if that were its “actual purpose” for using race, and could not use any problems with the test as a justification if they “did not actually precipitate the use of race.” (See Shaw v. Hunt, 517 U.S. 899, 908 n.4, 910 (1996)).

Eleventh Circuit Grants Rehearing in Reeves v. C.H. Robinson Worldwide, Which Gutted Statutory Limits on Sexual Harassment Claims

by Hans Bader on June 10, 2009 · 1 comment

in Economy, Employment, Labor, Legal, Nanny State, Personal Liberty, Regulation

Can you sue your employer because your co-workers listen to raunchy radio programs?

A federal appeals court is reconsidering its 2008 ruling that you can. The Eleventh Circuit Court of Appeals’ decision in Reeves v. C.H. Robinson Worldwide said you could do so, under the dubious theory that it is “sexual harassment” that’s “based on” your sex. But on May 29, it voted to rehear that case.

U.C.L.A. Law Professor Eugene Volokh criticized the decision on First Amendment grounds, while I criticized the April 2008 ruling as being inconsistent with the language of the discrimination laws and the Eleventh Circuit’s own past rulings, and a threat to the media and freedom of the press in the long run. (Overly-broad interpretations of sexual harassment law are already being used to restrict a wide array of speech, as Professor Volokh, a First Amendment expert and former Supreme Court clerk, has chronicled).

Courts sometimes engage in inconsistent legal reasoning to impose liability and maximize damages in sexual harassment cases, and they sometimes disregard the statutory requirements (see, e.g., 42 USC 1981a) that harassment plaintiffs seeking compensatory damages show that they were harassed based on their sex, and subjected to intentional discrimination.

I don’t like raunchy radio programs, but that doesn’t mean the government should ban listening to them, much less do so under the weak argument that they constitute sex discrimination.

The April 2008 decision in Reeves v. C.H. Robinson Worldwide, 525 F.3d 1139 (11th Cir. 2008), was inconsistent with at least two of the Eleventh Circuit’s own past decisions: Baldwin v. Blue Cross, which defined sexual harassment as being a form of disparate treatment — not disparate impact — and Cross v. Alabama, which said that in the Eleventh Circuit (unlike some other circuits), discriminatory INTENT is required for a Title VII sexual harassment claim.

In Cross v. Alabama, 49 F.3d 1490, 1507-08 (11th Cir. 1995), the Eleventh Circuit held that “the elements of the two causes of action [sexual harassment claims under Title VII and the Fourteenth Amendment] are the same” in the Eleventh Circuit (unlike some other circuits), meaning that a sexual harassment plaintiff “must prove discriminatory motive or purpose.”

The Supreme Court has made clear that the fact that a woman is adversely affected, and that an employer knows this, is not enough to satisfy this exacting standard of showing a discriminatory purpose unless the employer intends to treat the female employee differently: “’Discriminatory purpose,’ however, implies more than intent as volition or intent as awareness of consequences. . .It implies that the decisionmaker . . . selected or reaffirmed a particular course of action at least in part ‘because of,’ not merely ‘in spite of,’ its adverse effects upon an identifiable group.” Personnel Administrator of Massachusetts v. Feeney, 442 U.S. 256, 279 (1979).

Thus, for the plaintiff to prevail, she must show that her co-workers aimed offensive comments at her based on her sex (or broadcast the offensive comments specifically to annoy her based on her sex), not just that she was reasonably offended by them and that they were pervasive.

“Title VII does not prohibit profanity alone, however profane. It does not prohibit harassment alone, however severe and pervasive. Instead, Title VII prohibits discrimination, including harassment that discriminates based on a protected category such as sex. Because a claim of sexual harassment under Title VII is a claim of disparate treatment, in order to prevail a plaintiff must show that similarly situated persons not of her sex were treated differently and better.” Baldwin v. Blue Cross, 480 F.3d 1287, 1301-02 (11th Cir. 2007); see also Lyle v. Warner Bros., 132 P.3d 211 (Cal. 2006) (sexual jokes not aimed at plaintiff did not support her sexual harassment claim).

Even if Title VII reached “disparate impact,” and even if provisions like 42 USC 1981a did not bar compensatory damages in such cases, it would still be a mistake to automatically equate raunchy language or discussions of sex with discrimination based on sex.

Assuming that sexual speech is disproportionately offensive to female employees and thus has a “disparate impact” on them — as many sexual harassment rulings do — raises serious equal-protection problems, since it rests on a gender stereotype. In striking down a statute banning “obscene, profane, indecent, vulgar, or suggestive” communications to women, a court observed that laws “based on ‘old notions’ such as a belief that females should be afforded special protection from ‘rough talk’ because of their perceived ’special sensitivities’ can no longer withstand equal protection scrutiny.” See In re Joseph T., 430 S.E.2d 523, 524 (S.C. 1993). Federal employment laws should not be interpreted broadly when doing so would raise serious constitutional issues. (See NLRB v. Catholic Bishop of Chicago, 440 U.S. 490, 499-501 (1979); Edward J. DeBartolo v. Fla. Gulf Coast Building & Constr. Trades Council, 485 U.S. 568, 575 (1988) (limiting law’s reach to avoid potential free speech problem)).

Moreover, treating raunchy language that offends a single female employee ignores limits contained in “disparate impact” law itself. Disparate impact claims typically require proof that an employer practice systematically excludes female or minority employees, and can’t be based on the impact on just one employee or a small number of employees. See Coe v. Yellow Freight, 646 F.2d 444 (10th Cir. 1981). Sexual harassment cases typically involve just a single plaintiff, who sometimes sues even if other employees of the same gender are perfectly happy with their workplace, or if there are no other employees of her gender in the workplace. In Reeves, the plaintiff seems to have been the only female employee adversely affected by the conduct she recounted.

An employer that fails to prevent sexual or vulgar discussions in the workplace should not be held liable simply because female employees overhear them and claim to be disproportionately offended by them. Some judges seem to grasp this rule, and do not allow sexual harassment claims to be brought just because the plaintiff was offended by sexual or vulgar speech. See, e.g., Lyle v. Warner Bros., 132 P.3d 211 (Cal. 2006); Scusa v. Nestle U.S.A., Inc., 181 F.3d 958 (8th Cir. 1998); Hocevar v. Purdue Frederick Co., 223 F.3d 721, 737 (8th Cir. 2000); Duncan v. Denver, 397 F.3d 1300 (10th Cir. 2005); Butler v. Ysleta Independent School District, 161 F.3d 263, 270-71 (5th Cir. 1998); Pasqua v. Metropolitan Life Ins., 101 F.3d 514, 517 (7th Cir. 1996); Gallant v. Board. of Trustees, 997 F. Supp. 1231, 1232, 1234-35 (N.D. Cal. 1998).

The 2008 ruling in Reeves justified its jettisoning of the discriminatory intent requirement by saying that such intent is not required in racial harassment cases. But even if that were in fact true (and it does not appear to be in some circuits, see Caver v. City of Trenton, 420 F.3d 243 (3d Cir. 2005) (holding that racial harassment plaintiff, just like sexual harassment plaintiff, must show that “(1) he suffered intentional discrimination because of his [race]” and “(2) the discrimination was pervasive and regular”), circuit panels are bound by their own past sexual harassment precedents whether or not they seem consistent with other areas of the law, like racial harassment.

And prior Eleventh Circuit rulings, like Cross v. State of Alabama, 49 F.3d 1490, 1507-08 (11th Cir. 1995), had made very clear that a plaintiff “must prove discriminatory motive or purpose” under BOTH Title VII and the Equal Protection Clause (Section 1983), because “the elements of the two causes of action are the same.” Eleventh Circuit judges had reiterated that understanding over and over again. See, e.g., Mitchell v. Pope, 189 Fed. Appx. 911, 913, 2006 WL 197600111, *1 (11th Cir. July 14, 2006) (”elements of the two causes of action are the same”); Downing v. Bd. of Trustees of Univ. of Alabama, 321 F.3d 1017, 1023 (11th Cir. 2003) (”Cross holds that the elements of a sexual harassment claim under Title VII and the Equal Protection Clause are the same — meaning that the employee must prove that the state actor intended to discriminate because of the employee’s sex”) (opinion later withdrawn for other reasons); Downing, 321 F.3d at 1022 n.9 (In Title VII, “this language is aimed at intentional discrimination, and to prove a violation, a plaintiff must profer either direct or indirect evidence of the employer’s discriminatory intent”).

Moreover, requiring discriminatory intent or purpose is consistent with how courts handle other types of Title VII harassment cases based on the very same language, such as religious harassment cases, where discriminatory treatment and intent are required. See Rivera v. Puerto Rico Aqueduct and Sewers Authority, 331 F.3d 183, 190 (1st Cir. 2003) (rejecting religious harassment claim because of absence of discriminatory purpose; “Rosario asserts that the lyrics of the song are offensive to her, given her deep religious convictions. We do not doubt this is so. But the question is not whether a religious person could find the song offensive; it is whether religious animus prompted Rivera to sing it to her”). The panel did not explain why those cases should be given lesser weight in sexual harassment jurisprudence than racial harassment cases.

Getting rid of the requirement of discriminatory intent, and allowing suits over overheard comments that have a disproportionate impact on one gender or the other, also raises serious First Amendment problems. See Lyle v. Warner Bros., 132 P.3d 211, 300 (Cal. 2006) (Chin, J., concurring) (sexual harassment liability cannot constitutionally be applied to creative speech, such as that involved in books, newspapers, or television, that is “not directed at or about the plaintiff”). Positions on many sexual or gender issues like feminism, gender-based affirmative action, and how to define sexual harassment, are offensive to some listeners, and are sometimes alleged to be disproportionately more so to one gender than the other (there is a political gender-gap). Moreover, the discriminatory intent requirement is one of the few elements of harassment law that can keep it relatively clear and manageable.

“Sexual harassment” under federal case law is a term of art referring to whatever speech or conduct gives rise to a specified state — a “hostile work environment” — not to “harassment” as defined in the dictionary, or anything closely resembling a traditional tort, like a pattern of invasive conduct by one individual towards another. To be sure, a hostile environment can be created by one malicious individual repeatedly pestering a plaintiff. But it can also (if discriminatory intent is not required) be created gradually by many different people each individually making just one offensive statement within earshot of the plaintiff, if their statements cumulatively add up to a hostile environment over time, even if they harbored no ill-will or discriminatory animus towards the plaintiff. The result, as UCLA Law Professor Eugene Volokh notes, is to effectively force employers to suppress a vast array of otherwise-protected speech. If the discriminatory-intent requirement is not enforced, speech such as classical nude paintings and religious articles in employee newsletters would become potential building blocks of a hostile-environment claim. (By “discriminatory intent,” I merely mean gender-based differential treatment; malice is not always required. See UAW v. Johnson Controls, 499 U.S. 187 (1991)).

To be sure, there are other elements of a harassment claim, like the requirement that the plaintiff show that the conduct complained of is “unwelcome” and occurred “based on sex.” But the very court rulings that ignore the intent requirement often have gutted those other elements, so that they frequently add nothing relevant to the requirement of a “hostile work environment.”

For example, people have responded to my past observation that a harassment plaintiff must show discriminatory intent by noting that harassment is only actionable if it is “unwelcome,” and suggesting that the fact that harassment is “unwelcome” somehow makes it intentional even absent discriminatory motivation or targeting of the plaintiff. See Meritor Savings Bank v. Vinson, 477 U.S. 57, 68 (1986) (the essence of “any sexual harassment claim is that” the conduct was “unwelcome”).

But the courts that don’t enforce the requirement of discriminatory intent also often interpret “unwelcomeness” so broadly as to make it meaningless as a limit on harassment claims. They assume that harassment is “unwelcome” whenever a plaintiff is subjectively offended by it, even if the defendant had no way of knowing that, or even if the plaintiff used language similar to the defendant, which could have led the defendant to believe that the language was permissible. See, e.g., Galloway v. General Motors, 78 F.3d 1164 (7th Cir. 1996) (dictum); Gary v. Tyson Foods (W.D. Mo. 1999). This matters because, as Fifth Circuit Judge Edith Jones has observed, a common fact pattern in harassment cases is a plaintiff who sues over comments similar to those she herself has frequently made.

Defined purely subjectively, “welcomeness” thus adds nothing to the separate legal requirement that the plaintiff’s work environment be “subjectively hostile.” See, e.g. Harris v. Forklift Systems, 510 U.S. 17, 21-22 (1993) (work environment must be subjectively hostile for plaintiff to recover); Mendoza v. Borden, 195 F.3d 1238, 1245-1246 (11th Cir. 1999)(same). That violates the principle of tort law that one element of a tort should not be read as being duplicated, or subsumed by, another element of the tort.

An old Eleventh Circuit precedent interpreted unwelcomeness as having an objective component, so that a plaintiff who incited a defendant to say offensive things by saying similarly offensive things of her own could not sue based on them. See Henson v. City of Dundee, 682 F.2d 897, 902 (11th Cir. 1982) (to show unwelcomeness, plaintiff must show that she neither “solicited nor incited” the conduct and that she “regarded the conduct as undesirable or offensive”). Thus, it served a notice function that protected some speech. See, e.g., Brief of Center for Individual Rights and Boston Coalition for Freedom of Expression as Amici Curiae in Support of the Petition for Certiorari in Avis Rent A Car System v. Aguilar, 529 U.S. 1138 (2000) (citing cases and EEOC rulings that interpreted “unwelcome” as having an objective component).

Some other federal appeals courts, like the Eighth Circuit, continue to follow this rule, barring plaintiffs from hypocritically suing the employer for comments made by their co-workers that are similar to those made by the plaintiffs themselves, under the theory that they have objectively welcomed such comments. See, e.g., Scusa v. Nestle U.S.A., Inc., 181 F.3d 958 (8th Cir. 1998); Hocevar v. Purdue Frederick Co., 223 F.3d 721, 737 (8th Cir. 2000).

But some courts (especially state courts) do not, viewing the requirement as unfashionable and outdated. By interpreting “unwelcomess” as purely subjective, they have effectively dispensed with any notice to the accused, who is now deemed a harasser if his speech unintentionally creates a hostile environment.

What is a “hostile environment” can be very vague, as a federal appeals court noted in Pasqua v. Metropolitan Life Ins. Co, 101 F.3d 514 (7th Cir. 1996). Indeed, a Maryland civil rights agency warned that “the legal boundaries” of what is actionable “are so poorly marked,” that “the best course of action is to avoid” any potentially offensive remarks. Reflecting the ambiguity, federal appeals courts differ greatly among themselves as to what conduct they believe is severe or pervasive enough to create a hostile environment. Within the same district, different juries often find starkly similar conduct to either not constitute harassment at all, or to be so patently and egregiously harassing as to warrant punitive damages. I used to work as an attorney at the U.S. Department of Education’s Office for Civil Rights, and there was certainly nothing clear about how we interpreted our sexual harassment guidance.

When someone other than the courts is enforcing a ban on harassment, the courts immediately recognize the disturbing vagueness of the “hostile environment” concept. For example, the Ninth Circuit overturned a public college professor’s discipline for unintentionally creating a hostile environment on vagueness grounds in Cohen v. San Bernardino Valley College, 92 F.3d 968 (9th Cir. 1996). And the Oregon Supreme Court, on state constitutional grounds, overturned a civil-rights agency’s fine on an evangelical Christian employer for unknowingly creating a hostile work environment through religious proselytizing in Meltebeke v. Bureau of Labor and Industries, 903 P.2d 351, 363 (Or. 1995), even though it found that the conduct indeed violated the agency’s hostile-environment harassment rule, because ignoring the employer’s intentions would have a chilling effect on freedom of religion. And in Dambrot v. Central Michigan University, 55 F.3d 1177 (6th Cir. 1995), the court struck down a college’s hostile environment harassment code as unconstitutionally vague, since whether the code was violated turned partly on the subjective reactions of listeners.

But the courts are sometimes blind to the vagueness of the “hostile work environment” concept when they themselves apply harassment law through damages liability — even though the First Amendment vagueness doctrine applies to civil as well as criminal liability, see Bullfrog Films v. Wick, 847 F.2d 502 (9th Cir. 1998), and the Supreme Court has long recognized that the “fear of damage awards” in a lawsuit can chill speech even more than “the fear of prosecution.” See New York Times v. Sullivan, 376 U.S. 264, 277 (1964).