The opinion is attached.  It is an exceptionally well-written order.  Please note, within minutes, the State filed its notice of appeal with the First District Court of Appeal (despite publicly stating, previously, that it would abide by the Circuit Court’s decision).  Bottom line:  the mandate that requires the three-percent automatic payroll deduction for every state employee is unconstitutional pursuant to Florida’s Constitution, including — in particular — its mandated right of public employee collective bargaining rights.

I commented to friends and colleagues on this matter — from the issue of partisanship.  You see, a G.O.P.-run Legislature and Executive pushed a mandate despite its unconstitutional application.  Yet, these same individuals are advocating against the mandate within the Affordable Care Act, despite its obvious constitutionality under the United States Constitution’s Commerce Clause.  Go figure ….

The post Labor/Employment Law: Great News – Circuit Court in Tallahassee Declares Unconstitutional Three Percent State Employee Pay Deduction appeared first on Halifax Law.

That being said, I need to express disagreement with the D.C. Circuit’s decision — on a legal and constitutional level.  The Government’s abuse of rights — even for these Blackwater contractors — was serious, and the lower court judge’s decision should have stood — especially considering the deference that should have been rendered to his ruling.

Acknowledgment to the good folks at FireDogLake for this posting and nice analysis:

http://emptywheel.firedoglake.com/2011/04/22/dc-circuit-reinstates-blackwater-nisour-shooting-prosecution/

On December 31, 2009 DC District Judge Ricardo Urbina dismissed the indictment against five Blackwater defendants involved in what is commonly referred to as the Nisour Square shootingsoccurring on September 16, 2007. Urbina’s decision was 90 pages in length and was further supported by a three week long Kastigar hearing in his court October of 2009. A Kastigar hearing is an evidentiary inquiry based upon Kastigar v. United States, 92 S. Ct. 1653 (1972), “where a party has been compelled to relinquish his Fifth Amendment right against self-incrimination in reliance on the government‘s promises of immunity, the government bears the?affirmative duty to prove that the evidence it proposes to use is derived from a legitimate source wholly independent of the compelled testimony.”

Today, in a surprising unanimous decision, the DC Circuit Court of Appeals overturned Urbina, reinstated the case against four of the five original defendants (the prosecution had voluntarily dismissed Defendant Slatten previously) and remanded the case back to District Court for further proceedings. Here is how Reuters described the ruling:

The five guards were charged with 14 counts of manslaughter, 20 counts of attempt to commit manslaughter and one weapons violation count over a Baghdad shooting that outraged Iraqis and strained ties between the two countries.

The shooting occurred as the private security firm’s guards escorted a heavily armed four-truck convoy of U.S. diplomats through the Iraqi capital on September 16, 2007. The guards, U.S. military veterans, were responding to a car bombing when gunfire erupted at a crowded intersection.

U.S. District Judge Ricardo Urbina ruled in December 2009 that prosecutors violated the defendants’ constitutional rights and the case was tainted by use of statement the guards made to State Department investigators under a threat of job loss.

The appeals court reversed that ruling that the indictment of the guards had been improperly obtained through the use of their compelled statements. It ruled Urbina wrongly interpreted the law.

The appeals court sent the case back to Urbina to determine what evidence, if any, the government presented had been tainted and whether it was harmless.

The public version of the decision is here however, there is also a sealed classified version containing additional material.

The first thing to consider here is the standard of review the Circuit Court used in analyzing the appeal, because there were intermixing of factual and legal findings inherent in the Kastigar process, the court reviewed for clear error:

We review the district court’s findings that the government used a defendant’s immunized statement for clear error, United States v. North, 910 F.2d 843, 855 (D.C. Cir. 1990) (“North I”), a standard that is met for any finding that was “induced by an erroneous view of the law,”

In a nutshell, what that means is that the appellate court had to give strong deference to the findings by the trial court. In spite of this deference still unanimously blew Judge Urbina’s findings straight out of the water. Honestly, the abuse of the Garrity letter admissions by the government was serious, and I thought there was close to no chance Urbina’s decision would be reversed. Boy was I wrong.

The circuit Court did not disagree with Urbina as to the controlling authority determinative of the case, so much as take issue with how far in examining individual items of evidence, for each individual defendant, on a piece by piece basis, Urbina went. They Circuit court did not think Urbina went far enough:

In building a case against a defendant who received use immunity for his statements, the government must prove, by a preponderance of the evidence, that “all of the evidence it proposes to use was derived from legitimate independent sources.” North I, 910 F.2d at 854 (quoting Kastigar, 406 U.S. at 461-62, internal quotations omitted). As the district court observed, proof that a witness was “never exposed to immunized testimony” or that the investigators memorialized (or “canned”) a witness’s testimony before exposure, Slough, 677 F. Supp. 2d at 132 (citing North I, 910 F.2d at 872), would obviously satisfy the requirement. But a failure by the government to make either showing does not end the district court’s inquiry. North I requires the court to parse the evidence “witness-by-witness” and “if necessary, . . . line-by- line and item-by-item,” 910 F.2d at 872, and to “separate the wheat of the witnesses’ unspoiled memory from the chaff of [the] immunized testimony,” id. at 862. This sifting is particularly important in cases where, as here, a witness was exposed to a defendant’s immunized statement but testifies to facts not included in that statement.
….
First, the district court erred by treating evidence, including the testimony of Frost, Murphy, Ridgeway and the Iraqi witnesses, and the Frost journal, as single lumps and excluding them in their entirety when at the most only some portion of the content was tainted—it made no effort to decide what parts of the testimony or the journal were free of taint.

Without directly saying it, the Circuit Court also seemed to be of the opinion that Urbina did not place enough of a burden on the defendants and their claims of tainted evidence. I think the Supreme Court may have an issue with this implication, although it does not appear critical to the decision.

Second (and closely related), the district court erred by failing to conduct a proper independent-source analysis as required by Kastigar, ….. Where two independent sources of evidence, one tainted and one not, are possible antecedents of particular testimony, the tainted source’s presence doesn’t ipso facto establish taint.

Basically, the Circuit Court thought Urbina was too quick to judge derivative evidence tainted and did not show his work sufficiently in getting there. Quite frankly, I disagree, I found Urbina’s decision quite sound. I have no desire to have the Blackwater malfeasants walk free, but from a due process analysis, I thought, and still do, that such was the proper remedy. Urbina was right, the case needed to be dismissed, as unpopular as that is to say.

The last major area the court went into was cross tainting between each of the defendants’ statements:

This takes us to a fourth systemic error. To the extent that evidence tainted by the impact of one defendant’s immunized statements may be found to have accounted for the indictment of that defendant, it does not follow that the indictment of any other defendant was tainted. The district court assumed the contrary. Slough, 677 F. Supp. 2d at 166 & n.66. Although the prosecution presented a single indictment against all five defendants, each defendant was charged individually and therefore the presence, extent and possible harmfulness of the taint must be assessed individually.

What the court said here is that each defendant’s statement may be improper evidence to use against him, but it is prohibitively okay against his co-defendant. This is a commonly applied rule in criminal evidence suppression determinations, but it is heinous and pernicious. In the Nisour Square case, the defendants were so jointly involved and the evidence so intermixed that this theory should have no application; yet here the Circuit Court is straining to apply it. It is disgusting.

We thus vacate and remand the case for the court to determine, as to each defendant, what evidence—if any—the government presented against him that was tainted as to him, and, in the case of any such presentation, whether in light of the entire record the government had shown it to have been harmless beyond a reasonable doubt.

So, the case is going back to DC District Court for further proceedings; i.e a more detailed and individually centered analysis of the prosecution’s evidence for taint. Ricardo Urbina went senior status as of January 31 of this year, but I would assume he will get the case back anyway. The prosecution may be back on for now, but I would not be surprised in the least to see Urbina simply plug his previous beliefs and findings into the newly ordered specific analysis framework delineated by the Circuit Court. In short, my bet is the case gets dismissed again. We shall see.

The post Constitutional/Criminal/Labor: Was the D.C. Circuit’s Reinstatement of Charges Against Blackwater Contractors Legally Correct? appeared first on Halifax Law.

______________

Background

It is a fact of life in a complex industrial society that lawsuits can grow very complex, very expensive, and wearying in their length.  It takes a particularly hardy, or well-heeled, individual who wants to sue in that environment to go it alone.  And, often, what one person can gain by suing is not enough to make it worthwhile  — for that person, or for the lawyers.  Congress, and the states, have provided an answer:: the “class-actionm” lawsuit, combining a group of individuals who share the same complaint, pursuing it en masse.

Like many legal process inventions, the class-action lawsuit has developed problems:  the difficulty in figuring out who is in the group, whether what they claim is the same for all of them, whether there is a common remedy that would fit, and how to manage the case when the facts may vary, person by person.

Corporate America, and other large targets, have a special grievance about the way they believe the class-action lawsuit has developed.  Such lawsuits, the argument goes, can be so threatening in their cost and potential consequences that those who get sued will be driven to settle, even if they believe the claims lack merit and could not succeed, if only one or a few individuals had brought the case.

The complications of such a case, actual or potential, are such that serious constitutional questions can arise.   Justice Antonin Scalia, in an opinion he wrote with a temporary order in a case last year, commented that “the extent to which class treatment may constitutionally reduce the normal requirements of due process is an important question.”  He suggested that there was “national concern over abuse of the class-action device.”

The critics, in the business world and outside it, now are focusing on what may be the biggest class-action case ever; it almost certainly is the biggest such lawsuit filed in a civil rights case. based on a claim of sex discrimination against female workers throughout a vast chain of retail stores.

Indeed, it involves the largest private employer in America — Wal-Mart Stores, the nation’s, and maybe the world’s, dominant retailer.  The chain is a colossus, no matter what measure is used: 3,400 stores, 41 separate regions, 53 retail departments, 170 job classifications — and 1 million workers.  It is a company with such market clout that it can actually dictate the kind of consumer goods that manufacturers produce for the entire American retail industry.

The class-action lawsuit Wal-Mart now faces (it hasn’t been tried yet, although it has been in court for almost a decade) at one point involved perhaps 1.5 million women who work for the company, or previously did.  The total number, after an appeals court ruling modified the dimensions of the class, is in some dispute, but it probably is at least 500,000.  Representing that class are the six women who have been in the case almost from its very beginning in the summer of 2001.

Wal-Mart’s lawyers say there has been nothing like it in workplace law in the 44 years since Congress approved the modern version of the court rule governing such lawsuits: Rule 23 of the Federal Rules of Civil Procedure.   The case very likely will produce interpretations of the two key sections of Rule 23 that will have impact well beyond the Wal-Mart case itself.

The first part (section 23a) lays down the basic conditions for any class-action lawsuit in federal court.    One or a few individuals may file such a case, representing every one who shares the same legal claim, if the whole group is so large that the courts could not handle such a crowd, if the case raises the same questions of law and fact for all members, those representing the group raise claims typical of everyone’s, and the class representative must “fairly and adequately” protect everyone’s interests.

Those four conditions must be met in every case that is allowed  to go forward as a class action, so section a is very much at issue in the Wal-Mart case.

Beyond those conditions, Rule 23”s second part — section b — adds some further requirements.  The first of these deals with proof of the risks that would be faced if the individuals were to sue alone.  A class-action case may proceed either if there is a risk that the results in individual cases would impose differing legal duties on the party sued (say, claiming all the money available), or if there is a risk an individual case would settle the claims for every one, including those not taking part, thus depriving them of making their own claim.

The conditions continue in section b.  If either one of those risks is shown, Rule 23b allows two types of lawsuits, and they are very different.

First, if the party sued has acted or failed to act in a way that applies to the class as a whole, and a court order could provide an “appropriate” remedy for every one, then the other members of the class not in court do not have to be notified about the case, and no one can choose to opt out.   In other words, the class representatives’ remedy will be everybody’s.  That is section 23b(2).

Second, if a judge rules that the legal and factual issues of the whole group “predominate” over any issues that affect only some individuals in the group, the class device is the superior way for the case to go forward, and a class case is manageable, the judge must assure that everyone in the class is notified about the case and given a chance to opt out, preserving their own right to sue.  That is section 23b(3), and it is harder to get such a class certified because of the special conditions.

In the Wal-Mart case, a judge seven years ago approved a b(2) class, and the retailer has been trying since then to undo it.  Wal-Mart contends that the women workers who sued it for workplace discrimination cannot meet the harder test for a b(3) class, and should not have been allowed to go forward as a b(2) class.  In other words, its basic argument is that a class lawsuit was never a proper approach — an assertion that, of course, the suing women workers strenuously contest.

Actually, the case that is now before the Supreme Court started out as an individual case, filed by Betty Dukes, a “greeter” who welcomes shoppers into the Wal-Mart store in Pittsburg, Calif.  On June 8, 2001, Dukes began a lawsuit without a lawyer, claiming that, as a black employee, she was discriminated against both in her pay and in her chances for promotion.

Eleven days after Dukes sued, she was joined by five other women; the lawsuit then became a claim of sex bias on a company-wide basis, seeking court orders to remedy the discrimination the women claimed, plus backpay awards and punitive damages.  They sued under Title VII of the 1964 Civil Rights Act, the nation’s most significant workplace discrimination law.  A third version of their case was filed in September 2002.

Between 2001 and 2003, the parties’ lawyers exchanged information about the women’s claims.   Based on that process, the women’s lawyers contended that class status was proper — under Rule 23b(2) — because Wal-Mart was a “top-down” managed company that pursues common policies, known as “the Wal-Mart Way.”

Though policies are centralized, and though the company has an explicit no-discrimination policy, the women claimed that substantial discretion is given to individual store managers to govern pay and promotions for individuals within each store, and the result has been that hourly and salaried female workers throughout the chain receive significantly lower pay and fewer advancement opportunities than men employees.   The differences, the women’s lawsuit claimed, were so signfiicant that they could not have resulted from mere chance.

On June 21, 2004, U.S. District Judge Martin J. Jenkins of San Francisco approved a section b(2) class.  Encompassed within the class were “all women employed at any Wal-Mart domestic retail store at any time since December 26, 1998, who have been or may be subjected to Wal-Mart’s challenged pay and management track promotions policies and practices.”

The judge found that Wal-Mart has a systemwide corporate culture of doing things “the Wal-Mart Way,” and that this resulted in uniform policies and uniform management attitudes, with the result that discrimination within tht policy is likely to affect all of the members of the class.

The judge also concluded that if Wal-Mart were found to have committed class-wide discrimination, individual hearings would not be necessary to determine who was eligible for back pay, since that could be determined from the company’s electronic database, from which lost back pay could be calculated based on qualifications.  The judge, though, found that there was not an equivalent database for determinining a pay award on the promotion claims, and so certified a smaller class for which data did exist.

Wal-Mart appealed to the Ninth Circuit, and, in the nearly six years the case was pending before that court, two split decisions were issued by three-judge panels, and a 6-5 decision emerged from review by the en banc Court in April 2010.

The en banc decision — the one that the Supreme Court is ready to review — upheld Judge Jenkins’ order certifying a 23b(2) class, but modified the order in some significant respects, and said the case should go back to District Court to reexamine whether some of the women should be put into a class under 23b(3).    It rejected all of the rest of Wal-Mart’s objections, including its claim of a denial of its constitutional rights.

Petition for Certiorari

Near the end of last August, Wal-Mart’s lawyers filed their petition for review in the Supreme Court.  Overall, the petition had three themes: the case is not a proper one for class action because it involved hundreds of thousands of women who “held different jobs in different stores in different states under the supervision of different managers,” it involved a claim for money — back pay — when the part of Rule 23 under which the class was approved does not allow money claims under any circumstances, and the designated class was so massive and unmanageable that a trial would violate Wal-Mart’s rights under the Constitution and federal law, and the rights of women employees not directly involved in the case.

The petition raised two questions.  The first focused on the money issue.   That part of Rule 23, the petition said, permits as a remedy only an injunction or a court order declaring legal rights; no form of a money award is mentioned, so none is allowed,  It thus asked the Justices to rule that the women’s back pay claim was beyond any court’s authority to award to this class.  The money claim, the petition asserted, could result in billions of dollars of liability.

The second question was a broadside attack on the class order, contending that it violated Title VII, the Constitution’s Due Process Clause, the Seventh Amendment guarantee of a civil jury trial, and Rule 23 as well as a federal law controlling court rules (the Rules Enabling Act).

Attempting to persuade the Court that the issues affect not only Wal-Mart, the petition asserted that, “if the Ninth Circuit decision in this case stands, virtually every employer in the land could be subject to a similar suit…This Court’s guidance is needed in this case to chart the future course of class litigation in the employment context and beyond.”

Among the petition’s specific complaints about the Ninth Circuit ruling were these: it would allow a money remedy despite the specific language of Rule 23b(2), it created a three=way split in the Circuit Courts on when a money claim might be brought under that section, it relieved the six women class representatives of any duty to prove a policy of bias affecting all women in the class, it simply scuttled the idea that the individuals would have to prove the company intended harm and prove the workers’ own injury, and it took away crucial legal defenses that Wal-Mart would normally be able to rely upon in a Title VII case — and, in the process, violated the retailer’s constitutional rights.

The petition was supported by nine separate amici filings, running from business firms or trade groups such as the U.S. Chamber of Commerce to computer hardware manufacturers and major corporations that say they, too, may now face such sweeping class-action lawsuits because they, like Wal-Mart, are large and follow common employment practices.

One brief from a host of major corporations argued that the Circuit Court ruling “threatens the sorts of benign organizational decisions that large corporations must make every day.”  The lawsuit’s attack on Wal-Mart’s “corporate culture,” those firms contended, will enable workers with grievances to turn individual claims into a nationwide class action.

Lawyers for the six women who sued for the class urged the Justices not to grant review, arguing that the case was still in a pre-trial stage, and that key issues remain undecided in the wake of the Ninth Circuit’s decision to return the case to the District Court.

The Court, the opposition brief contended, does not typically review pre-trial orders, “and for good reason…Premature review risks wasting the Court’s resources because legal issues may change or be mooted by the time of any final judgment.  Class certification orders…are especially fluid.”  Still to be decided, the brief said, are whether and how punitive damage claims could be certified for class pursuit, and whether to allow a class focused on the claims of female workers who were not working for Wal-Mart when the complaint was filed.   And, even after those issues are settled, further questions may arise as the pre-trial process unfolds further, the workers’ lawyers added.

The Court considered the case at two Conferences, then granted review on December 6.  It accepted Wal-Mart’s first question, on the availability of a money remedy under Rule 23b(2) and, if some money claims are allowed under that section, what standards should determine when that would be available.

The Court rewrote the second question, telling the lawyers on both sides to file written arguments and prepare to argue on whether the class order under 23b(2) is “consistent with” Rule 23?s section a, laying out the basis conditions for any class order.

The Court did not explain what it was getting at with that question, but one possibility is that it wanted to make sure that the female workers had cleared even the first hurdle; if not, the Court might never reach the scope of remedy available under 23b(2).

Since the rewritten question did not mention Wal-Mart’s constitutional claims, it is conceivable that the Court was signaling that it might not reach the Due Process and Seventh Amendment issues.  If it confined its decision solely to the dimensions of Rule 23, the constitutional issues might simply fall away.

The Court appears to be holding on its docket, without action, another major class-action case that is all about constitutional questions surrounding class-action procedures, Philip Morris USA Inc. v. Jackson, et al. (10-735).  That case arises under state law (Louisiana), not federal Rule 23.  Holding back on that case, though, could be an indication that the Justices might reach constitutional claims in Wal-Mart’s  case that could then affect the tobacco case.

Merits Briefs

Wal-Mart’s brief on the merits, perhaps wisely, switched the sequence of its challenges, beginning with the question the Court fashioned on whether the most basic requirements for a class approval had been met — the 23(a) issue.   No doubt sensing that that could be the whole case, the retailer’s lawyers emphasized their view that the claims of the women workers were not common or typical for the entire class, and that the representatives — it noted that only three of the original six remained in the class — could not adequately stand in for so many workers who did jobs at so many different levels, including supervisory positions.

The brief examined what it said was the testimony of the three class representatives remaining — Betty Dukes, Edith Arana and Christine Kwapnoski — and argued that it showed how different their individual experiences with Wal-Mart were.  While Dukes and Arana were disciplined (Arana was fired), that was for violating company policy, Kwapnoski had jobs at various levels and actually got a promotion to a supervisory position.

Even though the case, at this stage, does not involve the merits of the claims of discrimination, the retailer’s brief sought to attack the basis for the women’s claim that there is a top-down tolerance for “gender stereotyping and discrimination,” and argued that the women’s lawyers had not identified a single policy that actually did discriminate.  In fact, the brief insisted, Wal-Mart has — end enforces — a strong ban on discrimination and a policy explicitly promoting a diverse workforce.   The specific claims of discrimination emerged, the company contended, from mere anecdotes, sociological theory, and statistical data that does not prove its point.

The brief finished with arguments, little different from those made in the petition for review, that 23b(2) simply does not allow any money claims.  But, it went on, even if it did, the Ninth Circuit has deepened a conflict among the appeals courts on when such a remedy could be the basis for class treatment.

The women workers’ brief on the merits began with a summary of the top-down policies that, they claimed, result from a corporate “culture” that values women less, demeaning them with sexist nicknames, holding meetings at Hooters restaurants, disparaging women who failed to get promotions as failing to be aggressive in their climb upward.

The brief turned next to an assault on Wal-Mart’s litigation strategy, accusing the company of seeking to “dismantle several fundamental pillars” of Court precedents on class-action lawsuits over workplace bias — including an attempt to do away with claims that common practices by an employer can be attacked by insisting that each worker prove her very own individual case.  Wal-Mart, the brief asserted, is pressing “radical and far-reaching proposals to change the law,” driven by a desire to allow a class only among the smallest groups of workers.

The workers’ lawyers, seeking to show that only a class approach could work against a giant like Wal-Mart, argued that the claims add up to an annual loss of wages of only about $1,100 per worker — hardly worth pursuing in court.

The brief went to considerable effort to bridge what appears to be the most difficult of the women’s legal arguments: reconciling the claim that Wal-Mart follows workplace policies that are supposed to be the same throughout the vast company, yet get translated into acts of bias against individual women workers when local store managers use the discretion that management allows them to control wages and promotions.   The class action method, it contended, is necessary to be able to attack the company-wide approach, rather than having to attack each biased decision made at each store against each woman employee.

The amici filings on both sides of the case –15 on Wal-Mart’s side, 14 on the women workers’ side — are grouped among predictable allies.  On the retailer’s side are an array of business firms and trade groups and conservative or libertarian advocacy organizations, generally reflecting the strong current of corporate opposition to class action litigation in general, and at “gargantuan” classes (as one brief put it), with the ever-present threat of using claims that are, at most, debatable in order to generate settlement by risk-adverse companies.  On the women’s side are labor organizations, civil rights groups, and consumer organizations, viewing Wal-Mart’s challenge as the leading edge of an assault on the very idea of class treatment of workplace bias cases.  There is thus a lively debate about the role of the class-action device throughout the U.S. economy, and about whether Supreme Court approval of the device as constructed in this case will encourage lawyers to think up new legal inventions to change the nature of legal combat.

Analysis

Whatever the strength of the competing arguments, Wal-Mart goes into the oral argument with three strategic advantages.  First, the Court granted review of the case, despite the clear reality that the dimensions of the class in dispute are still far from settled; second, the Court fashioned a question for review that could give the Justices a fairly easy way to put a quick end to this case as a class matter, and, third, there is a sense among some of the Justices — perhaps a majority, perhaps not — that the class-action device has been abused.

The women workers, though, are not without some potential advantages: the Court may have some sensitivity about the reputation it seems to have, at least in some circles, that it has a bias in favor of corporate America (a sensitivity that, perhaps, has been on display in several recent rulings favoring workers’ rights over management prerogatives), and the Court now has three women on the bench, bringing perhaps some stronger inclination to take seriously the claim that gender stereotyping may, indeed, have been a fact throughout the vast retail operation of Wal-Mart.

Wal-Mart could have scored some points already with the strength of its grievances about the sheer size of the class and about the division among lower courts on when a money remedy is proper under the part of Rule 23 that is at issue in this case.  Those two factors, indeed, may have accounted for the Court’s willingness to take on the case even in its pre-trial stage.  The sheer magnitude of the corporation, though, may make somewhat less compelling its suggestion that it is genuinely threatened by this lawsuit, which, of course, has now already proceeded for a decade and the company is a long way from giving up and taking a negotiated settlement.

The women workers have on their side the common-sense notion that, in the retail world, being a female is a natural condition for receiving lower wages and fewer opportunities to advance to management.  The weakest part of the class argument may be the difficulty in translating company-wide policies into local acts of discrimination at the store level; and, without the opportunity to attack Wal-Mart system-wide, the women workers probably do not have a workable case at all.

The stakes do seem high, at least for class-action jurisprudence.   Each side, management and labor, has much to lose, or to gain, and the entire shape of Rule 23 could well be fundamentally changed — or at least clarified — when the case is over and done.

The post Labor/Employment: Significant Oral Argument Today in Walmart Stores v. Dukes appeared first on Halifax Law.

Another positive and unanimous opinion (the majority opinion, not the concurrence, is clearly much more progressive).  The author of the Opinion of the Court?  Antonin Scalia — go figure.  He does occasionally surprise me.

The Supreme Court upheld the use of what is called “cat’s paw liability,” meaning a company or agency can be deemed liable for discrimination when it relies on the comments of a biased supervisor when taking an adverse employment action against an employee.  As the Supremes stated, taking into recognition the lack of any preexisting principle in tort or agency law:

So long as the agent intends, for discriminatory reasons, that the adverse action occur, he has the scienter required to be liable under USERRA. And it is axiomatic under tort law that the exercise of judgment by the decisionmaker does not prevent the earlier agent’s action (and hence the earlier agent’s discriminatory animus) from being the proximate cause of the harm.

So, a decision maker’s independent investigation does not per se relieve the employer of fault.

_______________________________________________________________________________________________________

http://jurist.org/paperchase/2011/03/supreme-court-finds-employmer-liable-in-discrimination-suit.php?

[JURIST] The US Supreme Court [official website; JURIST news archive] on Tuesday ruled[opinion, PDF] unanimously in Staub v. Proctor Hospital [Cornell LII Backgrounder; JURISTreport] that an employer may be held liable for employment discrimination based on discriminatory motivations of a supervisor who influences, but does not necessarily make, the decision to fire an employee. Petitioner Vincent Staub served in the military while working for respondent Proctor Hospital. Staub’s immediate supervisors were hostile to his military obligations which required him to miss work shifts. Staub’s employment was terminated by the vice president of human resources, who was not biased against Staub’s military obligations. Staub sued under the Uniformed Services Employment and Reemployment Rights Act of 1994 (USERRA) [text] for wrongful termination. Proctor Hospital argued that, under the USERRA, an employer is not liable unless the de facto decisionmaker is motivated by discriminatory hostility. The US Court of Appeals for the Seventh Circuitruled [opinion, PDF] that the unlawful intent of the officials who allegedly brought about Staub’s dismissal could not be attributed to the employer on the basis that the vice president of human resources did not rely solely on the discriminatory motivations of Staub’s supervisors in reaching her decision to terminate employment. The Supreme Court reversed, holding that the “cat’s paw” liability doctrine applies in this case:

So long as the agent intends, for discriminatory reasons, that the adverse action occur, he has the scienter required to be liable under USERRA. And it is axiomatic under tort law that the exercise of judgment by the decisionmaker does not prevent the earlier agent’s action (and hence the earlier agent’s discriminatory animus) from being the proximate cause of the harm.

Given the lack of any principle in tort or agency law, the court says, a decisionmaker’s independent investigation does not per se relieve the employer of fault. Justice Samuel Alito filed a concurring opinion, joined by Justice Clarence Thomas, agreeing with the reversal of the lower court’s decision, but arguing that the reversal should have been based on textual interpretation of the statute rather than on principles of tort and agency law. Justice Elena Kagan did not participate in the decision.

In the majority opinion, Justice Antonin Scalia noted that the language of USERRA is similar to Title VII [text], which prohibits employment discrimination based on race, color, religion, sex or national origin, so the ruling will likely have implications in that context. Both statutes state that discrimination is established when one of those factors “was a motivating factor for any employment practice, even though other factors also motivated the practice.” The Supreme Court has recently ruled on several other Title VII cases. Last month, the court ruled [JURIST report] in Thompson v. North American Stainless [Cornell LII backgrounder] that a third party can sue his employer for retaliation. In June, the court ruled [JURIST report] in Gross v. FBL Financial Services [Cornell LII backgrounder] that the burden is on the plaintiff to prove that age was the determining factor in an age discrimination in employment suit and that a mixed-motive jury instruction is never appropriate in such a case.

The post Employment Law: Good Supreme Court Ruling Holding Employer Liable for Discrimination appeared first on Halifax Law.