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On the Legal Front—Thirteen Years of On the Legal Front

Art Gutman, Florida Tech

Eric Dunleavy, DCI Consulting

 On the Legal Front began with the July 2000 issue of TIP. Because this is the last “hard copy” edition of TIP, we want to take the opportunity to reminisce about the highlights of the past 13 years. Art will provide an overview on how the column originated and key cases and topics covered during the first 7 years, Eric will cover the last 6 years, and we will present our conclusions on what we have learned and what we think the future holds for legal issues in the workplace.

By Art Gutman

The column had a serendipitous beginning. I submitted an article to Alan Church for the January 2000 issue of TIP covering four 1999 Supreme Court rulings on the ADA (Sutton v. UAL, Albertsons v. Kirkingburg, Murphy v. UPS, and Cleveland v. Policy Management). I called Alan to ask him whether the article was too long (which, as Eric notes, happens sometimes). During our chat, he gave me a “by the way” suggestion about writing a column on legal issues. I jumped at the opportunity but was lost for a title. He suggested On the Legal Front, which I thought was catchy. This is the 52nd Legal Front column, during which there have been five TIP editors (Alan Church, Debbie Major, Laura Koppes, Wendy Becker, and Lisa Steelman). Each has played a significant role in the column’s evolution. There have been guest columns from time to time, including two by Don Zink, one by Eric prior to collaborating with me, one by Jim Outtz, and a recent one by Kayo Sady in the January 2013 issue.

Eric and I thought it would be useful to summarize the topics we’ve covered in tabular form. Table 1 covers 2000 to 2006 and Table 2 covers 2007 to 2013. We used our own subjective classification schemes, and in cases or issues where columns focused on more than one topic, we made multiple classifications.

To illustrate, Kimel v. Florida Board of Regents (2000) and Bd. of Trustees Univ. of Alabama v. Garrett (2001) were controversial 5–4 decisions in which the Supreme Court ruled that Congress abused its 14th Amendment powers in extending ADEA and ADA coverage, respectively, to state entities. Kimel was therefore classified as both ADEA and congressional overreach, and Garrett was classified as both ADA and congressional overreach (thus accounting for the two citations for congressional overreach in the table). Similarly, EEOC v. Waffle House (2002) was classified as both ADA and EEOC enforcement because the Supreme Court endorsed the independent power of the EEOC to bring lawsuits in the face of preemployment binding arbitration agreements in an ADA case. Incidentally, after Waffle House, lower courts endorsed the independent right of the EEOC to also sue state entities for ADEA and ADA claims as well.

Another point to note is that for some of the major Supreme Court rulings, a case was previewed in one column and the ruling was discussed in an ensuing column, thus adding to the count for a given classification. For example, The Waffle House case was previewed in 2001 and the ruling was discussed in 2002. In a more extreme example of this, the Grutter v. Bollinger (2003) and Gratz v. Bollinger (2003) cases had two previews followed by a discussion of the rulings.

Table 1
Topics Covered in the Legal Front Column From 2000–2006

Primary topic area Frequency in the Legal Front columns, 2000-2006

Disability discrimination (ADA) 8
Affirmative action/reverse discrimination 5
Sexual harassment/constructive discharge 5
Adverse impact theory 3
Disparate treatment theory 2
Age discrimination (ADEA) 2
EEO enforcement agency enforcement 2
Congressional overreach 2
Employer retaliation 1
Backlash religious/national origin discrimination 1
Other 2

Even with multiple classifications, the dominant focus during my tenure as sole scribe was the ADA. Aside from the aforementioned Garrett and Waffle House cases, there was Casey v. PGA Tour (2001), Toyota v. Williams (2002), and US Airways v. Barnett (2002). Each case was important. I also wrote a column on the ADA for October 2002 issue in an attempt to explain why ADA case law is as complex as it is.

The key feature in the Martin case was refusal to allow a severely injured golfer to use a golf cart during PGA Tour events. The PGA argued that walking is an essential function of tournament golf and to allow carts would alter the “fundamental nature” of these events. I did not like this rule because it would allow the PGA to define itself out of the ADA, much like any employer could do if allowed to dream up essential job functions that would not stand up to a job analysis. The Supreme Court disagreed with the PGA, ruling that shot making was the essential function.

The Barnett case featured an injured employee’s lost bid for a vacant job because of insufficient seniority, a common roadblock in ADA case law. However, unlike most cases, where seniority agreements are collectively bargained (CBAs), the US Airways policies were company imposed. The Supreme Court ruled that absent proof of discriminatory intent, company imposed plans carry the same weight as CBAs.

The prelude to Toyota v. Williams was Justice O’Connor’s query in Sutton v. UAL on working as a valid major life activity. Williams, a carpal tunnel victim, claimed severe restrictions on manual tasks required to perform some of her job tasks. O’Connor viewed this as an attempt to circumvent the claim of working as a major life activity and defined manual tasks as those “central to daily life” (e.g., bathing, brushing teeth, household chores, etc.), which Williams could do. However, as Eric will explain below, this ruling was overturned in the ADA Amendments Act (ADAAA) of 2008, as were the 1999 rulings in Sutton v. UAL, Albertsons v. Kirkingburg, and Murphy v. UPS.
Among the five classifications on affirmative action (AA), a 2001 column focused on the 10th Circuit ruling in Adarand v. Slater (1999) on a federal Department of Transportation (DOT) set-aside program, a 2002 column discussed why AA is not a homogenous phenomenon, the three aforementioned 2003 columns on the Grutter and Gratz cases, and a 2004 column on the 7th Circuit ruling in Petit v. City of Chicago (2003).

The prelude to Slater included Supreme Court rulings in Richmond v. Croson (1989), Metro v. FCC (1990), and Adarand v. Pena (1995). Croson dictated that nonfederal set asides are governed by strict scrutiny rules (a compelling government interest matched by a narrowly tailored solution), and Metro dictated that federal set asides are governed by less heightened moderate scrutiny rules (an important government interest matched by a substantially related solution). The Supreme Court then reversed its Metro ruling in Adarand v. Pena, requiring the DOT to pass strict scrutiny. The DOT then created a new and improved set-aside program that was deemed to pass strict scrutiny by the 10th Circuit in Adarand v. Slater (1999), and the Supreme Court, which was set to review the 10th Circuit ruling, deemed the case “spoiled” in Adarand v. Slater (2000).

At stake in Grutter and Gratz was the viability of Regents v. Bakke (1978), in which Justice Powell ruled that diversity is a compelling government interest with a possible narrowly tailored solution (i.e., the Harvard Plan). However, Powell’s ruling was “fragmented” (i.e., no other justice agreed with his entire argument), prompting some lower courts to question whether Bakke is good law. Considering both Grutter and Gratz together, only one justice (Thomas) questioned whether Bakke is good law, and no other justice argued that diversity is not a compelling government interest. The disagreements were on whether the plans were narrowly tailored. As it turned out, predictions from my preview of these cases came true and the University of Michigan law school plan (Grutter) passed (mainly because it featured individualized consideration of applicants), whereas its undergraduate plan (Gratz) failed (mainly because it lacked such consideration). The 7th Circuit ruling in Petit then used Grutter to support race-based preference in a police promotion case.

As for sexual harassment, I wrote two columns in 2004 (both on Pennsylvania State Police v. Suders (2004), two in 2005 (sexual harassment rulings in other English-speaking countries and same-sex harassment), and one that featured both sexual harassment and retaliation in 2006 (Burling Northern Santa Fe (BNSF) v. White, 2006).

Nancy Suders clearly suffered hostile sexual harassment (harassment severe and/or pervasive that interferes with job performance). However, there were residual questions as to whether there was also a constructive discharge (a reasonable person would feel compelled to resign), and if constructive discharge implies strict liability (no defense) as opposed to vicarious liability (an affirmative defense that a policy was in place to prevent and quickly correct harassment and the victim unreasonably failed to use it). Suders won on harassment and constructive discharge. At the time, I questioned whether a ruling on constructive discharge was necessary (I said “they missed the boat”) because it seems impossible to suffer the kind of harassment Suders did and lose to an affirmative defense. In hindsight, I think I missed the boat as I’ve more than once seen constructive discharge absent hostile harassment since the Suders ruling.

As for the other two sexual harassment columns, I was struck by how closely other English-speaking courts (UK, Canada, New Zealand, Australia, and Ireland) follow our sexual harassment rulings, and I felt there was a major fault in Justice Scalia’s same-sex harassment ruling in Oncale v. Sundowner (1999). Scalia ruled that same-sex harassment must be based on sex, thus allowing for a loophole adopted by some courts (and rejected by others) that atrocious acts can be legally committed in the name of “horseplay” (i.e., nasty acts involving sexual parts being excused because they were committed by heterosexual actors who were fooling around).

Among the three adverse impact citations, a 2003 column discussed the complexity of Title VII adverse impact court cases and a 2004 column featured what I called “ground rules” for understanding these cases. The third column (Smith v. City of Jackson, 2005) featured a 54 majority endorsing adverse impact as a valid ADEA claim but with different rules than in Title VII (i.e., proof of reasonable factors other than age rather than job relatedness). Two things struck me here. First, Justice Stevens, a dissenter in Wards Cove v. Atonio (1989), ruled that Wards Cove, though inapplicable to Title VII, applies to the ADEA. This was a confusing ruling that was later clarified in Meacham v. KAPL (2008). Second, Scalia was the deciding vote in Smith, and he opined that Title VII rules should also apply to age-based adverse impact. What’s startling here is that Scalia subsequently questioned whether the Title VII adverse impact rules are constitutional in Ricci v. DeStefano (2009). Eric discusses both Meacham and Ricci below.

The two disparate treatment rulings in Table 1 are Reeves v. Sanderson Plumbing and Desert Palace v. Costa (2003). Reeves corrected a misperception of St. Mary’s v. Hicks (1993), in which a 54 majority of justices supported a district court judge who believed there was indirect evidence of discrimination of Hicks (a Black employee treated more harshly treated than similarly situated White employees), but who also believed the harsher treatment was personal not racial. In Reeves, a jury believed that harsher treatment of an older employee was age based, and a unanimous Supreme Court upheld this ruling. The moral, therefore, is that it’s up to the trier of fact (judge or jury) to believe or disbelieve indirect evidence of discrimination. In Costa (2203), the Supreme Court ruled that indirect evidence is also sufficient for a prima facie case of mixed-motive disparate treatment. Prior to Costa, most lower courts required direct evidence of discrimination (e.g., eyewitness, tapes, e-mails, etc.) to initiate a mixed-motive claim.

The “other” cases in Table 1 include a 2002 column on the implications of “backlash” religious or national origin discrimination after the 9/11 attacks (hence the double classification as both other and religion/national origin). The other “others” featured three columns on the justices themselves, including a 2005 column on Justice O’Connor’s legacy after she retired from the Supreme Court, a 2006 column on the implications of the addition of Justices Roberts and Alito for major EEO issues, and another 2006 column comparing Justices O’Connor and Alito with respect to major rulings during O’Connor’s tenure on the Supreme Court.

Finally, the last column in 2006 covered the BNSF v. White ruling on retaliation. In general, there are three prongs to a retaliation claim: (a) opposing an employer policy or making a formal charge; (b) an adverse action; and (c) a causal connection between prongs 1 and 2. The BNSF ruling focused on the adverse action (prong 2). All nine justices ruled that White suffered an adverse action and causally connected it to her opposition against employer policies. However, eight of them endorsed a plaintiff-friendly “deterrence standard” (that a reasonable person would be dissuaded from opposing discrimination or filing a formal claim), and one justice (Alito) endorsed the more employer-friendly “adverse employment” standard (requiring interference with the terms and conditions of employment). All nine justices rejected the most employer-friendly “ultimate employment” standard (requiring actual violations of law involving hiring, termination, promotion, etc.).

After the last 2006 column, I asked Eric to write a guest column for the January 2007 issue, I wrote my last sole scribed column for the April 2007 column, and our first collaborative column was for the July 2007 issue. So at this juncture, I will turn it over to Eric.

By Eric Dunleavy

I joined On the Legal Front in 2007 after writing a guest column on the implications of the Supreme Court ruling in BNSF v. White. Art’s articles on this ruling familiarized the I/O community with a form of discrimination that, until recently, had been staying under both the I-O and HR radars. Although antiretaliation protection is intuitive, deconstructing the Supreme Court ruling was not, and Art did a great job (a) introducing the concept and the legal scenario, (b) describing why it was an important and suddenly controversial EEO topic, and (c) providing recommendations for I-O and HR practitioners on how to insulate from retaliation claims and how to minimize the likelihood of retaliation happening to begin with. I followed up with a survey of retaliation case law, and concluded that, although claims of retaliation may skyrocket for a variety of reasons (including the Supreme Court’s endorsement of the deterrence standard), it isn’t necessarily easier for a plaintiff to win a retaliation case than it was pre-BNSF v. White. It was a fun time to come on board (and I think my post-BNSF v. White predictions were correct….sort of).
Since I came on board in 2007 we have continued to try to meet three basic goals with the column. First, we want to update the general I-O community on relevant legal issues in real time, with particular emphasis on hot-off-the-press court rulings, changing laws, and contemporary EEO enforcement trends. Second, we want to consider the larger social and political context as a partial explanation for what is happening and why. Third, we want to dig a little deeper to understand the specifics of what happened and the potential implications. In other words, why did a court rule the way it did, why was a law changed, or why are enforcement agencies using particular strategies? This third goal explains why some of the longer columns are the length that they are. In some situations a set of rulings, the historical context of a law, or long term EEO enforcement patterns are necessary to understand in order to comprehend what just happened. Of course the alternative explanation is that Art wrote the column.

Table 2 summarizes column topic areas since 2007. As Art described earlier, this is a subjective classification scheme, and in cases where articles focused on more than one topic credit could be given to multiple categories. In some cases classification decisions were made based on I-O specific considerations. For example, although Ricci v. DeStefano was a disparate treatment “reverse discrimination” case, the adverse impact analyses and employment test-related context at the foundation of the case led me to categorize it as a disparate impact/employee selection issue. As another example, some ADEA rulings were summarized primarily because of the adverse impact measurement issues, and as such were categorized as a disparate impact/employee selection issue. Table 1 shows these results.

Table 2
Topics Covered in the Legal Front Column From 2007–2013

Primary topic area Frequency in the Legal Front columns since 2007

Traditional disparate impact/employee selection 10
Large ccale pattern or practice cases 4
Employer retaliation 4
EEO enforcement agency enforcement 4
Pay equity 3
Age discrimination (ADEA) 2
Disability discrimination (ADA) 2
Affirmative action/reverse discrimination 2
Sexual harassment 1

Some clear patterns emerge. First, traditional disparate impact/employee selection was the most common topic in this column from 2007–2013. This is not a surprise given that these cases are likely most relevant to I-O psychologists involved in developing, validating and monitoring personnel selection procedures. Since 2007 there have been two Supreme Court rulings in this area (Ricci v. Destefano and Lewis v. City of Chicago) and a number of EEO agency enforcement actions centering on this issue. Ricci and follow up rulings and settlements were fascinating examples of how employee selection happens in a particular political and social context, and those contextual factors matter when it comes to legal defensibility. These cases also exemplify the diversity–validity dilemma that many organizations struggle with. Although many misinterpreted the ruling to have much larger implications than it did, the message was clear: Decisions based on protected group status are probably going to be considered discriminatory. In addition, the presence of meaningful disparities does not equate to a discriminatory selection system because the system may be job-related and without the clear availability of an equally valid alternative with less adverse impact.

Employer retaliation (BNSF v. White, BNSF follow ups, CBOCS West v. Humphries, Gomez-Perez v. Potter, Thompson v. NA Stainless, and Kasten v. Saint Gobain), large scale pattern or practice rulings (e.g., Dukes v. Wal-Mart and Velez v. Novartis), and EEOC/OFCCP enforcement were all tied for the second most common topics in this column. Since the BNSF v White Supreme Court ruling, protection from employer retaliation has expanded across both statute and contextual factors. This is one factor related to why retaliation claims are the most common claim made to EEOC today. The Dukes case certainly caught the attention of the popular press. The facts of the case and the ruling itself had many interesting dimensions, but at the end of the day the take-home message focused on a technical legal issue related to the glue linking a class of alleged victims together. Although the nationwide case failed, smaller geographic follow-up class actions related to this case may fill this column over the next few years.

Pay equity, age discrimination, disability discrimination, and sexual harassment round out Table 2. Pay equity made headlines with the Supreme Court ruling in Ledbetter v Goodyear Tire and legislative response via the Ledbetter Fair Pay Act. Broader protection and a pay data collection tool were proposed via the Paycheck Fairness Act, although that legislation has never been passed. A new iteration of the Act was rumored to be voted on in 2013. Subtle changes have been made to ADEA standards, particularly related to disparate impact scenarios. Large scale changes have been made to ADA protections via the ADAAA, which substantially expanded the definition of disability and essentially reversed rulings in Toyota v. Williams, Sutton v. UAL, Albertsons v. Kirkingburg, and Murphy v. UPS. Sexual harassment continues to be a priority for EEOC. Affirmative action/reverse discrimination in education will again be in the headlines when the Supreme Court rules on Fisher v. Texas in the summer of 2013.

Looking Toward the Future

Looking back on the last 13 years of this column has made us think about what will the next few years of the Legal Front will cover. Some thoughts:

  • First, we expect to continue to see traditional employee selection disparate impact cases. These cases are relevant to the majority of I-O psychologists, and the frequency and scope of these cases don’t seem to vary much with political changes in Washington DC. As of today the majority of disparate impact cases seem to involve police and fire department selection. It will be interesting to see if the future brings more private-sector disparate impact cases, particularly with EEOC’s recent focus on credit and criminal background screens.
  • Second, it will be interesting to track whether protection from retaliation is done expanding and whether these cases become more or less difficult for plaintiffs to prove. Retaliation has become the single most common complaint made to EEOC, and some retaliation claims can win in spite of meritless source claims. However, we still think that the plaintiff burden to prove that adverse actions were actually linked to protected activity is a heavy one.
  • Third, the EEO community will be monitoring the follow up cases to Dukes. It will be interesting to see if geographical allegations have more success than the nationwide allegation, which many oversimplified as “too big to succeed.”
  • Fourth, the Obama administration continues to view the gender wage gap/pay equity as a major EEO priority. Although the Ledbetter Fair Pay Act was passed early in president Obama’s first administration, the Paycheck Fairness Act stalled and enforcement activity has appeared to stay flat. We will certainly be curious to see if new legislation or the creation of a pay equity survey happens in the next few years.
  • Fifth, although the ADAAA makes it easier to prove disability within the meaning of the ADA, other factors still make it difficult for plaintiffs to prevail. This is illustrated in Toyota v. Williams, where the plaintiff could, after the ADAAA, prove that her impairments substantially limit major life activities (i.e., manual tasks). However, there were still essential job tasks Williams could not perform even with accommodations, thus making hers a losing case anyway.
  • Sixth, affirmative action should continue to dominate the headlines. The Supreme Court will rule on Fisher sometime this summer, and there is guaranteed to be some controversy (whether it is warranted or not). In addition, OFCCP is proposing to substantially change affirmative action and equal employment opportunity (AA/EEO) requirements for protected veterans and individuals with disabilities, in order to make them more consistent with the AA/EEO requirements of Executive Order 11246 related to gender, race, and ethnicity. These changes would have major implications for federal contractors.

We close with one last thought. From experience, we know that some of the most interesting EEO stories never make it into a judge’s formal ruling. That doesn’t mean they aren’t worth sharing with the I-O community (if they can be). This is how Eric joined the front, and recent guest columns from Jim Outtz (sharing an under-the-radar settlement) and Kayo Sady (describing a confusing ruling that hadn’t been summarized anywhere else) are great examples. We think that more guest columns sharing stories worth sharing would be of value to readers of this column. So if you have an EEO/AA story that warrants telling, let us know. We would be happy to discuss your ideas and see if there would be fit with the column. We hope that you have enjoyed the column over the last 13 years. We have certainly enjoyed writing it and will continue to do so as TIP moves into cyberspace.

Cases Cited

Adarand v. Pena (1995) 515 US 200.
Adarand v. Slater (2000) 528 US 216.
Adarand v. Slater 169 F. 3d 1292 (CA10 1999).
Albertsons v. Kirkingburg (1999) 57 US 556.
Barnett v. US Air (2002) 535 US 391.
Bd. of Trusties Univ. of Alabama v. Garrett (2001) 531 US 356.
Burlington Northern Santa Fe Railway Company v. White (2006) 548 US 53.
CBOCS West v. Humphries (2008) 128 S.Ct. 1951.
City of Richmond v. Croson (1989) 488 US 469.
Desert Palace v. Costa (2003) 539 US 90.
Gomez-Perez v. Potter (2008) 128 S.Ct. 1931.
Fisher v. University of Texas (2011) F.3d 213.
Gratz v. Bollinger (2003) 539 US 244.
Grutter v. Bollinger (2003) 539 US 306.
Kasten v. Saint-Gobain Performance Plastics Corp., U.S., No. 09-834 (Mar. 22, 2011).
Kimel v. Florida Bd. of Regents (2000) 528 US 62.
Lewis v. City of Chicago, No. 08-974 (2010).
Lilly M. Ledbetter v. The Goodyear Tire and Rubber Company, Inc. 550 U.S. (2007).
Martin v. PGA Tour (2000) 532 US 661.
Meacham v. Knolls Atomic Power Laboratory (KAPL) (2008) 564 US 84.
Murphy v. UPS (1999) 527 US 516.
Metro Broadcasting v. FCC (1990) 497 US 547.
Oncale v. Sundowner (1998) 523 US 75.
Parents Involved in Cmty. Schs. v. Seattle School Dist. No.1 (2007) 127 S. Ct. 2738.
Pennsylvania State Police v. Suders (2004) 477 US 57.
Petit v. City of Chicago (CA10 2003) 352 F.3d 1111.
Regents v. Bakke (1978) 438 U.S. 265.
Ricci v. DeStefano (2009) 557 US 557.
Smith v. City of Jackson (2005) 544 US 228.
St. Marys Honors Center v. Hicks (1993) 509 US 502.
Sutton v. United Airlines (1999) 527 US 471.
Thompson v. N. Am. Stainless LP, U.S., No. 09-291 (cert. granted 6/29/10).
Toyota v. Williams (2002) 534 US 184.
Velez v. Novartis, 04-cv-9194.
Wal-Mart v. Dukes [2011 U.S. LEXIS 4567, 6/2011].
Wards Cove Packing Company v. Atonio (1989) 490 US 642.