Posted on July 17th, 2008 by Tim Eavenson | No Comments »
Filed under: ., Discrimination, HR Issues | 
The Seventh Circuit Court of Appeals here in Chicago is known for having an aversion to the typical “bright line” rulings issued by other circuits (and, often, their bosses in D.C.). The judges say they like to think the cases through, instead of adhere to some “easy-to-follow” method spelled out in a previous case that just ends up confusing things*.
Whether that’s 100% true is debatable. But in an opinion released this week, they certainly followed that tack, and in the process issued a ruling that did a great job defining employee’s rights under the Pregnancy Discrimination Act.
The opinion in Hall v. Nalco, written by Judge Sykes, holds that in-vitro fertilization treatments are covered under the Pregnancy Discrimination Act. Which means, basically, that employers can’t treat you differently (or fire you) for getting IVF treatments. That probably doesn’t seem revolutionary, but it suprised me. Here’s why:
The plaintiff, a secretary who was fired when her office was merged with another, claimed that her firing was discrimination because it was based on her “absenteeism” related to her in-vitro treatments. The plaintiff argued that infertile women are protected under the Pregnancy Discrimination Act, which extends discrimination protection based on sex (the gender kind, not the “doin’ it” kind) to include pregnancy-related conditions.
Most people (including me) heard that argument and stopped paying attention, because the Supreme Court had already ruled that infertility is gender-neutral (i.e. the same for boys and girls – like a Slinky), which means it’s not related to “sex” and not protected. So, done deal. Plaintiff loses. That’s why the District Court threw the case out in the first place.
Well, not so fast. You can’t just say “infertility isn’t protected” and close the book. The Plaintiff’s “absenteeism” was related to IVF treatments. Show me a guy getting IVF treatments. It’s impossible – we don’t have the parts. So, says the 7th Circuit, who cares if there’s a “rule” about infertility? This termination was about pregnancy.
Plaintiff gets to sue.
Agree or not, you have to love it when the judges (and their clerks) really pay attention to the case law. It doesn’t always happen. In this case, the Plaintiff’s complaint didn’t even separate IVF from “infertility” (see note 3 of the opinion). But because the court saw a distinction, we have an opinion that will do so much more for understanding what the PDA covers than any “bright line” rule ever would.
* See Paul W. Mollica, “Employment Discrimination Cases in the 7th Circuit“, 1 Emp. Rights & Emp. Policy J. 63, 100 (1997).
Posted on May 5th, 2008 by Tim Eavenson | No Comments »
Filed under: Uncategorized |
The Seventh Circuit’s recent decision in Williams v. Interpublic Severance Pay Plan, No. 07-3146 (dec. April 29.2008) seems straightforward enough. It’s an ERISA case. It’s not very sexy.
But buried in there, underneath the actual legal analysis, are a couple of things worth mentioning.
1. Easterbrook Schools the Academics?
Judge Easterbrook focuses the first part of his holding on the use of trust law in analyzing ERISA cases. This seems appropriate, as the Supreme Court instructed as much in Firestone v. Bruch. But critics of the federal courts’ consistent deference to plan administrators’ decisions have been chastising the courts for years, saying they ignore trust law in favor of a rough amalgam of contract, administrative and labor law. And no one epitomizes the anti-deference movement like Yale professor John Langbein, who has written extensively on why he thinks the standard of review under ERISA is out of whack.
So it’s no suprise when Judge Easterbrook supports deference to the plan’s administrator, or when he uses contract law to do it. But when he supports his holding with “See generally John H. Langbein, The Contractarian Basis of the Law of Trusts, 105 Yale L. J. 625 (1995),” call me crazy but that’s more than just a holding. That’s a shot across the bow.
2. ERISA: the Cartoon
“Second, one must not anthropomorphize ‘the administrator.’”
Oh, how many geeky benefits conversations this unfortunate statement could start. What Disney animal would best represent “the administrator?” Would “the administrator” have a high-pitched squeak or a low, dopey voice? How many episodes would it take before “the administrator” would have an anthropomorphically similar character of the opposite gender?
Seriously, though, Easterbrook’s point is that administrator’s are “commonly large organizations” and don’t have any real “interest” in the day-to-day operation of the plan. I know, I know. ZZzzz.
But then, there it was. It might as well have been written in red.
There would be a real conflict of interest if a given administrator put in place a method of linking decisionmakers’ income to the substance of their decisions. A quota system…or some other means of tying the wages or promotion of staff to its disposition of claims could call for non-deferential judicial review.
Really? Somebody must have seen “Sicko“.
3. Please Deliver 9 Copies to: One First Street, Washington D.C.
Easterbrook ends his interest/deference analysis by noting that (what a coincidence!)the whole thing was presently before the Supremes in MetLife v. Glenn, which was argued (again!) six days before Williams was released. Make of that what you will.
Posted on October 12th, 2007 by Tim Eavenson | No Comments »
Filed under: Uncategorized |
In our
recent post on how overly concerned the Supreme Court seems to be with old people, we pointed out that there were a few other employment cases this term that didn’t have anything to do with those along in years.
While that’s not exactly true (see below), the cases present a couple of age-neutral issues, parties, bigots and other tabloid-ready topics worth considering, and a judge/justice SCOTUS celebrity showdown that will blow your mind!!
Descriptions after the jump.
CBOCS West v. Humphries.
As a preliminary matter, we note this post is being published in the N.D. of Ill. so we’ll take our cues from the 7th Circuit’s opinion and refer to CBOCS by it’s Christian name, Cracker Barrel.
We tried to skim the questions presented to sum up the case, but somebody must’ve read the brevity suggestion for SCOTUS questions. From the petition:
QUESTIONS PRESENTED:
Is a race retaliation claim cognizable under 42 U.S.C. § 1981?
What kind of question is this? They better have good orals, ’cause Cracker Barrel is definitely not winning best brief this term.
The 7th Circuit opinion summarizes the case pretty well: Humphries was an assistant manager at Cracker Barrel in Bradley, IL (go Boilermakers!) And, after the store manager who liked him left, they apparently brought in a temporary manager from the early 19th century. From the Circuit Op.:
According to Humphries, Cardin [the mgr] routinely made racially derogatory remarks, such as stating that all African-Americans are “drunk or high on drugs” or that “all Mexicans have a bunch of kids.” Humphries alleges that other employees confirmed Cardin’s inappropriate comments, and told Humphries that Cardin had stated that he was there “for the white people” and was “going to take care of the white people.”
Humphries was fired, of course, and claimed it was in retaliation for bringing the manager’s actions to the attention of the district manager. When his Title VII case was dismissed, the district court granted summary judgment on the 1983 claims, holding that retaliation isn’t an option under section 1983. The 7th Circuit reversed, and now here we are.
Sprint United Management v. Mendelsohn
Ok, so we said these cases didn’t have anything to do with old people, we were speaking from a purely academic point of view. Ms. Mendelsohn, is, in fact, an old person. But the question before the court is not about her underlying ADEA claim (she got riffed and claimed she was picked because of her age) but the fact that she wasn’t given a fair trial because the trial court wouldn’t hear “me too” evidence
“Me too” evidence is the hilariously juvenile nickname (we’re waiting for the “nuh-uh, stupid” evidence debate) given to testimony from fellow employees who experienced similar discrimination (in this case, during the reduction-in-force) though not necessarily by the same manager or under the exact, same circumstances. Introduction of this type of testimony has actually been a pretty hotly-debated issue in discrimination cases.
Preston v. Ferrer
Ok, this case is not necessarily an employment case, though the result will definitely have implications on L&E law, because it involves federal preemption under the Federal Arbitration Act. That substantive importance, however, has nothing to do with our interest in this case.
The “Ferrer” in the caption is “Judge” Alex Ferrer, more commonly known as “Judge Alex” to anyone in college, raising small children or sick from school. The other guy, what’s-his-name, is Ferrer’s former manager. If ever there was an unfortunate and sordid relationship leading two individuals to the Supreme Court, this is it. From Preston’s attorney’s press release:
Alex Ferrer is a former Florida District Court Judge, who now makes his living on television, arbitrating petty legal disputes.
Arnold Preston is a Florida attorney, who once practiced before Judge Ferrer in Miami. In 1999, Mr. Preston left Florida and took a job with the William Morris Agency in Beverly Hills, California. Recalling Judge Alex Ferrer’s charisma on the bench, Arnold Preston introduced the Florida jurist to the top agents at William Morris. When Arnold Preston left William Morris to become a talent manager and television producer in 2002, he became Judge Alex Ferrer’s manager.
The two had a falling out, of course, and Mr. Preston is trying to arbitrate commissions he is allegedly owed. Heartbreaking.
Current Employment is reading right through this. We think the Supremes are merely trying to capitalize on their involvement in the media high-point that was Anna Nicole, though we hope they’re planning some kind of judge-on-judge Iron Chef-style showdown where Judge Alex gets to pick a justice to opine against (we say go with Alito – he’s new and seems easliy flustered).
At the very least, we hope the Roberts Court will adopt a minimum c-list celebrity standard for future terms. We’ll keep you posted.
