Monday, June 29, 2009

Supreme Court Rules that City Violated Title VII When It Threw Out Test Results Because of Its Fear of Violating Title VII.

In an opinion issued today entitled Ricci v. DeStefano, the United States Supreme Court ruled that the city of New Haven, Connecticut violated Title VII when it "threw out" promotional examination results after it discovered that the results disproportionately favored non-minority test takers.

Although the city had carefully planned the test and hired an organization to design the test to assure racial neutrality, the test results showed a significant disparity in results. There was no question that the results established a prima facie case of disparate-impact discrimination---a policy or practice that produces a disparate impact on a protected minority group. There was also no question that throwing the test results out would constitute disparate treatment discrimination because it would harm successful test takers based solely on their race, i.e., because they were white and received a high score, there test results would be thrown out. This put the city in an uncomfortable position---it had to determine whether to throw-out the test results and risk a lawsuit by the successful applicants for disparate-treatment discrimination or certify the test results and risk a lawsuit by the unsuccessful applicants for disparate-impact discrimination. The city chose the former and risked the lawsuit with the successful applicants.

Thus, the question for the Supreme Court was "whether the purpose to avoid disparate-impact liability excuses what otherwise would be prohibited disparate-treatment discrimination."

The Court answered the question in this way: "[B]efore an employer can engage in intentional discrimination for the asserted purposes of avoiding or remedying an unintentional disparate impact, the employer must have a strong basis in evidence to believe it will be subject to disparate-impact liability if it fails to take the race-conscious, discriminatory action." In other words, there must be strong evidence to support the fear of liability for the disparate results complained of before an employer may take any race-conscious action.

In this case, the Court ruled that the city of New Haven did not have strong evidence of such liability and, therefore, ruled that the act of throwing out the tests was a violation of Title VII.

Friday, June 19, 2009

United States Supreme Court Rules that to Prove Age Discrimination Age Must Be More than Just a Motivating Factor

On Thursday, June 18, 2009, the United States Supreme Court ruled that in order to prove age discrimination under the Age Discrimination in Employment Act of 1967 (ADEA), a person must prove more than that age was a "motivating factor." Instead, the Court stated in its opinion entitled Gross v. FBL Financial Services, Inc., that "a plaintiff must prove by a preponderance of the evidence . . . that age was the 'but-for' cause of the challenged employer decision." In other words, "that age was the 'reason' that the employer decided to act." This decision sets ADEA claims apart from discrimination claims brought under Title VII, which allow people to bring claims if race, color, sex, religion, or national origin was simply "a motivating factor for any employment practice, even though other factors also motivated the practice."

Thursday, June 4, 2009

Utah Court of Appeals Affirms Penalty for Fraud in Unemployment Application.

On June 4, 2009, the Utah Court of Appeals affirmed the Department of Workforce Services' assessment of a penalty against an unemployment benefits recipient who failed to disclose that she worked during weeks in which she received unemployment benefits. In Mugleston v. Department of Workforce Services, the Court ruled that despite the recipients claims that "she did not knowingly submit incorrect information," the recipient "was accountable for the information in the claimant guide and the information presented to her in the initial claim instructions," which both notified her "that she was required to report work performed, regardless of when she was paid for such work." The Court agreed that the woman had willfully misrepresented or concealed the information.

Wednesday, June 3, 2009

Interesting and Funny Employee Orientation Videos.

I thought it might be interesting to take a break from the more mundane employment law topics for a change. In preparing for employee training for one of my clients, I recently did a search of You Tube to find some entertaining and/or funny employee orientation videos. I was able to find a few I thought were entertaining. Enjoy.


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Tuesday, June 2, 2009

When is a Sarbanes-Oxley Retaliation Claim Timely?

In Rzepiennik v. Archstone-Smith, Inc., the Tenth Circuit Court of Appeals, the federal circuit having jurisdiction over Utah, considered the question of when a retaliation claim under the Sarbanes-Oxley Act (SOX) is considered timely. The employee in the case contended that his employer had retaliated against him when he reported financial irregularities internally by terminating his employment. After his termination and during an investigation of the claims, he alleged that his employer offered him an incentive bonus of $255,589 for his work only if he agreed "1) not to disclose to any person or regulatory agency the facts about the alleged fraud or [the employer's] investigation, and 2) to return to [the employer] all documents and copies he possessed relating to his allegations." This offer was made on August 20, 2003, and it gave him 21 days to accept the terms. On September 12, 2003, he attempted to negotiate the terms but the employer refused to change the terms.

On December 15, 2003, he filed a complaint with the Occupational Safety and Health Administration (OSHA), the agency responsible for SOX compliance. The Court ruled that the filing was late because it had been more than 90 days---the statute of limitations time period---since the illegal offer was made. The employee, among other things, contended the proper trigger date was September 12, 2003, the date the offer expired and the date of his negotiations with the employer. The Tenth Circuit rejected that argument, ruling that the discriminatory act was the employer's illegal offer and it was made on August 20, 2003. The Court also considered and rejected the argument that the Lilly Ledbetter Fair Pay Act applied to SOX violations.

Monday, June 1, 2009

Utah Employment Selections Procedure Act Amended.

The Utah Employment Selections Procedure Act was amended in the recent special legislative session. The amendment clarifies and expands the times that birthdates, social security numbers, and drivers license numbers can be requested. However, the law continues to restrict the use of this information and continues to require a document retention policy.