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For transgender workers, not a transformative year

December 23rd, 2015  |  Kathy Kapusta  |  Add a Comment

In what it says is the first publically available government-run testing project in the nation to analyze how employers respond to resumes from applicants perceived as transgender compared with resumes of applicants not so perceived, the D.C. Office of Human Rights (OHR) found that transgender individuals face substantial challenges in their efforts to obtain employment in the District of Columbia. Regarding the agency’s November 2015 report, OHR Director Mónica Palacio observed that “Statistical and anecdotal evidence tells us transgender and gender nonconforming people are experiencing employment discrimination at very high rates, and this testing project confirms that unfortunate truth.”

So how have transgender employees fared in the courts over the past year? A look back at cases decided in 2015 reveals the following:

Wrong pronoun. In December, a federal district court in Florida dismissed on summary judgment the gender identity bias and hostile work environment claims of a transgender employee who alleged she was called “sir” on multiple occasions and ultimately fired. The long-time on-call server provided legal documentation in 2005 showing her identification as a female.

While she alleged in her HWE claim that she was misgendered every day since the day she presented the court order legally changing her name, she only provided specifics as to three incidents, which were relatively minor and did not amount to frequent conduct. The conduct may have been upsetting but the use of the wrong pronoun was not profane, said the court. She also failed to identify a similarly situated comparator or produce other evidence from which discriminatory intent could be inferred; thus, her gender identity bias claim also failed.

“What is that?” That same month, the Fifth Circuit affirmed summary judgment against a retaliation claim by an employee who allegedly was threatened with a 50-percent pay cut because she hired a transgender truck driver. The employee claimed that when a visiting regional director saw the transgender driver, she asked the employee, “What is that and who hired that?” The appeals court, however, found that a reasonable person in the employee’s shoes would not have been dissuaded from protected activity by the threat because it was made by someone outside her chain of command. The high-level employee should have waited to receive confirmation as to whether the threat was official before resigning, said the court.

Tried not to act like a girl. In October, a federal district court in Maryland granted summary judgment against a transgender employee’s gender-based claims. A few years before his termination, the long-tenured employee was diagnosed as being transgender. Although he continued to dress like a man, use the men’s room, and “tried not to act like a girl,” he grew out his hair. He claimed a coworker threatened him because he was transgender, said he would rape him, and poked various parts of his body.

The employee was fired after he asked the coworker whether he “wanted to take the argument outside,” raised his middle finger, and used profanity toward him. Because the employee’s actions and word choice could have been perceived as threatening and consequently violated his employer’s policies, the court found he was not meeting his employer’s legitimate expectations. Further, he failed to show that his employer’s real reason for terminating him was his transgender status.

“Don’t rock the boat.” Just a month earlier, a federal district court in Arkansas ruled that a jury could hear gender stereotyping claims by a transgender woman who was fired within months of informing her supervisor of her transition status and legal name change, and within weeks of beginning to wear female attire at work. The court cited contradictory deposition testimony inferring that the stated reason for the firing—she had threatened to sue the site at which she was performing electrical work—was pretext for sex discrimination.

Although the employer argued that transsexuals may not claim protection under Title VII from discrimination based solely on their status as a transsexual, the court pointed out that the employee’s theory of discrimination was that she was terminated because of her gender transition and her failure to conform to gender stereotypes, a theory it found well settled under Title VII precedent.

As to the employer’s contention that the employee could not establish a prima facie case of sex discrimination, the court noted that the employee presented evidence that when she told her supervisor about her transgender status, he instructed her not to “rock the boat” and repeatedly forbade her to use her legal name, talk about her transgender status, or wear feminine clothes at work. Soon after she began wearing feminine attire at work, he allegedly told her she was too much of a distraction and fired her. That was ample evidence from which a jury could find she was fired because of her sex.

“Came on pretty strong.” In June, a federal court in Maryland granted summary judgment against a transgender female’s Title VII and state law claims asserting she was not selected for a position with a police department’s volunteer mounted patrol because of her gender identification and nonconforming gender conduct. A single email from six months earlier, in which a decisionmaker commented to a fellow officer “Hope not promoting the idea??!!” was a stray remark and too far removed. Moreover, she failed to refute the county’s asserted reasons for its actions.

The employee transitioned her gender identity from male to female in 2002, the same year she retired from her 25-year career as a sergeant for the U.S. Capitol Police. In 2011, she applied for a position with the volunteer mounted patrol. Ultimately, she was rejected based in part on the fact that she “came on pretty strong” during her interview.

A magistrate judge first clarified that her gender bias claim was being considered both as to transgender status and as to her nonconformance with gender stereotypes. However, the magistrate found no direct evidence that she was denied the position because she was transgender or because of her self-identified nonconformance with gender stereotypes. She only pointed to the one email, made months prior to the hiring decision. Even if this isolated instance reflected directly on the decisionmaker’s allegedly discriminatory attitude towards transgender persons, it had no relation to the selection process or the selecting officers’ decision to not offer her a position. In fact, the selection process did not begin until six months after the email, and decisions were not made until nine months after.

Nor did the employee provide any evidence that she was rejected for the position in favor of someone not in her protected class or from which bias could be inferred. Only one of the three decisionmakers knew she was transgender and there was nothing to suggest her “nonconforming gender conduct” was even considered. To the extent that their discussion of her “commanding” behavior and tendency to “take over” in her interview had any relation to “nonconforming gender conduct,” the only comments the selecting officers made in this regard related to her past experience as a commanding law enforcement officer, not her status as a transgender woman.

Protected class. Denying a university’s motion to dismiss a transgender female professor’s Title VII hostile work environment claim, a federal district court in Oklahoma rejected the argument that transgender employees are not in a protected class. The argument was inapposite because she alleged the discriminatory actions were based on the university’s dislike of her presented gender, and gender stereotyping falls within Title VII’s purview.

While the university argued that the Tenth Circuit, in Etsitty v. Utah Transit Auth., held that “transsexuals may not claim protection under Title VII . . . based solely on their status as a transsexual,” it went on to clarify that “like all other employees, such protection extends to transsexual employees only if they are discriminated against because they are male or because they are female.”

Here, the court found it clear the employee claimed the university’s actions occurred because she was female but they regarded her as male. Thus, the actions she alleged it took against her were based upon dislike of her presented gender. This distinction, explained the court, was recognized in Etsitty in a footnote citing to the Sixth Circuit case, Smith v. City of Salem, in which the appeals court stated: “Sex stereotyping based on a person’s gender non-conforming behavior is impermissible discrimination, irrespective of the cause of that behavior; a label, such as ‘transsexual,’ is not fatal to a sex discrimination claim where the victim has suffered discrimination because of his or her gender nonconformity.” The employee’s allegations here brought her claim squarely within the Sixth Circuit’s reasoning, as adopted by the Tenth Circuit in Etsitty.

Unacceptable. In April, a federal district court in Michigan found that in alleging a transgender funeral home director’s failure to conform to sex stereotypes was the driving force behind the decision to terminate her, the EEOC sufficiently pleaded a sex-stereotyping gender discrimination claim under Title VII. Accordingly, the court declined to dismiss the agency’s Title VII claim against the funeral home.

Approximately two weeks after the employee informed her employer and coworkers that she was undergoing a gender transition from male to female and intended to dress in appropriate business attire as a woman from then on, her employer allegedly told her what she was “proposing to do” was unacceptable and fired her. Bringing suit on behalf of the employee, the EEOC argued that the termination decision was motivated by sex-based considerations. Specifically, it alleged that the funeral home fired the employee because she was transgender, because of her transition from male to female, and/or because she did not conform to the employer’s sex- or gender-based preferences, expectations, or stereotypes.

Acknowledging that transgender status is not a protected class, the court observed that if the agency had alleged that the funeral home fired the employee based solely on her status as a transgender person, it would have failed to state a claim under Title VII. But, the EEOC also asserted that the funeral home fired the employee because she did not conform to its sex- or gender-based preferences, expectations, or stereotypes. Although the court noted that the agency, in its brief, appeared to seek a more expansive interpretation of sex under Title VII that would include transgender persons as a protected class (arguing that the EEOC’s “complaint states a claim of sex discrimination under Title VII because [the employee] is transgender and [the funeral home] fired her for that reason,” there was no Sixth Circuit or Supreme Court authority to support this position.

Citing to the Sixth Circuit’s decision in Smith v. City of Salem and the Supreme Court’s decision in Price Waterhouse, the court explained that even though transgender/transsexual status is currently not a protected class under Title VII, the statute nevertheless “protects transsexual persons from discrimination for failing to act in accordance and/or identify with their perceived sex or gender.”

And while the funeral home argued that “[t]o the extent the EEOC’s claim is that [the employee] was terminated due to his gender identity disorder, the claim must be dismissed,” the court pointed out that the complaint never used the term Gender Identity Disorder or asserted that Gender Identity Disorder is a protected class under Title VII. Moreover, to the extent the EEOC asked the court to rule that transgender status was a protected class under Title VII, it declined to do so.

Intimate and private. In a decision several months later addressing discovery issues in the case, a federal magistrate judge ruled that information regarding the transgender employee’s sexual anatomy, her familial background and relationships, and any medical or psychological records related to her gender transition was of the most intimate and private nature. Finding that it would be harassing and oppressive to require its disclosure at this time where the employer failed to show its relevance to the disposition of the gender-stereotyping claim brought by the EEOC on the employee’s behalf, the court granted the agency’s motion for a protective order in part.

Transsexual status not sexual orientation. Because sexual orientation and gender identity, specifically transsexual status, are two different things, a federal district court in North Carolina declined in January to dismiss a transsexual CNA’s Title VII refusal-to-hire claim based on precedent that Title VII did not protect sexual orientation.

The CNA, who was transitioning from male to female, interviewed for three positions at the hospital. At her third interview, a group of CNAs allegedly harassed and ridiculed her about being transsexual. She returned a fourth time for an interview conducted by a department manager and unit charge nurse, whom she alleged was now aware that she was transsexual. After that interview, she was told the charge nurse wanted someone with “more experience.”

Although the hospital argued that neither the Supreme Court nor the Fourth Circuit has recognized Title VII as protecting individuals because of their sexual orientation, the court explained that transgender status differs from sexual orientation. Noting instead that sexual orientation and gender identity are separate issues, and that the CNA never alleged discrimination on the basis of sexual orientation, the court denied the motion to dismiss.

Employer take-away. What does this mean for employers? As these decisions illustrate, while Title VII does not explicitly protect sexual orientation or gender identity, the agency and some courts have found that sex discrimination includes discrimination based on nonconformance to traditional gender stereotypes. Employers should consider updating their antidiscrimination policies to include prohibitions on sex stereotyping. In its Gender Stereotyping: Preventing Employment Discrimination of Lesbian, Gay, Bisexual or Transgender Workers brochure, the EEOC notes that it is illegal for an employer to deny employment opportunities or permit harassment because a woman does not dress or talk in a feminine manner; a man dresses in an effeminate manner or enjoys a pastime (like crocheting) that is associated with women; a female employee dates women instead of men; a male employee plans to marry a man; an employee transitions from female to male or male to female. Employers should also consider training its workforce to use the name and pronouns appropriate to a transgender employee’s new gender.

In addition, OSHA has published a guide to help employers in dealing with the issue of providing appropriate restroom access to transgender workers. Although it includes best practices and discusses federal, state, and local laws pertaining to restroom access by transgender employees, OSHA made clear in a disclaimer that the guide is not a standard or regulation, and it creates no new legal obligations.

Finally, employers should be aware that state laws may also protect against gender identity discrimination.

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Supreme Court takes California to task—again—on class arbitration

December 16th, 2015  |  Lisa Milam-Perez  |  Add a Comment

By Lisa Milam-Perez, J.D.

Continuing to chip away at California’s “outlier” arbitration jurisprudence, the Supreme Court ruled this week that a state appeals court erred when it upheld a decision refusing to enforce an arbitration agreement that included a class waiver. In DirecTV v. Imburgia, the High Court reaffirmed the preemptive supremacy of the Federal Arbitration Act in a consumer arbitration case with important implications for class arbitration of labor and employment disputes.

Class arbitration waiver. DirecTV’s service agreement included a mandatory arbitration clause, and a provision waiving the right to class arbitration. The agreement would be unenforceable in its entirety, though, if class arbitration waivers were impermissible under “the law of your state.” In other words, DirecTV’s contract provided, if your state would force us into class arbitration, we won’t arbitrate at all.

At the time the agreement was drafted, controlling law in California was a 2005 state supreme court decision that rendered class arbitration waivers unenforceable. The wrinkle here: the U.S. Supreme Court subsequently issued AT&T Mobility LLC v. Concepcion, invalidating the state high court case as preempted under the FAA—and leaving the legal status of DirecTV’s contract clause uncertain.

Did the parties intend to apply now-invalid California law to its arbitration agreement? That would be “nonsensical,” DirecTV insisted in its petition for Supreme Court review. But a state court took DirecTV at its word and refused to compel arbitration in a dispute brought by consumers over early termination fees. Hewing to the specific terms of the contract, the court found that since the class waiver was unenforceable in California when drafted, the agreement itself should not be enforced. A state appeals court affirmed. Notwithstanding the 2011 Concepcion decision, and the fact that the FAA preempted California law, the parties were still free, in drafting their contract, to reference state law as it stood at the time, the appeals court reasoned, concluding the parties did just that.

“Considerable latitude.” But… The FAA gives parties “considerable latitude” to decide what law will govern their arbitration agreements, including class arbitration waivers embodied within those agreements. “In principle,” Justice Breyer supposed (writing for the majority), “they might choose to have portions of their contract governed by the law of Tibet, the law of prerevolutionary Russia, or (as is relevant here) the law of California… and irrespective of [its] invalidation in Concepcion.” In this instance, the state appeals court determined that the parties intended for the latter to apply. And deference is normally due state court interpretations of a contract, which is typically a matter of state law.

Having said all that, the High Court said the state appeals court simply would not have construed a contract outside the arbitration context in such a fashion—i.e., as including an invalid provision of law. As such, the appeals court failed to place arbitration contracts “on equal footing with all other contracts,” which the High Court could not abide.

“We can find nothing in that opinion (nor in any other California case) suggesting that California would generally interpret words such as ‘law of your state’ to include state laws held invalid because they conflict with, say, federal labor statutes, federal pension statutes, federal antidiscrimination laws, the Equal Protection Clause, or the like,” wrote the Court. The state appeals court seems to have based its reasoning on the fact that the specific contract before it was an arbitration agreement, “rather than a general principle that would apply to contracts using similar language but involving state statutes invalidated by other federal law.”

Notably, the “equal footing” argument appeared neither in the petition for cert nor at oral argument. Was it the majority’s sua sponte means of dodging an unsavory choice in a case that threatened to pit “the sanctity of contract” against undying devotion to arbitration? At any rate, it was the approach that won the day for DirecTV.

“Insulating” the powerful? Justice Ginsburg (joined by Justice Sotomayor) dissented on policy grounds, decrying the increasing prevalence of mandatory arbitration with no-class arbitration clauses in both the consumer and employment realms. Indeed, the now-routine use of such agreements, in Ginsburg’s view, is “in large part due to this Court’s decisions.” The High Court’s expansion of the FAA in this manner is “further degrading the rights of consumers and further insulating already powerful economic entities from liability for unlawful acts,” she lamented. “Acknowledging the precedent so far set by the Court, I would take no further step to disarm consumers, leaving them without effective access to justice.”

“Not once” in over 25 years had the Supreme Court reversed a state court ruling because it ostensibly misapplied state contract law in construing the meaning of a term in an arbitration agreement, Ginsburg pointed out. “Today’s decision is a dangerous first.”

California: we’re talking to you. The case sent “a strong message to California courts”—where most of these cases are coming from—“to pay more than lip service to the FAA’s general presumption of arbitrability of a dispute,” said Wendy A. Sugg, Of Counsel in Troutman Sanders’ Orange County office. The Supreme Court took the opportunity to emphasize once again that Concepcion is the law of the land and that “attempts to work around that decision will not be looked upon favorably,” she noted.

The head-scratcher, though, is that on the same day, the High Court declined an invitation to strike down as wrongheaded the state’s continued insistence that individuals cannot waive, via arbitration agreement, the right to bring claims under California’s Private Attorney General Act (PAGA). It was in fact the second time the Court refused to impose the long arm of the FAA on these representative actions, leaving intact the California Supreme Court’s 2014 decision in Iskanian v CLS Transportation Los Angeles, LLC, even as several federal court judges in the state have refused to follow it. Yet a third petitioner will likely step up, to seek the Court’s review of the September 2015 decision in Sakkab v. Luxottica Retail North America, Inc. (assuming that a pending request for en banc Ninth Circuit review provides no recourse). In that case, the federal appeals court held the FAA did not preempt the Iskanian rule barring waiver of PAGA claims through arbitration agreements. Since this latest decision falls right in line with the other cases that have failed to lure the Justices, though, there is little reason to expect that the third time’s the charm.

What does that mean for employers? If Iskanian continues to stand, “employers are likely going to face a two-track process in the future for resolution of employment disputes, with individual claims heard in arbitration and representative actions seeking PAGA penalties going forward in the courts,” Sugg cautioned. “This leads to inevitable fears of conflicting outcomes and uncertainty.”

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Agencies issue joint guidance for employers on internal Form I-9 audits

December 16th, 2015  |  Deborah Hammonds  |  2 Comments

Earlier this week, the federal government announced the publication of a new guidance intended to help employers ensure their I-9 practices don’t result in discrimination against their employees. The publication, “Guidance for Employers Conducting Internal Employment Eligibility Verification Form I-9 Audits,” was issued by the Department of Justice’s Civil Rights Division and the Department of Homeland Security’s U.S. Immigration and Customs Enforcement (ICE).

Under the Immigration and Nationality Act (INA), employers are required to verify the work-authorization of their employees using the Form I-9 and are prohibited from knowingly hiring unauthorized workers.  Employers seeking to ensure their Form I-9 practices comply with federal law are increasingly conducting internal audits of their Forms I-9.  To ensure that these audits are conducted properly and do not discriminate against employees, ICE and the Civil Rights Division’s Office of Special Counsel for Immigration-Related Unfair Employment Practices (OSC)  collaborated to issue formal guidance on the topic.

Among other things, the guidance provides employers with information about the scope and purpose of audits; considerations before conducting internal audits; details regarding how to correct errors, omissions or other deficiencies found on Forms I-9 and how to cure deficiencies related to E-Verify queries; and guidance regarding the anti-discrimination mandate.  The joint guidance is available on the DHS’s website and on OSC’s website.

The agencies developed the joint guidance with significant input from the Department of Homeland Security’s Office of Civil Rights and Civil Liberties, the U.S. Citizenship and Immigration Services, the Department of Labor, the National Labor Relations Board, the Equal Employment Opportunity Commission and stakeholders around the country. The guidance is part of the six-month action plan of the Interagency Working Group for the Consistent Enforcement of Federal Labor, Employment and Immigration Laws.

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High Court takes a second look at UT Austin’s consideration of race in a portion of its admissions decisions

December 11th, 2015  |  Cynthia L. Hackerott  |  Add a Comment

For a second time, the U.S. Supreme Court heard oral arguments on whether its decisions that interpret the Equal Protection Clause of the Fourteenth Amendment permit the University of Texas at Austin’s (UT Austin) consideration of race in a portion of its admissions decisions. The arguments were highly charged, eliciting some provocative statements by Justice Antonin Scalia and queries from Chief Justice John Roberts about when race should cease to be a consideration in university admissions. Although the case focuses on university admissions, the constitutional analysis could also be applicable to race-conscious decisions in state employment and the awarding of government contracts. (Fisher v University of Texas at Austin, Dkt No 14-981, cert granted June 29, 2015).

This time around, the Court is reviewing a 2014 decision in which the Fifth Circuit, following the High Court’s instructions to apply a more exacting standard on remand, determined that the UT Austin’s consideration of race in a portion of its admissions decisions withstands strict scrutiny. In a 2013 ruling, the High Court found that lower courts had erred in giving deference to the university’s assertion that its consideration of race in the admissions process satisfied the narrow tailoring prong of strict scrutiny (97 EPD ¶44,850) . On remand, a Fifth Circuit panel ruled, 2-1, that UT Austin presented sufficient evidence to prove that its admissions program is narrowly tailored to achieve the compelling state interest of the educational benefits of diversity (98 EPD ¶45,109). In November 2014, the Fifth Circuit denied Fisher’s request for an en banc rehearing. The Supreme Court has granted to cert again to determine whether the Fifth Circuit majority correctly followed the High Court’s instructions in reaching its conclusion.

Relevant precedent. Throughout the oral arguments session on December 9, which was extended by over a half-hour beyond the initially scheduled one hour limit, the Justices repeatedly referenced the relevant precedent. Under the standard set forth by the US Supreme Court in Adarand Constructors Inc v Pena (65 EPD ¶43,366 (1995)), to survive constitutional review, a government entity’s consideration of race has to meet strict scrutiny standards; thus, it must: (1) serve a compelling state interest; and (2) be narrowly tailored to achieve that interest.

Prior to its 2013 decision in the present case, the last time the High Court addressed the issue of affirmative action in higher education admissions was in June 2003 when it upheld, by a 5-4 vote, the University of Michigan’s consideration of race as one of many “plus factors” in its law school admissions policy that considered the overall individual contribution of each candidate (Grutter v Bollinger, 84 EPD ¶41,415). In contrast, on that same day in a 6-3 decision, the Court held that the university’s undergraduate admissions policy, which automatically awarded points to applicants from certain racial minority groups, violated the Equal Protection Clause (Gratz v Bollinger, 84 EPD ¶41,416). Previously in Regents of Univ of Cal v Bakke (17 EPD ¶8402 (1978)), Justice Powell wrote in his solo opinion that the attainment of a “diverse student body” is a compelling state interest for an institution of higher education. The Court endorsed this position in Grutter, and found that the law school’s policy was narrowly tailored to achieve the compelling state interest of a diverse student body, but found in Gratz that the undergraduate policy was not.

Texas policy. In 1997, the Texas legislature enacted the Top Ten Percent Law which is designed to increase diversity without taking race into account. The law, which is still in effect, mandates that Texas high school seniors in the top ten percent of their class be automatically admitted to any Texas state university. In 2004, with the Grutter ruling in mind, Texas added the consideration of race among many factors, including achievements and experiences, to fill remaining slots at public universities. In the present ruling, the Fifth Circuit refers to this aspect of the admissions process as “the holistic review program.” Along with the consideration of race and these other factors, which are used to assign each applicant a Personal Achievement Index (PAI) score, the holistic program also takes into account an applicant’s Academic Index (AI) score, which is calculated based on the applicant’s standardized test scores, class rank, and high school coursework.

Abigail Fisher, a white Texas resident, sued the university after being denied a spot in 2008. Because she did not graduate in the top ten percent of her high school class, she did not qualify for automatic admission under the Top Ten Percent Plan, which that year took 81 percent of the seats available for Texas residents. Rather, she was considered under the holistic review program, and consequently, was one of 17,131 applicants for the remaining 1,216 seats for Texas residents.

Standing. In challenging Fisher’s standing on remand before the Fifth Circuit, the university pointed out that Fisher graduated from another university in May 2012, thus rendering her claims for injunctive and declaratory relief moot. UT Austin also argued that there was no causal relationship between any use of race in the decision to deny her admission and the $100 application fee – a non-refundable expense faced by all applicants – thus, putting into doubt whether Fisher in fact suffered any monetary injury.

Justice Ruth Bader Ginsburg raised the standing issue, asking Fisher’s lawyer, Bert Rein, what relief the plaintiff sought, “I take it not injunctive, because Ms. Fisher has graduated,” she observed.

Rein maintained that a refund of the application fee was in fact one of element of the damages sought. Ginsburg then questioned whether, were the application fee to be refunded, there would still be any remaining damages sought by Fisher.

Fisher “has suffered the consequences of nonadmission,[sic]” Rein asserted, “which include she went to an alternative university; she had to travel as opposed to being in her home State. There is certainly good information that within the State of Texas, a degree from the University of Texas has consequences and earnings down the road, and that’s measurable. And she doesn’t have that benefit.”

Use of race as a factor. As to the merits, Rein argued that UT’s holistic review plan was not like the plan approved in Grutter. “If you have to use race and you want to use the model that was created in Bakke and Grutter, you would need to build profiles of individuals that would allow you to judge them one against another in the context of the class and the educational experience you are trying to create,” Rein asserted.

“My God, that sounds like it’s using race more rather than less than this plan does,” remarked Justice Sonia Sotomayor.

Rein maintained that was not the case “[b]ecause [UT’s holistic review plan is] not used to build a class [of students]. It’s just used to create a racial plus and to increase the number of minority admissions.”

“But in Grutter in both Grutter and what Justice Powell said would be proper in Bakke, race was a factor. Race, itself, was a factor,” Justice Ginsburg observed. “And that’s why I’m finding it very hard to distinguish what the university is doing, apart from the 10 percent plan.”

She added that the 10 percent plan itself was driven by race as well. “It’s totally dependent upon having racially segregated neighborhoods, racially segregated schools, and it operates as a disincentive for a minority student to step out of that segregated community and attempt to get an integrated education,” she said.

Rein countered that the 10 percent plan also creates geographic and socioeconomic diversity. “It’s not based on race,” he said.

“It is created because of race,” Ginsburg responded.

Justice Anthony Kennedy chimed in an assist to Rein, stating that the purpose of the 10 percent plan was “to define a neutral framework within which to satisfy the States and the universities’ objectives.”

Shortly thereafter, Justice Samuel Alito stated his view that the issue in this case is not whether the university can have holistic review, but rather, “whether they can have [race] as a component of holistic review after they have taken into account other characteristics that are not dependent on race; they can add race as an additional characteristic.”

Throughout the course of oral argument Alito queried whether there was a way to determine which of the students admitted under the holistic plan would not have been admitted if race were not part of the determination.

Scalia notes arguments doubting benefits for African Americans. In a series of provocative statements, Justice Scalia referenced arguments questioning the utility of affirmative action. “There are—there are those who contend that it does not benefit African Americans to  — to get them into the University of Texas where they do not do well, as opposed to having them go to a less advanced school, a less—a slower track school where they do well,” Scalia commented to Gregory G. Garre, UT’s lawyer. “[O]ne of the briefs pointed out that —that most of the —most of the black scientists in this country don’t come from schools like the University of Texas.”

“They come from lesser schools where they do not feel that they’re that they’re being pushed ahead in— in classes that are too— too fast for them,” he continued, adding that it may not necessarily be a good thing for the university to “admit as many blacks as possible.”

Garre responded that the court has already heard and rejected such arguments in the Grutter decision. Moreover, “[i]f you look at the academic performance of holistic minority admits versus the top 10 percent admits, over time, they fare better,” he said.

“And, frankly, I don’t think the solution to the problems with student body diversity can be to set up a system in which not only are minorities going to separate schools, they’re going to inferior schools. I think what experience shows, at Texas, California, and Michigan, is that now is not the time and this is not the case to roll back student body diversity in America,” Garre added.

Time limit? Chief Justice Roberts referred to a portion of the majority opinion in Grutter, where Justice O’Connor wrote that race-conscious admissions policies must be limited in time. “We expect that 25 years from now, the use of racial preferences will no longer be necessary to further the interest approved today,” wrote Justice O’Connor.

“[A]re we going to hit the deadline?” Chief Justice Roberts asked Garre.

“Your Honor, I’m not here to give you a date,” Garre replied, “but what I would say is this: There are systematic problems that these problemsthat these policies are attempting to address, including the test score gap between between African-Americans and Hispanics. And and the record in this case overwhelmingly shows that without the addition of race, student body diversity suffered, particularly among African-Americans.”

Roberts continued to press Garre, asking “when do you think your program will be done?”

“[A]s soon as wewe can achieve the same sufficient numbers for the educational benefits of diversity without taking race into account, we will no longer take race into account,” Garre responded, adding that assessing the utility of race neutral alternatives “is the way to police this.”

Justice Elena Kagan recused herself in this matter due to her involvement with the case when she was the U.S. Solicitor General.

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Must we add ‘active shooter’ protocol to the holiday party checklist?

December 3rd, 2015  |  Joy Waltemath  |  Add a Comment

As details emerge about the San Bernardino shooting December 2, 2015, including media reports that one of the suspected shooters worked as a health inspector for the San Bernardino County Department of Public Health, which was hosting the holiday party where the carnage occurred, employment lawyers and others react in horror.

Does “active shooter planning” now rise to the top of every holiday party top-10 employment issues list, coming alphabetically just before “alcohol consumption?”

Information about the San Bernardino shooters’ motives is thin thus far, notwithstanding the enormous efforts of law enforcement to contain the violence, track the shooters, and secure the site. Given the unusual profile of the husband-and-wife shooters and their significant cache of weapons, we are all still asking: Is it terrorism? Domestic terrorism? A disgruntled worker? All—or none—of the above?

No matter the cause, the effect was workplace violence. Whatever is ultimately uncovered—if and when it is—this horrible incident did in fact play out in the workplace, and one of the individuals identified as being an active shooter worked for the county health department that was holding the party.

So what’s an employer to do?

Policy. Years ago, employers were encouraged to draft “zero tolerance” for violence policies as part of the workplace violence avoidance strategy. As implemented in schools, there is some research suggesting zero tolerance policies are ineffective in making schools more orderly or more safe. Yet it is incumbent on employers nonetheless to have a workplace violence policy—and an emergency action plan.

Still, how effective is any “policy” in the face of such apparent anger?

Warning signs. Similarly, employers were urged to train management to recognize the warning signs of an individual likely to commit workplace violence: controlling, paranoid, unable to get along with others, angry, vindictive, obsessed with power, litigious, having a victim mentality, lacking social skills.

It appears to be unknown to the public whether the shooter here manifested any of these warning signs. Nor did he appear to be on the radar of the FBI, for that matter.

Emotional health training. Commenting today on LinkedIn, Cindy Federico of Fisher & Phillips sums up employers’ feeling of impotence when she talks about addressing the root cause of this violence. She writes “anger is always a common thread when it comes to coworker violence.  Employers are baffled at what to do next to prevent violence at workplaces.  We’ve installed security cameras and extra locks; we’ve hired guards; we’ve established emergency protocols and procedures.  None of these efforts attacks the root cause of the angry employee or customer.” She recommends, as a start, mandatory training on emotional health in the workplace.

Active shooter response. John Hyman, in his Ohio Employer’s Blog, and Michael Haberman, writing for the SHRM blog, take a different approach: Both provide practical pointers in how to deal with active shooter situations. Their tips suggest adding “active shooter” planning to the workplace Emergency Action Plan, even practicing how to respond, much like we practice fire or weather emergency drills.

None of these approaches alone, however, is enough. Each will fail in some respect. But what we can’t do, regardless of our politics or our perspectives, is to reject categorically any approach without a good-faith effort to understand its strengths and limitations. Demagoguery such as that evidenced after the San Bernardino shootings—pitting sincere calls for action against sincere calls for prayer, as if the two were somehow mutually exclusive—is simply unacceptable.

Own it. These are our workplaces. These are our people. Pay attention—real attention—to this very real threat, and pay attention—real attention—to each other. Make the workplace more secure. Make the workplace more human. You. Do it now. We’ve already run out of time.

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