This time it’s the Fourth Circuit, upholding a trial judge, finding “pervasive errors and utterly unreliable analysis” in the expert reports submitted by the Equal Employment Opportunity Commission in the case of EEOC v. Freeman. I’ve written it up at Cato at Liberty, where I also recommend, as providing something of a more balanced view of the criminal record hiring issue, a briefing report from the U.S. Commission on Civil Rights.
In 2009, a driver with Old Dominion Freight Line, Inc., admitted to the company that he had an alcohol problem. The company told him that it would no longer allow him to drive heavy trucks for the firm. (It said it offered him a less safety-sensitive, but also significantly lower-paying, dock job.) The Equal Employment Opportunity Commission (EEOC) stepped in and sued on his behalf under the Americans with Disabilities Act (ADA). It conceded that Old Dominion could (and indeed had to) take the keys away from a heavy truck driver it found to be currently drinking on the job, but contended it had failed in its obligation to “make an individualized determination as to whether the driver could return to driving and provide a reasonable accommodation of leave to its drivers for them to obtain treatment.” Of course backsliding and remission are common following rehab treatment, which means as a group drivers with known past alcohol problems will have a higher risk profile than drivers without. That is why at an earlier stage of the case I asked, “Are we really required to take chances with 18-wheelers on the highway?”
Now we know the answer: Yes. A jury agreed with the EEOC and awarded the driver $119,000 in back pay.
P.S. On the other hand, upholding the decision of a federal district court in Georgia, the Eleventh Circuit has ruled that Crete Carrier Corp. did not violate the ADA when it declined to employ a truck driver with a “current clinical diagnosis of alcoholism,” a bar to driving under DOT regulations.
“Guess what? You know those SEC disclosures about pending litigation that publicly held companies are required by law to make? Well, if an employer says too much, it may be ‘retaliating’ against the litigants.” [Robin Shea on Seventh Circuit opinion in Greengrass v. International Monetary Systems Ltd.]
- Jury convicts Ironworkers Local 401 boss in union violence case [Philadelphia Inquirer, CBS Philly, earlier here, etc. on Quaker meetinghouse arson and other crimes] Pennsylvania lawmaker proposes to end unions’ exemption from laws defining crimes of harassment, stalking, threatening [York Dispatch; more on exemption of unions from these laws]
- Emergent regime under federal law: if you’ve ever offered light duty to a disabled worker or returning injured worker, you’d better offer it to pregnant worker too [Jon Hyman]
- Everything you know about company towns is wrong [Alex Tabarrok]
- “The EEOC issues you’ll want to keep an eye on in 2015″ [Littler Mendelson via Tim Gould, HR Morning]
- Sued if you do: employers struggle to navigate between government rules encouraging, penalizing hiring of applicants with criminal records [WSJ, paywall] “Watch Your Back: The Growing Threat of FCRA Background Check Class Actions” [Gregory Snell, Foley & Lardner]
- “Nearly 30 Percent of Workers in the U.S. Need a License to Perform Their Job: It Is Time to Examine Occupational Licensing Practices” [Melissa S. Kearney, Brad Hershbein and David Boddy, Brookings via John Cochrane]
- “The Effect of Mandatory Sick Leave Policies: Reviewing the Evidence” [Max Nelsen] “Popularity of Obama’s paid sick leave proposal depends on workers not realizing it ultimately comes out of their paychecks.” [James Sherk]
The Supreme Court is considering the case of a woman who sued torrid-youth retailer Abercrombie & Fitch, saying it discriminated against her based on religious belief when it failed to waive its “Look Policy,” in which sales personnel are expected to wear only clothes sold by the store, to accommodate her modesty headscarf. Never mind whether this demand would be a reasonable one in itself; the case has gone up to the U.S. Supreme Court in large part because of a second issue, whether the store was legally obliged to grasp the situation intuitively as based on religion and pre-emptively accommodate Samantha Elauf “even though Elauf never informed them that she would need a religious accommodation.” A district court ruled that it was so obliged, the Tenth Circuit reversed, and now the Supreme Court is hearing the case at the EEOC’s request.
Requiring employers to offer a religious accommodation before they are on notice that one is sought requires them to act on “crude stereotypes or pry into employees’ personal lives,” write Ilya Shapiro and Julio Colomba. Not all employee requests on subjects such as modesty, diet, or weekend attendance are associated with religious affiliation and observance, while conversely many persons with genuine or sincere religious affiliation or belief do not conform to stereotypical expectations about what their religion might require of them in the workplace. Individual employees are thus “in a significantly better position to identify conflicts than employers.” The Cato Institute has filed an amicus brief on Abercrombie’s side arguing that the Court should reject the EEOC’s position as unworkable, unfair, and not required by the statute.
Related: Eugene Volokh has been posting on religious-exemption and religious-accommodation law at Volokh Conspiracy. For those who imagine, reading the Hobby Lobby and state-RFRA coverage, that religious exemptions have mostly been favored by conservatives over liberal opposition, he reminds us that the actual history is nearer the opposite. And he explains why his own view is that an optimal approach would include a mix of legislatively and judicially crafted (consistent with legislative wishes) religious exemptions and accommodations, but not necessarily a constitutional entitlement to accommodation.
- Should a sock used to hold pills count as “drug paraphernalia?” [NPR via Jeffrey Miron on Supreme Court case]
- Michael Greve: on Medicaid spending-forcing suits, behold the Obama administration taking the correct stance, U.S. Chamber the wrong [Liberty and Law, more]
- No, the justices don’t just use religious freedom cases to advance their own beliefs [Eugene Volokh]
- Can/should the courts correct misconduct by the EEOC in dealings with employers during the “conciliation” phase before litigation? [Robert Barnes/Washington Post, Julie Goldscheid/SCOTUSBlog, Michael Greve on oral argument in Mach Mining v. EEOC]
- Decision in Dart Cherokee case rejects presumption against removal of class actions [Richard Samp and M.C. Sungaila, WLF]
- When if ever may the President properly sign legislation he believes to be in part unconstitutional? [Will Baude]
- Most Justices have had little practical exposure to criminal law which can leave it a blind spot for them [Radley Balko]
- “Don’t the attorneys who bring these [sled injury municipal] lawsuits have kids and don’t any of them go sledding together?” [Abby Schachter, Pittsburgh Tribune-Review, quoting my response to that question; Nicole Kaeding, Cato; earlier]
- Eighth Circuit sends back for reconsideration lower court’s $4.7 million fee award against EEOC to trucking company it sued [Transport Topics, opinion, earlier]
- Long Island: judges have awarded at least $638K in court appointments to influential Nassau Democrat [Newsday]
- Or just call them “competition”: “Uber Called ‘Criminal Enterprise’ by Philadelphia Cab Owners” [Bloomberg]
- Update: New Jersey attorney Paul Bergrin loses appeal in “No Kemo, no case” witness murder affair [opinion, 2012 round, earlier]
- More on flaws of suit seeking to blame gun business for Sandy Hook massacre [Nicholas Johnson, Liberty and Law, earlier]
- Local man tips Eugene Volokh, Ken White (Popehat), and Steve Hayward (Power Line Blog) to irresistible free-speech story, internet goes crazy [Pete McCarthy, Frederick News Post, on how Kirby Delauter story went viral; earlier]
- Senate Republicans make noises about reining in runaway EEOC [Roger Clegg, Senate minority staff report, Human Resource Executive Online]
- Yes, minimum wage increases hurt many low-skilled workers [NBER via Charles Hughes]
- “Women earn less than men even when they set the pay” [Emma Jacobs, FT, via Tyler Cowen]
- Just a typical fast food worker, except for happening to have a high-powered P.R. firm representing him [Diana Furchtgott-Roth, Economics21]
- Aaargh: “Federal judge wants to bury summary judgment for many reasons, but especially because it harms employment-discrimination plaintiffs” [CL&P]
- “Ideally, someone from Human Resources will join you to meet with the aggrieved employee and inform her that the tree is staying up.” (Well, not up this far into January, but you know.) [Evil Skippy at Work]
- “But”, sic: “Vermont has some of the most progressive wage-and-hour laws in the country, but low-income workers are still struggling.” [Alana Semuels, National Journal]
- Furious over EEOC attack on wellness programs, CEOs threaten to suspend their support for ObamaCare [Reuters] Had it been common knowledge that CEOs covertly support ObamaCare, then? And isn’t the EEOC formally an independent agency not answerable to White House directives?
- If more editors handled situations this way, readers would think better of the press: Annalee Newitz of io9 offers “apology and analysis” for running tendentious, ill-reported article attacking animal-based research;
- Success of personal injury litigation is reshaping nursing home business in some states [WSJ]
- “With the Advent of Mandatory Paid Sick Leave in California, Here are a Few Sick Leave Excuses” [Coyote, related Massachusetts]
- Really, it’s not a shock-scandal that rules for human-subjects research might be written by actual scientists [Zachary Schrag, IRB Blog]
- In combating diseases of poverty, you’d think economic growth would top the list of remedies [Bryan Caplan]
- Judge slices $9 billion punitive Actos award against Takeda and Lilly by 99% [Bloomberg, earlier]
- “Grubergate, the Mini-Series” [Michael Cannon; more from Cannon on Supreme Court’s grant of certiorari in King v. Burwell ObamaCare case]
After receiving a complaint of health-status discrimination from a Royal Caribbean Cruise Lines employee, followed by a response from the company saying that the employee was a foreign national working on a foreign-flagged ship and therefore not subject to EEOC authority, the agency launched a massive fishing expedition:
(1) List all employees who were discharged or whose contracts were not renewed [from August 25, 2009, through the present] due to a medical reason.
(2) For each employee listed in response to request number 1, include the employee’s name, citizenship, employment contract, position title, reason for and date of discharge, a copy of the separation notice and the last known contact information for each individual.
(3) For each employee listed in response to request number 1, include their employment application and related correspondence, any interview notes, the identity of the person who hired the employee, how the employee obtained the position (i.e., online, in person, recruiter), the location where the employee was interviewed, and the identity and location of the person who made the final hiring decision.
(4) List all the persons who applied for a position but were not hired within the relevant period due to a medical reason
(5) For each person listed in response to request number 4, include their citizenship, employment application and related correspondence, any interview notes, the identity of the person [who] hired the employee, how the employee learned of the position (i.e., online, in person, recruiter), the location where the employee was interviewed, and the identity and location of the person who made the final hiring decision.
The cruise line complied in (massive) part, but not fully, “providing records for employees and applicants who were United States citizens” but not others. The agency took the dispute to court and proceeded to lose at every stage, the Eleventh Circuit being the latest to find its information demands burdensome and irrelevant: “The relevance necessary to support a subpoena for the investigation of an individual charge is relevance to the contested issues that must be decided to resolve the charge, not relevance to issues that may be contested when and if future charges are brought by others.” [Hunton and Williams; Phelps Dunbar]
Meanwhile, the commission has issued its fiscal 2014 performance report; in explaining a drop in resolved complaints, its public statement cites the “lingering effects of sequestration and the government shutdown” but not the marked skepticism that judges repeatedly showed toward EEOC positions through the year.