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Sixth Circuit

Courts rebuff EEOC again

by Walter Olson on April 10, 2014

I’ve got a new post up at Cato (“Sixth Circuit: You’re Drunk, EEOC, Go Home“) on the Equal Employment Opportunity Commission’s spectacular loss yesterday at the Sixth Circuit in the Kaplan case. As I comment, the victory for the defendant is

all the more impressive because one of the three judges on the opinion is liberal lion Damon Keith, about as sympathetic a judicial ear as the EEOC could normally hope for. It’s a sharp setback for the agency’s dubious “disparate impact” campaign against employer use of credit and criminal records in hiring. And it’s also part of a pattern of rebuffs and defeats the EEOC has been dealt by judges across the country since President Obama turned the agency on a sharp leftward course with his appointments.

The Sixth Circuit has actually been one of the EEOC’s better circuits in recent years. For example, it reversed a Michigan federal judge who in 2011 had awarded $2.6 million in attorneys’ fees to Cintas, the employee-uniform company, and reinstated the lawsuit. In doing so, the appellate panel nullified what had been the lower court’s findings of “egregious and unreasonable conduct” by the agency, including a “reckless sue first, ask questions later strategy.” The commission hailed the reversal as one of its big legal wins — although when one of your big boasts is getting $2.6 million in sanctions against you thrown out, it might be that you don’t have much to brag about.

For some other recent EEOC courtroom setbacks, check our roundup of last month. If you wonder why the commission persists in its extreme aggressiveness anyway, one answer may be that the strategy works: most defendants settle, and the commission hauled in a record $372 million in settlements last year. Yet here and there, as with Kaplan, defendants decide to put up a fight, with instructive results. When will Congress begin to hold the commission accountable? More: Hans Bader, CEI.


  • Labor Department wants to shut down consignors-as-volunteers consignment-sale business plan [Bloomberg BusinessWeek, Sean Higgins/Examiner]
  • Operating Engineers Local 17: “Legality of union violence at heart of court case” [Buffalo News]
  • Alternative to “Ban the Box”: revisit extent to which old convictions stay on the books [Eli Lehrer; Baltimore Sun on municipal proposal]
  • Human capital investment by women has narrowed gender pay gap, desire for time flexibility crucial in explaining what remains [Tyler Cowen on Claudia Goldin paper]
  • Carl Horowitz on UAW push to organize VW in Chattanooga [Capital Research Center]
  • Seyfarth Shaw’s 10th annual Workplace Class Action Litigation Report [Seyfarth, Daniel Fisher]
  • Sixth Circuit: transfer can count as adverse action even when employee had previously requested it [Jon Hyman]


Dividing 11-5: “Plaintiffs who failed in their state worker’s compensation claim cannot sue their employers and their medical experts under federal civil racketeering laws, the en banc 6th U.S. Circuit Court of Appeals has ruled.” [Jackson et al. v. Sedgwick Claims Management et al., PDF; Miller Canfield; Business Insurance; Steven Schwinn, Constitutional Law Prof Blog]

A Sixth Circuit panel declines to strike down a state law under which public schools will no longer withhold union dues from teachers’ salaries. The Michigan Education Association had claimed that Public Act 53 interfered with its First Amendment right to speak. [David Shepardson, Detroit News]


  • We’re worth it: lawyers in credit card case want judge to award them $720 million [Alison Frankel, Reuters] Johnson & Johnson will fight $181 million payday for private lawyers in Arkansas Risperdal case [Legal NewsLine]
  • British Columbia, Canada: “Lawyer Ordered To Pay Costs Personally For ‘Shoddy Piece Of Counsel Work’” [Erik Magraken] Ontario client questions lawyer’s fee [Law Times]
  • Sixth Circuit: attorneys fees statute not intended to cover dry cleaning and mini-blinds [Legal Ethics Forum]
  • Indiana lawmaker goes back to drawing board on loser-pays bill [Indiana Law Blog]
  • ‘Shocked’ by $3M legal fee in fatal car-crash case, judge tells lawyers to pay plaintiff lawyer $50K [ABA Journal]
  • Seth Katsuya Endo, “Should Evidence of Settlement Negotiations Affect Attorneys’ Fees Awards?” [SSRN via Legal Ethics Forum] /li>
  • In Israel, more of a discretionary loser-pays arrangement [Eisenberg et al, SSRN via @tedfrank]
  • British cabbie beats ticket, recovers only some of his legal costs. Still better than he’d do here, right? [Daily Mail]
  • Turnaround guru Wilbur Ross: current structure of bankruptcy fees encourages lawyer “hyperactivity” [Reuters]


  • Great moments in union contracts: “Many Suburban Cops Allowed To Work ‘Half Drunk'” [NBC Chicago]
  • California high court imposes arbitrary damage-splitting rule on mixed-motive firings [Cheryl Miller, The Recorder]
  • More tales of much-forgiven Broward County bus drivers [Sun-Sentinel, background]
  • Sixth Circuit: SEIU robocalls to harass hospital CEO don’t violate TCPA [Littler]
  • Judge rejects EEOC position against alcohol testing of steelworkers in safety-sensitive posts [Paul Mirengoff, PowerLine, Reuters]
  • “NYFD made written test impossible to fail, but diversity recruits in Academy can’t meet physical standards either.” [Ted Frank/PoL]
  • “The March Toward a Bullying Cause of Action Continues” [Michael Fox, Employer's Lawyer;]
  • T’wasn’t easy for White House to find a new Labor Secretary to the left of Hilda Solis, but meet Tom Perez [WaPo]


Supreme Court roundup

by Walter Olson on January 15, 2013


Yes, deaf lifeguard. The Sixth Circuit has ruled in favor of a would-be deaf lifeguard, saying not enough of an individualized inquiry was made into accommodating his possible placement in the life-saving position. Among the arguments the court found persuasive was that drowning persons typically do not call loudly for help, which of course leaves open the possibility that the calls for help might be coming from other persons. Some deaf persons have worked successfully as lifeguards, including Leroy Colombo, a championship swimmer who did rescues at Galveston, Tex. beaches. In the Sixth Circuit case, Oakland County, Mich., had cited safety concerns in not posting the applicant to a public wave pool. [Disability Law]


Author Russell Nieli came to Cato this week to discuss his new book and I gave a brief commentary. More: John Rosenberg, Discriminations.

Related: Voting on ideological lines, the Sixth Circuit declares void the Michigan Civil Rights Initiative, suggesting a constitutionalized “right” to racial preferences. Calling SCOTUS! [Jonathan Adler]

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July 14 roundup

by Walter Olson on July 14, 2011

  • “Battle of the tort reform flicks”: trial-bar-backed “Hot Coffee” documentary said to be more entertaining than U.S. Chamber-backed “InJustice” [TortsProf, Abnormal Use, Daily Caller, Frank/PoL, Above the Law, Fisher, LNL] Memo to liberal studio heads: c’mon, now’s the time to greenlight more business-bashing flicks [Alyssa Rosenberg, TP]
  • Interlock makers join forces with MADD to lobby for new federal DUI mandates [Luke Rosiak, Wash Times] More: Greenfield.
  • Consumer found liable after posting gripes about driveway contractor on Craigslist [Minneapolis Star-Tribune] P.S.: Default judgment, not merits [h/t ABA Journal]
  • Angelos law firm obtains $1 billion+ punitive award in Exxon Baltimore gasoline leak case, bringing total to $1.5 billion+ [AP, earlier]
  • Taiwan: “Jail Time (And $7000 Fine) for Saying a Restaurant’s Dishes Were ‘Too Salty'” [Volokh]
  • Headed for SCOTUS? Sixth Circuit panel strikes down Michigan law banning discrimination in higher ed admissions and other state activities [Gail Heriot, Daily Caller; Hans Bader, CEI]
  • Court in British Columbia includes C$30,000 in damage award for injury plaintiff’s purchase of medical marijuana for pain management [Erik Magraken]


Jon Hyman at Ohio Employment Law spots a potentially significant ruling, and has a followup.

P.S. The topic is also discussed on Thursday’s John Stossel show, with guests Katherine Mangu-Ward of Reason and Steve Lonegan of Americans for Prosperity.


The state of Kentucky enacted a new sales tax on the services of telecommunications companies. It also forbade the companies from breaking the tax out as a line item on customer’s bills — that might get people mad at the legislators, after all. The Sixth Circuit, Sutton, J., ruled that under the intermediate level of First Amendment scrutiny applied to limitations on commercial speech, the “no-stating-the-tax” provision was unconstitutional. (BellSouth v. Farris, Sept. 9).


Peter Lattman reports about the band Fall Out Boy:

“Our Lawyer Made Us Change The Name Of This Song So We Wouldn’t Get Sued” was originally called, “My Name is David Ruffin and These Are the Temptations,” Wentz says. After Ruffin broke with the famed Motown group, he kept attending shows and would steal the microphones away from his former bandmembers, unable to wean himself from the limelight. Wentz says his original song title, “was a play on Ruffin’s egomania and general narcissism.” Here are the song’s lyrics.

Wentz’s father advised his son against using the song title, for fear that the group would be sued. Did the younger Wentz listen? “No, because he was my dad. He advised me against a lot of things that I do,” he said with a playful hint of mischief in his voice. According to Wentz the Younger, the band’s lawyers also told them they’d be slapped with a hefty lawsuit, and offered up a few options — they could sign a waiver; include a reference to Ruffin in the song (which somehow would shield against a lawsuit); or change the name of the song.

Lattman wonders why including Ruffin’s name in the song would shield against a lawsuit, and the answer comes from the Sixth Circuit’s deplorable decision in the Rosa Parks case, which we covered Apr. 15, 2005:

The Sixth Circuit held that the rappers did not have a first amendment right to name their song “Rosa Parks” because they could have called it “Back of the Bus” rather than use an allusive title. One looks forward to more federal court diktats over song titles. (Parks v. LaFace Records (6th Cir. 2003)).

Lattman reports that Wentz says the band is hit with a lawsuit a day and has to retain an attorney half-time.

Rosa Parks update

by Ted Frank on April 15, 2005

92-year-old Rosa Parks “has dementia and is only faintly aware of what is happening around her,” but that didn’t stop lawyers from filing a $5 billion lawsuit on her behalf against the music companies that permitted the music group OutKast to release a song with the title “Rosa Parks.” (Jan. 17). The case has settled with the promise of a CD and a television tribute to her, featuring her guardian, Dennis Archer, as host. No conflicts of interest there. I couldn’t find any press coverage indicating how much Parks’s current lawyer, Willie Gary (Oct. 14, Aug. 13, 2003, earlier links), was paid in the process; Archer refused to discuss financial terms. (Peter Slevin, “Settlement Commits Music Producers to Honor Rosa Parks”, Washington Post, Apr. 15). The Sixth Circuit held that the rappers did not have a first amendment right to name their song “Rosa Parks” because they could have called it “Back of the Bus” rather than use an allusive title. One looks forward to more federal court diktats over song titles. (Parks v. LaFace Records (6th Cir. 2003) (argued by the late Johnnie Cochran)). (And welcome Slate readers: check out the main page.)