Overlawyered: Chronicling The High Cost Of Our Legal System

Posts Tagged ‘workplace’

Chicago firefighters exam

In 1995, Chicago paid $5 million for an African-American consultant to work with a blue-ribbon panel to devise a race-neutral exam for promoting firefighters. Unfortunately, in the end result, whites were twice as likely to score “well-qualified” as blacks. In 2002, when it ran out of candidates who scored 89, Chicago stopped requiring that promoted firefighters score that high, and a federal district court has decided as a result that the test was racially discriminatory for the previous seven years. Chicago taxpayers may be on the hook for as much as an additional $80 million in back pay and front pay. (Glenn Jeffers, “Judge rules city fire exam biased”, Chicago Tribune, Mar. 23; AP/Chicago Sun-Times, Mar. 23; Fran Spielman, “Exam bias ruling may cost city $80 million in firefighter lawsuit”, Chicago Sun-Times, Mar. 24).

A question for readers: none of the press has mentioned it, but, in 2001, a labor arbitrator ruled that the city discriminates against whites when it promotes a lower-scoring minority over a white. (Fran Spielman, “City ordered to promote white firefighters”, Chicago Sun-Times, Apr. 14, 2001). In 2002, a federal jury found that the 1986 test was fair, and that the city discriminated by promoting lower-scoring minorities over whites, awarding millions. (AP, May 18, 2002). These would appear to put the city in an impossible position. Or has something happened in the interim that obviates these earlier rulings? As an experiment, I’ve opened comments; please restrict your remarks to this latter question, and please remain civil and respectful.

Update: the 2002 decision’s reverse-discrimination finding was affirmed in Biondo v. Chicago (7th Cir. Aug. 27, 2004), though the damages award was vacated. (Schrank blog discussion).

The decisions are arguably reconcilable: the two exams are different; Biondo involved an explicit quota. On the other hand, page 5 of the Biondo slip opinion explicitly endorsed the methodology used by Chicago that the district court condemned this week.

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Update: Virginia not-so-primitive, and state mini-FMAs

The Virginia legislature has voted to repeal the state’s law, the only one of its kind in the nation, prohibiting insurance companies from offering coverage of domestic partners as part of employer-provided health plans (see May 31, 2004, next-to-last paragraph). Gov. Mark Warner (D) has announced his intent to sign the bill. The Virginia Chamber of Commerce backed the repeal, citing principles of economic liberty: “If you believe in a free market, then restrictions like this don’t make any sense,” said Chamber vice president for public policy Stephen D. Haner. The repeal was strenuously opposed, however, by Religious Right figures such as Del. Robert Marshall (R-Manassas), and passed the House of Delegates by only a 49-48 margin (Pamela Stallsmith, “House backs letting firms extend health benefits”, Richmond Times-Dispatch, Feb. 25; Lou Chibbaro, Jr., “Va. DP ban repealed by 1 vote”, Washington Blade, Mar. 4; Tim Hulsey, Feb. 25).

On a related topic, last November Michigan voters approved a constitutional amendment providing that “the union of one man and one woman in marriage shall be the only agreement recognized as a marriage or similar union for any purpose” (see Nov. 2). At the time, opponents argued that the measure might well be interpreted to forbid cities, state universities and other public entities from offering domestic partnership benefits to their employees, but proponents of the measure dismissed that notion: a spokeswoman for Citizens for the Protection of Marriage, a group heavily backed by Michigan’s seven Catholic dioceses, told the Detroit News “nothing that’s on the books is going to change. We continue to confuse this issue by bringing in speculation.” However, with the amendment now in effect, the state’s attorney general — to cheers from most of the amendment’s organized backers — has issued an advisory opinion stating that it does indeed prohibit the city of Kalamazoo from providing DP benefits to its employees after the expiration of their current union contract. (Ed Finnerty, “City under fire over same-sex benefits plan”, Kalamazoo Gazette, Mar. 17; Claire Cummings and Melissa Domsic, “Cox: No future same-sex employee benefits”, State News (Michigan State U.), Mar. 17). Don Herzog of Left2Right, who has assembled plenty of links on the story, aptly labels the sequence of events “Bait and Switch” (Feb. 11 and Mar. 18). Update: Feb. 17, 2007 (Mich. appeals court rules benefits illegal under amendment).

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If you want $$$, just whistle

Mutiny of the bounty-hunted, cont’d: “the whistleblower law, adopted in 1986, [hands] informants as much as a 30% cut of any money recouped by the government. It was pushed by a public-interest lawyer who then launched a practice for whistleblower cases, pocketing millions…. Since then whistleblower cases have boomed, recovering $7.9 billion from offending companies — and paying out $1.3 billion to the insiders who ratted on the wrongdoers.” Unfortunately, the law provides employees with a big financial incentive to step forward with tales of wrongdoing which prove unfounded, or which depend on adverse interpretations of gray areas in law and regulation, or which expose misconduct in which they themselves had been enthusiastic participants. “Most times companies settle, whether they are guilty or not”. (Neil Weinberg, “The Dark Side of Whistleblowing”, Forbes, Mar. 14).

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Welcome Small Business Advocate listeners

I was a guest on Jim Blasingame’s national radio program “The Small Business Advocate” yesterday, discussing class actions and other topics. You can listen to the show live on the web; one way to find the link is from his archive of law-related shows. Jim Blasingame was kind enough to call The Rule of Lawyers “one of my favorite books”; you can find a copy on Amazon (hardcover or paperback). For more information on how employment lawsuits have watered down strength prerequisites for law enforcement jobs (such as those guarding courthouses in Atlanta and other places), check this Point of Law post.

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Performance review can defame employee

Bad news for Illinois employers: “In a recent state appeals court ruling, a Chicago lawyer accused of allegedly cursing and displaying improper behavior during a performance review won a $300,000 defamation lawsuit against his employer, which fired him after the review. … The appeals court rejected CNA’s argument that what happened during a private corporate meeting — in this case the performance review — did not warrant a defamation claim because it was never printed.” (Tresa Baldas, “Lawyer Wins Defamation Suit Over Performance Review Claims”, National Law Journal, Feb. 10).

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Billed for 94-hour day

“Norwich, Conn., solo Timothy C. Spayne has paid the federal government $1.24 million to settle allegations that he billed Groton, Conn.-based Electric Boat for up to 94 hours in a single day for representing EB employees in workers’ compensation cases. U.S. Attorney Kevin J. O’Connor called it one of the most egregious instances of government fraud during his more than two years in office.” (Keith Griffin, “Billing for 94-Hour Day Nets Solo $1 Million Fraud Charge”, Connecticut Law Tribune, Feb. 7).

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“Mr. Litigious”

Litigation as hobby: “Meet Peter Malley, a former math teacher who has filed 18 federal lawsuits against the city after he was fired by the [New York City] Board of Education in 1987.” (Carl Campanile, “Courts $pank Frequent Filer”, New York Post, Jan. 24).

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Cop wins $1.6 M after videotaped beating

Sued if you do dept.: “A former Inglewood police officer who was fired for punching a black teenager and slamming him against a patrol car was awarded $1.6 million Tuesday by the jury in a discrimination lawsuit he and his partner brought against the city. … A bystander videotaped [Jeremy] Morse in July 2002 punching handcuffed Donovan Jackson in the head and slamming him onto a patrol car in Inglewood, just south of Los Angeles.” National publicity followed, as did protests in the heavily minority city, and the city eventually fired Officer Morse and disciplined other officers. On Tuesday a Los Angeles jury agreed with Morse’s suit contending that he would not have been lost his job had he been black. It also awarded $810,000 to another white officer, Bijan Darvish, who is still with the Inglewood department but was suspended for ten days in connection with the incident. (Chris T. Nguyen, AP/Wired News, Jan. 18).

The 2002 incident had led to the filing of criminal charges against both Morse and Darvish; juries deadlocked in two trials of felony charges against Morse, and acquitted Darvish on a charge of filing false police reports. Prosecutors eventually dropped charges against Morse. City mayor Roosevelt Dorn called this week’s verdicts outrageous, questioning why a 10-day employee suspension would be considered to be worth $800,000. (“Taped Punch Costly to City”, Los Angeles Times, Jan. 19; Matt Krasnowski, “Inglewood police officers get $2.4 million jury award”, Copley/Torrance Daily Breeze, Jan. 20).

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Common Good “Gatekeeper Awards”

Philip Howard’s Common Good organization has announced (Dec. 16) its second annual Gatekeeper Awards for judges who rule inappropriate litigation out of court. (For the first round, see May 12, 2004). Winners this year include:

* An Indianapolis judge who ruled against an attempt to sue a cell phone company over an accident that a driver got into while using a cell phone;

* A New Mexico judge who, citing the privileges arising from the constitutional separation of church and state, refused to allow a surviving family to sue a Roman Catholic priest over allegedly insensitive remarks at a funeral which they said implied that the deceased was headed for Hell;

* A New Jersey judge who refused to allow a suit for negligent parental supervision after a five-year-old boy accidentally collided with and injured an sixteen-month-old girl at a block party;

* A Connecticut Supreme Court judge who wrote an opinion rejecting the doctrine of “self-compelled publication” in employment law, under which dismissed workers sue over injury to their reputation arguing that, whether or not their former employer has said anything damaging about them to outsiders, they have been obliged to spread the defamatory allegations themselves in the course of explaining themselves to potential future employers (see Aug. 10, 1999).

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