From today’s NYT:
Folks who read my rants [I know there are at least four of you from private emails to me so I am entitled to the plural – LOL] keep seeing me use the term rights based legal culture. We have two perfect examples below.
1. The job discrimination case. Please read what I am saying and avoid adding your own moral-political filters. I am NOT discussing whether one should [or shouldn’t] have a legal right to sue for job ‘discrimination’. Separate rap. I am discussing the implications of what happens when you DO have such rights. Mixed motive cases is weasel words for saying any time you have an employment dispute [fire, don’t hire, discipline, give better / different treatment] with someone who is not a white straight male under 40 who is not a member of a minority religion or some other protected category. I can understand human resentment at how unfair many workplaces decisions are. However allowing formal grievances, reviews and appeals for workplace decisions are regarded as clunky and almost unworkable even in huge enterprises with bureaucratized decision-making and employee relations [megacorps, unions, civil service]. It is insanity in a small business. You simply do not have the time, energy or patience every time someone feels unfairly treated. Furthermore the ‘transactional costs’ of being sued aren’t just spare change for a small business – they can be make or break. Yes, can you get insurance. However the insurers don’t like dealing with small businesses either. They impose rules. Rules that require written personnel files and write-ups for everything. Rules that require an ‘employee manual’ and following it religiously. You see most of these are gray area cases. You have six employees. Whatever you do to the black lesbian may in percentage terms be what you have done to 100% of the lesbian employees in the last five years and 50% of the blacks. So the burden of proof is the killer in either direction. The employee cannot prove she is perfect. If she has to prove that you did X because she was black, gay, black and gay…she loses. It you have to prove you DID NOT do it because of those reasons, you lose. Forget layoffs for a minute. As a former boss I normally fired people because trouble followed them around. Unless they were exceptionally productive AND appeared so to ME if they ‘didn’t work out’ they were gone. No detailed analysis. Some people ‘worked out’ [things you gave them got done without excessive friction inside or outside]. Some didn’t. Employees make insane accusations. The supervisor who hired and promoted women fairly felt he wasn’t fair enough and admitted it in front of them. The supervisor who hit on females under him was a saint within my eyesight and those of his intermediate boss. So what Congress did here and what the USSC confirmed, is telling people such as myself, that if you are going to run a small business use freelancers where ever possible instead of employees. Try to minimize how many employees you have. Try to run a business so that it is monogender, monoracial, monoethnic…in other words have a workforce where one employee cannot claim discrimination based on you did X to me and Y to / for her. All this affects the decision to open a small business [a very risky enterprise], expand it, etc. Actions have consequences. Do we want perfect justice for each or more opportunities for many? We keep opting for perfect justice and damn the ‘transactional costs’. Actions have consequences. The changes in the climate of employment law, tort liability…they all affect the decision to risk personal capital [and after the late 80’s bank ‘reforms’ it is VERY unlikely that a micro or startup will have anyone’s money but the owner’s and whatever credit cards he has].
2. The Agent Orange case should be read carefully. The issue is NOT whether a bunch of vets got fucked. The science [from my limited reading – I make zero claim to knowing this sort of biochemistry] seems very mixed and very ideologically driven on how bad dioxin is. Let us presume it is the poison it is claimed to be and not just an herbicide. The stuff was made for the USG and used at their direction. Now the company that made the stuff is guilty ex-post facto. Again a rights based culture. If you are injured you should be allowed ‘justice’. Forget the orderly workings of society – you need reimbursement and personal vindication. To my mind the veterans should have a political appeal to the USG. Maybe we pay. Maybe we don’t. Life is unfair and you cannot make everybody happy. If DOW hid the human side effects, that is a regulatory and contract issue between the USG and DOW. Instead we let everybody sue everybody based on nothing more than being a deep pocket vaguely involved in the transaction. This sort of feel good rights based approach has major legal and economic costs. If you cannot sell a poison to the USG and are responsible for later effects where does it end? Again perfect justice for each, which will still never be perfect, has effects that mean fewer jobs, less growth, fewer innovations for all.
Scott
Justices Provide a Victory to One Category of Job-Bias Plaintiffs
By LINDA GREENHOUSE
ASHINGTON, June 9 — A unanimous Supreme Court made it significantly easier today for workers to win discrimination suits against their employers in cases where race, sex, religion or national origin is one factor among others in a dismissal or other adverse job action.
Such cases of "mixed motive" — a legitimate reason combined with an improper, discriminatory one — are so common as to be the norm in the world of employment discrimination litigation. Congress addressed this category of cases, among others, in 1991 when it amended Title VII of the Civil Rights Act of 1964, the basic federal employment discrimination law, to counter a series of pro-employer Supreme Court decisions.
A 1989 Supreme Court ruling had made it difficult for plaintiffs to qualify for the favorable jury instructions that come with a mixed-motive case, under which the employer has the burden of proving that it would have made the same decision even in the absence of the improper factor. The court said then that the plaintiff must prove by direct, not circumstantial, evidence that discrimination had been "a motivating factor" in the employer's action.
Direct evidence requires the equivalent of a smoking gun. While it is sometimes available to aggrieved employees, it often is not, particularly in the nuanced and complex situations reflected in many mixed-motive cases.
In its 1991 legislation, Congress provided that an "unlawful employment practice is established" when the plaintiff "demonstrates" that race or any of the other prohibited categories "was a motivating factor for any employment practice, even though other factors also motivated the practice."
Although Congress made no mention of a need for direct evidence, the lower federal courts continued to require it, with the exception of the United States Court of Appeals for the Ninth Circuit, in San Francisco. In an opinion by Justice Clarence Thomas, the Supreme Court said today that the Ninth Circuit was correct.
"On its face," Justice Thomas said, "the statute does not mention, much less require, that a plaintiff make a heightened showing through direct evidence."
"Our precedents make clear," he added, "that the starting point for our analysis is the statutory text. And where, as here, the words of the statute are unambiguous, the judicial inquiry is complete."
Beyond the decision's impact on civil rights litigation, an effect that could be substantial, the case was notable for the court's unanimous rejection of the position argued by the Bush administration. The administration had urged the court to adhere to its direct-evidence requirement, arguing that Congress in 1991 intended to overturn other aspects of the 1989 decision, Price Waterhouse v. Hopkins, but not the evidentiary standard.
Justice Sandra Day O'Connor, who formulated the direct-evidence standard in her separate opinion in the 1989 case, wrote a concurring opinion today. She said that while she still believed that her original view accurately reflected what was then the state of the law, the result today correctly reflected the change that Congress made in 1991.
The case, Desert Palace v. Costa, No. 02-679, began as a suit against the management of Caesars Palace Hotel and Casino in Las Vegas by Catharina Costa, who worked there as a truck driver and heavy-equipment operator. Ms. Costa was the only woman to work in the hotel's warehouse. After she was dismissed, following a fight with another employee that management stated as a cause, she sued for sex discrimination and sexual harassment. The case was tried as a mixed-motive case, and Ms. Costa won a jury award of $364,000 for back pay and damages.
The hotel then appealed on the ground that in the absence of direct evidence, Ms. Costa was not entitled to the favorable mixed-motive jury instructions. Instead, the hotel said, she should have been required to meet a higher burden of proof by showing that the stated reason for her dismissal was a pretext for discrimination. A three-judge panel of the Ninth Circuit initially agreed, but a panel of 11 judges reheard the case and, departing from the uniform view of the other appeals courts, held that direct evidence was not necessary.
The unanimity of the ruling today, along with the fact that the appeals courts other than the Ninth Circuit were still requiring direct evidence, "illustrates how much more conservative the lower courts are these days than the Supreme Court," Eric Schnapper, a law professor at the University of Washington who helped represent Ms. Costa, said in an interview. He said that there were hundreds of similar cases in the pipeline and that plaintiffs would benefit from the lowered threshold the court set today.
There were also these actions at the court today:
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Agent Orange
A 4-to-4 tie had the effect of affirming, without opinion, a decision by the federal appeals court in New York that Vietnam veterans who were exposed to the toxic herbicide Agent Orange and who became ill after 1994 were free to pursue lawsuits against the manufacturers.
The appeals court ruled in 2001 that because the legal interests of this group, perhaps numbering in the thousands, were not properly represented when the settlement of an earlier class action was reached, these veterans could not be bound by the agreement, which excluded anyone who became ill after 1994.
The case, Dow Chemical v. Stephenson, No. 02-271, was an appeal by a dozen companies that had manufactured Agent Orange. Exposure to the chemical has been linked to cancer, diabetes and neurological disorders. The link to chronic lymphocytic leukemia, a particularly serious form of the disease, is so strong that the Department of Veterans Affairs announced this year that veterans with that diagnosis would automatically be entitled to benefits, with as many as 1,000 new patients a year expected.
The tie vote was made possible because Justice John Paul Stevens did not participate in the case. Justice Stevens never gives public reasons for his recusals. The court had no comment on a report by The Associated Press that his son, John Joseph, who died of cancer in 1996, was a Vietnam veteran.
posted by scott 8:43 AM