- NLRB ruling: calling one’s boss “nasty m___f___” can be protected labor advocacy for which dismissal is unlawful [Pier Sixty LLC; Michael Schmidt, Cozen O’Connor, Jon Hyman]
- “Declining Desire to Work and Downward Trends in Unemployment and Participation” [Tyler Cowen]
- Public sector union negotiations need sunlight [Trey Kovacs, Workplace Choice]
- “Is Non-Pregnancy a BFOQ [Bona Fide Occupational Qualification] for Exotic Dancers?” [Philip K. Miles III, Lawffice Space]
- “EEOC Issues Long-Awaited Wellness Program Rules” [Daniel Schwartz]
- Following New York Times investigation, Gov. Andrew Cuomo cracks down on employment at nail salons, and that will hurt immigrant workers [Alex Nowrasteh, New York Post; Elizabeth Nolan Brown/Reason and more, New York Times “Room for Debate”]
- President Obama keeps promoting myths about Lilly Ledbetter case [Hans Bader, CEI; Glenn Kessler, Washington Post; earlier]
- Mayor de Blasio settles firefighter bias suit on terms sympathetic to plaintiffs [City Journal: Dennis Saffran and Seth Barron]
- One way to dodge some Culture War fights: roll meaning of “public accommodation” back to travel, lodgings, places of public amusement, etc. [Andrew Kloster, Heritage] As original/creative expression goes, florists and cake-bakers sometimes outdo NYT’s Greenhouse [Ann Althouse] From Dixie Chicks to Hobby Lobby, few escape hypocrisy when commerce collides with convictions [Barton Hinkle]
- Department of Education’s Office of Civil Rights investigating Florida’s popular Bright Futures college scholarship program [Orlando Sentinel]
- Do EEOC mediators overstate risk of legal action to extract big settlements from employers? [Bloomberg BNA, Merrily Archer on survey] New Colorado expansion of employment liability bad news for large and small employers alike [Archer]
- “Religious exemptions — a guide for the confused” [Eugene Volokh]
- Washington Post columnist repeats myth that Lilly Ledbetter “did not know she was being paid less than male counterparts” until after statute of limitations had run; Hans Bader corrects [letter to editor]
- If helping out local people was one reason your town decided to back public housing, you might have been played for suckers [AP on DoJ suit against Long Island town over local preference]
Left-leaning lawprofs like Erwin Chemerinsky and Arthur Miller regularly flog the idea that decisions they disagree with — such as Twombly and Iqbal on pleading, AT&T v. Concepcion and AmEx v. Italian Colors on arbitration, and Vance v. Ball State and Ledbetter v. Goodyear Tire on workplace liability — show the Supreme Court to be biased in favor of business defendants. Richard Epstein rebuts.
- Remembering George McGovern: “The endless exposure to frivolous claims and high legal fees is frightening” [Bob Dorigo Jones]
- “One student was told she couldn’t cast a vote for homecoming queen unless she submitted to the tracking regime.” [CNet via Doctorow, BoingBoing]
- Couple says law firm sued them following crash of RV they’d sold months earlier [Chamber-backed Southeast Texas Record]
- L.A. city council moves to ban pet stores [L.A. Times via Amy Alkon]
- “Willie Gary’s law firm ordered to pay $12.5 m to lender” [Nate Raymond, Reuters] Touring the tasteful promotional materials of longtime Overlawyered favorite Gary [Above the Law]
- Further debunkings of Lilly Ledbetter narrative [Victoria Toensing, Adler, more, earlier] And fact-checking PolitiFact could turn into a full-time job; Hans Bader is still on the case [CEI]
- Fifth Circuit panel backs Louisiana monks’ right to produce handcrafted caskets [NOLA.com, Ilya Shapiro/Cato, earlier]
Mitt Romney, following a long tradition of GOP candidates unable or unwilling to resist the continued expansion of employment discrimination law, has pre-emptively blessed Congress’s 2009 enactment of the ill-advised Lilly Ledbetter Fair Pay Act gutting statutes of limitation. Hans Bader offers reasons why he should consider drawing the line. [Examiner] More: Ted Frank.
Related: Wisconsin Gov. Scott Walker signs bill repealing duplicative damages law passed by his Democratic predecessors, thus contradicting the accepted narrative in which the scope of available damages in job-bias suits is supposed to be revisable only in an upward direction.
- Roundup of James Q. Wilson appreciations [Michael Greve] The controversial book a 29-year-old Wilson never wrote [Helen Rittelmeyer]
- “Secret Class Action Settlements” [Rhonda Wasserman (Pitt), SSRN, via Stier] “Classic scholarship: Class action cops” [Trask/Class Strategist] Where should class-action scholarship go next? [same, more]
- So does this mean GOP’s overturn-Kelo bill would kill the Keystone pipeline? [Stoll]
- Stossel on illegal lemonade stands and vague laws that make everyone guilty; guest star is Cato’s Harvey Silverglate [YouTube]
- No Fluke? Linda Greenhouse’s recollection of Lilly Ledbetter case is fairly fictionalized [Ed Whelan, earlier]
- Footsie with plaintiff-lawyer adversaries: “Allstate vs. former Allstate adjuster” [Ron Miller]
- Benjamin Barton reviews the Winston-Crandall deregulate-lawyers book [MSLR/SSRN via Instapundit, earlier]
- A “retired Reserve captain is threatening to sue her local California school board if the board’s members do not address her by her military title” [Navy Times, Popehat]
- Members revolt at Florida bar’s selling their email addresses to marketers; general counsel of bar suggests they maintain multiple email addresses [Daily Business Review]
- “Panel Upholds $17M Attorney Fee Award, Cites Bad-Faith Patent Litigation by Drug Companies” [NLJ; fees awarded to Takeda Chemical Industries against Mylan Laboratories and Alphapharm Pty. Ltd.]
- Much of what you think you know about the Lilly Ledbetter Fair Pay Act is wrong [Stuart Taylor, Jr./National Journal; Point of Law, more]
- Not only prejudicial, but a whiskery urban legend to boot: fictional “Winnebago tale” (man thinks cruise control function will drive RV for him, sues after crash) makes its way into an Australian lawyer’s courtroom argument [Rees v. Bailey Aluminium Products]
- Posner was scathing about the class action lawyers’ conflicts of interest in the Mirfasihi v. Fleet Mortgage Co. case, but Max Kennerly thinks the judge got the case wrong [Litigation and Trial, earlier]
- Fight erupts over fee split in Blue Cross eating-disorder class action settlement [NJLJ, earlier]
- “Many attorneys from both parties also marvel at the sheer number of lawyers Obama has picked so far” in staffing White House [Washington Post]
- It’s still not over: Judge Roy Pearson of lost-pants fame returns to court with appeal against Custom Cleaners owners, the Chung family [WJLA]
- Columbus cops’ class action: dept. shouldn’t have asked us what our ailments were when we took sick leave [Dispatch]
- Culture Warrior Jeff Bell hopes Palin will reverse trends that have “legitimated a contraceptive ethic” [Weekly Standard] Better not count on it [York, NRO “Corner”]
- RIAA has now filed 30,000 lawsuits against file-sharing music fans [Wired “Threat Level”, Ambrogi]
- Recently at Point of Law: Ohio’s Supreme Court in the balance this November; Biden vs. legal reform; guestblogging by Peggy Little and Jane Genova; Lilly Ledbetter at Democratic convention; big Peter Angelos cellphone-cancer case strikes out; call for Australian no-fault cerebral palsy fund; and more;
- Massachusetts high court ruling that docs can be sued over their patients’ medication-impaired behavior is predictably leading to new suits [Globe, Brockton hospital crash; earlier]
- What Alinsky-style “community organizers” do [York, NRO via Bookworm Room] “Organizers break laws if they have to.” [Thomas Geoghegan @ Slate — and he’s being admiring]
- California trial lawyers successfully gut original Schwarzenegger plan to reform award of punitive damages [four years ago on Overlawyered]
Can anyone have seriously imagined that a retired worker from Goodyear would rise to national prominence over a case she lost at the U.S. Supreme Court regarding statute of limitations? And yet, at tonight’s Democratic National Convention, Lilly Ledbetter will take center stage for a few minutes.
There’s been lots of talk of late about the act, which arose from the Ledbetter case (though there was also a Lilly Ledbetter Fair Pay Act bill out there as well). One of the bill’s co-sponsors, Rosa DeLauro commented on it on the Huffington Post late last week and I summarized the latest debate about the bill in a post as well. Businesses and others have been critical of the act, even though it passed the U.S. House of Representatives last month (Heritage WebMemo, 7/30; Examiner, 8/6; OpenMarket, 8/6).
What’s missing from the debate about the bill, unfortunately, is a discussion about what the bill is about and should be about. It’s not really about pay equity — after all, we already have the Equal Pay Act for that. It’s really about allowing indivdiuals to recover much more in the way of damages than they could otherwise recover (though you’d be hard-pressed to make heads or tails of it from the seemingly technical language used). And frankly, there’s nothing wrong with advancing that goal if there was a fair debate on the merits.
But unfortunately, the public debate on the bill seems to fall into the classic stereotypes that each side rolls out with a piece of new legislation. Proponents of the bill suggest that those who are for the bill are FOR pay equity, and those opposing the bill are AGAINST pay equity, which is just hyperbole. Opponents of the bill have used hyperbole of their own, ignoring the fact that corporations have had to comply with the Equal Pay Act for years and that many are well-suited to address such claims.
It’s hard to see how some changes will have any real impact on employers. For instance, one part changes the language regarding a “factor other than sex” defense that an employer can raise to a “bona fide factor other than sex”. While one can debate the theorhetical differences in language, the real-world effect of the change is probably minimal for employers. After all, do employers really make salary decisions and think “well, I can explain the differences with reason, but is it a ‘bona fide’ reason”? And small businesses will be excluded from the act, in the same way that they are excluded from coverage under the Fair Labor Standards Act.
On the other hand, proponents of the bill gloss over the fact that removing some caps on compensatory and punitive damages — as the bill proposes — could have a significant effect on employers and the likelihood of lawsuits (one need only look at the rise of Title VII litigation after the Civil Rights Act of 1991 was passed for a historical perspective).
Proponents also ignore the fact that the punitive damages portion of the bill would mark a change in philosophy regarding punitive damages (to see the changes in context, click here). For example, one change would allow punitive damages to be awarded even when no intentional discrimination has been proved — which contradicts the traditional notion that punitive damages should be issued to punish the defendant for some type of malice or reckless behavior.
The political reality is that some version of this bill is going to get passed and employers need to keep a watchful eye on the bill. We’ll see in the upcoming weeks whether a compromise is eventually fashioned (much like the compromise being done for the ADA Amendments Act of 2008) or whether this is just political posturing in an election year. Either way, here’s (perhaps foolishly) hoping that the debate on the bill’s merits gets more substantive than just slogans.
(At Point of Law, Walter Olson’s other site, Carter Wood provides his insights into tonight’s happenings as well.)