United States v. Windsor: A Tipping Point in the Battle for More Inclusive Statewide Employment Discrimination Policies?

by Sarah B. Wheeler

The Defense of Marriage Act (hereinafter, “DOMA”), which became law in 1996, contains two main substantive sections.[1] Section 2, entitled “Powers Reserved to the States,” provides in sum that no state will be required to recognize a same-sex marriage that was legally performed in another state, if same-sex marriage is not also recognized in that state.[2]

Section 3 lists the “Definition of Marriage” as:

In determining the meaning of any Act of Congress, or of any ruling, regulation, or interpretation of the various administrative bureaus and agencies of the United States, the word “marriage” means only a legal union between one man and one woman as husband and wife, and the word “spouse” refers only to a person of the opposite sex who is a husband or a wife.[3]

Effectively, Section 3 of DOMA “defined marriage for federal purposes as between one man and one woman”[4] (emphasis added). Both sections of DOMA have remained continuously in effect since 1996,[5] until the recent decision in United States v. Windsor.[6] In Windsor, the Supreme Court held Section 3 of DOMA unconstitutional.[7] However, the Court’s decision did not address any issue related to Section 2, as this was not brought before the Court.[8]

In the wake of the Windsor decision, a number of rulings have been issued[9] overturning state bans prohibiting same-sex marriage. Similarly, previously undecided cases on the issue were subsequently decided in favor of plaintiffs who challenged state laws prohibiting same-sex marriage.[10] For example, the plaintiffs in Bishop v. Smith[11] brought a case against the Oklahoma state law prohibiting same-sex marriage. Ultimately, the United States Court of Appeals for the 10th Circuit held in Bishop that the Oklahoma law, prohibiting same-sex marriage, was unconstitutional.[12] Similarly, in Kitchen v. Herbert, a Utah state constitutional amendment, that defined marriage as a union exclusively between a man and a woman, was held to be unconstitutional.[13] On October 6, 2014, the Supreme Court denied certiorari[14] for both cases, as well as five other cases, regarding issues of marriage equality.[15] These denials allowed that Circuit’s decision “recognizing a constitutional right to same-sex marriage to stand, clearing the way for marriage equality in all of the states within that Circuit.”[16]

The overturning of Section 3 of DOMA has broad implications not just for marriage equality, but also for employment discrimination policies.[17] An increase in challenges to state constitutional bans on same-sex marriage has not, however, translated into a marked increase in the number of challenges to statewide or citywide employment discrimination policies that do not include sexual orientation or gender identity in the protected categories.[18]

On the national level, the policy appears to be toward promoting the abolishment of these types of laws.[19] Not long after the Windsor decision, President Obama issued an executive order prohibiting federal contractors from engaging in employment discrimination on the basis of sexual orientation.[20] Despite this executive order, to date there has been no federal legislation enacted, much less proposed, to ban “on-the-job discrimination based on [the basis of] gender identity.”[21]

What remains to be seen is whether there will be an uptick in challenges to non-inclusive statewide and citywide employment discrimination policies. Thus far, only one challenge in these parameters has been made. In Kansas, the Roseland Park city council recently ruled to include “gender identity” in their anti-discrimination policy.[22] However, even in that instance, the challenge was a close call.[23] The city’s mayor broke a 4-4 tie within the city council.[24] To put Roseland Park’s ruling in perspective, only one other town in the entire state of Kansas now currently includes “gender identity” in its anti-discrimination laws that are inclusive of employment discrimination laws.[25]

[1] Family Research Council, http://www.frc.org/understandingwindsor (last visited Oct. 12, 2014) (stating “DOMA had two substantive provisions: Section 2 . . . and Section 3.”).

[2] See 28 U.S.C. § 1738C (1996) (providing that “[n]o State, territory, or possession of the United States, or Indian tribe, shall be required to give effect to any public act, record, or judicial proceeding of any other State, territory, possession, or tribe respecting a relationship between persons of the same sex that is treated as a marriage under the laws of such other State, territory, possession, or tribe, or a right or claim arising from such relationship.”).

[3] 1 U.S.C. § 7 (1996).

[4] The Imminent Demise of Section 2 of the Defense of Marriage Act, Justia, http://verdict.justia.com/2013/08/12/the-imminent-demise-of-section-2-of-the-defense-of-marriage-act#sthash.PjSdVwME.dpuf (last visited Oct. 12, 2014).

[5] Caitlin Sandley & Stanford Moore, Windsor May Have Paved the Way for Intermediate Scrutiny of DOMA, American Bar Association (Feb. 11, 2013), http://apps.americanbar.org/litigation/committees/civil/articles/winter2013-0213-windsor-may-have-paved-way-intermediate-scrutiny-doma.html.

[6] United States v. Windsor, 133 U.S. 2675, 2696 (2013).

[7] Id. at 2696.

[8] Id. at 2683.

[9] History and Timeline of the Freedom to Marry in the United States, Freedom to Marry, http://www.freedomtomarry.org/pages/history-and-timeline-of-marriage (last visited Oct. 12, 2014).

[10] See Bishop v. Smith, 2014 U.S. App. LEXIS 13733 (10th Cir. Okla. 2014); see also Kitchen v. Herbert, 961 F. Supp. 2d 1181 (D. Utah 2013).

[11] Bishop, 2014 U.S. App. LEXIS at 13733.

[12] Id.

[13] Kitchen, 961 F. Supp. 2d at 1181.

[14]Adam Liptak, Supreme Court Delivers Tacit Win to Gay Marriage, N.Y. Times (Oct. 6, 2014), at A1, available at http://www.nytimes.com/2014/10/07/us/denying-review-justices-clear-way-for-gay-marriage-in-5-states.html?_r=0.

[15] Id.

[16] Baskin v. Bogan (7th Cir.), Constitutional Accountability Center, http://theusconstitution.org/cases/baskin-v-bogan-7th-cir (last visited Oct. 12, 2014).

[17] See Id.

[18] See Kansas town bans discrimination based on sexual orientation, gender identity, LGBTQNATION (Aug. 5, 2014), http://www.lgbtqnation.com/2014/08/kansas-town-bans-discrimination-based-on-sexual-orientation-gender-identity/.

[19] See Allissa Wickham, EEOC Files Historic Sex Bias Suits For Transgender Workers, LAW360 (Sept. 25, 2014), https://www.law360.com/articles/581182/eeoc-files-historic-sex-bias-suits-for-transgender-workers (last visited Oct. 12, 2014); see also DOL Releases Final Rule To Hike Contractor Minimum Wage, LAW360 (Oct. 24, 2014), http://www.law360.com/articles/583638/dol-releases-final-rule-to-hike-contractor-minimum-wage (“Obama signed an executive order barring contractors from discriminating based on sexual orientation or gender identity.”).

[20] DOL Releases Final Rule To Hike Contractor Minimum Wage, supra note 19.

[21] Id.

[22] Kansas town bans discrimination based on sexual orientation, gender identity, supra note 18.

[23] Id.

[24] Id.

[25] Id. (stating that Lawrence is the only other city in Kansas that includes this in its anti-discrimination laws).

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Is the Next NBA Lockout Looming?

by Brandon S. Ross

On October 6, 2014, the National Basketball Association (“NBA”) publicly announced that it had reached a nine-year exclusive media-rights deal with ESPN and Turner Sports, worth an eye-popping $24 billion.[1] Starting with the 2016-2017 NBA season, ESPN and Turner Sports will pay the NBA $2.6 billion per year – a 180% increase over the last deal.[2] To put this into context, when the NBA reached its last television deal back in 2007, which was worth around $930 million, it represented a mere 21% increase from the previous one.[3] While the deal will have a minimal effect on the fans,[4] you can bet that there is one group of people that it will have a major impact on – the players.

After a lengthy, 149-day lockout in 2011 that wound up costing the NBA twenty-six games out of a possible eighty-two,[5] the players union and the owners eventually agreed to a Collective Bargaining Agreement (“CBA”) that would last for ten years, with an opt-out provision that the players could exercise after six years[6] – the exact same time that the new television deal kicks in. Should the players decide to opt out of the current CBA in 2017, many NBA pundits believe that this time around, the players will use the massive infusion of wealth from the new television deal, as leverage to negotiate for a bigger piece of the basketball-related income (“BRI”) that they relinquished to the owners in 2011.[7] The main reason that the owners were able to increase their share of BRI during the 2011 negotiation period was that twenty-two out of thirty of them were losing money, and that overall losses in the 2010-2011 season added up to about $370 million – a figure that made cutting the players’ share a top priority for the owners.[8]

During the negotiations that will inevitably take place after the 2016-2017 NBA season, look for the players to aggressively demand back much, if not all, of the BRI they surrendered in 2011. When asked about the new multibillion-dollar media deal, NBA superstar LeBron James made a pointed statement by asserting that, “[t]he whole thing that went on with the negotiation process was that the owners were telling us that they were losing money. There is no way they can sit in front of us and tell us that right now.”[9] Fellow NBA legend and future Hall-of-Famer Kobe Bryant took to Twitter to voice his opinion on the matter: “[p]layers are ‘encouraged’ per new CBA to take less to win or risk being called selfish [and] ungrateful while [NBATV] deal goes [up] by a [billion].”[10] Perennial NBA all-star Kevin Durant added, “[t]hat’s a lot of money. I don’t see how the owners can say they’re losing money now.”[11] These sentiments, uttered by arguably the three most polarizing figures in the NBA, sent shockwaves throughout the entire league. It let the owners know that once the negotiation period in the summer of 2017 rolls around, the players are going to do what they do best: come ready to play.

[1] See Bill Littlefield, NBA Inks New $24B TV Deal: Lockout Likely, Only a Game (Oct. 11, 2014), http://onlyagame.wbur.org/2014/10/11/nba-tv-deal-espn-turner.

[2] Id.

[3] Kevin Draper, What the NBA’s Insane New TV Deal Means for the League and for You, Deadspin (Oct. 6, 2014, 2:49 PM), http://deadspin.com/what-the-nbas-insane-new-tv-deal-means-for-the-league-a-1642926274.

[4] See Only a Game, supra note 1 (“For fans nothing really is going to change. . . . But basically you’ll continue to watch the NBA the same way you have for the last decade.”).

[5] Paul D. Staudohar, The Basketball Lockout of 2011, Monthly Lab. Rev., Dec. 2012, at 28, available at http://www.bls.gov/opub/mlr/2012/12/art3full.pdf.

[6] Id. at 32.

[7] See id. (explaining that the 2011 CBA resulted in a 50-50 split of BRI between players and owners, with the players’ share dropping from 57% under the previous CBA).

[8] Id. at 30.

[9] Harvey Araton, Owners’ Poverty Claims Are History, James Says., N.Y. Times, Oct. 7, 2014, at B12.

[10] Kobe Bryant, Twitter (Oct. 7, 2014, 12:42 PM), https://twitter.com/kobebryant/status/519543277771427840.

[11] Darnell Mayberry, Twitter (Oct. 7, 2014, 12:36 PM), https://twitter.com/DarnellMayberry/status/519541673877975040.

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EEOC’s Current Enforcement Guidance on Pregnancy Discrimination

by Neli Kharbedia

To emphasize that it is unacceptable for employers to discriminate against their employees based on pregnancy, the Equal Employment Opportunity Commission (EEOC) released enforcement guidance regarding pregnancy discrimination.[1] According to the authorities of the EEOC, because more employees sued and prevailed based on pregnancy discrimination, the EEOC decided to explain employers’ duties based on the Pregnancy Discrimination Act (PDA) and the Americans with Disabilities Act (ADA).[2]

Under the PDA, “women affected by pregnancy, childbirth, or related medical conditions shall be treated the same for all employment-related purposes [. . .] as other persons not so affected but similar in their ability or inability to work.”[3] Most courts agree that it is consistent with the PDA for employers to accommodate pregnant employees “the same as similarly situated, non-pregnant employees.”[4] Similarly, the Fourth Circuit in Young v. UPS[5] decided that employers’ decisions are consistent with the PDA when there is no difference in how employers treat their pregnant and non-pregnant workers.[6] A pregnant employee, in Young v. UPS, was denied an accommodation, as her employer only provided light duty to its employees eligible under the ADA or to employees who were injured while working.[7]

The Supreme Court has agreed to re-examine the Fourth Circuit decision in Young v. UPS, in which the PDA does not obligate employers to accommodate pregnant employees with light duty when the employer provides light duty to some non-pregnant employees.[8] The new guidance issued by the EEOC disagrees with this idea.[9] According to the EEOC’s new guidance, under the PDA, employers have to provide light duty to their pregnant employees, if employers provide light duty to their nonpregnant employees with similar capacities to work.[10] It is not important if the impairment is because of “pregnancy, disability or injury” . . . “the focus is on whether the employees have a similar ability or inability to work.”[11] Thus, according to David Fram, director of ADA and equal employment opportunity services for the National Employment Law Institute in Denver, “the EEOC has imported an obligation under one federal statute—the ADA’s reasonable accommodation requirement—into another law, the PDA.”[12]

According to Kentucky law student Jennifer Yue, obligating employers to provide accommodations may have disadvantages for employers who employ women who need light duty accommodations.[13] The employers’ productivity may decline by accommodating their employees with light duties, and some small businesses may need to “creat[e]” work for pregnant employees.[14] Moreover, according to the EEOC, the ADA protections may apply to some disabilities connected to pregnancy, “if they substantially limit one or more major life activities” even though pregnancy is not a disability.[15] Meanwhile, Sheerine Alemzadeh has argued that pregnancy should be considered as a disability, and cases should be decided separately to decide if pregnancy influences an employee’s “major life activities.”[16]

Employers have to provide reasonable accommodations, unless it is an “undue hardship” for an employer to accommodate its employee.[17] Some examples of the reasonable accommodations for pregnant women are reallocating parts of the job that are not mandatory to other employees, changing employers’ practices, changing schedule, permitting an employee to work while at home, giving extra leaves, providing equipment, and offering a light duty.[18] Because 2008 changes to the ADA offer protection for more types of disabilities, it was expected that short-term disabilities associated with pregnancy that cause limitations related to work would be considered “substantially limiting.”[19] Therefore, since before the new guidance most of the employers did not interpret PDA as including “a reasonable accommodation obligation,” employers need to change their old practices.

[1] Steven Greenhouse, Equal Opportunity Employment Officials Take New Aim at Pregnancy Bias, N.Y. Times (July 14, 2014), http://www.nytimes.com/2014/07/15/business/equal-opportunity-employment-officials-take-new-aim-at-pregnancy-bias.html.

[2] Id.

[3] 42 U.S.C.A. §2000e(k); EEOC, Enforcement Guidance: Pregnancy Discrimination and Related Issues, EEOC (July 14, 2014), http://www.eeoc.gov/laws/guidance/pregnancy_guidance.cfm.

[4] Rozlyn Fulgoni-Britton & Joel P. Schroeder, Tackling the Challenges of Accommodating Pregnant Workers Under the Pregnancy Discrimination Act and the Americans with Disabilities Act, 61-FEB Fed. Law. 35, 35 (2014).

[5] Young v. United Parcel Service, Inc., 707 F.3d 437 (4th Cir. 2013), cert. granted 134 S. Ct. 2898 (2014).

[6] Supra note 4.

[7] Id.

[8] Kevin P. McGowan, EEOC Issues New Enforcement Guidance on Pregnancy Bias, bna (July 15, 2014), http://www.bna.com/eeoc-issues-new-n17179892312/.

[9] Susan L. Nardone & Michael J. Riccobono, EEOC “Delivers” Guidance on Pregnancy Discriminaiton, metrocorpcounsel (Aug. 25, 2014), http://www.metrocorpcounsel.com/articles/29701/eeoc-“delivers”-guidance-pregnancy-discrimination.

[10] McGowan, supra note 8.

[11] Nardone & Riccobono, supra note 9.

[12] McGowan, supra note 8.

[13] Jennifer Yue, Note, The Flood of Pregnancy Discrimination Cases: Balancing the Interests of Pregnant Women and Their Employers, 96 Ky. L.J. 487, 501, 502 (2007-2008).

[14] Id.

[15] McGowan, supra note 8; EEOC, Questions and Answers About the EEOC’s Enforcement Guidance on Pregnancy Discrimination and Related Issues, EEOC, http://www.eeoc.gov/laws/guidance/pregnancy_qa.cfm (last visited Sept. 26, 2014).

[16] Sheerine Alemzadeh, Claiming Disability, Reclaiming Pregnancy: A Critical Analysis of the ADA’s Pregnancy Exclusion, 27 Wis. J.L. Gender & Soc’y 1, 3, 4, 12-17, 35 (2012).

[17] EEOC, supra note 15.

[18] Id.; McGowan, supra note 8.

[19] Nardone & Riccobono, supra note 9.

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Women’s Equality: Truth or Illusion?

by Amanda Ward

Beginning in the mid-19th century, women began to organize and fight for their rights to be seen as equal to men.[1] When Congress passed the 19th Amendment to the U.S. Constitution in 1919, giving American women the right to vote, it was seen as a milestone win in women’s rights.[2] Women have continued to fight for their rights; they no longer stand by passively accepting wage rates lower than their male coworkers, and they fight for legislation for equal pay.[3] Women today are still currently facing pay disparities. In September of this year, and for the third time since 2012, [4] the U.S. Senate rejected the Paycheck Fairness Act, which aimed to narrow the gap of female and male pay disparities.[5] The Paycheck Fairness Act would amend the Fair Labor Standards Act of 1938, giving new remedies for the enforcement of sex discrimination.[6] It would also hold violating employers responsible, through compensatory or punitive damages.[7] However, the answer to the issue of equal pay may not be resolved through legislation, but rather through education.

A 1993 New York Times article suggests that the real way to close this disparity is through education.[8] Economically, this would make sense because if companies were simply paying women less based on sex discrimination, then women should make up a greater percentage of the workforce, as companies would take advantage of paying a lower wage to an equal worker. When looking at current labor force statistics, we see that women make up 47% of the labor force.[9] In fact, when Australia raised women’s wages from 65% to 95% of male wages, it slowed the growth of women’s employment by one third and increased unemployment.[10] However, equality does not only rest with just equal pay, but it also demands involvement in the decision making process of a company. Not only do women want equal pay, but they also want to be involved in the decision making process of a company. [11]

Women hold only 5% of the CEO positions listed on the 2014 Fortune 1000.[12] Out of 500 companies, only twenty-five had female CEOs.[13] This indicates that corporate culture does not view women as equals, when compared to their male coworkers. On September 8, 2014, the National Football League suspended player Ray Rice for an incident involving domestic violence where Rice punched his then fiancée in the face, knocking her out.[14] However, Commissioner Roger Goodell admitted, when asked by a reporter, that no women were involved in the decision to suspend Rice.[15] When an important issue concerning women is put in the public forum, there should be a voice speaking on behalf of women in the decision making process. So the question arises, are women still gaining the equality they are fighting for?

[1] Teaching With Documents: Woman Suffrage and the 19th Amendment, National Archives, National Archives, http://www.archives.gov/education/lessons/woman-suffrage/ (last visited Oct. 3, 2014).

[2] 19th Amendment to the U.S. Constitution: Women’s Right to Vote (1920), OurDocuments.com, http://www.ourdocuments.gov/doc.php?flash=true&doc=63.

[3] Burgess Everett, Senate Blocks Pay Equity Bill, Politico (Sept. 15, 2014, 6:04 PM) http://www.politico.com/story/2014/09/senate-pay-equity-bill-110980.html.

[4] Id.

[5] Id.

[6] Paycheck Fairness Act, S. 84, 113th Cong. (2013). available at https://www.congress.gov/bill/113th-congress/senate-bill/84.

[7] Id.

[8] Sylvia Nasar, Womens Progess Stalled? Just Not So. The New York Times (Oct. 18, 1992), http://www.nytimes.com/1992/10/18/business/women-s-progress-stalled-just-not-so.html

[9] Women in the Labor Force: A Databook, BLS (2014), available at http://www.bls.gov/cps/wlf-databook-2013.pdf

[10] Patrick Luciani, Economic Myths 9-13 (Pearson Addison Wesley, 4th ed. 2004).

[11] Ken Belson, N.F.L. Examines Its Record on Hiring of Women in Wake of Ray Rice Case, The New York Times (Sept. 25, 2014), http://www.nytimes.com/2014/09/26/sports/football/nfl-examines-its-record-on-hiring-of-women-in-wake-of-ray-rice-case.html?module=Search&mabReward=relbias%3Ar%2C%7B%222%22%3A%22RI%3A12%22%7D.

[12] Catalyst, http://www.catalyst.org/knowledge/women-ceos-fortune-1000 (last visited Oct. 3, 2014).

[13] Id.

[14] Jill Martin & Steve Almasy, Ray Rice Terminated by Team, Suspended by NFL After New Violent Video, CNN (Sept. 16, 2014, 8:45AM), http://www.cnn.com/2014/09/08/us/ray-rice-new-video/.

[15] Belson, supra note 11.

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REGISTER for Our Symposium, October 24 2014 #LELJSymp32

Registration for next week’s annual Hofstra Labor & Employment Law Journal symposium is open, so please click here to register if you have not yet done so. CLE credits are available for those who desire them. For more information, including pricing (free for current Hofstra students, faculty, and administration members) and the complete program, please consult the aforementioned link.

Our symposium will take place on Friday, October 24, 2014, from 9 AM to 3 PM, at the Hofstra University Club. (The Club is on the North side of Hofstra campus: it is the first building on your right once you enter North Campus.) Curated by Symposium Editor Jerry Lagomarsine, the V.32 Symposium will feature programming on the subject of employee misclassification.

The Journal hopes to see you there!

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Modern Day Slavery?

by Mehjabeen S. Rahman

A recent case heard by the 2nd Circuit has made headlines using a term that has crept its way from the shadows of a rather grim period of American history. Is “slavery” still alive in the domestic U.S.? Whether or not the argument can be made that it does, the issue had not been within the scope of modern-day jurisprudence—until now.

In December of 2008, Finbar McGarry, a Ph.D student of chemistry at the University of Vermont, was arrested for charges including domestic assault, assault of a law enforcement officer, and resisting arrest.[1] He was detained at Chittenden Regional Correctional Facility (CRCF) in Burlington, Vermont. After his arrest, McGarry’s application for bail was denied, and he remained at CRCF until his release in June of 2009.[2] During his detainment, McGarry alleges that he was forced to work in the prison laundry room for up to fourteen hours a day, for a chuckle-worthy $0.25 per hour.[3]

All of the charges were then dismissed against McGarry, and subsequent to his release, McGarry sued CRCF and several correctional officers in their individual capacities, seeking $11 million in damages, alleging that his forced labor at the prison was akin to slavery abolished by the U.S. Constitution.[4] The issue that made it to the U.S. Court of Appeals, 2nd Circuit is whether or not this forcible labor of pretrial detainees is in violation of the 13th Amendment to the U.S. Constitution—the amendment adopted at the end of the Civil War abolishing slavery, at least, as what we categorically remember “slavery” to mean.[5]

Undoubtedly, the subject matter requires a somewhat layered textual, historical, and practical analysis of what Congress and the framers of the amendment had in mind when it was passed. The relevant text of the 13th amendment reads, “Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction.”[6] U.S. District Judge Garvan Murtha in Vermont ruled state immunity applied because McGarry had failed to show that the prison work was sufficiently akin to African slavery.[7]

Interestingly however, the U.S. Court of Appeals for the 2nd Circuit disagreed with this reasoning. The Court, in its opinion, concluded that the 13th amendment, though enacted in 1865, was enacted to prohibit all forms of slavery, not just “chattel slavery.”[8] Based on McGarry’s allegations, correctional officers at the prison coerced him into working in the prison’s laundry facilities, threatening to “throw him in the hole” (i.e. solitary confinement) or file damaging Interdisciplinary Reports “DRs” against him that could affect his eligibility for release.[9] Citing United States v. Kozminski,[10] the Supreme Court defined involuntary servitude as “a condition of servitude in which the victim is forced to work for the defendant by the use or threat of physical restraint or physical injury, or by the use or threat of coercion through law or the legal process.”[11] Based on this rule of law, the Court concluded that McGarry had a legitimate claim under the constitutional amendment, and remanded the case back to the District Court in Vermont. [12]

What is particularly important to note here is that which the Court emphasized: “The Supreme Court has unambiguously and repeatedly held that a state’s authority over pretrial detainees is limited by the Constitution in ways that the treatment of convicted persons is not…”[13] The amendment explicitly provides that it shall not apply to persons who have been “duly convicted” of a crime.[14] This is not the case for pretrial detainees who are not eligible for bail. The interesting question we are left with, however, is whether, as some scholars argue, the 13th amendment allows forced inmate labor only when the labor approximates the conditions of involuntary servitude, rather than conditions of slavery.[15] The textual distinction here is key, and will surely be a focal point of debates to come surrounding controversies, such as penal plantations in many southern states such as Louisiana and Tennessee.[16]

[1] Basil Katz, Appeals court reinstates Vermont prison forced labor case, REUTERS (Aug. 3, 2012, 4:10 PM), http://www.reuters.com/article/2012/08/03/us-vermont-slavery-idUSBRE8721EJ20120803.

[2] See id.

[3] See id.

[4] See id.

[5] McGarry v. Pallito, 637 F.3d 505 (2nd Cir. 2012).

[6] U.S. CONST. amend. XIII, § 1.

[7] Supra note 5, at 510.

[8] Id at 511.

[9] See Katz, supra note 1.

[10] 487 U.S. 931 (1988).

[11] Kozminski,487 U.S. at 952.

[12] Supra note 5, at 514.

[13] Id at 513.

[14] Supra note 6.

[15] See Andrea C. Armstrong, Slavery Revisited in Penal Plantation Labor, SEATTLE U. SCH. L. DIGITAL COMMONS (2012), http://digitalcommons.law.seattleu.edu/cgi/viewcontent.cgi?article=2085&context=sulr

[16] See id.

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Cheesy Move by Papa John’s

by Jillian Levitt

On an episode of the television series Glee, Becky asks her friend, and fellow Cheerios cheerleader, Brittany to stay in high school with her forever, because “[t]he world is scary. Someday they will make me leave here, and I don’t know what I’m going to do.”[1] Her fear is particularly poignant since Becky has Down syndrome and, due to her disability, her odds of obtaining employment after leaving school would be slight.[2] Actors such as Lauren Potter, who portrays Becky, have helped to show the public how valuable Down patients’ contributions in the workplace can be.[3] In the past few decades, the quality of life for individuals with Down syndrome has improved significantly.[4] Average life span has increased from twenty-five to sixty years, and many are graduating high school and taking college courses.[5] Still, however, a mere 14.2% of young adults with intellectual disabilities, including Down syndrome, are employed in positions paying at least minimum wage.[6] Even after the challenge of getting a job is met, the intellectually disabled are often subject to abuse, harassment and discrimination in the workplace.[7]

On September 29, 2014, the Equal Employment Opportunity Commission (EEOC) issued a press release, stating that it filed a lawsuit against Papa John’s Pizza for illegally firing Scott Bonn, an employee with Down syndrome.[8] The EEOC alleged that Papa John’s had successfully employed Bonn, while allowing an independently employed and insured job coach to assist him.[9] However, when an operating partner of the company visited the restaurant and observed Bonn working with a job coach, he ordered Papa John’s to fire Bonn.[10] The EEOC stated that Papa John’s violated “Title I of the Americans with Disabilities Act (ADA), which prohibits employers from discriminating against qualified individuals by failing to reasonably accommodate their disabilities”[11] and that the use of a job coach is a “reasonable accommodation.”[12]

A job coach is someone who accompanies the disabled employee to work for a period of time until the individual can successfully perform the job independently.[13] The goal is inclusion-to help the disabled individual move into competitive employment within the community, as opposed to employment within secluded institutional workshop settings where all the workers are disabled.[14] The funds for job coaches generally derive from government sources such as a state’s department of developmental disabilities, department of vocational rehabilitation, or education department.[15] Thus, the employer has no direct monetary expense for the accommodation of a job coach. However, violations of the ADA provision, such as the denial of a disabled person’s request for a job coach or the termination of a disabled employee prior to consulting with a job coach, have resulted in large monetary settlements against employers.[16] In one case that proceeded to trial, the jury awarded $13 million in punitive damages, although the award was eventually reduced to $300,000 because of a statutory cap.[17]

It would seem that when an intellectually disabled employee is hired, employers would benefit from attending some type of basic sensitivity training together with their managers and staff.[18] Perhaps the local department of developmental disabilities or local disability advocate organization could provide assistance and encouragement.[19] In addition to the monetary advantage of avoiding large settlements due to possible violations of the ADA, employers would be helping to make the world less scary for people like Scott Bonn.

[1] officialswiftiegleek, Glee-Brittany and Becky Scene/Shooting Star, YouTube (Apr. 11, 2013), http://www.youtube.com/watch?v=a9QfSRJcDhU.

[2] Written Testimony of Sharon Lewis, Comm’r, Admin. on Developmental Disabilities, to the U.S. Dep’t of Health and Human Services (Mar. 15, 2011), available at http://www.eeoc.gov/eeoc/meetings/3-15-11/lewis.cfm.

[3] See Sydney Lupkin, Actors with Down Syndrome Raise Awareness, ABC News (Sept. 14, 2012), http://www.abcnews.go.com/Health/actors-syndrome-raise-awareness/story?id=17230744.

[4] Liz Szabo, Life with Down Syndrome is Full of Possibilities, USA Today (May 9, 2013, 5:25 PM), http://usatoday.com/story/news/nation/2013/05/01/life-down-syndrome-improving/2054953.

[5] Id.

[6] See supra note 2.

[7] See Selected List of Pending and Resolved Cases Involving Intellectual Disabilities, EEOC (July 2012), http://www.eeoc.gov/eeoc/litigation/selected/intellectual_disabilities.cfm, for a list of relevant allegations.

[8] Press Release, U.S. Equal Emp’t Opportunity Comm’n (Sept. 29, 2014), available at http://www.eeoc.gov/eeoc/newsroom/release/9-29-14a.cfm?renderforprint=1.

[9] Id.

[10] Id.

[11] Id.

[12] Id.

[13] Employment & Volunteer Work, Nat’l Down Syndrome Soc’y, http://www.ndss.org/Resources/Transition-and-Beyond/Employment-Volunteer-Work/ (last visited Oct. 1, 2014).

[14] See Carol Kleinman, Job Coaches Help Disabled Meet Goal, Chi. Trib. (July 10, 1994), http://articles.chicagotribune.com/1994-07-10/news/9407130012_1_jobs-with-such-employers-job-coaches-disabled.

[15] See Deborah Metzel & Jennifer Bose, Show Me the Money: Flexible Funding for Job Success, Inst. For Cmty. Inclusion (May 2003), http://www.communityinclusion.org/article.php?article_id=150.

[16] See supra note 7.

[17] EEOC v. CECE Entertainment, No. 98-C-698-X, 2000 U.S. Dist. LEXIS 13934 (W.D. Wis. Mar. 14, 2000).

[18] See Mary Strain, Physical & Mental Ability Diversity Training in the Workplace, Chron, http://smallbusiness.chron.com/physical-mental-ability-diversity-training-workplace-38723.html (last visited October 6, 2014).

[19] Viscardi Awarded $1.84 Million in Funding form U.S. Dept. of Labor, The Viscardi Center (Sept. 30, 2014) http://www.viscardicenter.org/news-events/news/cooperative-agreement.html (last visited October 4, 2014).

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Everything Has a Price

by Alexandra Sanchez

In 1990, U.S. Citizenship and Immigration Services endeavored to stimulate the U.S. economy through administering the Immigrant Investor Program.[1] This program, better known as “EB-5,” attracts foreign capital investment in domestic projects that creates jobs across the U.S.[2] In exchange for the investment, foreign nationals are granted temporary U.S. visas for themselves and their families.[3] These temporary visas enable the investor to live and conduct business in the U.S. throughout the program’s two-year conditional period.[4] Once the period is up, the investment’s success will be evaluated.[5] A successful investment may lead to legal permanent residency in the U.S.[6]

All EB-5 investors are required to invest in a new commercial enterprise that creates or preserves at least ten full-time jobs for U.S. workers within two years.[7] To prove that at least ten jobs will be created, the prospective immigrant investor may employ economically or statistically valid forecasting devices.[8] The minimum qualifying investment for the program is $1,000,000.[9] If the investor wishes to create a profitable business in a highly unemployed or rural area, the investment is lowered to a minimum of $500,000.[10] Additionally, the investor’s capital must come from a lawful source.[11] This can be proven through means of tax returns, sale of property or business records, or lawful loans or gifts.[12] The investor must be “engaged in the management of the new commercial enterprise; he or she may not be a passive investor.”[13] An investor is encouraged to be a member of the board of directors, a corporate office, or a limited partner. [14]

Since the implementation of the EB-5 program, it has evolved into a multi-billion dollar industry.[15] In New York City alone, a handful of mega projects raised $250 million each from 499 investors.[16] Over $3.39 billion of EB-5 investments contributed to U.S. gross domestic product in the fiscal year of 2012 alone.[17]  In 2012, this program sustained over 42,000 American jobs.[18] In that same fiscal year, the EB-5 program generated over $712 federal, state, and local tax revenue—all at no cost to the U.S. taxpayer.[19] From the fiscal years of 2005 through 2013, over $6.5 billion in capital investment supported over 131,000 U.S. jobs.[20] These numbers are growing every day. This program has met Congress’s initial goals of stimulating the U.S. economy, in fact.

For the first time in the program’s history, the U.S. has exhausted its annual supply of EB-5 immigrant investor visas.[21] Following a “surge” of applications from Chinese nationals, an overwhelming 10,300 EB-5 applications have been pending as of August.[22] This represents 300 more than the maximum allotment per year.[23] In 2004, only sixteen Chinese nationals were granted EB-5 visas.[24] Last year, Chinese nationals accounted for more than 80%, nearly 6,900, of all EB-5 visas issued.[25]

Other countries have similar programs to the EB-5 program.[26] So, what makes the U.S. such an attractive candidate for foreigners? Comparatively, the U.S. program is cheaper and more promising to candidates. Australia’s investor visa requires a $4.5 million investment—nine times the minimum investment amount required by the U.S.[27] Additionally, Australia’s program only allows for temporary residency.[28] Further, foreign nationals seeking to invest in Australia must be younger than 45 years old to be considered.[29]

This multi-billion dollar industry is only growing in the U.S. Most recently, the Canadian Foreign Investment Program was terminated, which attracted more foreign nationals to the U.S.[30] The current spike in popularity of the program has led to a visa backlog.[31] Unfortunately for prospective investors, this backlog may prolong entrance into the U.S. Prospective investors should apply as soon as possible. EB-5 investors’ beneficiaries, especially unmarried children under twenty-one years old, should pay close attention to the backlog situation.[32] These children could be the most negatively affected by the backlog. By the time a visa may become available, the child may age out of the program.[33]

[1] EB-5 Immigrant Investor, U.S. Citizenship and Immigr. Services, http://www.uscis.gov/working-united-states/permanent-workers/employment-based-immigration-fifth-preference-eb-5/eb-5-immigrant-investor (last updated July 3, 2014).

[2] Id.

[3] J. Elias O’Neal, Foreign Cash Could Boost City Center, Daily Press, July 6, 2014, at A1, available at LEXIS.

[4] Eugene F. Segrest, et al., EB-5- A Call to Foreign Investors From U.S. Developers and Business Owners, K&L Gates (Apr. 3, 2012), http://www.klgates.com/files/Publication/000f84a9-1f15-466a-80e3-755fbf65f149/Presentation/PublicationAttachment/bb54371b-55a0-46b5-a9c8-6c71f8524057/EB5_Alert.pdf.

[5] Id.

[6] Id.

[7] Id.

[8] Id.

[9] Id.

[10] Id.

[11] Id.

[12] Fredrick Voigtmann, EB-5 Investor Visa USA Requirements, EB-5 Investors, http://www.eb5investors.com/eb5-basics/eb-5-investor-visa-usa-requirements (last visited Sept. 28, 2014).

[13] Id.

[14] Id.

[15] Mona Shah & Yi Song, EB-5 Visa Unavailability will Have a Large Impact, Law 360 (Sept. 10, 2014, 1:01 PM), http://www.law360.com/articles/571564/eb-5-visa-unavailability-will-have-a-large-impact.

[16] Id.

[17] Association to Invest in USA, IIUSA, https://iiusa.org (last visited Sept. 28, 2014).

[18] Id.

[19] Id.

[20] Id.

[21] Sophia Yan, U.S. Runs Out of Investor Visas as Chinese Overwhelm Program, CNN Money (Aug. 28, 2014, 3:10 AM), http://money.cnn.com/2014/08/27/news/economy/china-us-visa/.

[22] Id.

[23] Id.

[24] Id.

[25] Id.

[26] International Immigrant Investor Programs, EB-5 Investors, http://www.eb5investors.com/eb5-basics/international-immigrant-investor-programs (last visited Sept. 28, 2014).

[27] Yan, supra note 21.

[28] EB-5 Investors, supra note 26.

[29] Id.

[30] Investors, Government of Canada, http://www.cic.gc.ca/English/immigrate/business/investors/index.asp, (last modified July 11, 2014).

[31] Bethany L. LaFlam, Fill for the Funding Dip: EB-5 Visas, Law 360 (Feb. 2, 2012, 3:31 PM), http://www.law360.com/articles/304543/fill-for-the-funding-dip-eb-5-visas.

[32] Id.

[33] Id. (noting that the U.S. grants visas to immigrants, their spouses, and unmarried dependents under the age of twenty-one, provided that they meet the other requirements for investment).

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Widely Enforced Union Shop Provision Found Unconstitutional

by Emmanuel Bello

[EDITOR'S NOTE: Last March, Volume 31 Junior Staff member Kristin Kraemer discussed Harris v. Quinn, when the Supreme Court had just heard oral arguments. To read her blog post, as a primer, click here.]

It has been well settled that the “agency shop” provision of a public employee collective bargaining agreement, requiring non-union government employees who benefit from union representation to pay dues, does not violate the First Amendment rights of non-union employees.[1] One of the issues in the leading case supporting union shop provisions, Abood v. Detroit Bd. of Ed.,[2] was whether by compelling non-union government employees to financially contribute to a union—which in turn promoted political, religious, and social ideologies not consistent with those held by the non-union government employees—the union violated their right to freedom of speech and thought.[3] The Court held that it did not.[4] However, a recent Supreme Court decision has threatened this long-held belief.

In Harris v. Quinn,[5] the Supreme Court found the agency shop agreements to be a violation of non-union state employees’ First Amendment rights.[6] The Illinois legislature codified an executive order designating personal assistants as state employees for the sole purposes of providing them with union representation and engaging in collective bargaining with the state under the Illinois Public Labor Relations Act.[7] SEIU Health Care Illinois and Indiana was chosen to represent rehabilitation program PA’s on all collective bargaining agreements.[8] All the collective bargaining agreements entered into by the union had agency fee provisions, which mandated non-union PAs, as members of the “bargaining unit,” to pay dues to the union for operation costs.[9] After affirming the District Court’s ruling, the Seventh Circuit defined the PA’s as “state employees” as defined by Abood.[10]

While overturning the Seventh Circuit ruling, the Supreme Court criticized the rationale in Abood, questioning to what degree of certainty labor unions can guarantee that dues collected from its non-members are applied only to collective bargaining expenses, and not to politically-driven expenditures.[11] The Court stopped short of overruling Abood and distinguished the case at bar from Abood by categorizing the PA’s as partial public employees.[12]

But you cannot un-ring the bell. Maybe the Court’s rationale should apply to all labor unions that represent government employees. What choice does a new government employee have in selecting union representation? The facts in Abood do not indicate that there was any. Similarly in Harris, the SEIU Health Care was pre-designated as the sole union representative for all rehabilitation program PA’s. The court in Abood justified the First Amendment violations by arguing that they were outweighed by social values, like peaceful labor relations that were obtained when non-union employees were compelled to contribute to the union’s expenses.[13] The Supreme Court in Harris found the opposite to be true, finding no “compelling state interest” to imposing agency fees on non-union employees. [14]

It is foreseeable that government employees will argue that the differences between themselves and partial public employees are slight, and even if they are not, they should bear no weight in deciding whether to violate their First Amendment rights through forced representation and reluctant contribution to a political party that may not promote their interest. The question will certainly, be why are partial public employees afforded broader protections under the First Amendment than government employees, and what steps are labor unions willing to take to ensure that non-member dues are not allocated to politically-driven expenditures?

[1] Abood v. Detroit Bd. of Ed., 431 U.S. 209, 259 (1977); Mulhall v. UNITE HERE Local 355, 618 F.3d 1279, 1287 (11th Cir. 2010).

[2] Abood, 431 U.S. 209 (1977).

[3] Id. at 210.

[4] Id. at 259.

[5] 573 U.S. __, 134 S. Ct. 2618 (2014).

[6] Id. at 2621.

[7] Id. at 2620.

[8] Id.

[9] Id.

[10] Id. at 2620-21.

[11] Id. at 2621.

[12] Id. at 2622.

[13] Abood, 431 U.S. at 219.

[14] Harris, 134 S. Ct. at 2622.

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NYC Fights Employment Discrimination Based on Credit History

by Brian Kotkin

Employers have increasingly adopted the practice of using credit reports in their determination of whether to hire prospective employees. In response to this practice, the New York City Council has proposed a bill that would ban the use of credit reports by employers for hiring and firing within the city limits, except where mandated by state or federal law.[1] Similar policies have been enacted in ten states, as well as in the city of Chicago,[2] in response to the growth and impact of this practice.

Employers are authorized to request credit reports from their employees under the Fair Credit Reporting Act,[3] which explicitly allows companies to request a credit report for “employment purposes,”[4] defined as “a report used for the purpose of evaluating a consumer for employment, promotion, reassignment or retention as an employee.”[5] A credit report requires prior authorization from the person whose credit report is being requested, and cannot technically be compelled[6].

However, an employer may make a credit check a prerequisite for employment, even though a prospective employee may technically refuse to authorize a credit check.[7] Considering that one’s credit report is negatively impacted by past financial difficulties, it raises the prospect that an individual will become effectively unemployable—a lack of income results in difficulty paying bills, which negatively impacts their credit rating, which in turn makes it more difficult to get a better job to help pay bills.

Moreover, this sort of policy will necessarily have a disproportionate impact on certain groups. Women still only make 78 cents for every dollar that men make,[8] and thus tend to have greater economic problems than men. The wealth gap between African-Americans and white Americans nearly tripled between 1984 and 2009, largely as results of a lack of home ownership, of employment, and of advanced education.[9] This disparity in economic status is likely to be reflected in their credit histories, and may result in de facto discrimination against traditionally suspect classes, such as women or African-Americans.

The argument that employers make when using this practice is that it enables them to root out “theft, fraud or dishonesty if and when it arises,”[10] thus allowing them to ensure their employees are trustworthy. However, credit reports can reveal an extraordinary amount of highly sensitive information about someone, including late bills, available credit, rent payments, liens, judgments, and bankruptcies[11]—a great deal of which has nothing to do with one’s trustworthiness, but which an employer may nonetheless use to make judgments about hiring and firing. For example, it is difficult to imagine why an employer would need to know if an employee was late with his or her rent or car payments, or other such similar information.

Should this bill pass into law, it will continue a growing trend of opposing the use of credit reports in employment. This will protect workers from undue discrimination, allowing them to truly be judged on the basis of their qualifications, rather than their economic status.

[1]    Karen Matthews, NYC Bill Would Ban Credit Checks in Hiring, Firing, Miami Herald (Sept. 12, 2014), available at http://www.miamiherald.com/2014/09/12/4344323/nyc-bill-would-ban-credit-checks.html.

[2]    Id.

[3]    15 U.S.C. § 1681b (2012).

[4]    Id. at § 1681b(a)(3)(B).

[5]    15 U.S.C. (2012) § 1681a(h).

[6]    Kelchner v. Sycamore Manor Health Center, 135 F. App’x. 499 (M.D. Pa. 2005).

[7]    Id.

[8]    Alison Perlberg, Shortchanged: Women and the Wealth Gap, The Clayman Institute for Gender Research (April 4, 2011), available at http://gender.stanford.edu/news/2011/shortchanged-women-and-wealth-gap.

[9]    Thomas Shapiro, Tatjana Meschede & Sam Osoro. The Roots of the Widening Wealth Gap: Explaining the Black-White Economic Divide, Institute on Assets and Social Policy (Feb. 2013), http://iasp.brandeis.edu/pdfs/Author/shapiro-thomas-m/racialwealthgapbrief.pdf.

[10]   Kelchner, supra note 6 at 500.

[11]   What is a Credit Report? Consumer Finance Protection Bureau (Feb. 2, 2014), http://www.consumerfinance.gov/askcfpb/309/what-is-a-credit-report.html.

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