EEOC Budget Update

Posted on July 26, 2006 by Christopher McKinney

This month the Senate Appropriations Committee voted to restore $4 million to the EEOC's FY '07 budget (which had been removed from the initial EEOC request by the White House), for a total of $327 million, the same amount as last year. Sen. Barbara A. Mikulski of Maryland, the top Democrat on the Appropriations subcommittee that deals with EEOC funding, spearheaded the effort. As a result, the bill specifically directs the EEOC to reinstate the Baltimore office as a District office. The bill would also direct the agency to hire more staff, defund the EEOC's National Call Center, and asks the agency's Inspector General to review the impact of EEOC's recent restructuring. Next the bill moves to the full Senate for a vote and then to conference with the House (whose appropriation for the EEOC is only $322 million).

You can read some additional material about the bill at the Washington Post.

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Interesting Sixth Circuit Mitigation Case

Posted on July 25, 2006 by Christopher McKinney
Thanks to Paul Mollica for the lead to Killian v. Yorozu Automotive Tennessee, Inc, (6th Cir. July 20, 2006). The case contains an interesting roadmap for litigants facing front pay and mitigation issues. Following her wrongful termination by the Defendant, the Plaintiff had difficulty replacing her 1st-shift factory job with similar employment. So she made a career change and started cosmotology. She succesfully obtained damages for 8 months of unemployment and FIVE years for front pay (difference between her old factory job and her new salary as a hair dresser). If you are dealing with mitigation issues, its an interesting read.
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Employer Liability for Secondhand Smoke Risks

Posted on July 20, 2006 by Christopher McKinney
Casinos and bars are just about the last places in the country where you can sit down and really enjoy a lung-choking serving of secondhand smoke these days. In fact in California, New York and a few other states, you can't even smoke in bars (and soon no drinking and no talking). New Jersey has a similar ban, however, the casinos in Atlantic City successfully lobbied to obtain an exception to the rule. Now a recently filed lawsuit may make them rethink the issue. This article from the New Jersey Law Journal has coverage of a new lawsuit brought by a 25-year casino employee, alleging that involuntary exposure to secondhand smoke for the last two and a half decades gave him lung cancer.

The lawsuit is framed as a premises liability action, charging that the casino owed its employees a nondelegable duty to provide a reasonably safe workplace and not to create any conditions that would render the premises dangerous. The employee/plaintiff alleges the casino breached this duty by allowing smoking in its facilities all these years without adequately protecting or warning its employees of the associated risk.

The article doesn't address an issue that I would be interested in - the application of the workers' compensation bar to this type of claim. I guess we will have to follow the case and see what happens when . . . (wait for it) . . . the smoke clears.

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Sex Discrimination in Scientific Community from Perspective of Transgenered Scientist

Posted on July 14, 2006 by Christopher McKinney
Hat tip to Patricia Kitchen for finding this interesting article from the Wall Street Journal discussing sexual discrimination in the scientific community from the rather unique perspective of a transgendered scientist.Ben Barres, formerly Barbara Barres, has seen the cloud from both sides now and says there is no question that socialization and discrimination is more than a trivial reason for the low number of top female mathematicians and scientists.Of particular interest to me it was a factoid that while more men than women in the United States score in the stratosphere on math tests, there is no difference in Japan, and in Iceland the situation is flipped, with more women than men scoring at the very top.
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Supreme Court Roundup

Posted on July 11, 2006 by Christopher McKinney
One of my favorite employment law blogs is Ross' Employment Law Blog. It is always timely and provides some of the most objective and comprehensive analysis of any employment law information source on or off the web. Kudos to Ross Runkle for producing such a fine service. Every year about this time I keep an eye out for Ross' Supreme Court Roundup post, covering all of the employment-related decisions out of the Supremes for the last term. Happily it came out this week and you could and should go see it here. While there has been quite a lot of coverage already given to the Burlington Northern v. White decision setting out the "could dissuade a reasonable worker" test in retaliation cases, the Court issued a number of other employment-law decisions that may have slipped under your radar. Easily corrected with a quick read of Ross' excellent summary of the cases decided this term.
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Posner: "Insufficient to Motivate Challenged Action" Is Not The Test

Posted on July 10, 2006 by Christopher McKinney

Judge Posner of the Seventh Circuit recently weighed in on a pretext argument that has been popping up here and there across the Title VII landscape recently. In Forrester v. Rauland-Borg Corp. (7th Cir. June 29, 2006), the Court addresses the argument that a plaintiff may prove an employer's stated reason for the challenged employment action was pretext for discrimination by submitting proof that said stated reason was "insufficient to motivate" the action.

Posner rejects this attempt to reframe the pretext issue as being needless distinction without a difference that will only lead to confusion. In affirming summary judgment, Judge Posner writes:

"It [the 'insufficient to motivate' prong] adds nothing to the analysis of pretext but confusion. If the stated reason for the challenged action did not motivate the action, then it was indeed pretextual. If it was insufficient to motivate the action, either this means that it didn't motivate it, or that it shouldn't have motivated it. If the first is the intended sense, the dictum is just a murky way of saying that the stated reason was not the real reason. If the second sense is the one intended, then the dictum is wrong because the question is never whether the employer was mistaken, cruel, unethical, out of his head, or downright irrational in taking the action for the stated reason, but simply whether the stated reason was his reason: not a good reason, but the true reason."

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