California Appeals Court Overturns “Objectionable” Employment Discrimination Decision

California As reported by California Case Law (via a tip by friend of the blog, Jack Sargent), the imponderable case of Nazir v. United Airlines, Inc., No. A121651 (Cal. App. Ct. October 8, 2009):

In plaintiff’s race and employment discrimination lawsuit against United Airlines, the trial court’s grant of summary judgment in favor of defendants is reversed as to eight causes of action as they must be decided by the jury.  Furthermore, the trial court’s order sustaining  763 of 764 of defendant’s objections was a manifest abuse of discretion.

I can only do this case justice by stating precisely some of the court’s decision. This is all takes place in the context of a rather ordinary race discrimination in employment claim:

At the same time, the summary judgment procedure has become the target of criticism on a number of fronts.  Some particular criticism is directed to the procedure in employment litigation, including that it is being abused, especially by deep pocket defendants to overwhelm less well‑funded litigants.  More significantly, it has been said that courts are sometimes making determinations properly reserved for the factfinder, sometimes drawing inferences in the employer’s favor, sometimes requiring the employees to essentially prove their case at the summary judgment stage.  Here we confront the poster child for such criticism, in a case involving what may well be the most oppressive motion ever presented to a superior court . . . .

Continue ReadingCalifornia Appeals Court Overturns “Objectionable” Employment Discrimination Decision

Reinert on the Actual Success of Bivens Claims and Its Implications for the Constitutional Rights of Federal Employees

Alex Reinert (Cardozo) has posted on SSRN his forthcoming article in the Stanford Law Review: Measuring the Success of Bivens Litigation and its Consequences for the Individual Liability Model.

Here’s the abstract:

In Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971), the Supreme Court held that the Federal Constitution provides a cause of action in damages for violations of the Fourth Amendment by individual federal officers. The so-called “Bivens” cause of action — initially extended to other constitutional provisions and then sharply curtailed over the past two decades — has been a subject of controversy among academics and judges since its creation. The most common criticism of Bivens — one that has been repeated in different venues for thirty years — is that the Court’s individual liability model, in which the offending officer is personally liable in damages, should be abandoned in favor of a governmental liability model akin to respondeat superior liability.

Continue ReadingReinert on the Actual Success of Bivens Claims and Its Implications for the Constitutional Rights of Federal Employees

Gross Goes Ledbetter

Capitoldome It now appears that the Gross ADEA decision might be going the way of the Ledbetter pay discrimination Title VII decision.  From CQ Politics:

A trio of top Democrats from both chambers plan legislation aimed at rolling back a Supreme Court ruling they say makes it harder for plaintiffs to win age discrimination suits.

Tom Harkin , D-Iowa, chairman of the Senate Health, Education, Labor and Pensions Committee, and Patrick J. Leahy , D-Vt., chairman of the Senate Judiciary Committee, said Tuesday they will introduce a bill to restore a less-demanding burden of proof for plaintiffs in age discrimination suits. Rep. George Miller , D-Calif., chairman of the House Education and Labor Committee, said he intends to introduce a similar measure.

The proposed legislation is a response to the Supreme Court’s June 2009 ruling in Gross v. FBL Financial Services that plaintiffs claiming disparate treatment under the Age Discrimination in Employment Act must show that age was the determining factor in the alleged discrimination, rather than just one of several factors . . . .

Under the proposed legislation, the burden would be on the employer to show it complied with the law once a plaintiff shows age discrimination was a “motivating factor” behind an employment decision.

What I particularly like about the Congressional response is that in announcing the legislation, Sen. Leahy quite rightly referred to the Supreme Court’s decision as an activist decision by conservative justices.

Of courses when I say that “Gross Goes Ledbetter,” I refer to the fact that President Obama signed into law the Lilly Ledbetter Fair Pay Act making it easier for workers to challenge wage discrimination, responding to the restrictive 2007 Supreme Court ruling in Ledbetter.

Continue ReadingGross Goes Ledbetter