Employment Non-Discrimination Act

The Employment Non-Discrimination Act ("ENDA") is a bill proposed proposed in Congress to prohibit discrimination against employees because of their sexual orientation or gender identity. This protection would extend to all non-religious employers in the country. Specifically, the act would (from HRC):

• Extends federal employment discrimination protections currently provided based on race, religion, sex, national origin, age and disability to sexual orientation and gender identity;
• Prohibits public and private employers, employment agencies and labor unions from using an individual's sexual orientation or gender identity as the basis for employment decisions, such as hiring, firing, promotion or compensation;
• Provides for the same procedures, and similar, but somewhat more limited, remedies as are permitted under Title VII and the Americans with Disabilities Act; and
• Applies to Congress and the federal government, as well as employees of state and local governments.

California's FEHA has similar protections for both groups, so implementation here won't change much. In fact, 12 states and the District of Columbia have protection for sexual orientation and gender identity:  California, Colorado, Iowa, Illinois, Maine, Minnesota, New Jersey, New Mexico, Oregon, Rhode Island, Vermont, and Washington; and nine other states have laws protecting sexual orientation only: Connecticut, Delaware, Hawaii, Maryland, Massachusetts, Nevada, New Hampshire, New York, and Wisconsin. 23 additional states have lesser protections for sexual orientation.

In order to ensure company policies, procedures, and practices are not violative of the FEHA (or the ENDA), contact us for an audit. If you've been accused of unfair discrimination based on sexual orientation or gender identity, or any other protected category, time is of the essence, contact an attorney immediately.

False Premise

All logical arguments are based up initial assumptions, called premises, that must be true for the conclusion to be true. Because the initial assumptions must not be false, it is important to scrutinize propositions before stating them. For instance:

a. All dogs have rabies. (Premise.)
b. Franco is a dog. (Premise.)
c. Franco must have rabies. (Conclusion.)

Because (a) is demonstrably false, (c) has to be false under this argument. That doesn't mean the dog mentioned does not have rabies, but it means you cannot prove it as above.

The real world is rife with this particular logical fallacy. Often this occurs when people make assumptions about the world around them. In the employment context, this might come up in wage claims, when employees extrapolate what happened to other to themselves; or in discrimination claims when employees make assumptions about another person because of their sex or race.

Watch out for these in all drafting employment manuals, too. Assumptions about how and when people act can accidentally impose contract law onto a poorly crafted handbook.

Effects of Disability are the Same as the Disability

That employers must be sensitive to the needs of their disabled employees has been clear for most savvy companies. However, what about that employees related-but-detrimental conduct? So long as it flows from the disability, it is part of the disability, and therefore protected. Gambini v Total Renal Care, 486 F.3d 1087 (9th Cir 2007): conduct resulting from the disability is part of the disability and cannot serve as the basis for termination any more than the disability itself.

In that case, Gambini's performance was slipping, and she blew up (swearing and being disruptive) during a negative performance evaluation. When it was revealed that a psychological disorder may have been the cause, the employer sent her to the hospital for an evaluation. There, she was re-diagnosed with bi-polar disorder, and went out on medical leave.

Meanwhile, the employer decided that the conduct exhibited by Gambini during the meeting made it impossible for her to work there, and terminated her. She sent a note explaining that the complained-of behavior was a consequence of her disability, and asked to be reinstated. The employer refused.

The Court ruled that, "the jury was entitled to infer ...that her 'violent outburst' [was] a consquence of her bipolar disorder, which the law protects as part and parcel of her disability. In those terms, if the law fails to protect the manifestations of her disability, there is no real protection in the law because it would protect the disabled in name only."

For more on disability litigation, contact me.

Uncertainty

One of my jobs as a lawyer is to explain the pros and cons of crucial, expensive, and often emotional decisions to employers who have been accused of some wrongful conduct (usually on wage and hour, workers' comp discrimination, other discrimination, wrongful termination, retaliation, or union-related matters). Always, the advise must be informed by the inherent uncertainty in litigation.

When asked for advice on the art of legal practice, I usually tell students to divorce emotion from the process and apply the law to the facts. Even under those circumstances, the no legal issue -- however frivolous -- is 100% certain. How can this be? The answer is manifold: unscrupulous litigants will "bend" facts to suit their needs, even in the absence of such "bending" some facts lend themselves to  interpretation (e.g., an innocent comment or gesture can show discriminatory animus if repeated or not properly explained), juries are notoriously emotional bodies, and the court itself is not immune from a policy-based view of the facts.

Taking all that into account, the advice proceeds along the lines of, a discussion of the facts, some application of facts to the law, an explanation of the opponent's best case, an explanation of the process of trial (including discovery, pretrial motions, trial filings, interactions in court, the trial itself, and post-trial filings), followed by a range of budgets for the litigation, including best- and worst-case outcomes.

But in the end, the question comes down to this: will the employer prevail at trial? And the answer to that question can never be "yes." On the other hand, rarely is the answer "no." And this is where the discussion of uncertainty begins. At trial, the best, most logically sound argument can fail for three reasons, two legal and one human: credibility, policy, and emotion.

The spectrum runs from the total uncertainty of trial to the total certainty of the early payment of the opponent's demand. In the end, few cases proceed on either of those paths. Instead, nearly all cases resolve through some sort of informal settlement of the issues or alternative dispute resolution or "ADR." These provide a way for the parties to keep some degree of control in the process, and craft an outcome between them, rather than letting the unknown (but neutral) entities of the court and juries decide.

In the end, the client must make that difficult choice: pay some amount up front, or proceed through litigation and let the court decide. I suspect uncertainty played this same key role in memorium, and suspect it will continue play a key role in perpetuum.

Arguing from Ignorance

Common sense is our most basic fall-back when confronted by things outside our understanding. My boss likes to call it the "sniff test." Does some knew information conform to what we already know? If it does not, we're likely to reject it; if it does, we're more likely to accept it. Rejecting an argument based on a personal failure to understand is the argument from ignorance (specifically an argument from personal incredulity). That argument goes something like this:

• I don't understand a.
• Therefore no one can understand a, and therefore a must be false.

Stated succinctly, the argumentum ad ignorantiam goes:

A premise is true only because it has not been proven false, or is false only because it has not been proven true.

That level of sophistication (or lack thereof) may be fine when filtering out the mental cruft of daily life, but when it comes to legal analysis, common sense is insufficient. Instead, a position must be backed up by fact and law. However, the common-sense filtering system may be important to determine which of many arguments to spend the time refuting.

The Jury System

Even for me, an attorney, it can seem so useless: the many hours sitting doing nothing, staring at the poorly laid travertine, hoping your name is called, but dreading it is not....Ah! the joy and sorrow that is jury duty. The jury system is a relic in the English system of law we practice here in the States, but is it worth it?

After all, the judge is usually in a much better position to grasp the subtle meaning of key facts; the jury, on the other hand, is often driven by emotion (likely, on the whole, judges are probably more able to control their prejudices than a wholly disinterested juror). The jury system inconveniences so many: the Court has to maintain whole staffs and expensive courthouse real estate to manage the hundreds of potential jurors who show up for any given summons date, the parties must engage in expensive, time consuming, and uncertain voir dire (questioning of the potentials), and of course the jurors have to disrupt their lives for at least one day, if not for weeks.

What are the pluses then? Historically speaking, we are each (usually) entitled to a jury of our peers when some liberty or property interest is on the table. These peers are selected almost at random from the community the parties live in, then refined by the questioning process to help minimize the potential prejudice. When you see tactics used in movies to hone the questioning, going so far as to pre-research potential jurors (which may happen in very high-value cases), you can understand how important the jury selection process is. This is a process unavailable if the parties choose to allow the court to act as fact-finder.

Additionally, a jury of legal laymen forces the attorneys to craft their arguments in understandable terms. This benefits society as a whole, because if and when these arguments are heard on appeal they may well become law in and of themselves. This process of creating legal precedent is thus driven by the parties...but shaped by the legal system requiring real humans to understand what is happening to their fellow citizens.

The jury system allows citizens to participate in the judiciary, which would otherwise remain alien to most people. This bolsters confidence in the judiciary, especially in an era where it is so politically charged.

The jury system pulls the states ability to make final decisions, and places it in the hands of the people. A very democratic concept indeed. As an attorney, my job is to look at the facts and apply them to the law. As citizens -- for better or worse -- jurors can place the events in a cultural context. This nuance can change the color of the plaintiff's claim, and decide otherwise razor thin issues. With luck, of course, they do this unemotionally and without bias.

This subtle difference is what we call "justice." For if the issues weren't so razor thin, the parties would not go through the expense of adjudicating them. The jury is where the tumult ends, and the parties have to hone their cases to the issues that matter. All the inefficiency and inconvenience aside, it is this gleam of justice which makes the jury a necessary part of the judiciary.

Bureau of Labor Statistics Current Employment Statistics

The U.S. Department of Labor Conducts, Bureau of Labor Statistics, conducts a census-like survey of employers in various industries to track trends and verify the nation's job count: the Current Employment Statistics program. If you receive a form such as BLS 790B, call the number on the form to contact the agent handling your account for more information.

Form BLS 790B is a form to aid employer’s participation in BLS’s Current Employment Statistics program (http://www.bls.gov/ces). The CES is like a job census, designed to count employees per industry, and track trends in employment. The form is authorized by statute. 29 U.S.C. 2. According to their website:

Each month the Current Employment Statistics (CES) program surveys about 140,000 businesses and government agencies, representing approximately 410,000 individual worksites, in order to provide detailed industry data on employment, hours, and earnings of workers on nonfarm payrolls.

Filling out the form is not mandatory, nor is participation in the program for California businesses:

Please note this report is mandatory in North Carolina, … Oregon, … Washington, … and in South Carolina. * * * You are not required to respond to the collection of information unless it displays a currently valid OMB control number.

If an employer does not complete the form, the agent assigned to their case will contact them to solicit the requested information.

However, participation in the program is beneficial to the Bureau’s mission, and responses will not generally be identifiable by employer, or used of any other purpose:

We request your cooperation to make the results of this survey comprehensive, accurate, and timely. The Bureau of Labor Statistics, its employees, agents, and partner statistical agencies, will use the information you provide for statistical purposes only and will hold the information in confidence to the full extent permitted by law. In [with] Federal laws, your responses will not be disclosed in identifiable form without your informed consent.

The estimate of time to participate in the program is about 11 minutes per month:

We estimate that it will take an average of 11 minutes to complete this form each month including time to review instructions, search existing data sources, gather and maintain the necessary data, and complete and review this information.

Generally, the maximum amount of time any employer will have to participate is five years. Many employers will be thanked and asked to discontinue filing the forms in advance of that time, depending on various factors. Questions about length of participation are best addressed to the agent in charge of the case after the first collection of data is made.