HR/Employment Blogosphere update for July 11, 2005
Beautiful photo for a half-mast moment of silence in sympathy for our British brothers and sisters — and a prayer for peace, futile as it may seem.
Then on to this week’s offerings:
- Employment Discrimination (Comparative evidence; ADA jury instructions; Congressional ADA summary; Performance Appraisal Headaches; and Sexual Orientation Harassment)
- To litigate or arbitrate, that is the question?
- HR & Benefits (Surprising Explanation for Rising Health Care Costs)
Donald Caster at All Deliberate Speed is “Refocusing the Blog,” zeroing in on “employees’ rights . . . , employment law from the employees’ perspective.”
Great, Donald, I’ll be cribbing off you in these updates, because employee or employer, your case comments are fair and helpful. Starting now. . .
Donald has these two of interest:
“Seventh Circuit: Title VII and Comparators.”
Donald concludes that in the Seventh Circuit case about which he posts: “Apparently, . . . the only way the Seventh Circuit would have permitted [the plaintiff] to prove discrimination would have been through direct evidence.”
I didn’t read the case, but there are ways to prove pretext other than comparators, e.g., that the employer’s explanations have shifted or are not the true reasons for the employer’s action.
“Ninth Circuit: Desert Palace and the ADA”
Says Donald:
Ninth Circuit held that the Supreme Court’s decision inDesert Palace (a Title VII case) regarding “mixed motive” instructions applies to ADA cases. The decision creates an 8-1 circuit split (with the Sixth being the only circuit court to determine that an ADA plaintiff must prove that her disability was the “sole” reason for the adverse employment action taken against her). . .The twenty-six page opinion also contains an interesting discussion of mental illness as a disability under the ADA, and concludes that thinking, sleeping, and reading are all major life activities.
From the case:
We agree with our sister circuits that a “motivating factor” standard is most consistent with the plain language of the statute and the purposes of the ADA. Moreover, the “motivating factor” standard comports with our existing precedent.
For example, in Hernandez we characterized the burden as proving that “disability actually played a role in the employer’s decisionmaking process and had a determinative influence on the outcome.”
Speaking of the ADA, Disability Law has a link to a Congressional Research Service report that summarizes the principal case law on the ADA (“What Members of Congress Know About the ADA.“)
Jottings by an Employers Lawyer has this: “Just A Reminder About Those Performance Appraisals – Often Known as Plaintiff’s Exhibit #1″
As I say, good performance reviews are better than none; but none are much better that crummy ones, especially ones that suffer from grade inflation. You know, you can give praise without committing it to writing and later regretting it when it becomes Exh. 1.
And The Employment Law Bulletin has this: “Sexual Orientation Harassment Committed by Homosexuals Not Actionable in 10th Circuit”
Thank God some doggone kind of harassment is still not actionable. And you don’t want to know why I’m so sick of harassment complaints. . . .
Reading Ross Runkel’s Arbitration Blog, one could easily conclude that the answer often is: “Oh what the heck, lets do both — lets litigate over the arbitration clause — better yet, let’s litigate over what gets litigated and what gets arbitrated!”
Does that tend to negate the promised simplicity and cheapness of arbitration? Of course. But did you really think lawyers would just sit back and let people and businesses save on legal fees? How naive are you?
Here Ross covers a case now going to en banc hearing at the Ninth Circuit over “whether it was for an arbitrator, rather than a court, to decide whether a contact is unconscionable.”
Bet it’s already cost at least a few hundred thou. . .
And here Ross covers a case holding that an arbitration provision with a clause forbidding class action arbitrationswas unconscionable and unenforceable.
So much for cheap and simple. (Class actions rarely are either, before an arbitrator or otherwise)
Benefitsblog has this: “Health Affairs Article Offers Surprising Explanation for Rising Health Care Costs”
Conclusion: “more than half of the growth in health care spending was attributable to increased prevalence of disease rather than an increase in how much it cost to treat each person.” Several links for further study included.
Next week, we’ll be hosting the Blawg Review, so there will be no HR/Employment Blogosphere Update
