Speech Code for Lawyers? Free Speech & Election Law, Litigation, and Professional Responsibilities & Legal Education Practice Groups Teleforum Friday, June 03, 01:00 PMFederalist Society Teleforum Conference Call
The American Bar Association (ABA) model rules of conduct have long wrestled with regulating the intersection of discrimination and the law of lawyering. The current model rules forbid discrimination in the practice of law only as a comment to the prohibition on lawyer conduct prejudicial to the administration of justice. After much discussion and pressure, the ABA has proposed expanding the language to become new model rule 8.4 (g). If enacted, this rule would prohibit (in its own right) discrimination or harassment by a lawyer engaged in the practice of law against a list of protected classes, including ethnicity, gender identity, and marital status. Perhaps anticipating a challenge, the new rule's comment states that the new rule does not apply to non-lawyer conduct or activities protected by the first amendment and also exempts times when references to such protected groups and facts are needed to effectively represent a client. However, this new rule would apply to all conduct at primarily firm and legal events, including firm related social events.
What is discrimination or harassment over socioeconomic status? Since this rule applies to social settings, where is the line to be drawn and what chilling effect might be created? What about free speech and free association? To aid in our understanding, this Teleforum welcomes free speech expert Eugene Volokh of UCLA law who has written extensively on this subject.
Fourth Annual Executive Branch Review Conference
- Prof. Eugene Volokh, Gary T. Schwartz Professor of Law, UCLA School of Law
The slogan "Personnel is policy" reflects the principle that hiring the right people is one of the most important things that employers do. An employer with an innovative approach to bringing on board the best people has a critical edge over her competition. But the rise of interpretations of federal employment law that basically give the Equal Employment Opportunity Commission ("EEOC") veto power over nearly any employment decision means that many creative ideas about hiring will be stillborn. Notably, the EEOC interprets federal civil rights law not just to prohibit employers from discriminating on the basis of race, sex, color, national origin, and age, but also on practices that have a "disparate impact" on members of such groups even if the practice is not actually discriminatory. Because virtually any job qualification has a disparate impact on members of some such group, this interpretation confers extraordinary powers on the EEOC. Disparate impact is widely believed to have led many employers to abandon paper and pencil tests of cognitive ability. More recently, employers have been discouraged from using the Internet to recruit because racial minorities were thought to lack access to the internet relative to members of other racial and ethnic groups. Further, the EEOC also has put pressure on employers to abandon the use of credit and criminal background checks because of their alleged disparate impact on racial minorities. This panel will discuss how the metastasis of disparate impact has strangled innovative hiring strategies in these areas as well as others and other perverse consequences of disparate impact's growth.
This panel was presented during the Fourth Annual Executive Branch Review Conference on May 17, 2016, at the Mayflower Hotel in Washington, DC.
- Hon. Gail Heriot, United States Commission on Civil Rights, and Professor of Law, University of San Diego School of Law
- Mr. James Scanlan, Attorney at Law
- Mr. James Sharf, Sharf & Associates
- Moderator: Mr. John Irving, Of Counsel, Kirkland & Ellis
The Mayflower Hotel SCOTUScast 6-16-15 featuring Michael Rosman
Equal Employment Opportunity Commission v. Abercrombie & Fitch Stores, Inc, decided on June 1, involves Title VII of the Civil Rights Act of 1964, which prohibits a prospective employer from (among other things) refusing to hire an applicant in order to avoid accommodating a religious practice that it could accommodate without undue hardship. The question here is whether this prohibition applies only where an applicant has informed the employer of his need for an accommodation. The Tenth Circuit had ruled in favor of Abercrombie, concluding that an employer could not be held liable until an applicant (or employee) provided the employer with actual knowledge of her need for an accommodation.
In an opinion delivered by Justice Scalia, the Supreme Court reversed the decision of the Tenth Circuit by a vote of 8-1 and remanded the case for further proceedings. A request for accommodation, or the employer’s certainty that the practice at issue exists, the Court explained, may make it easier to infer the requisite motive, but it is not a necessary condition of liability under Title VII.
The Chief Justice and Justices Kennedy, Ginsburg, Breyer, Sotomayor and Kagan joined Justice Scalia’s majority opinion. Justice Alito filed an opinion concurring in the judgment. Justice Thomas filed a dissenting opinion.
To discuss the case, we have Michael Rosman, who is General Counsel at the Center for Individual Rights. SCOTUScast 5-21-15 featuring Paul Mirengoff
On April 29, 2015, the Supreme Court issued its decision in Mach Mining v. Equal Employment Opportunity Commission. This case involves the Equal Employment Opportunity Commission's (EEOC) Title VII duty to investigate claims of discrimination levied against an employer and to make good faith efforts to eliminate discriminatory employment practices before filing suit against that employer. The question this case asks is whether and to what extent a court may enforce the EEOC's duty to conciliate discrimination claims before filing suit.
In a unanimous opinion delivered by Justice Kagan, the Court held that courts have the authority to review whether the EEOC has fulfilled its statutory duty to conciliate discrimination claims prior to filing suit against an employer. The judgment of the Seventh Circuit was vacated and remanded.
To discuss the case, we have Mr. Paul Mirengoff. Mr. Mirengoff is a retired attorney in Washington, D.C. and is a blogger at powerlineblog.com. SCOTUScast 3-11-15 featuring Rachel Paulose
On February 25, 2015, the Supreme Court heard oral argument in Equal Employment Opportunity Commission v. Abercrombie & Fitch Stores, Inc. This case asks whether knowledge of a required Title VII religious accommodation and an applicant or employee's clear notice of their "religious observance or practice" to their prospective or current employer is required for an employer to be held liable for violating Title VII of the Civil Rights Act of 1964 for choosing not to hire an applicant or dismissing an employee because of said "religious observance or practice."
To discuss the case, we have Rachel Paulose, who is a former Senate Confirmed United States Attorney.