Fourth Annual Executive Branch Review Conference
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 Labor & Employment Law Practice Group Podcast
On Tuesday, March 29, the U.S. Supreme Court announced a 4-4 decision in Friedrichs v. California Teachers Association. The two questions presented were: (1) Whether the Abood precedent should be overruled and public-sector “agency shop” arrangements invalidated under the First Amendment; and (2) whether it violates the First Amendment to require that public employees affirmatively object to subsidizing nonchargeable speech by public-sector unions, rather than requiring that employees affirmatively consent to subsidizing such speech. What is the effect of the 4-4 decision? Are there other cases percolating in the circuit courts that might present the same or similar questions to the Court in the near future?
Short Video with Richard Epstein
- Prof. Richard A. Epstein, Laurence A. Tisch Professor of Law, New York University School of Law
Professor Richard Epstein, Professor of Law at NYU School of Law, continues to give an brief history of unions and collective bargaining -- focusing on changes in markets resulting from globalization and discussing the instance of unions in the Japanese automobile industry. Short Video with Richard Epstein
Professor Richard Epstein, Professor of Law at NYU School of Law, gives a brief history of unions and collective bargaining - beginning with the New Deal and the industrial age and running through some of the changes in our economy over the last 80 years. Labor & Employment Law Practice Group Podcast
William Messenger January 11, 2016
In Friedrichs, the Court will consider whether to overrule Abood v. Detroit Board of Education (1977), which held that public employees can be compelled to financially support union collective-bargaining with government, but not union political activities. The Court’s grant of certiorari in Friedrichs came on the one-year anniversary of its decision in Harris v. Quinn, where the Court criticized Abood’s rationales, but did not overrule Abood. Unlike Harris, Friedrichs squarely presents the issue decided in Abood—whether public school teachers can be required to pay compulsory union fees as condition of their employment.
The Friedrichs petitioners argue that Abood should be overturned because there is no distinction between bargaining with government and lobbying government—both are political speech. The respondent California Teachers Association, however, counters that union bargaining with government is akin to bargaining with a private employer, and that it is wrongful for teachers to get a “free ride” on union bargaining efforts.
Is the Court likely to overrule Abood? And what will be the implications if it does?
Bill Messenger attended the oral arguments and offered his impressions and predictions during this Courthouse Steps Teleforum conference call.
- William Messenger, Staff Attorney, National Right to Work Legal Defense Foundation, Inc.