In 2016 the American Bar Association added new Rule 8.4(g) to its Model Rules of Professional Conduct. The rule forbids any lawyer to “engage in conduct that the lawyer knows or reasonably should know is harassment or discrimination on the basis of” several listed factors “in conduct related to the practice of law.” Comment 3 states that “discrimination . . . includes harmful verbal or physical conduct that manifests bias or prejudice towards others.”
The new rule goes beyond existing Model Rule 8.4(d) in several respects. It extends to behavior that a lawyer does not know, but “reasonably should know,” violates the rule. It adds to the list of prohibited bases for discrimination, inter alia, “gender identity” and “socioeconomic status.” Most significantly, it expands the scope of covered activities from conduct that is “prejudicial to the administration of justice” or that occurs “in the course of representing a client” to encompass conduct “related to the practice of law.”
The decision of the Office of Management and Budget (OMB) to pause implementation of an Equal Employment Opportunity Commission (EEOC) regulation on the collection of employee pay data is causing much concern among those who consider pay discrimination an important problem for women or minorities. So it may be useful to address here something that neither OMB nor EEOC knows about the utility of the data the EEOC wants to collect. [Read More]
In October 2016, the Supreme Court of Montana proposed the adoption of ABA Rule of Professional Conduct 8.4(g). That new rule, which the ABA adopted at its 2016 annual meeting, would make it professional misconduct for a lawyer to “engage in conduct that the lawyer knows or reasonably should know is harassment or discrimination on the basis of race, sex, religion, national origin, ethnicity, disability, age, sexual orientation, gender identity, marital status, or socioeconomic status in conduct related to the practice of law.” New comment (g)(4) defines conduct related to the practice of law to include “representing clients; interacting with witnesses, coworkers, court personnel, lawyers and others while engaged in the practice of law; operating or managing a law firm or law practice; and participating in bar association, business or social activities in connection with the practice of law.” [Read More]
In my January 4, 2017 post titled “Will Trump Have the First Numerate Administration?,” I discussed Department of Justice (DOJ) actions regarding police practices in Baltimore, Maryland in the context of the longstanding situation where federal civil rights law enforcement policies have been based on an understanding of statistics that is the opposite of reality. Specifically, with regard to matters including lending, school discipline, employment, criminal justice, and voting, many government policies have been premised on the belief that relaxing standards or otherwise reducing the frequency of adverse outcomes tends to reduce (a) relative (percentage) racial and other demographic differences in rates of experiencing those outcomes and (b) the proportions more susceptible groups make up of persons experiencing the outcomes. In fact, generally reducing any outcome tends to increase, not decrease, (a) and (b).
[Because of the length of this post, a PDF version is available here.] [Read More]
Pacific Legal Foundation's Joshua Thompson on the Eleventh Circuit's dismissal of an Equal Opportunity Employment Commission lawsuit yesterday:
Earlier today, the Eleventh Circuit affirmed the district court’s dismissal of the Equal Employment Opportunity Commission’s lawsuit against Catastrophe Management Solutions. This an important decision concerning the proper scope of Title VII. At issue was whether a business’s policy requiring professional-looking haircuts — and interpreted to prohibit dreadlocks — facially violates Title VII’s prohibition on intentional racial discrimination in employment. Because the Court found that Title VII only prohibits discrimination based on immutable characteristics, it affirmed the dismissal of the lawsuit.
Think about the following scenario. A job seeker sees an ad for a sales job. She has all the correct qualifications. Her interview goes great. The business says they want to hire her, but because she will be selling the business to the public, she must get a professional-looking haircut. The job seeker refuses. Instead, she contacts the EEOC and says that the business is discriminating against her on the basis of race. The EEOC agrees, and sues the company for intentional racial discrimination.That’s exactly what happened in EEOC v. Catastrophe Management Solutions.