RICCI V. DESTEFANO SUPREME COURT ORAL ARGUMENT CONERNING TITLE VII

Posted on April 22, 2009 by Daniel Burnick

On February 3, in The Perfect Storm, Part 2, I posted the following:

I anticipate the courts, especially the District Courts, will be busy in 2009 and 2010.  They will be busy looking at the ADAAA, the new FMLA regulations and other new laws that may be passed by Congress.  The Supreme Court, which has already decided two employment related cases so far this year, has agreed to hear oral argument in the case of Ricci v. DeStefano, which deals with a reverse discrimination claim and whether a municipality can decline to certify results of a civil service exam that would make disproportionately more white applicants eligible for promotion than minority applicants.  The white and Hispanic plaintiffs claim they would have been promoted if the city did not invalidate the test results because no black candidate scored high enough to be promoted.  The Supreme Court will decide the following question: 

Whether municipalities may decline to certify results of an exam that would make disproportionately more white applicants eligible for promotion than minority applicants, due to fears that certifying the results would lead to charges of racial discrimination

On April 22, the Supreme Court heard oral argument in this case.  Interestingly, at Law.com, Marica Coyle's article begins:  "The elements of a perfect storm for employers coalesce in the U.S. Supreme Court this week in a major job bias case asking what employers legally may do when a decison to avoid discrimination against one group of employees may mean discrimination against another group".  Cumberland School of Law Professor Marcia McCormick was quoted in the article as saying "I would feel very torn in advising an employer right now...As a practical matter, it seems employers can't win no matter what they do here".  Professor McCormick went on to say that Ricci's position Is "unworkable", and "If recognizing race at all is discrimination, there is nothing an employer can do because anything it does is discrimination.  Even surveying its own work force as to who is white, who is African-American, would become the roots of a discrimination claim."

This case has received widespread coverage in numerous publicaitons, including  the New York Times, the Washington Post, Law.com, and  the  Chicago Tribune.  It will be interesting to see how the Supreme Court resolves this issue: I anticipate that it will be a sharply divided court, with at least one dissenting opinion.

Practice Pointer.  As we continue to move through the coming months, keep an eye out for new court decisions, new laws, and new guidelines concerning various employment related laws. 

 

 

 

 

 

 

 

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LACK OF VERIFIED EEOC CHARGE LEADS TO DISMISSAL OF LAWSUIT

Posted on April 15, 2009 by Daniel Burnick

Hugh Butler filed his lawsuit against his former employer, Greif, Inc. alleging a violation of the anti-retaliation provision of the Americans with Disabilities Act (ADA).  Butler's attorney filed the charge with the EEOC, which is a pre-requisite to pursuing a claim under the ADA.  However, Butler failed to verify the charge since he did not sign it under oath, and under penalty of perjury.  The trial court granted summary judgment in favor of Greif.  On appeal, the Eleventh Circuit Court of Appeals affirmed the summary judgment, finding that the attorney's signature did not constitute a verification.  The court found that an attorney can verify the charge so long as he swears to the truth of the facts stated in the charge and has personal knowledge of those facts.  The charge could have been verified at any time while the charge was pending, but Butler failed to do so.  It should be noted that Butler failed to cooperate with the EEOC in their investigation, and thus dis-entitled him to any equitable relief, referring to a case from the Third Circuit that held that the "verification requirement should be subject to waiver "when equity so requires", such as when, as in that case, the employer responded to the EEOC charge on the merits, declined to challenge the sufficiency of the charge before the EEOC, and later attempted to move to dismiss the suit for lack of verification."

Practice Pointers.  From an employees' perspective, it is imperative that the EEOC charge be verified.  Employees must also cooperate with the EEOC during the investigation to take advantage of any equitable arguments they may have.  Employers need to remember that failure to  verify the charge can be remedied so long as the charge process is ongoing. 

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