Stennis Institute of Government

State and local public employers should be aware of a new concept developing in the field of gender discrimination:  family responsibilities discrimination (FRD).  A report by the Center for WorkLife Law at the University of California’s Hastings College of Law, has examined the growing national trend in lawsuits filed by employees who contend that they have been discriminated against because of their care-giving responsibilities.  Claims within the FRD cause of action include the gamut of employment torts and constitutional protections:  sex stereotyping, pregnancy bias, hostile work environment, retaliation, disparate treatment, disparate impact, FMLA interference, ERISA violations, Equal Pay Act violations, breach of contract, tortuous interference with contract and wrongful discharge, to name a few.

The first U. S. Supreme Court case that could be considered an FRD case was Phillips v. Martin Marietta Corp.  This was a watershed case for working women because employers could no longer bar females with school-aged children from applying for jobs that a male employee with school-aged children could occupy.  The ruling attempted to ensure that women who were also mothers would have the same employment opportunities as women with no children or males.

FRD claims and FRI litigation are on the rise.  While only eight FRD cases filed in the decade of the 1970s – the decade the Phillips v. Martin Marietta Corp. was decided, according to the Center for WorkLife Law, in the ten years ending in December of 2005, FRD cases filed grew almost 400% from the immediately prior 10 year period (1986-1995).

A huge breakthrough for sex stereotyping claims occurred in 2005 in the 2^nd Circuit Court of Appeals:  the Court held that making stereotypical assumptions about a mother’s commitment to her job constitutes sex discrimination, even if the mother did not have evidence that similarly situated fathers were treated differently.  Stereotyping is the “blinking neon sign” in most FRD cases.  The term covers employment decisions based on unexamined biases of employers and HR personnel about how employees should handle their family care-giving responsibilities.

Consider requiring FRD training for your supervisory staff.  It can be made available to you through the Stennis Institute of Government by contacting Lydia Quarles.

The Court of Appeals of the State of Mississippi delivered an interesting opinion last week in the case of Kathi L. Acy v. Mississippi Employment Security Commission, No. 2005-CC-02019-COA (7/17/2007).  Acy worked as a greeter at Wal-Mart.  She and a customer had an altercation when a DVD purchased by the customer set off the alarm as the customer was leaving the premises.  It is undisputed that Acy cursed under her breath in the presence of the customer and the customer heard her (as did customer’s two daughters and their eight-year-old friend)and complained to management.  Acy was terminated because she violated Wal-Mart’s policy prohibiting rude or abusive conduct toward customers.

The interesting twist is that an employee who admittedly violates company policy, rules or regulations may not have committed, by that behavior, disqualifying misconduct and thus may remain entitled to unemployment benefits.

Generally, employers believe that if an employee commits an act that results in termination for cause, the employee will not be entitled to unemployment benefits.  Citing cases from other jurisdictions, the Court of Appeals found that while an employee’s conduct may harm the employer’s interests and justify the employee’s discharge, “it evokes the disqualification for unemployment insurance benefits only if it is wilful, wanton or equally culpable.”  Jacobs. V. California Unemployment Appeals Bd., 25 Cal. App.3d 1035, 1037, 102 Cal. Rptr. 364 (1972).

The moral to the story for cities, counties, state agencies and other governmental employers is that termination for cause does not necessarily disqualify the employee from drawing unemployment benefits.  Many employers who terminate an employee for cause do not even appear at an unemployment hearing, believing that this employee cannot negatively impact the unemployment ratio (thus raising the required investment from this employer into the unemployment benefit pool).

Take an active role in unemployment benefit hearings when an employee is terminated for cause.  It takes only a few facts skillfully articulated to rise to the level of wilful and wanton conduct.

Last week the United States Supreme Court issued a decision in Parents Involved in Community Schools v. Seattle School District #1.  This decision is worthy of consideration.  In looking at policies established in schools in Seattle and Louisville, Jefferson County, Kentucky, the Court rejected the formulas which used race as a classification in assigning students to particular schools.

The opinion is interesting in and of itself, but the fascinating thing about the opinion for Mississippians is that it implies that when desegregation decrees under which school districts have operated have been dissolved by the Court, action taken after the dissolution of the decree appears not to fall into the category of “remedying effects of past intentional discrimination”, thus these actions are no longer compelling governmental interests which demand strict scrutiny by courts.

Virtually all Mississippi public schools began operating under desegregation decrees in the late ’60s and early ’70s.  While many school districts continue to operate under the desegregation decree (the Starkville School District, for instance), others have affirmatively sought dissolution of the decrees.  When a desegregation decree is dissolved by the appropriate court, the court is indicating that the district has remedied effects of past intentional discrimination.  Thus, the responsibility of strict scrutiny does not devolve on a court considering subsequent actions of the district.

Why have we been busing children for 50 years?  And what happens to Brown v. Board of Education?  The Equal Protection clause prevents states from according deferential treatment of American children on the basis of their color or race.  This clause, as applied by the Warren Court in 1954, created the mandate for desegregation in public schools in America.  This clause, as applied in Parents Involved in Community Schools v. Seattle School District #1, has mandated that race cannot be relied on as an arbiter of diversity in America’s public schools unless there is no method available other than individual racial classification to elicit and achieve the school district’s articulated policy.

During its first 100 hours, the Democratic majority in the United States House of Representatives passed legislation that would increase the federal minimum wage for the first time in a decade. The legislation would increase the minimum wage from the current $5.15 to $7.25 an hour over the course of two years.

The word on the Hill is that this measure will pass the Senate in conjunction with tax breaks for small business — necessary to achieve majority support in the Senate.  The Chair of the Senate Finance Committee, Senator Max Baucus (Montana), noted that small business tax packages have been coupled with minimum wage increase in the past.  If the anticipated happens, it is projected that President Bush will sign the legislation.  A White House spokesperson indicated that any increase in the minimum wage should be tied to tax relief to help small business stay competitive.

The first federal minimum wage law was enacted in 1938.  This wage was 25 cents an hour, adopted as a part of FDR’s New Deal. The last increase — establishing the $5.15 rate — has been in effect since 1997.  The period between 1997 and 2007 represents the longest period since 1938 that the minimum wage has remained static.  The House version of the legislation would raise the minimum wage to $5.85 within two months after passage, with a second hike to $6.55 a year later and a final hike to $7.25 after a second year. Thirty states already have a minimum wage which is higher than the current federal rate.  Washington and Oregon have adopted the highest state minimum wages, at $7.93 and $7.80 respectively.

Local entities will be interested in tracking the federal moratorium on the ability of localities to tax internet access, which is set to expire November 1, 2007.  The Internet Tax Freedom Act was signed into law October 21, 1998.  The Act bans the taxing of internet access and  “internet-only” taxes such as bit taxes, bandwidth taxes and email taxes.  The measure further  prohibits governments from taxing items sold online.

Since its original enactment, it has been twice extended by Congress.  The early interest in this issue in the 2007 session bodes well for an extension. Moreover, at least one piece of proposed legislation would place a permanent ban on state taxes on internet access.  This legislation is sponsored by Senators Wyden (Oregon), McCain (Arizona) and Sununu (New Hampshire).  Wyden co-authored the original legislation passed in 1998 and also co-authored its most recent extension. Proponents of the legislation seek a means of ensuring more affordable broadband access, while opponents see a potentially vital local tax base being eroded by federal measures. President Bush supports the measure, which has a bipartisan base.

Thinking on internet service…Senator Stevens (Alaska) has proposed a measure, the Universal Service for Americans Act, which would require all communications services to pay into a fund which would subsidize service in rural areas, schools and libraries.  The passage of this measure could result in user fees for broadband subscribers. The user fee measure could result in significant advantages in rural areas of Mississippi,  the South, mid-West and Alaska.

Thanks for reading.  Have a good day.

A recent 10th Circuit decision from Oklahoma, Maldonado v. City of Altus, 433 F. 3d 1294 (10th Cir. 2006), has created a split in the federal circuit courts over whether workplace policies which require employees to speak only English in the workplace violate prohibitions on race or national origin discrimination.  Altus, Oklahoma, had a policy requiring municipal employees to speak only English.  A group of Hispanic employees in Altus charged that the policy created a hostile work environment, violating Titles VI and VII as well as 42 USC 1983.  The facts in the case, as developed, reveal that each plaintiff was bi-lingual.

Previous cases considered an English-only policy such as the one in Altus as one which, if violated, indicated the employee’s disregard of an employer’s order (insubordination, a disciplinary offense).  In other words, the cases were viewed from a ”labor and employment law” perspective.  The Maldonado court held that the presence of the policy alone could create or contribute to a hostile work environment.  By doing so it recognized a legal theory in which Courts could view these policies from a Title VII perspective, rather than an employment perspective. 

The questions the Court considered are these:  Is there a legitimate purpose to require Hispanics to refrain from speaking Spanish?  Or could the policy be construed as an expression of hostility against Hispanics?  In considering the rationale posited by employers, the Court said “the less the apparent justification for mandating English, the more reasonable it is to infer hostility toward employees whose ethnic group or nationality favors another langauge.” Because this case was heard by the 10th Circuit on an appeal by Maldonado and others from a summary judgment granted in favor of the City of Altus, this decision is not the end of the litigation.  Summary judgment (which the United States District Court granted in favor of Altus and its English-only policy) is granted only when a Court finds that there is no dispute as to any material fact and that the movant (in this case, Altus) is entitled to a judgment as a matter of law.  The 10th Circuit, in reversing the summary judgment order, found that there were questions of law and fact which were unresolved and thus summary judgment was inappropriate. 

Specifically, the 10th Circuit remanded to the United States District Court for a consideration facts and the fleshing out of law as it relates to the facts with emphasis on (1) disparate impact and disparate treatment under Title VII; (2) intentional discrimination under 42 USC 1981; and (3) denial of equal protection under 42 USC 1983.  But sending the case back to the United States District Court for further consideration will not necessarily end the litigation.  One of the few circumstances that will cause the United States Supreme Court to consider an appeal by writ of certiorari is when there is a split in the circuits on a particular legal question.

This is not the end of English-only policy debates which center around Title VI claims.  It merely heralds the beginnings.

Mississippi is one of 15 states with a “Castle Doctrine” law, the euphemistic term for a law that expands an individual’s right to defend himself in his residence — his “castle” — to a much broader scope of turf.  In addition to his home, a Mississippian can defend himself at his work-place or place of business, or his occupied vehicle.

For years, people knew they had a right to use deadly force if they felt threatened with bodily harm in their own residences — hence the old “admonition” about dragging the dead body into the residence after it had been slain elsewhere and before calling the law.  Carried over to the colonies from the English Common Law, where a man’s home was his castle and a place to enjoy protection, an individual could protect himself with deadly force within his home, but in other places — under a threat of bodily harm, he had the duty to retreat. 

Now the ability to use deadly force when one is threatened with bodily harm outside  of one’s castle is ok here in Mississippi, as well as in Alabama, Arkansas,  Arizona, Florida, Georgia, Idaho, Indiana, Kentucky, Louisiana, Michigan, Missouri, Oklahoma, South Carolina and South Dakota.  In fact, in Mississippi, Senate Bill 2426, signed into law in March of this year, if someone breaks into your home, your occupied vehicle or your place of business or work environment, you may presume that he is there to do bodily harm and may therefore use any necessary force against him, including deadly force.  This is consistent with Mississippi’s “stand your ground” principal, which has been applied by various state courts in Mississippi since the late 19th century. 

Less euphemistically, these laws are referred to as “Stand Your Ground” laws (the National Rifle Association’s moniker) or “Shoot First” laws (the moniker of the anti-hand gun lobby).  And to date, Mississippians cannot see an appreciable difference as a result of the enactment, which was effective July 1.  That is to be expected. It is to be expected because city and county law enforcement and city and county prosecutors are the first team on the interpretation/application of the “castle law” doctrine in your city or county. 

While the law enforcement officer will gather evidence about shootings that may fall under the purview of Senate Bill 2426, the prosecutor will be left with the decision of whether or not to prosecute. Most of us have been taught from childhood that there is a “duty to retreat” when one’s life is imperiled, not to shoot first.  But now, with the new laws on the books in Mississippi and other states, many Americans — not to mention professional prosecutors — are realizing that someone entering your residence (occupied vehicle or place of business) is presumed to be up to no good.  This law can save you from being prosecuted for causing death or injury to another, specifically another who was entering your residence or other protected locale. 

While there is little but anecdotal data from states which have passed similar laws, Florida, the first state to pass this type of law, has noted that shootings which are cloaked in the “robe of self defense” because the shooting was of one presumed to be up to no good are subject to greater scrutiny by prosecutors, resulting in delayed indictments and fewer individual being prosecuted, despite death or injury resulting from the shootings.

Mississippi’s official state website, in short-handing what Senate Bill 2426 accomplished, indicates that the bill creates a presumption of the right  to use defensive force and immunity  from civil liability for actions taken when a person feels threatened by an intruder to the home, place of business or employment, or occupied vehicle.  The right to use defensive force means that a resulting injury to such an intruder will not be a crime; the immunity from civil liability means that the intruder or his family cannot sue the protected individual in tort to recover from the injuries that the intruder sustained at the hands of the protected individual during the course of the intrusion.

Is this good or bad?  Neither, really.  It is a well reasoned law.  It requires, however, that we all behave as reasoned individuals.  [This begs the question about the need for the law — if we are, after all, a group of reasoned individuals walking around, but that is an issue for another day.]  And it requires our prosecutors to reason carefully with each incident brought to their attention in order to keep the spirit as well as the letter of the law and, at the same time, keep a lid on vigilantism.

Currently eight additional states (Colorado, Kansas, Minnesota, North Dakota, Ohio, Pennsylvania, Tennessee and Virginia) are considering adoption of a version of the “castle doctrine” law.

Public employees are not always protected by the 1st Amendment when speaking in the course of their public duties. A recent United States Supreme Court opinion, Garcetti v. Ceballos, 126 S. Ct. 1951 (2006) makes a distinction between speech of public employees as part of their job duties and their speech as citizens.  The Court said:  “when public employees make statements pursuant to their official duties, the employees are not speaking as citizens for 1st Amendment purposes, and the Constitution does not insulate their communications from employer discipline.”

This was a close decision — so close, in fact, that the Court held oral argument twice so that Justice Alito could hear the arguments and cast a vote, suggesting that the Court was deadlocked. In analyzing the facts of the case, the Court reiterated its holding in Connick v. Myers, 103 S. Ct. 1684 (1983) that “a state cannot condition public employment on a basis that infringes the employee’s constitutionally protected interest in freedom of expression.” 

While recognizing society’s interests when public  employees speak as citizens on matters of public concern, the Court held that the dispositive aspect of the Ceballos case was that his expressions were made pursuant to his duties in the D.A.’s office, a fact that Mr. Ceballos readily admitted.  The Court found that this fact distinguished Ceballos’ case from other cases in which the 1st Amendment provides protection against discipline. Dissenters on the Court argued that a public employee should be entitled to 1st Amendment protection if he speaks on a matter of unusual importance and satisfies high standards of responsibility.  They looked to the previously relied upon standards of Pickering v. Board of Education and Connick. These cases recognize a 2-prong inquiry for protection under the 1st Amendment.  Is the speech about a matter of public concern?  If so, then under these decisions, the Court had the duty to balance the competing interests of the employer and the employee.  Traditionally, the second prong of the test centered on whether the utterance significantly disturbed the workplace. 

In the Ceballos case there was no evidence that the speech caused any lack of effectiveness in the operation of the D.A.’s office.  The dissenters argued that the Ceballos decision created a new rule which provides incentives for a public employee to voice his concern in public before taking them to his superiors, because the public utterance would be protected. The immediate reaction from pundits was that the effect of the Ceballos decision will create a chilling effect on whistle-blowing at work. 

Only time will tell as to the validity of this opinion. Others, along with the Court’s dissenters, questioned whether the decision will apply to public college and university professors, whose writings and speech are part of their official duties.  The majority opinion appears to have countenanced the question and specifically reserved it for another day and another case.

If you have any questions, comments or issues for discussion, email me at lydia at sig dot msstate dot edu.  Thanks for reading and have a good day.

A recent 5th Circuit Court of Appeals decision has ruled a pat-down search at a traffic stop unconstitutional under certain circumstances.  [U.S. v. Jenson, August 23, 2006]  Although this case is fact-driven, it is worthy of consideration for law enforcement officials.

Police stopped a vehicle for speeding.  In the opinion of the officers, it took the vehicle entirely too long (30 seconds to one minute) to pull over and stop, arousing suspicions that the vehicle’s passengers may have been trying to conceal something.  The officer making the stop testified that he became more suspicious when the driver, after realizing he was going to receive a written warning — not a ticket – became excessively talkative, which the officer interpreted as nervousness.  According to the officer, a speeder normally becomes less nervous when he realizes he is not getting a ticket. The officer asked and received permission to search the vehicle. While the vehicle was apparently clean, the officer found a small handgun on the driver in an associated pat-down search.  Later, at the police station, another policeman found a small bag of marijuana secreted in the driver’s sock.

In ensuing litigation, the driver moved to suppress the evidence found by the pat-down search, asserting that it violated his 4th Amendment rights.  The 5th Circuit agreed. The Court opined that the government had not shown reasonable suspicion to prolong the traffic stop with the pat-down search which resulted in the gun (and the custodial offense).  In other words, no valid connection was proven between the driver’s behavior as a result of the speeding stop and the drug or weapons possession; thus, the pat-down search was not justified.

If you have any comments, questions or ideas, please feel free to contact me at: lydia at sig dot msstate dot edu. Thanks for reading and have a good day.

The 3rd Circuit Court of Appeals held that a public school district was not responsible for the suicide of a student who died at his own hand a few days after speaking with the school counselor.  In this particular case [Sanford v. Stiles, No. 04-4496 (August 2, 2006)], the student’s girlfriend received a note in which the student discussed suicide.  The girlfriend, also a student, took the note to the school counselor.  The counselor called the student in for consultation.  During the conversation with the counselor, the student denied that he had any problems and the counselor saw no evidence to suggest that the student was at risk.  A few days later, the student committed suicide. 

The student’s mother later sued the school district and the counselor under 42 USC 1983, alleging that the school district and the counselor were responsible under a “state-created danger” claim. The 3rd Circuit affirmed a summary judgment granted in favor of the defendant counselor and public school district.  In doing so, the 3rd Circuit joined the 1st, 7th and 11th Circuits, which have refused to allow a “state-created danger” claim to survive against school officials in similar circumstances.  (There is a contrary decision in the 10th Circuit Court of Appeals.)

In order to prove a “state-created danger” that will withstand judicial scrutiny, a litigant suing a public entity and raising this claim must be able to prove that

• the harm was forseeable and direct;
• the state acted with culpability that shocked the conscience;
• the injured individual was a forseeable victim of the state’s act; and
• the state affirmatively used its authority in a way that created danger or rendered the injured individual more vulnerable to danger than had the state not acted at all.

A “state-created danger” allegation can be used against any public entity.  Likewise, any public entity can unwittingly act in such a way that a “state-created danger” occurs.

As you analyze activities of your employees, contemplate the elements listed above which characterize “state-created danger” and make sure that they are not present as you carry out your public business.

Contact me at lydia at sig dot msstate dot edu with questions, comments or suggestions for commentary. Thanks for reading.  Have a good day.