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by M. McClure on Jun 30, 2009 at 4:35 PM
The press is unusually interested in an employment law case the US Supreme Court released on June 29, 2009, Ricci v. DeStefano, et al.  While it's an important employment decision, the case received extra attention because Supreme Court nominee Sonia Sotomayor was part of the three-judge panel that was technically reversed by the Supreme Court. Linda Greenhouse of the New York Times does a good job of sorting out the political implications of the case, but aside from all the political heat generated by the case, can employers find any light?  

In a nutshell, Ricci is a case of a promotion exam gone bad. The City of New Haven Connecticut instituted an exam to determine who among its firefighters should be promoted. The City went to great lengths to ensure that the test was fair to all applicants, but the test results clearly favored white applicants.  Faced with the serious possibility of litigation from minority applicants, the City threw out the test results.  For its trouble, the City was sued by the white firefighters who wanted the test results to stand. The Supreme Court ruled in favor of the white firefighters, finding that the City threw out the exam "because of race," and that the threat of litigation from the minority firefighters did not meet the new "strong basis in evidence" test that the court established with this case.

So what does this mean for employers?   Daniel Schwartz of the Connecticut Employment Law Blog posted a thorough analysis of what the Ricci case means for employers.  The most worrisome prediction that Schwartz sets forth is his warning that employers should now proceed with caution when conducting a disparate impact analysis for reductions in force.  Employers routinely have legal counsel determine if a reduction in force will impact any protected group more than whole of the employee population.  After this review, employers often adjust their selections to avoid legal risk. Schwartz suggests that this practice may now be discriminatory under Title VII, and I think he's right. Cue the scary music....  

Bottom Line:  An employer contemplating a reduction in force should work very carefully in establishing the selection criteria for the reduction because once the criteria has been applied, Ricci may not allow an employer to change the results because one protected group is significantly impacted.  Using criteria that is based on objective performance measurements and clear business objectives is a good start.  The reduction of entire departments or functions would also allow an employer to reduce headcount without tripping on to new legal risk.

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by M. McClure on Jun 17, 2009 at 4:19 PM

The Eighth Circuit Court of Appeals reaffirmed its previous holding that a prima facie case for retaliation requires a "materially adverse" action that produces "injury or harm." Littleton v. Pilot Travel Centers, LLC.  The court in Littleton found that an employer's corrective memo to an employee did not constitute retaliation.  

In Littleton, the employee filed a charge of discrimination with the EEOC alleging that he had been denied pay increases because of his race. Seven months after the charge was filed, the plaintiff was disciplined for inappropriate comments at a customer location.  The court found that the corrective notice did not impact the employee's career and that too much time had elapsed between the time of the charge and the corrective notice to create a causal connection.  One interesting piece of the court's analysis included the court's reliance on a supervisor's informal investigation of the complaint about the plaintiff's conduct. The court found that the company acted reasonably when it based its discipline of plaintiff on informal, undocumented employee interviews conducted by the supervisor.    

Bottom Line:  Employers in the Eighth Circuit, including Arkansas, can continue to issue employee discipline that is in accordance with the employer's practice, even after an employee has filed a charge of discrimination.  When an employee files a charge or lodges an internal complaint, the employer should proceed cautiously with future discipline, but the company is by no means barred from taking disciplinary action.

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