Tag Archives: Law

A Lawyer’s Ethical Obligation When Clients’ Interests Diverge


How Mediators Manage Their Own BiasesLawyers are sometimes placed in a position where one client’s interest is contrary to another’s. Then what is the lawyer ethically required to do?

When the conflict is obvious—when two clients are on opposite sides of the same matter—the answer is clear. The lawyer must decline to represent one of the parties. If the lawyer has prior relationships with both parties, so that the lawyer has information that would help either party against the other, then the lawyer may not be able to represent either side in the dispute at hand.

The harder case is when the two clients are not involved in a dispute with each other, but their interests in a particular matter are opposed. An example of this situation arose in Maling v. Finnegan, Henderson, Farabow, Garrett & Dunner, LLP, 473 Mass. 336 (2015).

In Maling, the plaintiff sought to hire the Finnegan law firm to obtain a patent on a screwless eyeglass hinge block. The law firm’s office in another city was seeking related patents for one of Maling’s competitors, Masunaga Optical Manufacturing Co., Ltd.

When Maling found out that the law firm was representing his competitor, he sued, arguing that he wouldn’t have sought his own patent had the firm told him about Masunaga Optical’s head start. By the time he learned of the conflict, Maling had spent millions of dollars developing products based on his unpatentable invention.

Although lower courts dismissed his case, Maling appealed to the Massachusetts Supreme Judicial Court. The Court ruled that “the simultaneous representation by a law firm in the prosecution of patents for two clients competing in the same technology area for similar inventions is not a per se violation” of the Massachusetts Rules of Professional Conduct. The Court’s rationale was that representation in unrelated matters of clients whose interests are only economically adverse, not legally adverse, does not ordinarily constitute a conflict of interest.

Despite ruling in Maling’s favor, the Court concluded:

“Although Maling’s complaint does not plead an actionable violation of rule 1.7 [of the Massachusetts Rules of Professional Conduct] sufficiently, the misuse of client confidences and the preferential treatment of the interests of one client, to the detriment of nearly identical interests of another, are serious matters that cannot be reconciled with the ethical obligations of our profession.

“. . . As noted throughout this opinion, there are various factual scenarios in the context of patent practice in which a subject matter conflict may give rise to an actionable violation of rule 1.7.”

Thus, the Court stressed that attorneys need to be careful in taking on representation of one client “to the detriment of nearly identical interests of another.” Under other facts, this case could have gone the other way, and the law firm might have lost.

Even though the law firm in Maling won, lawyers are best served if they broadly interpret what their client’s interests are and communicate with the client if any potential conflict with those interests might exist. Only in that way can attorneys protect themselves and their firms.

Clients expect that lawyers will keep their confidential information confidential, that lawyers will not deal with persons and entities adverse to the clients’ interests, and that their attorneys will advocate zealously on their behalf. Representing clients with divergent or opposing interests makes it difficult for lawyers to fully comply with their ethical obligations.

Lawyers, have you ever dealt with situations where clients had potentially divergent positions? What did you do about it?

Leave a comment

Filed under Law

When Is Mediation NOT a Good Idea?


handshakeI was recently scheduled to mediate a case, but the day before the mediation was to take place, the plaintiff’s attorney called to tell me the case had settled. What? I thought. Without me?

But from the parties’ perspective, this was the best result possible—the case was resolved and they didn’t have to travel to the mediation or pay me. In fact, I suspect that the scheduling of the mediation is what prompted the parties to get serious about settlement. So I believe I had an impact in the case as a mediator, even though I didn’t get paid a dime.

In what situations do parties to a dispute not need a mediator?

As a starting point, let’s look at what mediation is. Mediation is a process in which a neutral person (the mediator) assists the parties to a dispute in reaching their own mutually agreed upon resolution of their differences. The parties—not the mediator, nor the judge or jury in a lawsuit—decide the outcome of the problem.

Given this description of the process, mediation is not necessary when

  • The parties have already agreed on how to settle their dispute

At that point, there is no need for a mediator, although the parties might need an attorney to help them put their agreement into writing. Or if a lawsuit has been filed, they probably need attorneys to get the case dismissed. But a mediator is only of assistance when there is a pending dispute.

  • Both sides are able to discuss the matter rationally and emotion is not an issue

Of course, no one is ever completely rational and unemotional when a significant dispute is pending. But in many business disputes, the two parties (and/or their lawyers) can resolve the matter without the need for third-party intervention (such as a mediator).

This is what happened in the situation I described at the start of this post. The parties were perfectly able to negotiate without me, and they did.

  • The matter at stake is not subject to compromise or negotiation (although most disputes do involve issues that can be negotiated)

Sometimes, there is a matter of principle on which one party wants a court to rule, such as the constitutionality of a statute. While mediation might narrow the issues in such a case, it is unlikely to resolve the whole dispute. The parties, even with the aid of a mediator cannot resolve these matters of principle, where the result desired is bigger than the dispute between the specific parties to the case.

Apart from these situations in which mediation is not needed, mediation is also not appropriate when:

  • The parties don’t know enough about the facts yet

Sometimes mediation is attempted too early in a dispute. If both parties don’t know their own facts and evidence, then it is difficult for them to negotiate and reach agreement. But it is a good idea to attempt mediation prior to investing a lot of time and money into discovery of the other side’s position. Good mediators can draw out enough facts from the parties to define the contested issues and enable a reasonable settlement.

I would not rule out early mediation in a case, but I would advise parties to know as much as possible about their own position in the dispute. And I would encourage candor during the mediation itself. Hiding facts and evidence is not likely to improve the chances of a good settlement.

  • The dispute deals with the rights of someone who is not competent to enter into a legal agreement or physically or mentally unable to participate in the process

If one party is a minor or mentally disabled, then that person is not able to participate in negotiations without a legal representative.

Also, mediation can be a long, tedious, and frustrating process. If one party does not have the physical or mental stamina to participate, then either the mediator should make allowances in the timing of mediation sessions or mediation should not occur. It’s important to be upfront with the mediator about the parties’ capacity to participate in the process.

  • There is an overwhelming imbalance between the two sides

If one party holds all the cards in the lawsuit, it might be difficult to reach a fair settlement. A good mediator is skilled at dealing with imbalances of power, but it is possible that one side might feel pressured into accepting a poor settlement.

I am inclined not to forgo mediation when I sense an imbalance of power, but I might well stop the mediation if I sense the process is unfair. I would suggest that the parties get attorneys or family members to assist them, or I would recommend they let the case proceed to litigation. Thankfully, these situations are rare.

When has mediation helped you? When has it not?

Leave a comment

Filed under Law, Mediation

Celebrate “Be Kind To Lawyers Day” on April 12, 2016


gavelIt’s a surprising “holiday” but one we need—Be Kind To Lawyers Day, celebrated on the second Tuesday of April each year.

Most of us—lawyers included—enjoy a good lawyer joke. On Facebook just the other day, I found a Herman cartoon from August 13, 2010, depicting two divorce attorneys and their hapless client. (Click here to view.)

I admit that I chuckled when I read the cartoon, though many lawyer jokes strike me as tasteless. Kind of like blonde jokes.

Despite my own desire for more respect as an attorney, I was surprised to learn about Be Kind To Lawyers Day. There’s even a Be Kind To Lawyers website that explains the day as follows:

“INTERNATIONAL BE KIND TO LAWYERS DAY was established as a holiday celebrated annually on the second Tuesday in April. This date was chosen because it is strategically sandwiched between April Fool’s Day (April 1st) and U.S. Tax Day (April 15th).

So now lawyers of every stripe can be honored and treated like regular people for at least one 24-hour period every April.”

We all know some of the quotes about lawyers:

  • “The first thing we do, let’s kill all the lawyers.” – Shakespeare, Henry VI (though the character making this statement intended to eliminate the lawyers who might prevent revolution)
  • “He who is his own lawyer has a fool for a client.” – Anonymous

But have you heard the following:

  • “Nobody has a more sacred obligation to obey the law than those who make the law.”  – Sophocles (most lawyers I know follow this aspiration)
  • “Discourage litigation. Persuade your neighbors to compromise whenever you can. As a peacemaker the lawyer has superior opportunity of being a good man. There will still be business enough.” – Abraham Lincoln (the good lawyers I know agree with Lincoln)
  • “Law is nothing unless close behind it stands a warm living public opinion.” – Wendell Phillips (which is why some judicial opinions are not respected—public opinion is not close behind)

In my experience, the law is generally an honorable profession, and most attorneys are honorable people who try to do the right thing for their clients. It’s too bad we forget it so often.

Like most professions, it’s the bad apples who make the news. The lawyers who disobey the law or court rules. The lawyers who create causes of action to garner more in attorneys’ fees than the underlying dispute is worth. The lawyers who want publicity more than a good result for their client.

Still, I’m glad there’s a Be Kind To Lawyers Day. Here are a few suggestions on how to participate:

  • Take your favorite lawyer out for a drink or a meal (make sure you’re not being billed!).
  • Send your lawyer a “thank you” or “just because” greeting card, or send a gift of appreciation like flowers or fruit or chocolate.
  • Abstain from telling lawyer jokes for 24 hours. (You can do it!) If you can’t abstain, switch out the lawyer with your profession. It’s probably still funny.
  • Try to write up your own contract, Articles of Incorporation, or draft your own will. It’s harder than it looks.

Lawyers are helpful—even necessary—in a society based on laws. Show a little respect. Respect is what attorneys want most, even more than kindness.

What will you do on April 12 (or any day) to be kind to a lawyer?

Leave a comment

Filed under Law

Making Dramatic Career Changes


toughdecisionsI read an article recently entitled “Thinking about making a dramatic (and scary) career change? Here’s what to consider,” by Sylvia Lafair, (July 6, 2015), on The Business Journals website.

The article got me thinking about the three dramatic career changes I’ve made in my life:

  • taking my first job as an attorney in a corporate legal department in a strange city rather than starting at a law firm (as everyone expected)
  • leaving the legal practice to move into a series of Human Resources assignments
  • leaving the corporate world completely to turn to mediating, consulting and writing

Each of these moves set off the emotions similar to those that Ms. Lafair described. Specifically, for me, the emotions were

     1.  Fear of the unknown and leaving what seemed safe

I knew I could do well if I followed the expected path. That even seemed true of the expected path right out of law school. I didn’t really doubt that I could do what others in my law school class were intending to do—work at major law firms near our school. But setting out halfway across country, and working in a corporate law department? Would I get adequate experience to move into other legal assignments in the future? Would I have the same respect from other attorneys and judges? These were my unknowns.

When I decided to leave the legal department for a Human Resources assignment, I knew the learning curve would be steep. I was jumping into a senior HR position with no HR experience. I thought I knew about half of what I would need to know, and that turned out to be correct.

Then, when I left corporate work altogether, I left a good salary and benefits, not knowing for sure if I could earn what I needed to as a consultant and mediator. It turns out my family has done fine financially, but the worry was there for the first couple of years.

     2.  Excitement at the possibilities a move could bring

The strong camaraderie I felt with the people in the corporate legal department ultimately outweighed the doubts about the work. I made my decision based on who I wanted to work with, and that was the right decision for me. One of the law firms I could have joined right out of law school folded within five years, so it would not have been more secure than the job I took.

And I moved into HR largely because I was bored at the repetitiveness of the law practice I had. I needed something new to interest me, and I knew I needed to move to another job to find it. The choice was to leave the law or leave the company, and I chose to leave the law, because a new field of expertise would give me more opportunities to learn.

And finally, I knew I wanted to spend my time doing many things that a demanding full-time job would not permit. That’s why I switched to consulting, mediating, and writing, which has let me set my own schedule.

   3.  Indecisiveness, while I wrestled with the decision

It took weeks for me to make the first decision, months to make the second, and years to make the third.

   4.  Guilt in leaving expectations of family and friends behind and choosing my own path

Choosing the path less seldom taken is always stressful. Why should I move halfway across the country to take a risky job? Why should I leave a field where I was successful? Why should I leave a financially rewarding career?

I got many questions from family members and friends, who essentially wanted to know why I was “dropping out” as they saw it. However, over the years, I’ve seen many friends and colleagues make similar decisions. I guess I was just an early adopter.

* * * * *

In the end, at each of these periods of indecisiveness, the pain I felt at following the expected path became greater than the fear of the unknown. For others (perhaps those with a healthier mindset), excitement about the future may come to outweigh the fear.

If you are faced with a difficult career decision, take a look at Ms. Lafair’s article and see if her suggestions help.

When have you made a change in your career, and what emotions did you experience?

Leave a comment

Filed under Human Resources, Law, Work/Life

Favorite Firing: Termination for Admitting Violation of Employer Policy Is Retaliation Under FLSA


policeman-146561_640I’ve mentioned before that retaliatory discharge claims under Title VII are hard to defend, but retaliation claims are equally problematic under other employment statutes. In Avila v. Los Angeles Police Dep’t, (9th Cir. 2014), a police officer alleged he was fired for testifying in a co-worker’s lawsuit claiming non-payment of overtime wages in violation of the Fair Labor Standards Act.

The Facts: Leonard Avila was a police officer for the Los Angeles Police Department. He testified in another officer’s lawsuit alleging unpaid overtime wages and admitted he had frequently worked through his lunch break without reporting the extra hours, in violation of the LAPD’s policy.

Shortly thereafter, Officer Avila was discharged for insubordination. The insubordination? His failure to claim overtime wages in violation of department policy.

The LAPD Board of Rights that recommended Officer Avila’s termination found:

“Prior to 2008, you [Officer Avila], while on duty, were insubordinate to the department when you failed to submit requests for compensation for overtime that you had worked, as directed through department publications.”

The Ninth Circuit opinion states the facts as follows:

“Leonard Avila, a police officer, periodically worked through his lunch break but did not claim overtime. According to his commanding officer, Avila was a model officer. The Los Angeles Police Department (LAPD), however, deemed Avila insubordinate for not claiming overtime and fired him.

“Not coincidentally, that termination occurred only after Avila had testified in a Fair Labor Standards Act (FLSA) lawsuit brought by fellow officer, Edward Maciel, who sought overtime pay for working through his lunch hours. Avila then brought this action, claiming that he was fired in retaliation for testifying, in violation of the FLSA antiretaliation provision, 29 U.S.C. § 215(a)(3). The evidence at trial was that the only officers disciplined for not claiming overtime were those who testified against the LAPD in the Maciel suit, notwithstanding uncontested evidence that the practice was widespread in the LAPD.”

The Moral: As the dissenting opinion in Avila stated, “retaliation claims based on federal statutes are increasingly a major part of employment litigation in federal courts.” That is probably the single biggest moral to be taken from this case.

The dissent focused on the fact that Officer Avila and the other officers discharged after their testimony admitted violating department policy in that testimony:

“the only officers singled out for discipline were those who testified at the Maciel action and who admitted under oath that for years they knowingly and repeatedly violated policies that they were specifically told would subject them to termination.” [emphasis in original]

The dissent argued that employees should not be immunized from the consequences of their admissions, but the majority upheld the jury verdict in favor of Officer Avila. The case focused primarily on jury instructions, and, finding no error in the instructions, the majority affirmed.

So another moral from this case is that employers cannot necessarily rely on admissions of wrongdoing by employees, if those admissions are made during lawsuits against their employer. Employers must be careful when seeking to discharge any employee who has raised any type of employment claim or participated in any way in another employee’s claim. As I’ve said before, the retaliation claims are often more difficult to defend than the underlying complaint, whether it be for illegal employment discrimination, unpaid wages, worker’s compensation, or any other employment action.

The Atkinson, Andelson, Loya, Ruud & Romo law firm, which represents employers, wrote on its blog:

“This decision is important as the Court of Appeals’ analysis suggests that an employer is restricted from exclusively using information obtained from an employee’s protected activity for purposes of initiating an adverse action.  Instead, the Court of Appeals focused on the fact that the City did not have other independent evidence of alleged wrongdoing beyond Avila’s protected activity when terminating his employment to avoid liability under the FLSA’s anti-retaliation provision. Ultimately, the Court of Appeals left open the question as to whether an employer is strictly forbidden from using any information of employee wrongdoing that is obtained during testimony in another lawsuit.”

And as Branigan Robertson, a plaintiff’s attorney, said on his blog:

“Avila v. Los Angeles Police Department is a win for employees as it shows employers that they need to be extremely careful when firing someone for complaining or being part of a legal proceeding against them.”

In my opinion, the LAPD would have been wiser to have documented a warning to Officer Avila and the others who admitted violating department policy and told them that any future violations would be grounds for termination.

Perhaps that shouldn’t be the case, but this was an expensive lesson for the department. Officer Avila received $50,000 in liquidated damages, and his attorneys were awarded $579,400 in attorney’s fees.

What do you think—should LAPD have lost this case?

Leave a comment

Filed under Human Resources, Law, Management

Who Must Raise the Topic of Religious Accommodation in the Workplace?


A&F logoI wrote recently about religious accommodation, but the Supreme Court arguments in Equal Employment Opportunity Commission v. Abercrombie & Fitch Stores, Inc., last week keep this issue top of mind. The Abercrombie & Fitch case is one where I have sympathy with both the applicant and the employer.

The issue in this case is whether an employer has any duty under Title VII of the Civil Rights Act of 1964 to try to accommodate an employee’s or applicant’s religious practices if the employee or applicant doesn’t directly request an accommodation. In this case, a Muslim woman, Samantha Elauf, interviewed for employment with Abercrombie & Fitch wearing a hajib. Whether or not she was Muslim did not come up during the interview, but the employer assumed she was Muslim and decided not to hire her, because her appearance did not fit the “look” it wanted for sales employees in its stores.

hijabIt is a shame that this case has reached the Supreme Court. By all accounts, Ms. Elauf has had a successful career since Abercrombie & Fitch rejected her application. Most likely, Abercrombie & Fitch lost a good prospective employee by making a decision without discussing accommodation with this applicant. In fact, Abercrombie & Fitch later changed its policy to permit sales employees to wear hijabs, so the whole lawsuit might have been avoided had the issue been addressed before the retailer rejected Ms. Elauf’s application.

I am sympathetic to the applicant, because I believe that religious practices should be accommodated. As I stated in my February 16 post, this nation was founded to permit a diversity of religious beliefs, and we should give each other a little space to make that happen. The “look” policy, if strictly applied with no flexibility, might not have been the best practice from either a customer service or an employment perspective.

With respect to the specifics of the case, the hiring managers at Abercrombie & Fitch correctly perceived Ms. Elauf’s hijab to be an indication that she was Muslim. Therefore, the Supreme Court could easily rule that the employer should have done more before rejecting the applicant. The company should at least have raised the issue, as the EEOC argues. However, the challenge for the Court might be to do justice to Ms. Elauf without issuing broad rules of law that go beyond the intended scope of Title VII and could make managing a business more difficult.

There are many reasons why the employer’s position is also sympathetic. In my opinion, particularly for customer-facing employees—which retail sales employees are—an employer should be able to set appearance standards. Moreover, placing the burden on the employer to determine whether there might be a religious practice at stake, as the EEOC argued, goes beyond the capability of many hiring managers. How is any particular manager supposed to be aware of all religious practices—for example, whether a particular tattoo is religiously based or simply a style that an applicant likes? It is much more likely that the applicant will recognize when his or her religious practices might be an issue than that the employer representative will.

Moreover, many employers are legitimately concerned about mentioning religion at all during a hiring interview. Whether the applicant is or is not of a particular religion, the employer opens itself up to the possibility of a discrimination claim for “perceiving” the applicant to be of a protected group. Most Human Resources personnel and other management representatives have been carefully trained to avoid bringing up religion unless and until the employee does, and even then to handle the situation gingerly.

Also supporting the employer’s position in this case is that the standard for religious accommodation under Title VII has traditionally been quite low. Unlike under the Americans with Disabilities Act, where “reasonable accommodation” has placed some significant burdens on employers, under Title VII the only accommodations required have been those that do not impose more than a “de minimis” burden on the employer. So, even if Abercrombie & Fitch had raised the issue of Ms. Eleuf’s hijab, the retailer might not have had to change its “look” policy to accommodate her.

Nevertheless, it is quite possible, as the EEOC argued here, for the employer to have policies and procedures that the applicant does not know about—such as Abercrombie & Fitch’s “look” policy. It does not seem fair to make the applicant raise the issue of religion because there might possibly be a problem that the applicant knows nothing about. If employers do not need to discuss religion, why should applicants?

Thus, keeping the focus on the job—as Justices Sotomayor and Alito seemed to suggest during oral argument—might well be a workable solution. The hiring managers’ questions can ask about the job requirements and whether the applicant sees any problem performing them. Then, if religion might be an issue, the applicant can tell the employer what his or her religious beliefs require.

My advice to hiring managers was always to keep the focus on the job requirements.

How have you dealt with religious accommodation issues in the past? How do you feel about the issues raised in the Abercrombie & Fitch case?

Leave a comment

Filed under Diversity, Human Resources, Law, Management, Workplace

Will Texas Fair Housing Act Case Limit Use of Disparate Impact Analysis in Employment Discrimination Cases?


fheo175I was surprised to realize I haven’t written about disparate impact analysis on this blog before. “Disparate impact” is the legal theory of discrimination that says that covered entities can be liable for statistically disproportionate results of their policies and practices that have an adverse impact on protected classes, even in the absence of any proof that these entities intended to discriminate. If there is a statistical disparity that adversely impacts some group protected by law, then the burden falls on the entity to prove that there is a legitimate business interest for the policy or practice.

1. Disparate Impact under Title VII

Disparate impact has been a valid theory under Title VII since the Supreme Court’s decision in Griggs v. Duke Power Co., 401 U.S. 424 (1971), in which the Court ruled that an employer must justify any neutral policy that disproportionately affects minorities or women adversely. The Court said that Title VII was intended to rectify the consequences of employment practices, not simply discriminatory motives.

The holding of Griggs was limited somewhat in Ward’s Cove Packing v. Antonio, 490 U.S. 642 (1989), where the Supreme Court ruled that plaintiffs must identify a specific practice or policy that adversely affects the protected group, that the employer need only produce some evidence of a business justification for the practice, and that the burden of proof always remains with the employee.

So for over forty years now, employers have dealt with disparate impact cases and have needed to justify any policies that have adverse impacts on women, minorities, older workers, or others protected under the various employment discrimination statutes.

2. Texas Dept. Of Housing v. The Inclusive Communities Project: A Case Under the Fair Housing Act

When I learned that the Supreme Court had taken a case involving the Fair Housing Act, I wondered whether it might have an impact on employment discrimination cases. Both Title VII and the Fair Housing Act permit cases to be brought under theories of either intentional discrimination and disparate impact.

More Perspectives on Health Care ReformThe new case, Texas Dept. of Housing v. The Inclusive Communities Project, is the first Fair Housing Act case to reach the Supreme Court under a disparate impact theory. The Fair Housing Act requires that discrimination be “because of” race, rather than the “adversely affect” language of Title VII, which the Supreme Court has held allows disparate impact statistical analysis. The Court heard oral arguments in the case on January 21, 2015.

The basic issue in the case is whether the 1968 Fair Housing Act only prohibit intentional housing bias, or whether it also prohibit policies that have a negative impact on people in protected classes.  Intentional discrimination is far harder to prove than disparate impact, because motives are not always clear.

In the past, the Obama Administration seems to fear the Supreme Court’s likely handling of disparate impact under the Fair Housing Act. The government has settled two other recent cases.

For a good history of the case, see Lyle Denniston, Argument preview: That housing bias issue is back, SCOTUSblog (Jan. 20, 2015).

Of course, without a decision in the case, it’s hard to know what to think yet. But the oral arguments were interesting.

The Court’s four liberal justices seemed ready to adopt “disparate impact” without any restrictions. Justice Breyer said during oral argument that disparate impact liability under the Fair Housing Act “has been the law of the United States uniformly throughout the United States for 35 years.”

Justice Scalia—typically conservative—wondered whether Congress implicitly adopted the disparate impact theory under the Fair Housing Act when the law was amended in 1988. But he also asked plaintiffs why a statistical disparity should be enough for liability under the Act, if the statutory language requires that housing must be unavailable for a reason related to race. After all, statistical disparities might not be based on race; they merely show a correlation, not causation. And in an earlier employment discrimination case, Ricci v. DeStefano, 557 U.S. 557 (2009), Justice Scalia has seemed dubious about the constitutionality of the disparate impact theory.

For more on Justice Scalia’s comments, see Amy Howe, Justice Scalia keeps both sides guessing in Fair Housing Act case: In Plain English, SCOTUSblog (Jan. 22, 2015).

And as always, Marcia Coyle’s analysis on PBS NewsHour, January 21, 2015, was succinct and clear.

3. What Impact Will the Texas Case Have on Disparate Impact in Employment Cases?

Upon reflection, I think the odds are long that the Texas case will make much difference in employment discrimination cases. First of all, the statutory language is sufficiently different that the Court could well stick with the Griggs v. Duke Power ruling in employment cases. Griggs is a direct precedent in support of disparate impact analysis in employment cases, albeit narrowed by Ward’s Cove Packing.

The second reason for a limited impact is that the Court tends to issues narrow rulings rather than broad, particularly when it is likely to be split philosophically. Even if the Court decides against the appropriateness of disparate impact analysis under the Fair Housing Act, the decision is likely to be a 5-4 ruling (based on the comments of the liberal justices) and is likely to be limited to the Fair Housing Act on its terms.

Third, any employment discrimination cases will have to wend their way through circuit court splits and could take years to reach the Supreme Court. Still, Justice Scalia’s prior invitation is likely to encourage defense counsel in employment cases to start down that path.

What do you think the role of disparate impact analysis should be in employment discrimination cases?

Leave a comment

Filed under Human Resources, Law, Politics