Chapter 1The Stakes of “Employment”

Page 15, add after Driscoll Strawberry cite in Note 7, Defining “Employee” for Statutory Purposes:

See generally Keith Cunningham-Parmeter, From Amazon to Uber: Defining Employment in the Modern Economy, http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2761577 (forthcoming B.U.L. Rev.) (using the FLSA’s original broad definition of “employment” as a lens to urge a refocused notion of control for it and other statutes to look not merely to daily, direct supervision but the numerous ways in which firms may control workers).

Page 21, add at end of carryover Note 1, Conflicting Legal Incentives and Trying to Have It Both Ways:

See also, McFeeley v. Jackson St. Entm’t, LLC, No. 15-1583, 2016 WL 3191896, at *4 (4th Cir. June 8, 2016) (applying “economic realities” test to determine that exotic dancers were employees of the clubs they performed in because (1) the clubs exercised significant control over all aspects of the dancer’s work and (2) the dancers’ profit of loss depended far more on the clubs’ management and decision making then on their own).

Page 23, add at end of first paragraph of Note 5, Other Costs of Employment for Potential Employers:

The tax laws provide some disincentives for misclassification and other underreporting of wages, although they have rarely been used to date by employees. See Cuellar-Aguilar v. Deggeller Attractions, Inc., 812 F.3d 614 (8th Cir. Dec. 15, 2015) (workers who received incorrect W-2 forms had a cause of action against their employer under 20 U.S.C. 7434, which creates a cause of action against those willfully filing a fraudulent information return, with liability being $ 5,000 or actual damages, if higher). Page 29, add before last full sentence on the page:

Stephanie A. Pisko, Comment, Great Expectations, Grim Reality: Unpaid Interns and the Dubious Benefits of the DOL Pro Bono Exception, 45 SETON HALL L. REV. 613 (2015).

Page 30, add at end of discussion concerning Glatt v. Fox Searchlight Pictures, Inc.:

Glatt was overturned on appeal. Glatt v. Fox Searchlight Pictures, Inc., 811 F.3d 528 (2d Cir. 2015). In reversing the district court, the Second Circuit declined to follow the DOL guidance and instead adopted a three-factor test to determine whether the intern or the employer is the “primary beneficiary” of the relationship: (1) what the intern receives in exchange for his work, (2) the economic reality between the intern and employer, and (3) the intern’s expectation of receiving educational or vocational benefits not expected with all forms of employment. Id. at

536. The Eleventh Circuit has recently adopted a similar test. See Schumann v. Collier Anesthesia, P.A., 803 F.3d 1199, 1209-10 (11th Cir. 2015).

Page 31, update citation at end of first full paragraph:

Steven Willborn, College Athletes as Employees: An Overflowing Quiver, 69 U. MIAMI L. REV. 65 (2014).

Page 31, add after first full paragraph:

The full NLRB board unanimously punted (pun intended) by declining to assert jurisdiction in the matter. The board reasoned that ruling on the employment status of a single team would not promote the stability of the NCAA and the Big Ten. Northwestern University and College Athletes Players Association, 362 N.L.R.B. No.167 (2015). In another case involving the employment status of college athletes, the U.S District Court for the South District of Indiana held that track-and-field participants at the University of Pennsylvania are not employees under the Fair Labor Standards Act. Berger v. NCAA, No. 1:14-cv-1710-WTL-MJD (S.D. Ind. 2016), https://ecf.insd.uscourts.gov/cgi-bin/show_public_doc?12014cv1710-238. Berger is currently pending on appeal before Seventh Circuit.

Page 31, add new heading after “Prison Work”:

The “On-Demand Economy” The rise of businesses such as Uber and Lyft that use new technological information to

connect consumers with workers providing services has created new problems in employee classification. See generally, Benjamin Means & Joseph Seiner, Navigating the Uber Economy, 29 U.C. DAVIS L. REV. 1511 (2016); Brishen Rogers, Employment Rights in the Platform Economy: Getting Back to Basics, 10 HARV. L. & POL’Y REV. 479 (2016). Both Uber and Lyft classify their drivers as independent contractors, but significant exercise control over certain aspects of the driver/customer interaction. Drivers around the country have brought suits against the companies alleging they are employees and, hence, entitled to various protections – including wages and hours – they have been denied. The companies have settled a number of the cases, at least in part to avoid resolution of the employment status issue. See, e.g., O’Connor v. Uber Techs., Inc., No. C-13-3826-EMC, 2015 WL 5138097 (N.D. Cal. Sept. 1, 2015); Mike Isaac & Noam Scheiber, Uber Settles Cases with Concessions, but Drivers Say Freelancers, N.Y. TIMES, Apr. 22, 2016, at B1. Nevertheless, as of the date of this update, many suits that turn on the status question are still pending in courts around the country. See, Doe v. Uber Technologies, Inc., No. 15-cv-04670-SI, 2016 WL 2348296 (N.D. Cal. May 4, 2016) (alleging vicarious liability for sexual assaults by Uber drivers); Heather Kelly, Uber and Lyft Drivers in Austin Sue the Companies, CNN MONEY (June 10, 2016, 5:54 P.M.), http://money.cnn.com/2016/06/10/technology/austin-lawsuits-uber-lyft (discussing suits alleging violations of the Worker Adjustment and Retraining Notification Act). State administrative agencies that have reached the question of the drivers’ status have reached differing conclusions. Compare Mike Isaac & Natasha Singer, California Says Uber Driver is Employee, Not a Contractor, N.Y. TIMES, June 18, 2016, at B1, with Michael Auslen, State Job Chief: Uber

Drivers are Contractors, Not Employees, MIAMI HERALD (Dec. 3, 2015), http://www.miamiherald.com/news/business/article47843400.html.

Page 45, add before last paragraph in carryover Note 3, “Joint Employer” Liability:

The NLRB has recently rearticulated its test for determining whether two or more entities are joint employers:

Two or more entities are joint employers of a single work force if [(1)] they are both employers within the meaning of the common law, and [(2)] if they share or codetermine those matters governing the essential terms and conditions of employment. In evaluating the allocation and exercise of control in the workplace, we will consider the various ways in which joint employers may “share” control over terms and conditions of employment or “codetermine” them.

Browning-Ferris Indus of Cal., Inc., 362 N.L.R.B. No. 186 (2015). The reach of the BFI test is currently being tested in unfair labor practice proceedings brought against several franchisees of McDonald’s and the franchisor – McDonald’s USA, as a putative joint employer. Cf. McDonald’s USA, LLC, 362 N.L.R.B. No. 168 (2015) (by vote of three-to-two affirming the Administrative Law Judge’s denial of McDonald’s motion for a bill of particulars).

Page 63, add after last sentence at end of carryover paragraph at top of page:

But see, Bridge v. New Holland Logansport, Inc., 815 F.3d 356, 366 (7th Cir. 2016) (declining to extend the NLRB test to the ADEA).

Chapter 2The At-Will Default Rule and Its Limitations

Page 73, add after Forrer cite in carryover Note 2, The Express Term Exception:

Professor Bodie views cases such as these and even more permissive decisions as evidence that at will is a “sticky default” rule, that is, one that is difficult to contract out from under. Matthew T. Bodie, The Best Way Out Is Always Through: Changing the Employment At-Will Default to Protect Personal Autonomy, 2017 U. ILL. L. REV. (forthcoming). Cf. Burford v. Accounting Practice Sales, Inc., 786 F.3d 582 (7th Cir. 2015) (while Illinois law would generally require a contract for an indefinite term to be terminable at will and a perpetually-renewing agreement would so qualify, a clause in the agreement that permitted the employer to terminate upon the employee’s violation of its terms provided the necessary clear statement that took the agreement out of that category).

Page 91, add at the end of Note 7:

But see Brueck v. John Maneely Co., 131 F. Supp. 3d 774 (N.D. Ind. 2015) (finding prospective employee alleged valid promissory estoppel claim by relying on job offer, even though offer was rescinded based on falsehoods in job application).

Page 114, add after extract in carryover Note 2, The Decline of Long-Term Employment:

See also Rachel Arnow-Richman, Modifying At-Will Employment Contracts, 57 B.C. L. REV. 427 (2016) (formal consideration doctrine applied to midterm modifications of employment contracts, including revising employer handbooks and adding arbitration and noncompete clauses, is inadequate; the better approach would be a universal reasonable notice rule for enforceability, which would mean the “amount of time necessary for the employee to assess the significance of the change and consider alternatives, in particular the possibility of finding alternate employment”); Rachel Arnow-Richman, Mainstreaming Employment Contract Law: The Common Law Case for Reasonable Notice of Termination, 66 FLA. L. REV. 1513 (2014). But see Johnston v. William E. Wood & Assocs., 2016 Va. LEXIS 67 (June 2, 2016) (no duty to give a terminated employee “reasonable notice”; requiring more would be inconsistent with the at-will doctrine).

Page 124, add at the end of Note 4:

Compare Langenkamp v. Olson, 628 F. App'x 50 (2d Cir. 2015) (finding employee stated a claim for breach of contract where she alleged termination procedures were set forth in the employer’s handbook, the employer’s offer of employment required employee to agree to abide by employer’s policies as a condition of employment, and the employer did not follow those procedures).

Page 132, add to end of carryover Note 3, Advising the Employer:

For a recent discussion of modifications to employee manuals, see Rachel S. Arnow-Richman, Modifying At-Will Employment Contracts, 57 B.C. L. REV. 427 (2016) (calling for enforcement of mid-term modifications only where worker received reasonable advance notice of the change).

Chapter 3Written Contracts and Expressly Negotiated Terms of Employment

Page 177, at the end of carryover Note 1, Cause in the Absence of a Contractual Definition:

See also Gilman v. Marsh & McLennan Cos., No. 15-0603-cv(L), 2016 U.S. App. LEXIS 10937, at *7-8 (2d Cir. June 16, 2016) (an employer had good cause to discharge employees for refusal to cooperate with an internal investigation when they “had been implicated in an alleged criminal conspiracy for acts that were within is the scope of employment and that imperiled the company”

even though those employees were in the “tough position of choosing between employment and [possible] incrimination”)

Page 190, add after Hess cite in second line of Note 1, A Bird’s Eye View:

aff’d, Hess v. Bresney, 784 F.3d 1154 (7th Cir. 2015).

Chapter 4The Public Policy Exception to the At-Will Rule

Page 207, add at end of first full paragraph:

See also Swindol v. Aurora Flight Scis. Corp., 2016 Miss. LEXIS 131 (Mar. 24, 2016) (interpreting state statutes to create a public policy exception to the at-will rule that bars employers from discharging a worker for having a firearm inside his locked vehicle on company property); Moore v. Warr Acres Nursing Ctr., LLC, 2016 OK 28 (Mar. 8, 2016) (terminating a licensed practical nurse for missing work in a nursing center when sick with influenza would violate public policy” due to public health concerns).

Page 221, at end of first full paragraph:

See also Kathleen Clark & Nancy J. Moore, Buying Voice: Financial Rewards for Whistleblowing Lawyers, 56 B.C. L. Rev. 1697 (2015) (considering whether attorneys can ethically seek whistleblower awards under the FCA or other federal statutes).

Page 235, last sentence and associated citations at end of first full paragraph; replace with:

The six-year statute of limitations for causes of action under a statute applied to a whistleblower action rather than the two-year period for torts resulting in personal injury because the claim was created by statute before it was recognized at common law. Ford v. Minneapolis Pub. Sch., 857 N.W.2d 725 (Minn. Ct. App. 2014).

Page 236, add at end of Note 3, Reasonable Belief:

Should an employee be able to sue even when the violation has not yet occurred? See Pace v. Edel-Harrelson, 2016 Mich. LEXIS 59 (Feb. 1, 2016) (Michigan's Whistleblowers' Protection Act, which protects an employee who reports "a violation or a suspected violation of a law" to a public body, did not reach a whistleblower who reported a planned violation rather than an existing one).

Shifting gears somewhat what if the employee is in pari delicto in the violation of public policy? Should she be permitted to bring suit? Galle v. Isle of Capri Casinos, Inc., 180 So. 3d 619, 620 (Miss. 2015) (plaintiff who willingly participated in the allegedly illegal activity may not bring a public policy claim).

Page 238, add at end of carryover Note 7, A Job Duties Exception?:

Although decided as a matter of federal law in the retaliation context, the job duties exception or “manager rule” has taken somewhat of a beating in recent decisions. DeMasters v. Carilion Clinic, 796 F.3d 409, 413 (4th Cir. 2015) (finding that the manager rule “has no place in Title VII jurisprudence”); Littlejohn v. City of New York, 795 F.3d 297 (2d Cir. 2015) (while merely reporting or investigating other workers’ complaints is not by itself protected activity, an employee is protected, even if her job responsibilities involve investigating complaints of discrimination, when she actively ‘supports other employees in asserting their Title VII rights or personally complains or is critical about discriminatory practices).

Page 257, add at end of Note 1, Protected Conduct Under SOX:

See generally Samuel C. Leifer, Note, Protecting Whistleblower Protections in the Dodd-Frank Act, 113 MICH. L. REV. 121 (2014) (exploring competing textual arguments as to whether protection extends only to those who report suspected violations to the SEC or whether it also reaches internal reporting).

Page 257, add before Neilsen cite in Note 2, Objectively and Subjectively Reasonable:

Rhinehimer v. U.S. Bancorp Invs., Inc., 787 F.3d 797, 811 (6th Cir. 2015) (“Objective reasonableness is evaluated based on the knowledge available to a reasonable person in the same factual circumstances with the same training and experience as the aggrieved employee"; specific knowledge relating to particular elements of a claim was not necessary for a belief to be objectively reasonable) (citations and internal quotations omitted);

Page 258, add before Day citation in second paragraph of Note 2, Objectively and Subjectively Reasonable:

Beacom v. Oracle Am., Inc., 2016 U.S. App. LEXIS 10183 (8th Cir. June 6, 2016) (although plaintiff was required only to establish that a reasonable person in his position, with the same training and experience, would have believed a securities violation to have occurred in order to be protected by SOX, given “the predictive nature of revenue projections,” a minor discrepancy of $10 million for a company that annually generates billions of dollars made plaintiff’s belief objectively unreasonable);

Page 259, add before Bechtel cite in carryover Note 4, Proof of a Contributing Factor:

Wiest v. Tyco Elecs. Corp., 812 F.3d 319, 330 (3d Cir. 2016) (under SOX, a contributing factor is "any factor, which alone or in combination with other factors, tends to affect in any way the outcome of the decision" and may be proven by either direct or circumstantial evidence); Ameristar Airways, Inc. v. Admin. Review Bd., 771 F.3d 268, 273 (5th Cir. 2014) (the clear and convincing standard applies to after-acquired evidence of misconduct, and the employer failed to

prove that an allegedly insubordinate e-mail encouraging pilots to leave the company, discovered after his termination, satisfied that standard);

Page 259, add at end of the same paragraph, Proof of a Contributing Factor:

See generally Nancy M. Modesitt, Causation in Whistleblowing Claims, 50 U. Rich. L. Rev. 1193 (2016) (exploring the causation standards used in federal whistleblower protection statutes and contrasting them with those used in whistleblower claims brought under state law)

Page 260, add at end of second paragraph of Note 5, Administrative Procedure for SOX Claims:

In addition to satisfying the time limitations for filing with OSHA, SOX retaliation suits must be brought within four years of the violation. Jones v. Southpeak Interactive Corp., 777 F.3d 668 (4th Cir. 2015) (SOX retaliation claims are subject to the four-year statute of limitations under 28 U.S.C. Section 1658(a), and not the two-year limitations period for fraud-based suits set forth in Section 1658(b)(1)).

To make things somewhat more confusing, the whistleblower cause of action created for Dodd-Frank violations lacks a required administrative referral procedure. See Khazin v. TD Ameritrade Holding Corp., 773 F.3d 488, 491 (3d Cir. 2014) (“a whistleblower seeking to assert a Sarbanes-Oxley claim must first file an administrative complaint with the Secretary of Labor . . . . The Dodd-Frank cause of action, by contrast, has no exhaustion requirement.”). See also   Nizan Geslevich Packin & Benjamin P. Edwards, Regulating Culture: Improving Corporate Governance with Anti-Arbitration provisions for Whistleblowers, http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2765006 (forthcoming Wm. & Mary L. Rev. Online) (analyzing whether claims brought directly under Dodd-Frank are subject to the antiarbitration provisions the statute added).

Page 261, add after second sentence in Note 8, Remedies:

Thus, SOX permits recovery of emotional distress damages. Jones v. Southpeak Interactive Corp., 777 F.3d 668 (4th Cir. 2015); Halliburton, Inc. v. Admin. Review Bd., 771 F.3d 254, 266 (5th Cir. 2014).

Page 262, add at end of Note 9, A New Wave of Federal Protection:

Perhaps not surprisingly, some firms have sought to blunt these incentives by contractual provisions. Kathryn Hastings, Comment, Keeping Whistleblowers Quiet: Addressing Employer Agreements to Discourage Whistleblowing, 90 TUL. L. REV. 495 (2015) (analyzing the effect of

contracts that seek to prevent employees from benefiting from Dodd-Frank whistleblower bounty awards).

Page 262, add new material, including a new principal case:

10. Justifying Punishing Whistleblowers? At several points in these materials, particularly the Note on Attorneys and the Public Policy Tort, on p. 221, and United States ex rel. Fair Laboratories Practices Associates v. Quest Diagnostics, p. 264, we have seen a clash between the right to blow the whistle and considerations of confidentiality. We will encounter that issue again, and more generally, when we reach Chapter 8 and consider the employee’s duty of loyalty, which would often bar disclosure of employer confidential information. The Restatement of Employment Law, not so very helpfully, requires such a duty to be consistent with other employee rights. See p, 488, Note 8, Whistleblowing. In the following case, the Supreme Court encountered a conflict between federal whistleblower protections and plausible potential harm to national security posed by the disclosures in question. You might be surprised to know that the right to disclose won out!

DEPARTMENT OF HOMELAND SECURITY v. MACLEAN

135 S. Ct. 913 (2015)

Chief Justice ROBERTS delivered the opinion of the Court.

Federal law generally provides whistleblower protections to an employee who discloses information revealing “any violation of any law, rule, or regulation,” or “a substantial and specific danger to public health or safety.” 5 U.S.C. § 2302(b)(8)(A). An exception exists, however, for disclosures that are “specifically prohibited by law.” Ibid. Here, a federal air marshal publicly disclosed that the Transportation Security Administration (TSA) had decided to cut costs by removing air marshals from certain long-distance flights. The question presented is whether that disclosure was “specifically prohibited by law.”

I

A

In 2002, Congress enacted the Homeland Security Act. As relevant here, that Act provides that the TSA “shall prescribe regulations prohibiting the disclosure of information obtained or developed in carrying out security ... if the Under Secretary decides that disclosing the information would ... be detrimental to the security of transportation.” 49 U.S.C. § 114(r)(1)(C). 

Around the same time, the TSA promulgated regulations prohibiting the unauthorized disclosure of what it called “sensitive security information.” The regulations described 18 categories of sensitive security information, including “[s]pecific details of aviation security

measures ... [such as] information concerning specific numbers of Federal Air Marshals, deployments or missions, and the methods involved in such operations.” 49 CFR § 1520.7(j) (2002). Sensitive security information is not classified, so the TSA can share it with individuals who do not have a security clearance, such as airport employees.

B

Robert J. MacLean became a federal air marshal for the TSA in 2001. In that role, MacLean was assigned to protect passenger flights from potential hijackings.  

On July 26, 2003, the Department of Homeland Security (DHS) issued a confidential advisory about a potential hijacking plot. The advisory said that members of the terrorist group al Qaeda were planning to attack passenger flights, and that they “considered suicide hijackings and bombings as the most promising methods to destroy aircraft in flight, as well as to strike ground targets.” The advisory identified a number of potential targets, including the United Kingdom, Italy, Australia, and the east coast of the United States. Finally, the advisory warned that at least one of the attacks “could be executed by the end of the summer 2003.”  

The TSA soon summoned all air marshals (including MacLean) for face-to-face briefings about the hijacking plot. During MacLean’s briefing, a TSA official told him that the hijackers were planning to “smuggle weapons in camera equipment or children’s toys through foreign security,” and then “fly into the United States ... into an airport that didn’t require them to be screened.” The hijackers would then board U.S. flights, “overpower the crew or the Air Marshals and ... fly the planes into East Coast targets.” 

A few days after the briefing, MacLean received from the TSA a text message cancelling all overnight missions from Las Vegas until early August. MacLean, who was stationed in Las Vegas, believed that cancelling those missions during a hijacking alert was dangerous. He also believed that the cancellations were illegal, given that federal law required the TSA to put an air marshal on every flight that “present[s] high security risks,” 49 U.S.C. § 44917(a)(2), and provided that “nonstop, long distance flights, such as those targeted on September 11, 2001, should be a priority,” § 44917(b).  

MacLean therefore asked a supervisor why the TSA had canceled the missions. The supervisor responded that the TSA wanted “to save money on hotel costs because there was no more money in the budget.” MacLean also called the DHS Inspector General’s Office to report the cancellations. But a special agent in that office told him there was “nothing that could be done.”  

Unwilling to accept those responses, MacLean contacted an MSNBC reporter and told him about the canceled missions. In turn, the reporter published a story about the TSA’s decision, titled “Air Marshals pulled from key flights.” The story reported that air marshals would “no longer be covering cross-country or international flights” because the agency did not want them “to incur the expense of staying overnight in hotels.” The story also reported that the cancellations were “particularly disturbing to some” because they “coincide[d] with a new high-level hijacking threat issued by the Department of Homeland Security.”

 After MSNBC published the story, several Members of Congress criticized the

cancellations. Within 24 hours, the TSA reversed its decision and put air marshals back on the flights.  

At first, the TSA did not know that MacLean was the source of the disclosure. In September 2004, however, MacLean appeared on NBC Nightly News to criticize the TSA’s dress code for air marshals, which he believed made them too easy to identify. Although MacLean appeared in disguise, several co-workers recognized his voice, and the TSA began investigating the appearance. During that investigation, MacLean admitted that he had disclosed the text message back in 2003. Consequently, in April 2006, the TSA fired MacLean for disclosing sensitive security information without authorization. 

MacLean challenged his firing before the Merit Systems Protection Board, arguing in relevant part that his disclosure was protected whistleblowing activity under 5 U.S.C. § 2302(b)(8)(A). The Board held that MacLean did not qualify for protection under that statute, however, because his disclosure was “specifically prohibited by law.” 

The Court of Appeals for the Federal Circuit vacated the Board’s decision. The parties had agreed that, in order for MacLean’s disclosure to be “specifically prohibited by law,” it must have been “prohibited by a statute rather than by a regulation.” (emphasis added). Thus, the issue before the court was whether the statute authorizing the TSA’s regulations—now codified at 49 U.S.C. § 114(r)(1)—“specifically prohibited” MacLean’s disclosure.*  

[The court first held that Section 114(r)(1) did not itself expressly prohibit employee disclosures but only authorized the TSA to do so. Further, were Section 114(r)(1) to be treated as a prohibition, it was not “sufficiently specific.”]

II

Section 2302(b)(8) provides, in relevant part, that a federal agency may not take

a personnel action with respect to any employee or applicant for employment because of

(A) any disclosure of information by an employee or applicant which the employee or applicant reasonably believes evidences

(i) any violation of any law, rule, or regulation, or

(ii) gross mismanagement, a gross waste of funds, an abuse of authority, or a substantial and specific danger to public health or safety,

if such disclosure is not specifically prohibited by law and if such information is not specifically required by Executive order to be kept secret in the interest of national

* This statute has a complicated history. It was codified at 49 U.S.C. § 40119(b)(1) when the TSA initially promulgated its regulations on sensitive security information. It was codified at § 114(s)(1) when MacLean disclosed the text message to MSNBC. And it is now codified at § 114(r)(1).

defense or the conduct of foreign affairs. The Government argues that this whistleblower statute does not protect MacLean because his disclosure regarding the canceled missions was “specifically prohibited by law” in two ways. First, the Government argues that the disclosure was specifically prohibited by the TSA’s regulations on sensitive security information: 49 CFR §§ 1520.5(a)-(b), 1520.7(j) (2003). Second, the Government argues that the disclosure was specifically prohibited by 49 U.S.C. § 114(r)(1), which authorized the TSA to promulgate those regulations. We address each argument in turn. A

1

In 2003, the TSA’s regulations prohibited the disclosure of “[s]pecific details of aviation security measures ... [such as] information concerning specific numbers of Federal Air Marshals, deployments or missions, and the methods involved in such operations.” 49 CFR § 1520.7(j). MacLean does not dispute before this Court that the TSA’s regulations prohibited his disclosure regarding the canceled missions. Thus, the question here is whether a disclosure that is specifically prohibited by regulation is also “specifically prohibited by law” under Section 2302(b)(8)(A). (Emphasis added.) 

The answer is no. Throughout Section 2302, Congress repeatedly used the phrase “law, rule, or regulation.” . . . In contrast, Congress did not use the phrase “law, rule, or regulation” in the statutory language at issue here; it used the word “law” standing alone. That is significant because Congress generally acts intentionally when it uses particular language in one section of a statute but omits it in another. Russello v. United States, 464 U.S. 16, 23 (1983) . Thus, Congress’s choice to say “specifically prohibited by law” rather than “specifically prohibited by law, rule, or regulation” suggests that Congress meant to exclude rules and regulations. 

The interpretive canon that Congress acts intentionally when it omits language included elsewhere applies with particular force here for two reasons. First, Congress used “law” and “law, rule, or regulation” in close proximity—indeed, in the same sentence. § 2302(b)(8)(A) (protecting the disclosure of “any violation of any law, rule, or regulation ... if such disclosure is not specifically prohibited by law”). Second, Congress used the broader phrase “law, rule, or regulation” repeatedly—nine times in Section 2302 alone. Those two aspects of the whistleblower statute make Congress’s choice to use the narrower word “law” seem quite deliberate. 

We drew the same inference in Department of Treasury, IRS v. FLRA, 494 U.S. 922 (1990). There, the Government argued that the word “laws” in one section of the Civil Service Reform Act of 1978 meant the same thing as the phrase “law, rule, or regulation” in another section of the Act. We rejected that argument as “simply contrary to any reasonable interpretation of the text.” Indeed, we held that a statute that referred to “laws” in one section and “law, rule, or regulation” in another “cannot, unless we abandon all pretense at precise communication, be deemed to mean the same thing in both places.” That inference is even more

compelling here, because the statute refers to “law” and “law, rule, or regulation” in the same sentence, rather than several sections apart. . . . 

In addition, a broad interpretation of the word “law” could defeat the purpose of the whistleblower statute. If “law” included agency rules and regulations, then an agency could insulate itself from the scope of Section 2302(b)(8)(A) merely by promulgating a regulation that “specifically prohibited” whistleblowing. But Congress passed the whistleblower statute precisely because it did not trust agencies to regulate whistleblowers within their ranks. Thus, it is unlikely that Congress meant to include rules and regulations within the word “law.” 2

The Government admits that some regulations fall outside the word “law” as used in Section 2302(b)(8)(A). But, the Government says, that does not mean that all regulations are excluded. The Government suggests two interpretations that would distinguish “law” from “law, rule, or regulation,” but would still allow the word “law” to subsume the TSA’s regulations on sensitive security information. 

First, the Government argues that the word “law” includes all regulations that have the “force and effect of law” (i.e., legislative regulations), while excluding those that do not (e.g., interpretive rules). The Government bases this argument on our decision in Chrysler Corp. v. Brown, 441 U.S. 281 (1979). There, we held that legislative regulations generally fall within the meaning of the word “law,” and that it would take a “clear showing of contrary legislative intent” before we concluded otherwise. Thus, because the TSA’s regulations have the force and effect of law, the Government says that they should qualify as “law” under the statute. 

The Government’s description of Chrysler is accurate enough. But Congress’s use of the word “law,” in close connection with the phrase “law, rule, or regulation,” provides the necessary “clear showing” that “law” does not include regulations. Indeed, using “law” and “law, rule, or regulation” in the same sentence would be a very obscure way of drawing the Government’s nuanced distinction between different types of regulations. Had Congress wanted to draw that distinction, there were far easier and clearer ways to do so. For example, at the time Congress passed Section 2302(b)(8)(A), another federal statute defined the words “regulatory order” to include a “rule or regulation, if it has the force and effect of law.” 7 U.S.C. § 450c(a) (1976 ed.). Likewise, another federal statute defined the words “State law” to include “all laws, decisions, rules, regulations, or other State action having the effect of law.” 29 U.S.C. § 1144(c)(1) (1976 ed.). As those examples show, Congress knew how to distinguish between regulations that had the force and effect of law and those that did not, but chose not to do so in Section 2302(b)(8)(A). 

Second, the Government argues that the word “law” includes at least those regulations that were “promulgated pursuant to an express congressional directive.” Outside of this case, however, the Government was unable to find a single example of the word “law” being used in that way. Not a single dictionary definition, not a single statute, not a single case. The Government’s interpretation happens to fit this case precisely, but it needs more than that to recommend it.

 Although the Government argues here that the word “law” includes rules and regulations,

it definitively rejected that argument in the Court of Appeals. . . .  

In sum, when Congress used the phrase “specifically prohibited by law” instead of “specifically prohibited by law, rule, or regulation,” it meant to exclude rules and regulations. We therefore hold that the TSA’s regulations do not qualify as “law” for purposes of Section 2302(b)(8)(A).

B

We next consider whether MacLean’s disclosure regarding the canceled missions was “specifically prohibited” by 49 U.S.C. § 114(r)(1) itself. As relevant here, that statute provides that the TSA “shall prescribe regulations prohibiting the disclosure of information obtained or developed in carrying out security ... if the Under Secretary decides that disclosing the information would ... be detrimental to the security of transportation.” § 114(r)(1)(C). 

This statute does not prohibit anything. On the contrary, it authorizes something—it authorizes the Under Secretary to “prescribe regulations.” Thus, by its terms Section 114(r)(1) did not prohibit the disclosure at issue here. 

The Government responds that Section 114(r)(1) did prohibit MacLean’s disclosure by imposing a “legislative mandate” on the TSA to promulgate regulations to that effect. See SOTOMAYOR, J., dissenting. But the Government pushes the statute too far. Section 114(r)(1) says that the TSA shall prohibit disclosures only “if the Under Secretary decides that disclosing the information would ... be detrimental to the security of transportation.” (emphasis added). That language affords substantial discretion to the TSA in deciding whether to prohibit any particular disclosure. 

The dissent tries to downplay the scope of that discretion, viewing it as the almost ministerial task of “identifying whether a particular piece of information falls within the scope of Congress’ command.” But determining which documents meet the statutory standard of “detrimental to the security of transportation” requires the exercise of considerable judgment. For example, the Government says that Section 114(r)(1) requires the Under Secretary to prohibit disclosures like MacLean’s. The Government also says, however, that the statute does not require the Under Secretary to prohibit an employee from disclosing that “federal air marshals will be absent from important flights, but declining to specify which flights.” That fine-grained distinction comes not from Section 114(r)(1) itself, but from the Under Secretary’s exercise of discretion. It is the TSA’s regulations—not the statute—that prohibited MacLean’s disclosure. And as the dissent agrees, a regulation does not count as “law” under the whistleblower statute.  

The Government insists, however, that this grant of discretion does not make Section 114(r)(1) any less of a prohibition. In support, the Government relies on Administrator, FAA v. Robertson, 422 U.S. 255 (1975). That case involved the Freedom of Information Act (FOIA), which requires federal agencies to disclose information upon request unless, among other things,

the information is “specifically exempted from disclosure by statute.” 5 U.S.C. § 552(b)(3). In Robertson, we held that the Federal Aviation Act of 1958 was one such statute, because it gave the Federal Aviation Administration (FAA) “a broad degree of discretion” in deciding whether to disclose or withhold information. 

The Government tries to analogize that case to this one. In Robertson, the Government says, the FAA’s discretion whether to disclose information did not preclude a finding that the information was “specifically exempted” from disclosure by statute. So too here, the Government says, the TSA’s discretion whether to prohibit disclosure of information does not preclude a finding that the information is “specifically prohibited” from disclosure by Section 114(r)(1).  

This analogy fails. FOIA and Section 2302(b)(8)(A) differ in an important way: The provision of FOIA at issue involves information that is “exempted” from disclosure, while Section 2302(b)(8)(A) involves information that is “prohibited” from disclosure. 

A statute that exempts information from mandatory disclosure may nonetheless give the agency discretion to release that exempt information to the public. In such a case, the agency’s exercise of discretion has no effect on whether the information is “exempted from disclosure by statute”—it remains exempt whatever the agency chooses to do. 

The situation is different when it comes to a statute giving an agency discretion to prohibit the disclosure of information. The information is not prohibited from disclosure by statute regardless of what the agency does. It is the agency’s exercise of discretion that determines whether there is a prohibition at all. Thus, when Section 114(r)(1) gave the TSA the discretion to prohibit the disclosure of information, the statute did not create a prohibition—it gave the TSA the power to create one. And because Section 114(r)(1) did not create a prohibition, MacLean’s disclosure was not “prohibited by law” under Section 2302(b)(8)(A), but only by a regulation issued in the TSA’s discretion. 

In any event, Robertson was a case about FOIA, not Section 2302, and our analysis there depended on two FOIA-specific factors that are not present here. . . .  

Ultimately, FOIA and Section 2302(b)(8)(A) are different statutes—they have different language, different histories, and were enacted in different contexts. Our interpretation of one, therefore, has no impact whatsoever on our interpretation of the other.

III

Finally, the Government warns that providing whistleblower protection to individuals like MacLean would “gravely endanger public safety.” That protection, the Government argues, would make the confidentiality of sensitive security information depend on the idiosyncratic judgment of each of the TSA’s 60,000 employees. And those employees will “most likely lack access to all of the information that led the TSA to make particular security decisions.” Thus, the Government says, we should conclude that Congress did not intend for Section 2302(b)(8)(A) to cover disclosures like MacLean’s.

 Those concerns are legitimate. But they are concerns that must be addressed by Congress

or the President, rather than by this Court. Congress could, for example, amend Section 114(r)(1) so that the TSA’s prohibitions on disclosure override the whistleblower protections in Section 2302(b)(8)(A)—just as those prohibitions currently override FOIA. See § 114(r)(1) (authorizing the TSA to prohibit disclosures “[n]otwithstanding section 552 of title 5”); see also 10 U.S.C. § 2640(h) (“the Secretary of Defense may (notwithstanding any other provision of law) withhold from public disclosure safety-related information that is provided to the Secretary voluntarily by an air carrier for the purposes of this section”). Congress could also exempt the TSA from the requirements of Section 2302(b)(8)(A) entirely, as Congress has already done for the Federal Bureau of Investigation, the Central Intelligence Agency, the Defense Intelligence Agency, the National Geospatial–Intelligence Agency, the National Security Agency, the Office of the Director of National Intelligence, and the National Reconnaissance Office. See 5 U.S.C. § 2302(a)(2)(C)(ii)(I). 

Likewise, the President could prohibit the disclosure of sensitive security information by Executive order. Indeed, the Government suggested at oral argument that the President could “entirely duplicate” the regulations that the TSA has issued under Section 114(r)(1). Such an action would undoubtedly create an exception to the whistleblower protections found in Section 2302(b)(8)(A). 

Although Congress and the President each has the power to address the Government’s concerns, neither has done so. It is not our role to do so for them. . . . 

Justice SOTOMAYOR, with whom Justice KENNEDY joins, dissenting.

I agree with much of the Court’s opinion. I have no qualms with the Court’s conclusion that the phrase “specifically prohibited by law,” as used in the Whistleblower Protection Act of 1989(WPA) does not encompass disclosures prohibited only by regulation. Nor do I see any problem in the distinction the Court draws between statutes that prohibit information from being disclosed, the violation of which may preclude application of the WPA, and statutes that simply exempt information from otherwise-applicable disclosure requirements, which do not trigger the WPA’s “prohibited by law” exception.  

I part ways with the Court, however, when it concludes that 49 U.S.C. § 114(r)(1) does not itself prohibit the type of disclosure at issue here—the release of information regarding the absence of federal air marshals on overnight flights. That statute provides, in relevant part, that the Transportation Security Administration (TSA) “shall prescribe regulations prohibiting the disclosure of information obtained or developed in carrying out security ... if the Under Secretary decides that disclosing the information would ... be detrimental to the security of transportation.” § 114(r)(1) (emphasis added). 

The Court reasons, first, that Section 114(r)(1) does not “prohibit anything,” but instead simply “authorizes” the TSA to prescribe regulations. But this contention overlooks the statute’s use of the word “shall,” which, as we have observed, “generally means ‘must.’” Section 114(r)(1) does not merely authorize the TSA to promulgate regulations; it directs it to do so, and

describes what those regulations must accomplish. 

The Court focuses, second, on the fact that Section 114(r) authorizes the TSA to “‘decid[e]’ ” whether the disclosure of a particular item of information would in fact be “ ‘detrimental to the security of transportation.’” (emphasis deleted). I certainly agree that this language vests some discretion in the agency. But the agency is required to prevent the disclosure of any information it determines is within Congress’ prohibition; its discretion pertains only to identifying whether a particular piece of information falls within the scope of Congress’ command. In concluding that such residual agency discretion deprives Section 114(r) of prohibitory effect, the Court overlooks the degree of agency involvement that is necessary in the administration of many antidisclosure statutes. Congress cannot be expected to identify with particularity each individual document or datum the release of which it wants to preclude. Often, it will have to leave to an agency or other enforcing authority the tasks of defining—perhaps through regulations—exactly what type of information falls within the scope of the congressional prohibition, and of determining whether a particular item of information fits the bill. The enforcing authority may, as the Court puts it, sometimes be required to make some “fine-grained distinction [s]” in fulfilling this charge, but that does not change the fact that Congress itself is the source of the prohibition on disclosure.

Indeed, Congress appears to have anticipated the need for agency involvement in the interpretation and enforcement of antidisclosure statutes at the time it enacted the WPA. The Senate Report to the WPA identified only two statutes the violation of which would preclude whistleblower protection, the first being Section 102(d)(3) of the National Security Act of 1947, 61 Stat. 498, which provided that “the Director of Central Intelligence shall be responsible for protecting intelligence sources and methods from unauthorized disclosure.” See S. Rep. No. 95–969, pp. 21–22 (1978), 1978 U.S.C.C.A.N. 2723. This example clearly suggests Congress contemplated that a statute directing an agency to protect against disclosures and delegating substantial authority to the agency should nevertheless be deemed to impose the relevant prohibition. Section 114(r)(1)’s delegation to the TSA to “decide” whether the release of particular information would be “detrimental to the security of transportation” likewise simply reflects Congress’ recognition of the inevitable fact that the agency will be tasked, in the first instance, with enforcing its statutory mandate. 

In sum, with Section 114(r)(1), Congress has required agency action that would preclude the release of information “detrimental to the security of transportation.” In so doing, Congress has expressed its clear intent to prohibit such disclosures. I would respect its intent, and hold that a disclosure contravening that mandate is “prohibited by law” within the meaning of the WPA. 

Having said all that, I appreciate the narrowness of the Court’s holding [since modest changes in language would have satisfied the majority.] I myself decline to surrender so fully to sheer formalism, especially where transportation security is at issue and there is little dispute that the disclosure of air marshals’ locations is potentially dangerous and was proscribed by the relevant implementing regulation. In so surrendering, however, the Court would appear to have enabled future courts and Congresses to avoid easily the consequences of its ruling, and thus to have limited much of the potential for adverse practical effects beyond this case. But in the interim, at least, the Court has left important decisions regarding the disclosure of critical

information completely to the whims of individual employees. . . .  NOTES

1. Right Result? Before plunging into the Court’s analysis, is this a case of all’s well that ends well? The disclosures in question resulted in a quick reversal of the TSA policy, which meant that flights had air marshals, apparently consistent with what Congress required in the statute. Under that view, MacLean’s disclosure brought about compliance with the law, not to mention improved passenger safety. But is this too much of a “just so” story? The disclosures could have failed to achieve this goal, and alerted terrorists that security was looser than they might have expected. And if MacLean really wanted to force compliance with his view of the law, why didn’t he just call his Representative rather than WSNBC?

2. Textual Analysis. Of course, none of this matters in terms of the Court’s opinion, which is a straightforward textualist analysis of where MacLean’s conduct fell in terms of the balance struck by the Whistleblower Protection Act between generally permitted disclosures and those that are “specifically prohibited by law.” And, not for the first time, the question turned on whether an administrative regulation, which did prohibit MacLean’s conduct, was a “law” within the meaning of the statute. Were you surprised by the technical analysis the Court employed, rather than a more purposive approach that might have been more consistent with congressional intent in drafting the statute in the first place? Should Congress amend the WPA to provide “specifically prohibited by law or regulation”? Or is the Court onto something, given the repeated use of “rule or regulation” in the statute? Under that view, Congress would not have wanted agencies to be able to protect their own problematic actions by silencing their employees – a classic case of not putting the fox in charge of the henhouse.

3. A Statutory Prohibition? The Court goes on to consider whether the statute authorizing the regulation in question was itself a prohibition, and it has not difficulty concluding that it does not prohibit anything. But if Congress wanted to avoid having the fox guard the henhouse, why would it have authorized it to issue such regulations? Is that the point of the dissent?

Page 263, add before Alpharma cite in first full paragraph:

See also Townsend v. Bayer Corp., 774 F.3d 446, 460 (8th Cir. 2014) (The FCA bars employer retaliation against employee for protected conduct in reporting a violation by a third party “without requiring a showing that the employer itself was acting in concert with its customer to defraud the government, or acting in concert with the customer to orchestrate the retaliation.”).

Page 264, add before first full paragraph:

The FCA statute of limitations is normally six years, 31 U.S.C. § 3731(b)(1) (although it may be reduced or expanded in certain circumstances, § 3731(b)(2)). The Supreme Court recently held that the Wartime Suspension of Limitations Act did not toll that statute since the

Suspension Act applies only to criminal cases. Kellogg Brown & Root Servs. v. United States ex rel. Carter, 135 S. Ct. 1970 (2015).

Page 266, add at end of first full paragraph:

The FCA also has a bar on suits brought while another suit is “pending.” But see Kellogg Brown & Root Servs. v. United States ex rel. Carter, 135 S. Ct. 1970 (2015) ((the first-to-file bar, which precludes a qui tam suit based on the same facts as a “pending” action does not bar a second suit when the earlier one has been dismissed).

Chapter 5Tort-Based Protections for Workers

Page 281, add at end of Note 3, More on Motives:

Other doctrines also attempt to corral the tort within narrow limits. See Pierce v. Zoetis, Inc., 818 F.3d 274 (7th Cir. 2016) (under Indiana law, tortious interference with a business relationship against requires proof of an “independent illegal act,” and defamation does not suffice).

Page 299, add after see also cite in carryover Note 2, Qualified vs. Absolute Privileges:

Shell Oil Co. v. Writt, 464 S.W.3d 650 (Tex. 2015) (an oil company's report provided to the DOJ pursuant to its investigation of violations of the Foreign Corrupt Practices Act was absolutely privileged communication for purposes of defamation because it was furnished in contemplation of a criminal proceeding);

Page 313, add at end of first paragraph of carryover Note 1, Fraud v. Contract:

See also Farmers Ins. Exch. v. Morris, 2016 Ala. LEXIS 18 (Feb. 12, 2016) (upholding jury verdict on fraudulent inducement claim where plaintiff became an agent for defendant due to representations that he could continue to work for his father’s business when defendant’s conflict of interest policy required him to terminate that employment when plaintiff sought recovery not for the loss of employment as such but rather for the loss of accumulated business at his father’s agency that he suffered by giving up his prior position).

Chapter 6Workers Privacy Protections

Page 324, add at end of second full paragraph:

See also Matthew T. Bodie, The Best Way Out Is Always Through: Changing the Employment At-Will Default to Protect Personal Autonomy, 2017 U. ILL. L. REV. (forthcoming) (arguing for modifying the at-will rule to prevent employers from looking to employee actions outside the employment relation as a basis for discharge).

Page 360 add before last sentence of carryover paragraph:

Such protections are often not very robust. See Coats v. Dish Network, LLC, Coats v. Dish Coats v. Dish 350 P.3d 849 (Colo. 2015) (medical marijuana users were protected neither by the state’s legalization of use nor its law protecting employees who engage in lawful" activities since marijuana use remained unlawful under federal law).

Page 366, add to the end of the carryover paragraph in Note 1:

Compare Enslin v. The Coca-Cola Co., 136 F. Supp. 3d 654 (E.D. Pa. 2015) (concluding employee stated a viable implied contract claim against employer who promised to protect an employees’ personal information, but failed to prevent losses employee incurred from identify theft).

Page 380, add to end of last sentence in Note 5:

; see also Wada v. Aloha King, LLC;, No. CV 14-00275 HG-BMK, 2015 WL 9459898 (D. Haw. Dec. 23, 2015) (holding renter of a storage unit and his daughter stated viable negligence claims against subcontractor that failed to disclose that the facility manager was a registered sex offender).

Page 381, add to end of carryover paragraph in Note 5:

See also Gustafson v. Adkins, 803 F.3d 883 (7th Cir. 2015) (affirming denial of summary judgment on a Fourth Amendment claim arising from the installation of covert video surveillance equipment in office used by female officers as a changing area).

Page, 381, add to the end of Note 5

With the rise of new data technologies and techniques, human resources professionals in particular and employers in general are beginning to rely on data-driven strategies to evaluate and improve employee performance, enhance productivity, etc. Because some of these strategies involve collection of data via employee monitoring and other arguably intrusive techniques, they potentially implicate employee privacy interests. For a discussion of the implications of some of these kinds of practices, see generally Matthew T. Bodie, et. al., The Law and Policy of People Analytics, 88 U. COLO. L. REV. ___ (forthcoming 2017) (discussing privacy implications of using new technologies to collect and use data for “people analytics”), available at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2769980.

Page 384, add after McCavitt cite:

In contrast, sometimes courts have construed statutory protections broadly. See Smith v. Millville Rescue Squad, 2016 N.J. LEXIS 572 (June 21, 2016) (state prohibition of discrimination based on marital status not limited merely to the state of being single or married; but rather barred discrimination against those who were separated or in the process of divorcing).

Page 385, add to the end of the first full paragraph:

For further discussion of the law governing employer surveillance of employee internet use, see Robert Sprague, Employee Electronic Communications in a Boundaryless World, 53 U. LOUISVILLE L. REV. 433 (2016); Stuart S. Waxman & Frank G. Barile, "Eye in the Sky": Employee Surveillance in the Public Sector, 79 ALB. L. REV. 131 (2016).

Page 386, add to the end of the last full paragraph:

; Charles J. Stiegler, Developments in Employment Law and Social Media, 71 BUS. LAW. 321 (2016).

Page 387, add in the middle of the first full paragraph after the sentence ending with “effect on such activity”:

Three D, LLC v. N.L.R.B., 629 F. App'x 33 (2d Cir. 2015) (holding endorsement of former employee's claim on social networking website that employer had erred in tax withholding was concerted activity protected by NLRA).

Page 390, add to end of the carryover string cite:

; E.E.O.C. v. R.G. & G.R. Harris Funeral Homes, Inc., 100 F. Supp. 3d 594 (E.D. Mich. 2015) (denying the employer’s motion to dismiss an EEOC claim alleging that an employer violated Title VII’s prohibition on sex discrimination by terminating an employee who intended to dress in women’s business attire while transitioning from male to female).

Chapter 7Workplace Speech and Association Protections

Page 416, add at the bottom of the first paragraph of Note 2: See, e.g, Alves v. Bd. of Regents of the Univ. Sys. of Georgia, 804 F.3d 1149 (11th Cir. 2015) (holding that clinical psychologists employed by state university did not speak about a matter of public concern when they submitted a memorandum alleging poor leadership and mismanagement by the director of a counseling and testing center, despite vague references to student safety).

Page 417, add to end of first paragraph

See also Boulton v. Swanson, 795 F.3d 526 (6th Cir. 2015) (finding sergeant’s speech at a union meeting was on matter of public concern where sergeant made specific statements regarding the need for proper training to protect detainees); Fender v. Delaware Div. of Revenue, 628 F. App'x 95 (3d Cir. 2015) (finding female employee’s complaint that her request for transfer was denied while similar request of a similarly situation male employee was granted, addressed gender discrimination, a matter of public concern).

Page 419, add to the bottom of the last paragraph in Note 3:

See also Munroe v. Cent. Bucks Sch. Dist., 805 F.3d 454 (3d Cir. 2015) (finding school district’s interest in avoiding workplace disruption outweighed teacher’s interest in speech after teacher used an “inappropriate tone of speech” while making derogatory comments about her students on her blog and to the media); Heller v. Bedford Cent. Sch. Dist., 144 F. Supp. 3d 596 (S.D.N.Y. 2015) (finding public school teacher’s private conversations stating a desire to kill people based on a theory that certain school shootings were caused by the government controlling individuals’ minds, including his own, was not protected speech because those conversations would have disrupted the school and caused alarm if they became public).

Page 420, add at the end of Note 5:

Generally speaking, courts after Guarneiri have applied the same analysis to claims brought under the Free Speech Clause to those brought under the Petition Clause. See, e.g., Devlin v. Kalm, 630 F. App'x 534, 540 (6th Cir. 2015); Swanberg v. Canby, No. 3:14-CV-00882-HZ, 2015 WL 5254373, at *4 (D. Or. Sept. 9, 2015). However, the Fourth Circuit has recognized a limited exception—petitions alleging “secondary retaliation” need not involve a matter of public concern. Cartwright v. Town of Plymouth, No. 2:14-CV-00039-FL, 2015 WL 5196419, at *8 (E.D.N.C. July 21, 2015) (citing Kirby v. City of Elizabeth City, N. Carolina, 388 F.3d 440, 448 (4th Cir. 2004).

Page 433, add to the end of the first paragraph in Note 5:

; Coomes v. Edmonds Sch. Dist. No. 15, 816 F.3d 1255 (9th Cir. 2016) (finding teacher’s communication with parents concerning school district failures to provide certain programs was not made as a citizen, despite fact that teacher operated outside the district’s chain-of-command); Alves v. Bd. of Regents of the Univ. Sys. of Georgia, 804 F.3d 1149 (11th Cir. 2015) (finding clinical psychologists employed by state university spoke as employees when drafting a memorandum alleging poor leadership by director of counseling and testing center because the psychologists had an implicit duty to inform superiors of barriers to their performance); Holub v. Gdowski, 802 F.3d 1149 (10th Cir. 2015), cert. denied, 136 S. Ct. 1209, 194 L. Ed. 2d 184 (2016) (find school district’s internal auditor acted as an employee even though she took the uncustomary step of informing two school board members of alleged unlawful budgeting practices by the district).

Page 434, add to string cite at the bottom of the carryover paragraph:

; Hardesty v. Cochran, 621 F. App'x 771 (5th Cir. 2015) (finding genuine issue of material fact on whether employee informed waterworks district customers of district annexation plan as a citizen or as part of his job duties); Boulton v. Swanson, 795 F.3d 526 (6th Cir. 2015) (finding sergeant spoke as a citizen in speech at union meeting because his job duties did not include acting in capacity of union member).

Page 434, add at the end of Note 3:

See Renee Newman Knake, Lawyer Speech in the Regulatory State, 84 FORDHAM L. REV. 2099 (2016).

Page 441, add at the end of Note 2:

In Heffernan v. City of Paterson, 136 S. Ct. 1412 (2016), the Supreme Court reaffirmed that public employees may not be dismissed or disciplined for protected associational activity (in this case political activity) absent a showing of adverse effects of the efficacy or efficiency of the agency. The Court also held that the fact that the employee’s supervisors were mistaken about his involvement in the political campaign at issue did not bar his claim.

Page 444, add at the end of the Note on Garcetti and Academic Freedom:

See also Demers v. Austin, 746 F.3d 402 (9th Cir. 2014) (holding that the Garcetti test does not apply to speech related to scholarship or teaching -- such speech is governed by Pickering test); see generally Edward J. Schoen, Completing Government Speech's Unfinished Business: Clipping Garcetti's Wings and Addressing Scholarship and Teaching, 43 HASTINGS CONST. L.Q. 537, 575-84 (2016) (discussing circuit split concerning application of Garcetti to academic setting); Matthew Jay Hertzog, The Misapplication of Garcetti in Higher Education, 2015 B.Y.U. EDUC. & L.J. 203, 203 (2015).

Page 457, add to the string cite at the end of the first paragraph:

; see also Anzaldua v. Ne. Ambulance & Fire Prot. Dist., 793 F.3d 822 (8th Cir. 2015) (holding fire department has greater interest in regulating speech than typical government employer to promote efficiency, loyalty, obedience, morale, and public confidence).

Page 458, add at the end of the last paragraph in Note 6:

For further discussion of speech protections, deference, and employer justifications, see Heidi Kitrosser, The Special Value of Public Employee Speech, 2015 Supreme Court Review(forthcoming 2016) (arguing that, where work product speech is concerned,  courts should look to whether the employee was disciplined for genuine, not pretextual, quality concerns, with only the former insulated from further scrutiny); Pauline T. Kim, Market Norms and Constitutional Values in the Government Workplace, 94 N.C.L. REV. 601, 647 (2016) (the increasing tendency to apply market norms to public employees not only narrows their rights but is justified neither by governmental property or autonomy interests nor subject to market mechanisms for controlling overreaching by the public manager)

Chapter 8Competition, Employee Loyalty, and

the Allocation of Workplace Property Interests

Page 486, add before Volt cite in Note 5, Tortious Interference with Contract:

St. Jude Med. S.C., Inc. v. Biosense Webster, Inc., 2016 U.S. App. LEXIS 6658 (8th Cir. Apr. 12, 2016) (enforcement by way of damages for intentional interference with a contract for a term of years was available without analyzing the case as a postemployment restrictive covenant).

Page 496, add after Gilson citation in carryover Note 4, The Complex Economics of Noncompete Agreements:

Orly Lobel, The New Cognitive Property: Human Capital Law and the Reach of Intellectual Property, 93 TEX. L. REV. 789, 853 (2015) (“Restrictions on the flow of knowledge -- through noncompetes, nondealings agreements, trailer clauses, and pre-innovation clauses -- contaminate market flows and diminish both the incentives to move efficiently in the market and the incentives to innovate. For knowledge to flow, for networks to remain dense, for motivation to keep innovation high, and for new blood to disrupt stagnated paths, the law must upend the rapid rise of the new cognitive property and restore the balance between protected forms of information and a vital public domain.”);

Page 496, add at end of first full paragraph in carryover Note 4, The Complex Economics of Noncompete Agreements:

Cf. Robert W. Gomulkiewicz, Leaky Covenants-Not-To-Compete as the Legal Infrastructure for Innovation, 49 U.C. DAVIS L. REV. 251 (2015) (arguing that Washington State has similar economic results to California because, while its law is more hostile to noncompetes, technology firms rarely enforce them).

Page 511, add before Corporate Techs cite in carryover Note 5, Narrower Restraints as Alternatives:

AssuredPartners, Inc. v. Schmitt, 44 N.E.3d 463 (Ill. App. Ct. 2015) (nonsolicitation provision unenforceable because it prevented the former employee from soliciting business from not only existing customers, but also from potential customers of plaintiffs and their subsidiaries).

Page 511, add before Vulcan Steel cite in carryover Note 5, Narrower Restraints as Alternatives:

Orthofix, Inc. v. Hunter, 630 F. App'x 566, 573 (6th Cir. 2015) (both Texas law and the Restatement (Third) of Unfair Competition view nondisclosure agreements as enforceable even without geographic and durational limits so long as the agreement does not prohibit employees from using general knowledge, skill, and experience acquired in their former employment; if it does so, it is more properly viewed as a noncompete);

Page 536, add at end of Note 4, The Public Interest:

See generally Kevin D. Horvitz, Note, An Unreasonable Ban on Reasonable Competition: The Legal Profession's Protectionist Stance Against Noncompete Agreements Binding In-House Counsel, 65 DUKE L.J. 1007 (2016) (the per se ban on attorney noncompetition agreements is inconsistent with the application of the common-law reasonableness test for every other profession but is especially difficult to justify when applied to in-house counsel for whom the policy of furthering client choice is inapposite).

Page 537, add after UZ Engineering discussion in Note 8, Industry Standards for Reasonableness:

See also HR Staffing Consultants LLC v. Butts, 627 F. App’x 168 (3d Cir. 2015) (a noncompetition agreement between a staffing company and its employee protected the company’s legitimate business interest of preventing disintermediation, the ability of customers or employees to cut out HR Staffing as a middleman between hospitals and those who work at them while employed by HR: “Without non-competes, employees searching for placements and clients seeking specialized personnel” benefit from a staffing company's services without paying the full price of those services by contracting with its employees as soon as they were placed).

Page 538, add after cite to Restatement of Employment Law in last full paragraph of carryover Note 9, Judicial Responses to Overbroad Agreements:

See AssuredPartners, Inc. v. Schmitt, 44 N.E.3d 463 (Ill. App. Ct. 2015) (modification of overbroad covenants that effectively preventing plaintiff from practicing his trade was inappropriate when the court was “not dealing with one minor deficiency, but with several deficiencies” that render the clause unreasonable).

Page 546, add at end of Note 2, Choice-of-Forum Clauses:

Two recent cases suggest that public policy can invalidate both choice of forum and choice of law clauses. See Verdugo v. Alliantgroup, L.P., 237 Cal. App. 4th 141, 144 (Cal. App. 2015) (a forum selection clause violated public policy when the employer could not establish that the chosen forum would not diminish an employee's substantive unwaivable rights under California law because it did not stipulate to the application of California law there); Brown & Brown, Inc. v. Johnson, 34 N.E.3d 357 (N.Y. 2015) (a choice of law clause was unenforceable to the extent it related to a non-solicitation provision because it violated New York public policy because the Florida law had different elements and degrees of proof than New York required). But see St. Jude Med. S.C., Inc. v. Biosense Webster, Inc., 2016 U.S. App. LEXIS 6658 (8th Cir. Apr. 12, 2016) (Minnesota choice-of-law provision in an employment agreement being

performed in California was valid because the parties acted in good faith and without the intent to evade the law.)

Page 555, add in Note 3, “Garden Leave” Clauses before Lembrich cite:

Charles A. Sullivan, Tending the Garden: Restricting Competition via “Garden Leave” 36 BERKELEY J. EMPL. & LAB. L. *** (2016);

Page 556, add after “the paradigmatic anonymous hacker” in fifth line from the bottom:

see also United States v. Steele, 595 F. App’x 208 (4th Cir. 2014) (an ex-employee who continued to access his former employer's e-mail server for nine months after resigning to join a competitor violated the "without authorization" provision of CFAA),

Page 557, add before Nosal cite in first full paragraph:

United States v. Valle, 807 F.3d 508, 511-12 (2d Cir. 2015) (2-1) ("exceeds authorized access" in the CFAA could be read to mean either accessing a computer to obtain information that the user is otherwise authorized to access for an impermissible purpose or merely accessing information without authorization for any purpose; since the text, statutory history, and purpose of the CFAA permit both interpretations, “we are required to apply the rule of lenity and adopt the latter construction”)

Chapter 9Antidiscrimination

Page 583, add before see generally cite in carryover paragraph:

Cf. Deets v. Massman Constr. Co., 811 F.3d 978 (7th Cir. 2016) (white construction worker who was told when laid off that the employer’s “minority numbers” were too low produced direct evidence of discrimination sufficient to avoid summary judgment and which was supported by other evidence, including the fact that the employer had been out of compliance with its minority participation goals for three consecutive weeks and the hiring of a racial minority the day after plaintiff’s termination).

Page 587, add at end of carryover paragraph:

See also Victor D. Quintanilla & Cheryl R. Kaiser, The Same-Actor Inference of Nondiscrimination: Moral Credentialing and the Psychological and Legal Licensing of Bias, 104 Cal. L. Rev. 1 (2016) (same-actor evidence should be viewed as merely one datum to be weighed in the analysis rather than having greater power, partly due to empirical evidence suggesting that non-biased actions (such as hiring a minority or woman) can actually establish a kind of “moral licensing” that privileges subsequent manifestations of bias).

Page 607, add at end of carryover Note 5, No Harm, No Foul?:

Requiring but-for causation can make an enormous difference in the outcome of case. E.g., Arthur v. Pet Dairy, 593 F. App'x 211, 221 (4th Cir. 2015) (while a supervisor’s comments about a worker’s performance contemporaneous with the termination were direct evidence of age bias, summary judgment for the employer was still appropriate because no reasonable jury could find but-for causation in light of record evidence demonstrating that his employer terminated plaintiff for other lawful reasons); Johnson v. Securitas Sec. Servs. USA, Inc., 769 F.3d 605, 614 (8th Cir. 2014) (age-related comments -- he was "too old" and "needed to hang up his Superman cape and retire" -- by one of the three decision makers in plaintiff’s termination were not enough to create a jury question as to pretext regarding his unauthorized departure from the scene and delay in reporting an accident ).

Page 619, add after Id. in first line after extract:

See also Quigg v. Thomas Cnty. Sch. Dist., 814 F.3d 1227 (11th Cir. 2016) (relying on Baxter Healthcare to conclude that mixed-motive claims based on circumstantial evidence require only proof sufficient to convince a jury that a protected characteristic was a motivating factor an adverse employment action against the plaintiff and that McDonnell Douglas need not be applied even in the summary judgment context.

Page 627. At before Lobato cite in carryover Note 2, Proximate Cause:

Woods v. City of Berwyn, 803 F.3d 865, 870 (7th Cir. 2015) (although an allegedly biased supervisor initiated disciplinary proceedings, the Board made its determination to discharge after a full hearing and without relying on any of his statements); Thomas v. Berry Plastics Corp., 803 F.3d 510, 517 (10th Cir. 2015) (“independent termination review process broke the causal chain” between the purported retaliatory animus and plaintiff’s termination); Jones v. SEPTA, 796 F.3d 323 (3d Cir. 2015) (the fact that a supervisor’s reported and initiated an investigation is not sufficient to establish that the subsequent adverse action was tainted when there was a subsequent investigation independent of the supervisor);

Page 632, add at end of first sentence of first full paragraph:

See McCleary-Evans v. Md. DOT, 780 F.3d 582, 587-88 (4th Cir. 2015) (Swierkiewicz’s more lenient pleading standard has been superseded, and plaintiff’s averments of discrimination were mere conclusions when she failed to allege a prima facie case or other basis for inferring more than the possibility of discrimination).

Page 632, add at end of text before Problem:

A potentially important decision is Littlejohn v. City of New York, 795 F.3d 297, 310 (2d Cir. 2015), which agreed that Iqbal applied to Title VII complaints but found it

does not affect the benefit to plaintiffs pronounced in the McDonnell Douglas quartet. To the same extent that the McDonnell Douglas temporary presumption reduces the facts a plaintiff would need to show to defeat a motion for summary judgment prior to the defendant's furnishing of a non-discriminatory motivation, that presumption also reduces the facts needed to be pleaded under Iqbal. . . . The facts alleged must give plausible support to the reduced requirements that arise under McDonnell Douglas in the initial phase of a Title VII litigation. The facts required by Iqbal to be alleged in the complaint need not give plausible support to the ultimate question of whether the adverse employment action was attributable to discrimination. They need only give plausible support to a minimal inference of discriminatory motivation.”).

Page 644, add at end of Note 2, Avoiding Sexual Harassment and Exploitation:

Since Breiner, the Ninth Circuit has decided two prison cases, approving gender-specific staffing issues in one and suggesting a problem in the other. Teamsters Local Union No. 117 v. Wash. Dep't of Corr., 789 F.3d 979 (9th Cir. 2015) (a plan designating 110 female-only correctional position to patrol housing units, prison grounds, and work sites was valid under the BFOQ exception since it reflected an individualized, well-researched response to problems in women's prisons of sexual abuse and misconduct by prison guards, breaches of inmate privacy, and security gaps); Ambat v. City & Cnty. of S.F., 757 F.3d 1017 (9th Cir. 2014) (triable fact issue as to whether an employer’s policy of prohibiting male deputies from supervising female jail inmates was a bfoq; because a jury “could conclude that the decision-making process was either insufficiently reasoned or insufficiently based on available information and experience, the County cannot meet its burden of showing that the Sheriff's judgment is entitled to deference as a matter of law”).

Page 650, add at end of second full paragraph:

See Shea v. Kerry, 796 F.3d 42 (D.C. Cir. 2015) (while the employer had the burden of adducing evidence that, if taken as true, demonstrated the validity of an affirmative action plan, it did so by adducing proof that a plan addressed manifest imbalances in senior-level positions in the Foreign Service Officer corps resulting from past discrimination, and refrained from unnecessarily trammeling the rights of non-minority candidates).

Page 652, add after extract:

See also Shea v. Kerry, 796 F.3d 42, 54 (D.C. Cir. 2015) (finding Weber/Johnson to control a challenge to an affirmative action plan, despite Ricci, because those opinion “are directly applicable to this case” and the Supreme Court has cautioned against the lower courts finding its decisions overruled by implication).

Page 654, add at end of second full paragraph:

See generally Deborah C. Malamud, The Strange Persistence of Affirmative Action under Title VII, 118 W. VA. L. REV. 1, 23 (2015).

Page 682, add at end of carryover Note 3, Relation to Affirmative Action:

See also Shea v. Kerry, 796 F.3d 42, 54 (D.C. Cir. 2015) (finding Weber/Johnson to control a challenge to an affirmative action plan, despite Ricci, because those opinion “are directly applicable to this case” and the Supreme Court has cautioned against the lower courts finding its decisions overruled by implication).

Page 683, add a new Note 14

14.  New Light on Disparate Impact.  In Texas Department of Housing and Community Affairs v. Inclusive Communities Project, Inc., 135 S. Ct. 2507 (2015), the Supreme Court found that the disparate impact theory applied under the Fair Housing Act.  While not directly applicable to Title VII, the majority opinion written by Justice Kennedy did look to employment discrimination law for its interpretation of the FHA.  Thus, the Court wrote that

Together, Griggs holds and the plurality in Smith instructs that antidiscrimination laws must be construed to encompass disparate-impact claims when their text refers to the consequences of actions and not just to the mindset of actors, and where that interpretation is consistent with statutory purpose. These cases also teach that disparate-impact liability must be limited so employers and other regulated entities are able to make the practical business choices and profit-related decisions that sustain a vibrant and dynamic free-enterprise system. And before rejecting a business justification—or, in the case of a governmental entity, an analogous public interest—a court must determine that a plaintiff has shown that there is “an available alternative . . . practice that has less disparate impact and serves the [entity’s] legitimate needs.” Ricci. 

Id. at 2518.  The majority explicitly rejected the notion that the words “because of race” in the statute limited its reach to disparate treatment since race could not be the “reason for the action” Id. at 2519 (emphasis in original). According to the Court, “Griggs and Smith . . . dispose of this argument.” Id. The majority also looked to the fact that Congress’s amendment of the statute in 1988, after all nine circuits to have addressed the question found disparate impact liability, and its passage of certain exemptions that would have been unnecessary had disparate impact not been available to show congressional ratification of the theory.

In the process, the Court acknowledged that disparate impact liability under the FHA “also plays a role in uncovering discriminatory intent: It permits plaintiffs to counteract unconscious prejudices and disguised animus that escape easy classification as disparate treatment. In this way disparate-impact liability may prevent segregated housing patterns that might otherwise result from covert and illicit stereotyping.” Id. at 2511-12.  

While approving FHA disparate impact liability generally, the majority cautioned that the theory “has always been properly limited in key respects that avoid the serious constitutional questions that might arise under the FHA, for instance, if such liability were imposed based solely on a showing of a statistical disparity. It stressed the role of the business necessity defense in Title VII as restraining too broad an application of the principle. “To be sure, the Title VII

framework may not transfer exactly to the fair-housing context, but the comparison suffices for present purposes.” Id. at 2523  Similarly, Justice Kennedy stressed that a “disparate-impact claim that relies on a statistical disparity must fail if the plaintiff cannot point to a defendant’s policy or policies causing that disparity. A robust causality requirement ensures that “[r]acial imbalance . . . does not, without more, establish a prima facie case of disparate impact” and thus protects defendants from being held liable for racial disparities they did not create.” quoting Wards Cove. Id.  Finally, also quoting Wards Cove, the Court cautioned that judicial remedies must be consistent with the Constitution. They “should concentrate on the elimination of the offending practice that ‘arbitrar[ily] . . . operate[s] invidiously to discriminate on the basis of rac[e].’”  Id. at 2524.

Justice Alito’s dissent, joined by the Chief Justice and Justices Scalia and Thomas, rejected disparate impact liability largely by reading “because of” in the FHA to mean the reason a person acts.

Justice Thomas separately dissented in a truly remarkable opinion that was a frontal assault on Griggs, which he viewed as illegitimate and therefore not to be extended further than stare decisis might require. He attacked the EEOC’s strategy of expanding Title VII through the disparate impact theory and its core premises. Disparate impact is based on the fundamental assumption that “racial disparity at an institution is a product of that institution rather than a reflection of disparities that exist outside it.” Id. at 2529. If predicated on the notion that such an imbalance is the result of discrimination, it is unrealistic since such disparities often arise naturally and racial minorities do not always suffer from such disparities. To that point, he cited various ethnic groups who have done well in countries where they are in the minority as well as blacks in the NBA.

Alternatively, it disparate impact liability is viewed “simply a way to correct for imbalances that do not result from any unlawful conduct, it is even less justifiable.” Id. at 2530.  He explained:

This Court has repeatedly reaffirmed that “‘racial balancing’” by state actors is “‘patently unconstitutional,’” even when it supposedly springs from good intentions.  And if that “racial balancing” is achieved  through disparate-impact claims limited to only some groups—if, for instance, white basketball players cannot bring disparate-impact suits—then we as a Court have constructed a scheme that parcels out legal privileges to individuals on the basis of skin color. A problem with doing so should be obvious: “Government action that classifies individuals on the basis of race is inherently suspect.”  That is no less true when judges are the ones doing the classifying. Disparate-impact liability is thus a rule without a reason, or at least without a legitimate one.”

Id. at 2531 (citations omitted). See generally Samuel R. Bagenstos, Disparate Impact and the Role of Classification and Motivation in Equal Protection Law after Inclusive Communities, 101 CORNELL L. REV. (forthcoming 2016).

Page 691, add before Soucek cite in second paragraph of carryover Note 1, Sex Conduct versus Gender:

Luke A. Boso, Real Men, 37 HAWAII L. REV. 107, 108 (2015) (arguing for a contextual approach to determining sex stereotyping where male plaintiffs claim to have been discriminated against because they fail to look or behave like “real men”: “If a plaintiff's gender presentation differs from the dominant gender norms in the relevant context, that difference, accompanied by harassment, should support an inference of discriminatory intent.”);

Page 708, add the end of Note 11, Constructive Discharge:

In Green v. Brennan, 136 S. Ct. *** (2016), the Supreme Court resolved a question regarding the timeliness of constructive discharge claims, with the majority holding that plaintiffs had to meet agency filing requirements as measured from the moment they gave notice of their resignation, not as measured from the employer’s acts creating the intolerable conditions that led to that resignation.

Page 710, add at end of second full paragraph:

Allowance of sex-based differences has not always been limited to the grooming code scenario. In Bauer v. Lynch, 812 F.3d 340 (4th Cir. 2016), the court upholding gender-normed physical fitness tests for FBI trainees by rejecting the simple Manhart test of whether "the evidence shows treatment of a person in a manner which but for that person's sex would be different” in favor of asking whether the test imposes a greater burden on one sex than the other. Can you explain this decision?

Page 712, add at end of Note on Sexual Orientation Discrimination:

The Supreme Court’s decision in Obergefell v. Hodges, 135 S. Ct. 2584 (2015), striking down state bans on same-sex marriage seems likely to have strong reverberations across many legal areas, including employment. See generally Keith Cunningham-Parmeter, Marriage Equality, Workplace Inequality: The Next Gay Rights Battle, 67 FLA. L. REV. 1099 (2015); Stephen F. Befort & Michael J. Vargas, Same-Sex Marriage and Title VII, 56 SANTA CLARA L. REV. 207 (2016).

Page 719, add at Note 7, Distinguishing Opposition from Participation:

Professor Brake’s fears have been borne out. See EEOC v. Rite Way Serv., 2016 U.S. App. LEXIS 6473 (5th Cir. Apr. 8, 2016) (even a plaintiff who is merely acting as a third party witness to questions about possible discrimination must have a reasonable belief in the conduct’s illegality to be protected from retaliation). If not, is Crawford’s protection nearly as broad as might first appear?

Page 727, add at end of Note 4, Threats Just Fine?:

See also Brandon v. Sage Corp., 808 F.3d 266, 271 (5th Cir. 2015) (while not rejecting “the possibility that a realistic, drastic pay cut threat might deter someone from supporting a discrimination charge,” such a threat by someone outside plaintiff’s chain of command made to “a reasonable high placed” employee who was familiar with the organization would not have

dissuaded that person from engaging in protected activity). More generally, Professor Sandra F. Sperino, in Retaliation and the Reasonable Person, 67 FLA. L. REV. 2031 (2016), challenges lower courts’ application of the Burlington Northern standard for adverse employment actions both on theoretical grounds and in view of an empirical study revealing that subjects viewed various employer responses as more likely to discourage reporting than do many court decisions.

Page 732, add before “Foreseeing some problems” in first full paragraph of Note on Impairments:

See Fischer v. Minneapolis Pub. Sch., 792 F.3d 985, 989 (8th Cir. 2015) (“MPS's belief that Fischer was capable of performing the physical labor of a medium strength worker is not equivalent to a belief that Fischer suffered a physical impairment such as a physiological disorder, cosmetic disfigurement, anatomical loss, or disease.”).

Page 733, add the end of the first full paragraph:

However, as suggested in the next paragraph, the regulations do view temporary impairments as potentially being actual disabilities and pregnancy often entails impairments such as lifting limitations. The Supreme Court, in deciding a Pregnancy Discrimination Act case, Young v. UPS, Inc., reproduced in Chapter 9 below, referred to the EEOC’s ADA regulations as also potentially imposing a duty to accommodate, although it did not pass on their validity.

Page 734, add at end of first full paragraph:

Bearing out Professor Korn’s prediction is Morriss v. BNSF Ry. Co., 817 F.3d 1104, 1112-13 (8th Cir. 2016). It held, first, as to actual disability, “for obesity, even morbid obesity, to be considered a physical impairment, it must result from an underlying physiological disorder or condition. This remains the standard even after enactment of the ADAAA, which did not affect the definition of physical impairment.” Second, as for regarded as liability, plaintiff could prevail only by showing that his employer “perceived his obesity to be a condition that met the definition of ‘physical impairment.’ The ADA does not prohibit discrimination based on a perception that a physical characteristic—as opposed to a physical impairment—may eventually lead to a physical impairment as defined under the Act. Instead, the plain language of the ADA prohibits actions based on an existing impairment or the perception of an existing impairment.” Id. at 1113.

Page 758, add at end of Note 2, Essential Functions:

See generally Michelle A. Travis, Disqualifying Universality Under the Americans with Disabilities Act Amendments Act, 2015 MICH. ST. L. REV. 1689 (exploring the judicial expansion of the essential functions notion in the wake of the ADAAA as a means of limiting the sweep of those amendments by rendering fewer disabled individuals “qualified.”).

Page 758, add at end of Note 5, Job Descriptions & Business Judgment:

See generally Michelle A. Travis, Disqualifying Universality Under the Americans with Disabilities Act Amendments Act, 2015 MICH. ST. L. REV. 1689 (detailing the undue deference courts have given employer job descriptions in post-ADAAA decisions).

Page 760, add at end of carryover Note 7, Who Proves What?:

Contra Hawkins v. Schwan's Home Serv., 778 F.3d 877, 879 (10th Cir. 2015) (while the employer may have a burden of production with respect to essential functions, plaintiff failed to carry his burden of persuasion to establish that driving a truck was not essential, even though he had performed his work for more than two years without driving a truck and he was therefore unqualified when he lacked DOT certification).

Page 776, add at end of carryover paragraph:

While not directly focusing on the reasonableness of an accommodation, EEOC v. Abercrombie & Fitch Stores, Inc., 135 S. Ct. 2028 (2015), held that an employer who failed to hire an individual because it suspected she might need a religious accommodation violated Title VII.

Chapter 10Accommodating Workers’ Lives

Page 787, add at end of carryover paragraph:

Osborne v. Baxter Healthcare Corp., 798 F.3d 1260, 1278 (10th Cir. 2015), held that, to shift the burden of proof to the employer, plaintiff “must show only that her proposed accommodation is reasonable on its face; that is, it would permit her to perform the essential function at issue—here, donor monitoring. She need not show that the accommodation would eliminate every de minimis health or safety risk that [the employer] can hypothesize.” It also held it error for the district court to require plaintiff to show “not only that her proposed accommodation is reasonable on its face, but also that the accommodation would be feasible” for the employer; “how much alarms would cost, when they could be added in the production process, and who would install them” are part of the employer’s burden to “identify with specificity . . . why the proposed accommodation constitutes an undue hardship and is thus unreasonable.” Id. at 1273.

Page 795, delete citation to Ford case; replace with:

See also Reyazuddin v. Montgomery Cnty., 789 F.3d 407, 418 (4th Cir. 2015) (“the district court reduced a multi-factor analysis to a single factor – cost -- that the court believed was simply too much for the County to bear. But while cost is important, it cannot be viewed in isolation. Rather, it is the relative cost, along with other factors, that matters” (such as whether other similar facilities accommodated those kinds of disabilities).  

Page 800, add at end of first full paragraph:

This authority was not reversed wholesale, but was significantly modified in 2015 with the Supreme Court’s decision in Young v. UPS, Inc., reproduced below, which breathed new life into the PDA by finding independent meaning in the second clause.

Page 806, delete add last sentence of carryover Note 7, The Bottom Line; replace with:

* * *This conclusion was both cast into doubt and reaffirmed in the Supreme Court’s latest

encounter with the PDA, an opinion which does not require employers who provide no accommodations for anyone to accommodate pregnancy but does expands the notion of intent to discriminate in order to require employers more frequently to accommodate pregnant women when they accommodate other workers.

Young v. UPS

135 S. Ct. 1338 (2015)

JUSTICE BREYER delivered the opinion of the Court.

The Pregnancy Discrimination Act makes clear that Title VII’s prohibition against sex discrimination applies to discrimination based on pregnancy. It also says that employers must treat “women affected by pregnancy…the same for all employment-related purposes…as other persons not so affected but similar in their ability or inability to work.” 42 U.S.C. §2000e(k). We must decide how this latter provision applies in the context of an employer’s policy that accommodates many, but not all, workers with nonpregnancy-related disabilities.

In our view, the Act requires courts to consider the extent to which an employer’s policy treats pregnant workers less favorably than it treats nonpregnant workers similar in their ability or inability to work. And here—as in all cases in which an individual plaintiff seeks to show disparate treatment through indirect evidence—it requires courts to consider any legitimate, nondiscriminatory, nonpretextual justification for these differences in treatment. See McDonnell Douglas Corp. v. Green. Ultimately the court must determine whether the nature of the employer’s policy and the way in which it burdens pregnant women shows that the employer has engaged in intentional discrimination. The Court of Appeals here affirmed a grant of summary judgment in favor of the employer. Given our view of the law, we must vacate that court’s judgment.

I

A

We begin with a summary of the facts. The petitioner, Peggy Young, worked as a part-time driver for the respondent, United Parcel Service (UPS). Her responsibilities included pickup and delivery of packages that had arrived by air carrier the previous night. In 2006, after suffering

several miscarriages, she became pregnant. Her doctor told her that she should not lift more than 20 pounds during the first 20 weeks of her pregnancy or more than 10 pounds thereafter.

UPS required drivers like Young to be able to lift parcels weighing up to 70 pounds (and up to 150 pounds with assistance). UPS told Young she could not work while under a lifting restriction. Young consequently stayed home without pay during most of the time she was pregnant and eventually lost her employee medical coverage.

Young subsequently brought this federal lawsuit. We focus here on her claim that UPS acted unlawfully in refusing to accommodate her pregnancy-related lifting restriction. Young said that her co-workers were willing to help her with heavy packages. She also said that UPS accommodated other drivers who were “similar in their…inability to work.” She accordingly concluded that UPS must accommodate her as well.

UPS responded that the “other persons” whom it had accommodated were (1) drivers who had become disabled on the job, (2) those who had lost their Department of Transportation (DOT) certifications, and (3) those who suffered from a disability covered by the Americans with Disabilities Act of 1990. UPS said that, since Young did not fall within any of those categories, it had not discriminated against Young on the basis of pregnancy but had treated her just as it treated all “other” relevant “persons.”

B

Title VII of the Civil Rights Act of 1964 forbids a covered employer to “discriminate against any individual with respect to…terms, conditions, or privileges of employment, because of such individual’s…sex.” In 1978, Congress enacted the Pregnancy Discrimination Act, which added new language to Title VII’s definitions subsection. The first clause of the 1978 Act specifies that Title VII’s “ter[m] ‘because of sex’…include[s]…because of or on the basis of pregnancy, childbirth, or related medical conditions.”§ 2000e(k). The second clause says that

women affected by pregnancy, childbirth, or related medical conditions shall be treated the same for all employment-related purposes…as other persons not so affected but similar in their ability or inability to work.…

This case requires us to consider the application of the second clause to a “disparate-treatment” claim—a claim that an employer intentionally treated a complainant less favorably than employees with the “complainant’s qualifications” but outside the complainant’s protected class. McDonnell Douglas. We have said that “[l]iability in a disparate-treatment case depends on whether the protected trait actually motivated the employer’s decision.” Raytheon Co. v. Hernandez, 540 U.S. 44, 52 (2003). We have also made clear that a plaintiff can prove disparate treatment either (1) by direct evidence that a workplace policy, practice, or decision relies expressly on a protected characteristic, or (2) by using the burden-shifting framework set forth in McDonnell Douglas. See Trans World Airlines, Inc. v. Thurston, 469 U.S. 111 (1985).

[The majority described the McDonnell Douglas litigation structure and then noted that employment discrimination law also recognized disparate-impact claim, but Young has not alleged such a claim. Nor did she assert a “pattern-or-practice” claim]

[In responding to UPS’s motion for summary judgment,] Young pointed to favorable facts that she believed were either undisputed or that, while disputed, she could prove. They include the following:

1. Young worked as a UPS driver, picking up and delivering packages carried by air.

2. Young was pregnant in the fall of 2006.

3. Young’s doctor recommended that she “not be required to lift greater than 20 pounds for the first 20 weeks of pregnancy and no greater than 10 pounds thereafter.”

4. UPS required drivers such as Young to be able to “[l]ift, lower, push, pull, leverage and manipulate…packages weighing up to 70 pounds” and to “[a]ssist in moving packages weighing up to 150 pounds.”

5. UPS’ occupational health manager, the official “responsible for most issues relating to employee health and ability to work” at Young’s UPS facility, told Young that she could not return to work during her pregnancy because she could not satisfy UPS’ lifting requirements.

6. The manager also determined that Young did not qualify for a temporary alternative work assignment.

7. UPS, in a collective-bargaining agreement, had promised to provide temporary alternative work assignments to employees “unable to perform their normal work assignments due to an on-the-job injury.” (emphasis added).

8. The collective-bargaining agreement also provided that UPS would “make a good faith effort to comply…with requests for a reasonable accommodation because of a permanent disability” under the ADA.

9. The agreement further stated that UPS would give “inside” jobs to drivers who had lost their DOT certifications because of a failed medical exam, a lost driver’s license, or involvement in a motor vehicle accident.

10. When Young later asked UPS’ Capital Division Manager to accommodate her disability, he replied that, while she was pregnant, she was “too much of a liability” and could “not come back” until she “‘was no longer pregnant.’”

11. Young remained on a leave of absence (without pay) for much of her pregnancy.

12. Young returned to work as a driver in June 2007, about two months after her baby was born.

As direct evidence of intentional discrimination, Young relied, in significant part, on the statement of the Capital Division Manager (10 above). As evidence that she had made out a prima facie case under McDonnell Douglas, Young relied, in significant part, on evidence showing that UPS would accommodate workers injured on the job (7), those suffering from ADA disabilities (8), and those who had lost their DOT certifications (9). That evidence, she said, showed that UPS had a light-duty-for-injury policy with respect to numerous “other persons,” but not with respect to pregnant workers.

Young introduced further evidence indicating that UPS had accommodated several individuals when they suffered disabilities that created work restrictions similar to hers. UPS contests the correctness of some of these facts and the relevance of others. But because we are at the summary judgment stage, and because there is a genuine dispute as to these facts, we view this evidence in the light most favorable to Young, the nonmoving party:

13. Several employees received accommodations while suffering various similar or more serious disabilities incurred on the job [a 10-pound lifting limitation, foot injury, and an arm injury].

14. Several employees received accommodations following injury, where the record is unclear as to whether the injury was incurred on or off the job [recurring knee injury, ankle injury, knee injury, stroke, and leg injury].

15. Several employees received “inside” jobs after losing their DOT certifications [for a DUI conviction, high blood pressure, and sleep apnea diagnosis].

16. Some employees were accommodated despite the fact that their disabilities had been incurred off the job.

17. According to a deposition of a UPS shop steward who had worked for UPS for roughly a decade, “the only light duty requested [due to physical] restrictions that became an issue” at UPS “were with women who were pregnant.”

[The District Court granted UPS’ motion for summary judgment and the Fourth Circuit affirmed.]

D

We note that statutory changes made after the time of Young’s pregnancy may limit the future significance of our interpretation of the Act. In 2008, Congress expanded the definition of “disability” under the ADA to make clear that “physical or mental impairment[s] that substantially limi[t]” an individual’s ability to lift, stand, or bend are ADA-covered disabilities. ADA Amendments Act of 2008, 42 U.S.C. §§ 12102(1)-(2). As interpreted by the EEOC, the new statutory definition requires employers to accommodate employees whose temporary lifting restrictions originate off the job. See 29 CFR pt. 1630, App., § 1630.2(j)(1)(ix). We express no view on these statutory and regulatory changes.

II

The parties disagree about the interpretation of the Pregnancy Discrimination Act’s second clause. As we have said, the Act’s first clause specifies that discrimination “‘because of sex’” includes discrimination “because of…pregnancy.” But the meaning of the second clause is less clear; it adds: “[W]omen affected by pregnancy, childbirth, or related medical conditions shall be treated the same for all employment-related purposes…as other persons not so affected but similar in their ability or inability to work.” 42 U.S.C. § 2000e(k) (emphasis added). Does this clause mean that courts must compare workers only in respect to the work limitations that they suffer? Does it mean that courts must ignore all other similarities or differences between pregnant and nonpregnant workers? Or does it mean that courts, when deciding who the relevant “other persons” are, may consider other similarities and differences as well? If so, which ones?

The differences between these possible interpretations come to the fore when a court, as here, must consider a workplace policy that distinguishes between pregnant and nonpregnant workers in light of characteristics not related to pregnancy. Young poses the problem directly in her reply brief when she says that the Act requires giving “the same accommodations to an employee with a pregnancy-related work limitation as it would give that employee if her work limitation stemmed from a different cause but had a similar effect on her inability to work.” Suppose the employer would not give “that [pregnant] employee” the “same accommodations” as another employee, but the employer’s reason for the difference in treatment is that the pregnant worker falls within a facially neutral category (for example, individuals with off-the-job injuries). What is a court then to do?

The parties propose very different answers to this question. Young and the United States believe that the second clause of the Pregnancy Discrimination Act “requires an employer to provide the same accommodations to workplace disabilities caused by pregnancy that it provides to workplace disabilities that have other causes but have a similar effect on the ability to work.” In other words, Young contends that the second clause means that whenever “an employer accommodates only a subset of workers with disabling conditions,” a court should find a Title VII violation if “pregnant workers who are similar in the ability to work” do not “receive the same [accommodation] even if still other non-pregnant workers do not receive accommodations.”

UPS takes an almost polar opposite view. It contends that the second clause does no more than define sex discrimination to include pregnancy discrimination. Under this view, courts would compare the accommodations an employer provides to pregnant women with the accommodations it provides to others within a facially neutral category (such as those with off-the-job injuries) to determine whether the employer has violated Title VII. Cf. (Scalia, J., dissenting) (hereinafter the dissent) (the clause “does not prohibit denying pregnant women accommodations…on the basis of an evenhanded policy”).

A

We cannot accept either of these interpretations. Young asks us to interpret the second clause broadly and, in her view, literally. As just noted, she argues that, as long as “an employer

accommodates only a subset of workers with disabling conditions,” “pregnant workers who are similar in the ability to work [must] receive the same treatment even if still other nonpregnant workers do not receive accommodations.” She adds that, because the record here contains “evidence that pregnant and nonpregnant workers were not treated the same,” that is the end of the matter, she must win; there is no need to refer to McDonnell Douglas.

The problem with Young’s approach is that it proves too much. It seems to say that the statute grants pregnant workers a “most-favored-nation” status. As long as an employer provides one or two workers with an accommodation—say, those with particularly hazardous jobs, or those whose workplace presence is particularly needed, or those who have worked at the company for many years, or those who are over the age of 55—then it must provide similar accommodations to all pregnant workers (with comparable physical limitations), irrespective of the nature of their jobs, the employer’s need to keep them working, their ages, or any other criteria.

Lower courts have concluded that this could not have been Congress’ intent in passing the Pregnancy Discrimination Act. And Young partially agrees, for she writes that “the statute does not require employers to give” to “pregnant workers all of the benefits and privileges it extends to other” similarly disabled “employees when those benefits and privileges are…based on the employee’s tenure or position within the company” [such as seniority, full-time work, and different job classifications.].

Young’s last-mentioned concession works well with respect to seniority, for Title VII itself contains a seniority defense, see 42 U.S.C. § 2000e-2(h). Hence, seniority is not part of the problem. But otherwise the most-favored-nation problem remains, and Young’s concession does not solve it. How, for example, should a court treat special benefits attached to injuries arising out of, say, extra-hazardous duty? If Congress intended to allow differences in treatment arising out of special duties, special service, or special needs, why would it not also have wanted courts to take account of differences arising out of special “causes”—for example, benefits for those who drive (and are injured) in extrahazardous conditions?

We agree with UPS to this extent: We doubt that Congress intended to grant pregnant workers an unconditional most-favored-nation status. The language of the statute does not require that unqualified reading. The second clause, when referring to nonpregnant persons with similar disabilities, uses the open-ended term “other persons.” It does not say that the employer must treat pregnant employees the “same” as “any other persons” (who are similar in their ability or inability to work), nor does it otherwise specify which other persons Congress had in mind.

Moreover, disparate-treatment law normally permits an employer to implement policies that are not intended to harm members of a protected class, even if their implementation sometimes harms those members, as long as the employer has a legitimate, nondiscriminatory, nonpretextual reason for doing so. See, e.g., Raytheon; Burdine; McDonnell Douglas. There is no reason to believe Congress intended its language in the Pregnancy Discrimination Act to embody a significant deviation from this approach. Indeed, the relevant House Report specifies that the Act “reflect[s] no new legislative mandate.” H. R. Rep. No. 95-948, pp. 3-4 (1978) (hereinafter H. R. Rep.). And the Senate Report states that the Act was designed to “reestablis[h]

the law as it was understood prior to” this Court’s decision in General Electric Co. v. Gilbert. S. Rep. No. 95-331, p. 8 (1978) (hereinafter S. Rep.).

B

[The Court traced the somewhat inconsistent history of EEOC pronouncements. After certiorari had been granted in Young, the EEOC promulgated a guideline barring employers from looking to the source of an employee’s limitations in any policy regarding accommodations. The majority refused to defer to this guidance in part because they seemed tailored to the present case, in part because its position was inconsistent with those the Government has long advocated, and in part because the positon was insufficiently rationalized.]

C

We find it similarly difficult to accept the opposite interpretation of the Act’s second clause. UPS says that the second clause simply defines sex discrimination to include pregnancy discrimination. But that cannot be so.

The first clause accomplishes that objective when it expressly amends Title VII’s definitional provision to make clear that Title VII’s words “because of sex” and “on the basis of sex” “include, but are not limited to, because of or on the basis of pregnancy, childbirth, or related medical conditions.” 42 U.S.C. § 2000e(k). We have long held that “‘a statute ought, upon the whole, to be so construed that, if it can be prevented, no clause’” is rendered “‘superfluous, void, or insignificant.’” TRW Inc. v. Andrews, 534 U.S. 19, 31 (2001). But that is what UPS’ interpretation of the second clause would do.

The dissent, basically accepting UPS’ interpretation, says that the second clause is not “superfluous” because it adds “clarity.” It makes “plain,” the dissent adds, that unlawful discrimination “includes disfavoring pregnant women relative to other workers of similar inability to work.” Perhaps we fail to understand. McDonnell Douglas itself makes clear that courts normally consider how a plaintiff was treated relative to other “persons of [the plaintiff’s] qualifications” (which here include disabilities). If the second clause of the Act did not exist, we would still say that an employer who disfavored pregnant women relative to other workers of similar ability or inability to work had engaged in pregnancy discrimination. In a word, there is no need for the “clarification” that the dissent suggests the second sentence provides.

Moreover, the interpretation espoused by UPS and the dissent would fail to carry out an important congressional objective. [The PDA was designed to overturn both the holding and the reasoning of Gilbert, which had upheld a plan denying pregnancy-related health pregnancy was not comparable to the conditions covered by the plan because it was not a “disease” nor necessarily a result of accident.] In short, the Gilbert majority reasoned in part just as the dissent reasons here. The employer did “not distinguish between pregnant women and others of similar ability or inability because of pregnancy.” It distinguished between them on a neutral ground—i.e., it accommodated only sicknesses and accidents, and pregnancy was neither of those.

Simply including pregnancy among Title VII’s protected traits (i.e., accepting UPS’ interpretation) would not overturn Gilbert in full—in particular, it would not respond to Gilbert’s determination that an employer can treat pregnancy less favorably than diseases or disabilities resulting in a similar inability to work. . . .

III

The statute lends itself to an interpretation other than those that the parties advocate and that the dissent sets forth. Our interpretation minimizes the problems we have discussed, responds directly to Gilbert, and is consistent with longstanding interpretations of Title VII.

In our view, an individual pregnant worker who seeks to show disparate treatment through indirect evidence may do so through application of the McDonnell Douglas framework. That framework requires a plaintiff to make out a prima facie case of discrimination. But it is “not intended to be an inflexible rule.” Furnco Constr. Corp. v. Waters, 438 U.S. 567, 575 (1978). Rather, an individual plaintiff may establish a prima facie case by “showing actions taken by the employer from which one can infer, if such actions remain unexplained, that it is more likely than not that such actions were based on a discriminatory criterion illegal under” Title VII. Id. The burden of making this showing is “not onerous.” Burdine. In particular, making this showing is not as burdensome as succeeding on “an ultimate finding of fact as to” a discriminatory employment action. Furnco. Neither does it require the plaintiff to show that those whom the employer favored and those whom the employer disfavored were similar in all but the protected ways. See McDonnell Douglas (burden met where plaintiff showed that employer hired other “qualified” individuals outside the protected class); Furnco (same); Burdine (same). Cf. Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 142 (2000) (similar).

Thus, a plaintiff alleging that the denial of an accommodation constituted disparate treatment under the Pregnancy Discrimination Act’s second clause may make out a prima facie case by showing, as in McDonnell Douglas, that she belongs to the protected class, that she sought accommodation, that the employer did not accommodate her, and that the employer did accommodate others “similar in their ability or inability to work.”

The employer may then seek to justify its refusal to accommodate the plaintiff by relying on “legitimate, nondiscriminatory” reasons for denying her accommodation. But, consistent with the Act’s basic objective, that reason normally cannot consist simply of a claim that it is more expensive or less convenient to add pregnant women to the category of those (“similar in their ability or inability to work”) whom the employer accommodates. After all, the employer in Gilbert could in all likelihood have made just such a claim.

If the employer offers an apparently “legitimate, non-discriminatory” reason for its actions, the plaintiff may in turn show that the employer’s proffered reasons are in fact pretextual. We believe that the plaintiff may reach a jury on this issue by providing sufficient evidence that the employer’s policies impose a significant burden on pregnant workers, and that the employer’s “legitimate, nondiscriminatory” reasons are not sufficiently strong to justify the burden, but rather—when considered along with the burden imposed—give rise to an inference of intentional discrimination.

The plaintiff can create a genuine issue of material fact as to whether a significant burden exists by providing evidence that the employer accommodates a large percentage of nonpregnant workers while failing to accommodate a large percentage of pregnant workers. Here, for example, if the facts are as Young says they are, she can show that UPS accommodates most nonpregnant employees with lifting limitations while categorically failing to accommodate pregnant employees with lifting limitations. Young might also add that the fact that UPS has multiple policies that accommodate nonpregnant employees with lifting restrictions suggests that its reasons for failing to accommodate pregnant employees with lifting restrictions are not sufficiently strong—to the point that a jury could find that its reasons for failing to accommodate pregnant employees give rise to an inference of intentional discrimination.

This approach, though limited to the Pregnancy Discrimination Act context, is consistent with our longstanding rule that a plaintiff can use circumstantial proof to rebut an employer’s apparently legitimate, nondiscriminatory reasons for treating individuals within a protected class differently than those outside the protected class. See Burdine. In particular, it is hardly anomalous (as the dissent makes it out to be) that a plaintiff may rebut an employer’s proffered justifications by showing how a policy operates in practice. In McDonnell Douglas itself, we noted that an employer’s “general policy and practice with respect to minority employment”—including “statistics as to” that policy and practice—could be evidence of pretext. Moreover, the continued focus on whether the plaintiff has introduced sufficient evidence to give rise to an inference of intentional discrimination avoids confusing the disparate-treatment and disparate-impact doctrines.

Our interpretation of the Act is also, unlike the dissent’s, consistent with Congress’ intent to overrule Gilbert’s reasoning and result. The dissent says that “[i]f a pregnant woman is denied an accommodation under a policy that does not discriminate against pregnancy, she has been ‘treated the same’ as everyone else.” This logic would have found no problem with the employer plan in Gilbert, which “denied an accommodation” to pregnant women on the same basis as it denied accommodations to other employees—i.e., it accommodated only sicknesses and accidents, and pregnancy was neither of those. In arguing to the contrary, the dissent’s discussion of Gilbert relies exclusively on the opinions of the dissenting

Justices in that case. But Congress’ intent in passing the Act was to overrule the Gilbert majority opinion, which viewed the employer’s disability plan as denying coverage to pregnant employees on a neutral basis.

IV

[Under this interpretation, there was adequate evidence to deny the defendant summary judgment.] Viewing the record in the light most favorable to Young, there is a genuine dispute as to whether UPS provided more favorable treatment to at least some employees whose situation cannot reasonably be distinguished from Young’s. In other words, Young created a genuine dispute of material fact as to the fourth prong of the McDonnell Douglas analysis.

Young also introduced evidence that UPS had three separate accommodation policies (on-the-job, ADA, DOT). Taken together, Young argued, these policies significantly burdened pregnant

women. See (shop steward’s testimony that “the only light duty requested [due to physical] restrictions that became an issue” at UPS “were with women who were pregnant”). The Fourth Circuit did not consider the combined effects of these policies, nor did it consider the strength of UPS’ justifications for each when combined. That is, why, when the employer accommodated so many, could it not accommodate pregnant women as well?

We do not determine whether Young created a genuine issue of material fact as to whether UPS’ reasons for having treated Young less favorably than it treated these other nonpregnant employees were pretextual. We leave a final determination of that question for the Fourth Circuit to make on remand, in light of the interpretation of the Pregnancy Discrimination Act that we have set out above.…

JUSTICE ALITO, concurring in the judgment.

[Violation of the first clause requires an employer’s intent to discriminate because of or on the basis of pregnancy. Under this clause, it does not matter whether the employer’s ground for the unfavorable treatment is reasonable; all that matters is the employer’s actual intent. But the second clause raises more difficult questions of interpretation. Justice Alito started with the proposition that “this clause does not merely explain but instead adds to the language that precedes it,” a reading consistent with the statutory text’s use of the word “and.” Further, the “second clause makes no reference to intent, which is the linchpin of liability under the first clause,” and “the second clause is an affirmative command (an employer ‘shall’ provide equal treatment), while the first clause is negative (it prohibits discrimination). Finally, if the second clause does not set out an additional restriction on employer conduct, it would appear to be largely, if not entirely, superfluous.]

This leads to the second question: In determining whether pregnant employees have been given the equal treatment that this provision demands, with whom must the pregnant employees be compared? I interpret the second clause to mean that pregnant employees must be compared with employees performing the same or very similar jobs. Pregnant employees, the second provision states, must be given the same treatment as other employees who are “similar in their ability or inability to work.” An employee’s ability to work—despite illness, injury, or pregnancy—often depends on the tasks that the employee’s job includes. Different jobs have different tasks, and different tasks require different abilities. Suppose that an employer provides a period of leave with pay for employees whose jobs require tasks, e.g., lifting heavy objects, that they cannot perform because of illness or injury. Must the employer provide the same benefits for pregnant employees who are unable to lift heavy objects but have desk jobs that do not entail heavy lifting? The answer is no. The treatment of pregnant employees must be compared with the treatment of nonpregnant employees whose jobs involve the performance of the same or very similar tasks. . . .

This conclusion leads to a third, even more difficult question: When comparing pregnant employees to nonpregnant employees in similar jobs, which characteristics of the pregnant and nonpregnant employees must be taken into account? The answer, I believe, must be found in the reference to “other employees who are similar in their ability or inability to work.” I see two possible interpretations of this language. The first is that the capacity to perform the tasks

required by a job is the only relevant characteristic, but like the Court, I cannot accept this “most favored employee” interpretation. . . .

Recall that the second clause of §2000e(k) requires that pregnant women “be treated the same for all employment-related purposes…as other persons not so affected but similar in their ability or inability to work.” (Emphasis added.) Therefore, UPS could say that its policy treated the pregnant employees the same as “other persons” who were similar in their ability or inability to work, namely, those nonpregnant employees [who were not accommodated]. But at the same time, the pregnant drivers like petitioner could say that UPS did not treat them the same as “other employees” who were similar in their ability or inability to work, namely, the nonpregnant employees [who were accommdated]. An interpretation that leads to such a problem cannot be correct.

I therefore turn to the other possible interpretation of the phrase “similar in their ability or inability to work,” namely, that “similar in the ability or inability to work” means “similar in relation to the ability or inability to work.” Under this interpretation, pregnant and non-pregnant employees are not similar in relation to the ability or inability to work if they are unable to work for different reasons. And this means that these two groups of employees are not similar in the relevant sense if the employer has a neutral business reason for treating them differently. I agree with the Court that a sufficient reason “normally cannot consist simply of a claim that it is more expensive or less convenient to add pregnant women to the category of those…whom the employer accommodates.”5 Otherwise, however, I do not think that the second clause of the PDA authorizes courts to evaluate the justification for a truly neutral rule. The language used in the second clause of the PDA is quite different from that used in other antidiscrimination provisions that require such an evaluation. Cf. § 12112(b)(5)(A) (discrimination against a person with a disability includes “not making reasonable accommodations to the known physical or mental limitations of an otherwise qualified…employee, unless [the employer] can demonstrate that the accommodation would impose an undue hardship on the operation of [its] business” (emphasis added)); § 2000e(j) (employer must reasonably accommodate religious observance, practice, and belief unless that would impose an “undue hardship on the conduct of the employer’s business”); § 2000e-2(k)(1)(A)(i) (business necessity defense in Title VII disparate-impact cases).

III.

[Justice Alito agreed with the majority that the record was “sufficient (albeit barely)” to survive summary judgment under the first clause, but also agreed that summary judgement should be denied under the second clause. Under the UPS policy, drivers physically unable to perform the usual tasks of the position fell into three groups.]

First, some drivers were reassigned to less physically demanding positions. Included in this group were (a) those who were unable to work as drivers due to an injury incurred on the job, (b) those drivers who were unable to work as drivers due to a disability as defined by the Americans With Disabilities Act of 1990 (ADA), and (c) those drivers who, as the result of a medical

5 If cost alone could justify unequal treatment of pregnant employees, the plan at issue in General Electric Co. v. Gilbert would be lawful. But this Court has repeatedly said that the PDA rejected “‘both the holding and the reasoning’” in Gilbert.

condition or injury, lost the Department of Transportation (DOT) certification needed to work in that capacity.

The second group of drivers consisted of those who were not pregnant and were denied transfer to a light-duty job. Drivers who were injured off the job fell into this category. The third group was made up of pregnant drivers like petitioner.

It is obvious that respondent had a neutral reason for providing an accommodation when that was required by the ADA. Respondent also had neutral grounds for providing special accommodations for employees who were injured on the job [since otherwise they would been eligible for workers’ compensation benefits.]

The accommodations that are provided to drivers who lost their DOT certifications, however, are another matter. A driver may lose DOT certification for a variety of reasons, including medical conditions or injuries incurred off the job that impair the driver’s ability to operate a motor vehicle. Such drivers may then be transferred to jobs that do not require physical tasks incompatible with their illness or injury. It does not appear that respondent has provided any plausible justification for treating these drivers more favorably than drivers who were pregnant.

The Court of Appeals provided two grounds for distinguishing petitioner’s situation from that of the drivers who had lost their DOT certifications, but neither is adequate. First, the Court of Appeals noted that “no legal obstacle [stood] between [petitioner] and her work.” But the legal obstacle faced by drivers who have lost DOT certification only explains why those drivers could not continue to perform all the tasks required by their ordinary jobs; it does not explain why respondent went further and provided such drivers with a work accommodation. Petitioner’s pregnancy prevented her from continuing her normal work as a driver, just as is the case for a driver who loses DOT certification. But respondent had a policy of accommodating drivers who lost DOT certification but not accommodating pregnant women, like petitioner. The legal obstacle of lost certification cannot explain this difference in treatment.

Second, the Court of Appeals observed that “‘those with DOT certification maintai[n] the ability to perform any number of demanding physical tasks,’” but it is doubtful that this is true in all instances. A driver can lose DOT certification due to a great variety of medical conditions, [but the record does not show that all such drivers were] nevertheless able to perform a great many physically demanding tasks. Nevertheless, respondent says that it was its policy to transfer such drivers to so-called inside jobs when such positions were available. Presumably, respondent did not assign these drivers to jobs that they were physically unable to perform. So in at least some instances, they must have been assigned to jobs that did not require them to perform tasks that they were incapable of performing due to the medical condition that caused the loss of DOT certification. Respondent has not explained why pregnant drivers could not have been given similar consideration. . . .

JUSTICE SCALIA, with whom JUSTICE KENNEDY and JUSTICE THOMAS join, dissenting.

Faced with two conceivable readings of the Pregnancy Discrimination Act, the Court chooses neither. It crafts instead a new law that is splendidly unconnected with the text and even the

legislative history of the Act. To “treat” pregnant workers “the same…as other persons,” we are told, means refraining from adopting policies that impose “significant burden[s]” upon pregnant women without “sufficiently strong” justifications. Where do the “significant burden” and “sufficiently strong justification” requirements come from? Inventiveness posing as scholarship—which gives us an interpretation that is as dubious in principle as it is senseless in practice.

I…

[Plaintiff did not establish liability under either the disparate treatment or disparate impact theories, which forced Young and the Court to turn to § 2000e(k). But the] most natural way to understand the same-treatment clause is that an employer may not distinguish between pregnant women and others of similar ability or inability because of pregnancy. Here, that means pregnant women are entitled to accommodations on the same terms as other workers with disabling conditions. If a pregnant woman is denied an accommodation under a policy that does not discriminate against pregnancy, she has been “treated the same” as everyone else. UPS’s accommodation for drivers who lose their certifications illustrates the point. A pregnant woman who loses her certification gets the benefit, just like any other worker who loses his. And a pregnant woman who keeps her certification does not get the benefit, again just like any other worker who keeps his. That certainly sounds like treating pregnant women and others the same.

There is, however, another way to understand “treated the same,” at least looking at that phrase on its own. One could read it to mean that an employer may not distinguish at all between pregnant women and others of similar ability. Here, that would mean pregnant women are entitled, not to accommodations on the same terms as others, but to the same accommodations as others, no matter the differences (other than pregnancy) between them. UPS’s accommodation for decertified drivers illustrates this usage too. There is a sense in which a pregnant woman denied an accommodation (because she kept her certification) has not been treated the same as an injured man granted an accommodation (because he lost his certification). He got the accommodation and she did not.

Of these two readings, only the first makes sense in the context of Title VII. The point of Title VII’s bans on discrimination is to prohibit employers from treating one worker differently from another because of a protected trait. It is not to prohibit employers from treating workers differently for reasons that have nothing to do with protected traits. . . .

Prohibiting employers from making any distinctions between pregnant workers and others of similar ability would elevate pregnant workers to most favored employees. If Boeing offered chauffeurs to injured directors, it would have to offer chauffeurs to pregnant mechanics. And if Disney paid pensions to workers who can no longer work because of old age, it would have to pay pensions to workers who can no longer work because of childbirth. It is implausible that Title VII, which elsewhere creates guarantees of equal treatment, here alone creates a guarantee of favored treatment. . . .

II

The Court agrees that the same-treatment clause is not a most-favored-employee law, but at the same time refuses to adopt the reading I propose—which is the only other reading the clause could conceivably bear. The Court’s reasons for resisting this reading fail to persuade.

The Court starts by arguing that the same-treatment clause must do more than ban distinctions on the basis of pregnancy, lest it add nothing to the part of the Act defining pregnancy discrimination as sex discrimination. Even so read, however, the same-treatment clause does add something: clarity. Just defining pregnancy discrimination as sex discrimination does not tell us what it means to discriminate because of pregnancy. Does pregnancy discrimination include, in addition to disfavoring pregnant women relative to the workplace in general, disfavoring them relative to disabled workers in particular? Concretely, does an employer engage in pregnancy discrimination by excluding pregnancy from an otherwise complete disability-benefits program? Without the same-treatment clause, the answers to these questions would not be obvious. . . .

This clarifying function easily overcomes any charge that the reading I propose makes the same-treatment clause “‘superfluous, void, or insignificant.’” Perhaps, as the Court suggests, even without the same-treatment clause the best reading of the Act would prohibit disfavoring pregnant women relative to disabled workers. But laws often make explicit what might already have been implicit, “for greater caution” and in order “to leave nothing to construction.”…

That brings me to the Court’s remaining argument: the claim that the reading I have set forth would not suffice to overturn our decision in Gilbert. Wrong. Gilbert upheld an otherwise comprehensive disability-benefits plan that singled pregnancy out for disfavor. The most natural reading of the Act overturns that decision, because it prohibits singling pregnancy out for disfavor.

The Court goes astray here because it mistakenly assumes that the Gilbert plan excluded pregnancy on “a neutral ground”—covering sicknesses and accidents but nothing else. In reality, the plan in Gilbert was not neutral toward pregnancy. [The dissent in Young cited the dissenters in Gilbert to this effect.]

III

Dissatisfied with the only two readings that the words of the same-treatment clause could possibly bear, the Court decides that the clause means something in-between. It takes only a couple of waves of the Supreme Wand to produce the desired result. Poof!: The same-treatment clause means that a neutral reason for refusing to accommodate a pregnant woman is pretextual if “the employer’s policies impose a significant burden on pregnant workers.” Poof!: This is so only when the employer’s reasons “are not sufficiently strong to justify the burden.”

How we got here from the same-treatment clause is anyone’s guess. There is no way to read “shall be treated the same”—or indeed anything else in the clause—to mean that courts must balance the significance of the burden on pregnant workers against the strength of the employer’s justifications for the policy. That is presumably why the Court does not even try to connect the interpretation it adopts with the text it purports to interpret. The Court has forgotten that statutory purpose and the presumption against superfluity are tools for choosing among competing

reasonable readings of a law, not authorizations for making up new readings that the law cannot reasonably bear.

The fun does not stop there. Having ignored the terms of the same-treatment clause, the Court proceeds to bungle the dichotomy between claims of disparate treatment and claims of disparate impact. Normally, liability for disparate treatment arises when an employment policy has a “discriminatory motive,” while liability for disparate impact arises when the effects of an employment policy “fall more harshly on one group than another and cannot be justified by business necessity.” Teamsters. In the topsy-turvy world created by today’s decision, however, a pregnant woman can establish disparate treatment by showing that the effects of her employer’s policy fall more harshly on pregnant women than on others (the policies “impose a significant burden on pregnant workers,” and are inadequately justified (the “reasons are not sufficiently strong to justify the burden”). The change in labels may be small, but the change in results assuredly is not. Disparate-treatment and disparate-impact claims come with different standards of liability, different defenses, and different remedies. §§ 1981a, 2000e-2(k). For example, plaintiffs in disparate-treatment cases can get compensatory and punitive damages as well as equitable relief, but plaintiffs in disparate impact cases can get equitable relief only. See §§ 1981a, 2000e-5(g). A sound reading of the same-treatment clause would preserve the distinctions so carefully made elsewhere in the Act; the Court’s reading makes a muddle of them.

But (believe it or not) it gets worse. In order to make sense of its conflation of disparate impact with disparate treatment, the Court claims that its new test is somehow “limited to the Pregnancy Discrimination Act context,” yet at the same time “consistent with” the traditional use of circumstantial evidence to show intent to discriminate in Title VII cases. A court in a Title VII case, true enough, may consider a policy’s effects and even its justifications—along with “‘all of the [other] surrounding facts and circumstances’”—when trying to ferret out a policy’s motive. Hazelwood School Dist. v. United States. The Court cannot possibly think, however, that its newfangled balancing test reflects this conventional inquiry. It has, after all, just marched up and down the hill telling us that the same-treatment clause is not (no-no!) “‘superfluous, void, or insignificant.’” If the clause merely instructed courts to consider a policy’s effects and justifications the way it considers other circumstantial evidence of motive, it would be superfluous. So the Court’s balancing test must mean something else. Even if the effects and justifications of policies are not enough to show intent to discriminate under ordinary Title VII principles, they could (Poof!) still show intent to discriminate for purposes of the pregnancy same-treatment clause. Deliciously incoherent.

And all of this to what end? The difference between a routine circumstantial-evidence inquiry into motive and today’s grotesque effects-and-justifications inquiry into motive, it would seem, is that today’s approach requires judges to concentrate on effects and justifications to the exclusion of other considerations. But Title VII already has a framework that allows judges to home in on a policy’s effects and justifications—disparate impact. Under that framework, it is already unlawful for an employer to use a practice that has a disparate impact on the basis of a protected trait, unless (among other things) the employer can show that the practice “is job related…and consistent with business necessity.”§2000e-2(k)(1)(A)(i). The Court does not explain why we need (never mind how the Act could possibly be read to contain) today’s ersatz disparate-impact test, under which the disparate-impact element gives way to the significant-

burden criterion and the business-necessity defense gives way to the sufficiently-strong-justification standard. Today’s decision can thus serve only one purpose: allowing claims that belong under Title VII’s disparate-impact provisions to be brought under its disparate-treatment provisions instead.

IV

[The dissent also took issue with Justice Alito’s concurrence for allowing an employer to] deny a pregnant woman a benefit granted to workers who perform similar tasks only on the basis of a “neutral business ground.” This requirement of a “business ground” shadows the Court’s requirement of a “sufficiently strong” justification, and, like it, has no footing in the terms of the same-treatment clause. . . . His] need to engage in this text-free broadening in order to make the concurrence’s interpretation work is as good a sign as any that its interpretation is wrong from the start. . . .

JUSTICE KENNEDY, dissenting.

[Although joining Justice Scalia’s dissent, this separate dissent noted “little doubt that women who are in the work force—by choice, by financial necessity, or both—confront a serious disadvantage after becoming pregnant.” This reality is partially addressed by the PDA and the parental leave provisions of the FMLA, and perhaps by the ADA Amendments Act of 2008, as interpreted by implementing regulations that “may require accommodations for many pregnant employees, even though pregnancy itself is not expressly classified as a disability. Additionally, many States have enacted laws providing certain accommodations for pregnant employees. These Acts honor and safeguard the important contributions women make to both the workplace and the American family.”

NOTES

1. How Big a Change? The critical statutory language reads: “[W]omen affected by pregnancy, childbirth, or related medical condition shall be treated the same for all employment-related purposes as other persons not so affected but similar in their ability or inability to work.” All the justices reject the “most-favored nation” reading of this second clause of the PDA, and the majority does so because this reading essentially writes intent to discriminate out of the statute for pregnancy accommodation disparate treatment cases. But at the same time, the majority purports to apply McDonnell Douglas, which is all about intent, to the question of pregnancy accommodations. Even more confusingly, it makes clear that its analysis applies only to the pregnancy question. In short, the Court seems to be reformulating what it means to intend to discriminate, but only for cases of pregnancy accommodation. For an analysis of the controversy leading up to Young, see generally Deborah A. Widiss, Gilbert Redux: The Interaction of the Pregnancy Discrimination Act and the Amended Americans with Disabilities Act, 46 U.C. DAVIS L. REV. 961 (2013). See also Nicole Buonocore Porter, Mutual Marginalization: Individuals with Disabilities and Workers with Caregiving Responsibilities, 66 FLA. L. REV. 1099, 1135-38 (2014).

2. The Test. The critical sentence seems to be: “We believe that the plaintiff may reach a jury on this issue by providing sufficient evidence that the employer’s policies impose a significant burden on pregnant workers, and that the employer’s ‘legitimate, nondiscriminatory’ reasons are not sufficiently strong to justify the burden, but rather—when considered along with the burden imposed—give rise to an inference of intentional discrimination.” So the factfinder still has to find intent, but that issue gets to the jury when there’s evidence of “a significant burden” and evidence that the employer’s reasons are not “sufficiently strong.”

Up to this point, you’ve learned that intent to discriminate requires, well, intent. The strength or weakness of the employer’s reasons is irrelevant so long as the factfinder determines that a prohibited characteristic did not play a role in the decision. Of course, very weak reasons might allow a jury to infer intent since the jury might not credit that an employer in fact acted for what seemed a silly or irrational reason. Does Young change this? If it doesn’t, why did the majority limit its rule to pregnancy? If it does, what does intent mean in the pregnancy setting? See William Corbett, Young v. United Parcel Service, Inc.: McDonnell Douglas to the Rescue?, 92 WASH. U. L. REV. 1683, 1686-87 (2015) (arguing that the Court's use of the pretext analysis will probably rejuvenate the vexatious distinction between employment discrimination claims based on direct evidence and those based on circumstantial or indirect  evidence, although the distinction was one that the Court seemed to have laid to rest in 2003 in Desert Palace, Inc. v. Costa).

3. Significant Burden and Sufficiently Strong. The Court provided some guidance on the two key concepts for its new test. A plaintiff can get to the jury on a significant burden “by providing evidence that the employer accommodates a large percentage of nonpregnant workers while failing to accommodate a large percentage of pregnant workers.” As applied to the case before it, a showing would suffice that “UPS accommodates most nonpregnant employees with lifting limitations while categorically failing to accommodate pregnant employees with lifting limitations.” The second half of the statement is certainly true, but did Young show that UPS accommodated “most nonpregnant employees with lifting limitations”? If so, is that because having a lifting limitation is an ADA-defined disability?

As for the strength of the employer’s reasons, the majority noted, and Justice Alito agreed, that “consistent with the Act’s basic objective, that reason normally cannot consist simply of a claim that it is more expensive or less convenient to add pregnant women to the category of those (‘similar in their ability or inability to work’) whom the employer accommodates.” As for Young herself, she could argue that UPS’s multiple policies accommodating nonpregnant employees with lifting restrictions suggest that its reasons for failing to accommodate pregnant employees “are not sufficiently strong—to the point that a jury could find that its reasons for failing to accommodate pregnant employees give rise to an inference of intentional discrimination.”

But check out Justice Alito’s concurrence. He would find compliance with the ADA and accommodations for those injured on the job to be sufficiently strong. Only the DOT disqualification apparently suffices. Do you think the majority would agree if forced to confront the issue? If so, is the decision really so sweeping?

In a post-Young decision, Legg v. Ulster Cnty., 2016 U.S. App. LEXIS 7589, at *14-16 (2d Cir. Apr. 26, 2016), the court overturned defendant’s post trial judgment as a matter of law. Plaintiff had established a prima facie case by showing that she was denied light duty accommodation for her pregnancy when workers injured on the job were accommodated. While the employer’s duty under state law to continue to pay worker injured on the job was a neutral reason, a reasonable jury could find it to be pretextual when no one testified that that was the reason for the denial and the evidence showed that a large number of other workers were accommodated when one woman was not. In addition, a “reasonable jury could also conclude that the defendants' reasons were not ‘sufficiently strong,’ when considered alongside the burden imposed, to justify the denial of accommodation to pregnant employees,” when there was only one such worker and the cost of the accommodation could have been found to be a factor in the decision, contrary to Young’s teaching). Id. at ***.

4. Merging Disparate Treatment and Disparate Impact. Looking to the strength of the employer’s reasons (rather than merely their honesty) is a radical shift in approach to disparate treatment. Indeed, Justice Scalia’s dissent accused the majority of importing disparate impact analysis into a disparate treatment framework. Is that a fair observation? Although we have seen that factfinders could always draw an inference of intent to discriminate from the use of a practice with a disparate impact, see Chapter 4, that was rare in the lower courts when sophisticated statistical evidence was not available. If Scalia is right, is that a bad thing? In any event, will this change in the pregnancy context leak out to other disparate treatment cases? See also L. Camille Hebert, Disparate Impact and Pregnancy: Title VII’s Other Accommodation Requirement, 24 AM. U.J. GENDER SOC. POL'Y & L. 107 (2015).

5. Systemic Cases? The majority views the case as a disparate treatment under the McDonnell Douglas framework, which we have described as individual disparate treatment. Although the Scalia dissent believes the analysis mimics disparate impact, the majority is explicit that no disparate impact claim is at issue. Suppose plaintiff had asserted disparate impact. How would the analysis differ? The majority also goes out of its way to state that no systemic disparate treatment claim is before it (“Nor has she asserted what we have called a “pattern-or-practice” claim.”). But how can that be? The challenge isn’t to an ad hoc decision but rather to the operation of an employer policy. And the proof is, at least in part, the effects of that policy.

6. Stepping Back From the Doctrine. Whatever the doctrinal implications of Young for either the pregnancy context or more broadly, the significance of the case for at least larger employers is clear: failing to accommodate pregnant workers when other workers are so accommodated is risky under Title VII. When the possible application of the Americans with Disabilities Act to pregnancy as a temporary disability is factored in, which we will examine in moment, that risk becomes much greater. But see Bradley A. Areheart, Accommodating Pregnancy, http://ssrn.com/abstract=2534216, ALA. L. REV. (forthcoming 2016) (arguing against accommodating through the ADA or statutes dealing with pregnancy per se because of the potential for increased  discrimination against women as a result of the expressive harms; a better alternative is either universal accommodation or at least parental accommodation). Finally, the growth of state laws requiring accommodation of pregnancy, see http://www.abetterbalance.org/web/ourissues/fairness-for-pregnant-workers/310, at least larger

employers whose operations occur in such states will feel the need to revise their policies in a more pregnancy-friendly way.

Page 810, add at end of Note 4, Meet FReD:

A counterintuitive article suggests that open discussion about family status in the hiring context is likely to assist women in returning to the job market; current law and practice, which discourage both employers and employees from raising the topic, plays into employer “ambiguity aversion.” See Jodi Hersch & Jennifer Bennett Shinall, Something to Talk About: Information Exchange under Employment Law, http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2765455 (forthcoming U. Pa. L. Rev.) (reporting the results of an empirical study on the question).

Page 817, add at end of carryover Note 6, FMLA Irony:

See also Keith Cunningham-Parmeter, (Un)Equal Protection: Why Gender Equality Depends on Discrimination, 109 NW. U. L. REV.1 (2015) (advocating paid leave for fathers only in order to shift societal expectations).

Page 827, add before see generally Leslie A. Barry citation near end of carryover Note 2, Serious Health Condition:

See also Bonkowski v. Oberg Indus., 787 F.3d 190 (3d Cir. 2015) (“overnight stay” required “a substantial period of time” from one calendar day to the next measured by the employee’s time of admission and discharge”). See also posting of Charles A. Sullivan, WORKPLACE PROF, http://lawprofessors.typepad.com/laborprof_blog/2015/06/those-who-have-ever-sat-in-a-traffic-jam-or-spent-hours-in-the-emergency-room-might-take-note-of-the-third-circuits-recent.html.

Page 827, delete second sentence after extract in Note 4, Interference; replace with:

However, the interference claim is not limited to such situations. Gordon v. United States Capitol Police, 778 F.3d 158, 165 (D.C. Cir. 2015), held that “an employer action with a reasonable tendency to ‘interfere with, restrain, or deny’ the ‘exercise of or attempt to exercise’ an FMLA right may give rise to a valid interference claim under § 2615(a)(1) even where the action fails to actually prevent such exercise or attempt.” Thus, a suit was validly predicated on expressed hostility to plaintiff’s FMLA leave and actions taken to punish her before she took that leave.

In the more typical case, however, these disputes typically boil down to whether the plaintiff is leave-eligible.

Page 831, add at end of first full paragraph of carryover Note 8, Employee Notice Requirements:

See also Hansler v. Lehigh Valley Hosp. Network, 798 F.3d 149 (3d Cir. 2015)) (although not necessarily rejecting the decisions holding that an employer has no FMLA duty when an employee’s certification is “negative” as to whether leave is required, the court imposed a duty to inquire further when a certification was “ambiguous or non-responsive”; in such cases, the employer must identify deficiencies and provide an opportunity for cure before taking an adverse action)

Page 832, add before Haybarger cite at top of page of carryover Note 11, Individual Liability:

Graziadio v. Culinary Inst. of Am., 817 F.3d 415 (2d Cir. 2016) (an individual may be an employer under the FMLA if she satisfies the FLSA standard, which looks to the economic reality of that person’s control over the employee);

Chapter 11Wages and Benefits

Page 843, add before first full paragraph:

Effective December 1, 2016, the Department of Labor’s regulations will be updated to, among other things, increase substantially the amount of workers eligible for overtime benefits. The Department summarized the change as follows:

In the Final Rule, the Department updated the salary level above which certain “white collar” workers may be exempt from overtime pay requirements to equal the 40th percentile of earnings of full-time salaried workers from the lowest wage Census Region. This change raises the salary level from its previous amount of $455 per week (the equivalent of $23,660 per year) to a new level of $913 per week (the equivalent of $47,476 per year). Salaried white collar employees paid below the updated salary level are generally entitled to overtime pay, while employees paid at or above the salary level may be exempt from overtime pay if they primarily perform certain duties. The Final Rule also raises the compensation level for highly compensated employees subject to a more minimal duties test from its previous amount of $100,000 to $134,004 annually.

Guidance for Private Employers on Changes to the White Collar Exemption in the Overtime Final Rule, Wage and Hour Division, United States Department of Labor (May 18, 2016), https://www.dol.gov/whd/overtime/final2016/general-guidance.pdf.

Thus, the qualifying salary level for FLSA exemptions increased initially to $47,476 a year and will be increased every three years to reflect the earnings at the fortieth percentile of full-time salaried workers in the country’s lowest-wage Census Region. This means that most salaried workers earning up below this threshold must receive time-and-a-half for hours worked in excess of 40 hours per week. Noam Scheiber, White House Increases Overtime Eligibility by Millions, N.Y. TIMES (May 17, 2016), http://www.nytimes.com/2016/05/18/business/white-house-increases-overtime-eligibility-by-millions.html?_r=1. Similarly, the threshold for the

“highly compensated employee” exemption will be increased to $134,404 a year and updated every three years to reflect the earnings of the 90th percentile. See Defining and Delimiting the Exemptions for Executive, Administrative, Professional, Outside Sales and Computer Employees, 81 Fed. Reg. 32391 (May 23, 2016) (to be codified at 29 C.F.R. pt. 541).

Page 843, correct citation to Costello v. Home Depot:

928 F. Supp. 2d 473 (D. Conn. 2013)

Pg. 856, delete last sentence in the second paragraph in Note 2, Certainty and the “Old” and “New” Regulations, and add to end of first paragraph:

The resulting Department of Labor regulation is discussed above (at page 843). The overall impact of this regulation will not be known for some time.

Pg. 858, add to end of carryover Note 6, Professional Employees:

Lola v. Skadden, Arps, Slate, Meagher & Flom LLP, 620 F. App'x 37 (2d Cir. 2015) (holding that contract attorney who performed document review did not engage in the “practice of law” because used predetermined criteria to sort documents and exercised no legal judgment whatsoever).

Pg. 858, add to end of Note 7, The Outside Sales Exemption:

Note that some states impose stricter standards for quantifying the “outside” element of this exemption. Those states look to the actual time spend engaged in outside vs. inside sales work to determine exempt salespeople. For example, California uses a “primarily engaged” standard that requires sales directors to spend half their time working away from the community, and Colorado requires a bona fide salesperson to spend at least 80% of his or her work activities on outside sales. DLSE – Glossary, State of California, Department of Industrial Relations (2016), http://www.dir.ca.gov/dlse/Glossary.asp? Button1=O#outside%20salesperson; Colorado Minimum Wage Order Number 32, Department of Labor and Employment, Division of Labor, https://www.sos.state.co.us/CCR/GenerateRulePdf.do?ruleVersionId=6534&fileName=7%20CCR%201103-1.

Pg. 864, update citation at end of last full paragraph:

Integrity Staffing Sols., Inc. v. Busk, 135 S. Ct. 513 (2014).

Pg. 865, add to end of carryover paragraph at top of page:

Two tests have been developed by courts of appeal on whether meal time is compensable under the FLSA. One focuses on whether the employee was relieved from all duties during the meal break, and the other more common approaches explores whether the employer or employee received the “predominant benefit” of the meal break. The Third Circuit recently adopted the latter, “predominant benefit” test to determine whether time is compensable. Babcock v. Butler County, 806 F.3d 153 (3d Cir. 2015) (dismissing corrections officers’ putative class action

because officers received predominant benefit of 15-minute unpaid mealtime despite the fact that the officers were not entitled to leave prison without permission, were required to remain in uniform, in close proximity to emergency response equipment, and were on call, in part because collective bargaining agreement provided for pay if mealtime was interrupted by work demand).

Pg. 874, add to the end of the last paragraph before the Action case:

See, e.g., Flores v. City of San Gabriel, 14-56421, 2016 WL 3090782 (9th Cir. June 2, 2016) (City's cash-in-lieu of benefits payments are not properly excluded from the calculation of the regular rate of pay under either § 207(e)(2) or (e)(4)).

Pg. 881, add to end of carryover paragraph at top of page:

Concurrent with the movement to increase the federal minimum wage, California has recently raised its state minimum wages to $15.00 an hour (phased in over time), and New York has done the same for the New York City area, with hourly wage floor hikes to $12.50 elsewhere in the state. Steven Greenhouse, How the $15 Minimum Wage Went from Laughable to Viable, N.Y. TIMES (Apr. 1, 2016), http://www.nytimes.com/2016/04/03/sunday-review/how-the-15-minimum-wage-went-from-laughable-to-viable.html. As of the date of this update, the New Jersey legislature has passed a similar measure that is awaiting the governor’s signature or veto. Patrick McGeehan, N.Y. TIMES (June 23, 2016), New Jersey Senate Passes $15 Minimum Wage, Setting up Clash with Christie, http://www.nytimes.com/2016/06/24/nyregion/new-jersey-senate-passes-15-minimum-wage-setting-up-clash-with-christie.html.

Page 886, add to end of last full paragraph:

Similarly, the Supreme Court recently struck down a Vermont statute that required insurers who provided welfare-benefit plans to report certain health-care related information beyond that required by ERISA’s disclosure and recordkeeping provisions. Gobeille v. Liberty Mut. Ins. Co., 136 S. Ct. 936 (2016).

Pg. 891 – Don’t know if this is significant enough [Article from 2014 used to provide background]

An employer objecting to the contraceptive mandate on religious grounds must submit a form to its insurance company indicating its objection. The insurer then makes contraceptives directly available to the employees without any further involvement from the employer. Religious organizations throughout the country challenged this procedure, contending that, by signing the form, they were essentially authorizing their insurers to issue contraceptives. See Robert Pear, A Two Page Form Spawns a Contraceptive Showdown, N.Y. TIMES (July 12, 2014), http://www.nytimes.com/2014/07/13/us/a-two-page-form-spawns-a-contraceptive-showdown.html.

The Supreme Court recently had the opportunity to address this issue. However, rather than ruling on the merits, the Court remanded the case for supplemental briefing on a potential a compromise between the parties. Under the proposed scheme, an employer would obtain

insurance without contraceptive coverage, which would trigger a notice directly from the insurance company to the employees indicating that the insurance company would provide free contraceptive coverage, that such coverage is not paid for by the employer, and that such coverage is not provided through the employer’s health plan. See Zubik v. Burwell, 136 S. Ct. 1557 (2016).

Chapter 12Worker Safety and Health

Page 900-01, add to end of carryover paragraph:

For a recent study discussing Texas’s optional workers’ compensation scheme, see Alison D. Morantz, Rethinking the Great Compromise: What Happens Large Companies Opt Out of Workers’ Compensation? (Oct. 15, 2015), http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2629498.

Page 928, add to end of first full paragraph:

On appeal, the court declined to address the merits of the constitutionality issue, reversing on procedural grounds. State v. Fla. Workers' Advocates, 167 So. 3d 500 (Fla. Dist. Ct. App. 2015).

Chapter 13Managing the Risks and Costs of Liability in Employment Disputes

Page 962, add after second sentence in second paragraph of Note 1, Prong 1: Employer Preventive and Corrective Action:

See Smith v. Rock-Tenn Servs., 813 F.3d 298  (6th Cir. 2016) (a reasonable jury could have concluded that total inaction for ten days, where the employer knew about the contact and had warned the harasser that further complaints would result in termination, was unreasonable); Nichols v. Tri-Nat’l Logistics, Inc., 809 F.3d 981, 987 (8th Cir. 2016) (a trucking company’s response to a complaint by a female long-haul truck driver about her co-driver’s conduct could be found inadequate when she was left in the harasser’s company and denied permission to take truck to a motel where she could stay overnight).

Page 963, add at end of carryover Note 2, Prong 2: The Victim’s Unreasonable Failure to Report:

There has been some dispute about the interaction between the employee’s response to harassment and retaliation protection under Title VII. One question deals with how severe the harassment has to be for internal employee complaints to be protected opposition conduct. See Boyer-Liberto v. Fontainebleau Corp., 786 F.3d 264 (4th Cir. 2015) (en banc) (“rather than encourage the early reporting vital to achieving Title VII's goal of avoiding harm, [too strict a

standard] deters harassment victims from speaking up by depriving them of their statutory entitlement to protection from retaliation.”). And, while reporting harassment (as least if the employee has a reasonable belief in its illegality is protected), mere resistance to harassment was held not to be in one unpublished case. Frank v. Harris County, 118 F. App'x 799, 804 (5th Cir. 2004). More recently, the Sixth Circuit in EEOC v. New Breed Logistics, 783 F.3d 1057, 1067 (6th Cir. 2015), held that “a demand that a supervisor cease his/her harassing conduct constitutes protected activity covered by Title VII.”

Page 986, add following the citation to Alexander:

See Rodriguez v. Raymours Furniture Co, 2016 N.J. LEXIS 566 (June 15, 2016) (invalidating an agreement shortening the statute of limitations under New Jersey’s antidiscrimination law); see also Charles A. Sullivan, Unabbreviating Antidiscrimination Law Limitations Periods, http://lawprofessors.typepad.com/laborprof_blog/2016/06/un-abbreviating-antidiscrimination-law-limitations.html (discussing Rodriguez and treatment of contractual modifications of limitations periods).

Page 1025, add at the end of Note 1, Partial Victory:

Other circuits have followed suit. Owen v. Bristol Care, Inc., 702 F.3d 1050, 1052 (8th Cir. 2013); Sutherland v. Ernst & Young LLP, 726 F.3d 290, 297 n.8 (2d Cir. 2013). However, the Seventh Circuit recently looked to Horton to invalidate a bar on class relief for employees, Lewis v. Epic Sys. Corp., No. 15-2997, 2016 U.S. App. LEXIS 9638, at *22 (7th Cir. May 26, 2016), thus creating a circuit split, with the issue currently before a number of other circuits. See generally Charles A. Sullivan & Timothy P. Glynn, Horton Hatches the Egg: Concerted Action Includes Concerted Dispute Resolution, 64 ALA. L. REV. 1013 (2013).

Page 1027, add before “Pre-dispute agreements would” in Note 7, A Statutory Solution?:

But see Khazin v. TD Ameritrade Holding Corp., 773 F.3d 488, 492 (3d Cir. 2014) (although Dodd-Frank enacted antiarbitration provisions for SOX and other federal laws, its text and structure “compel the conclusion that whistleblower retaliation claims brought pursuant to 15 U.S.C. § 78u-6(h) are not exempt from predispute arbitration agreements.”).