On Monday (June 29, 2009), the U.S. Supreme Court ruled in favor of white firefighters in a 5-4 decision addressing workplace reverse discrimination. The Court held, in Ricci v. DeStefano, that the city of New Haven, Connecticut, violated Title VII of the Civil Rights Act of 1964 when it threw out the results of a written exam used in the promotion of firefighters because non enough minorities passed the test.

Although the case has been in the media since it reached the Supreme Court, it became very highly publicized once President Barack Obama chose Judge Sonia Sotomayor as his Supreme Court nominee. Sotomayor was part of the three-judge Second Circuit panel that upheld New Haven’s decision to throw out the exams. Since Sotomayor’s nomination, the case has been inextricably linked to her and has been used by her critics as an example of her tendency to favor minorities in her judicial rulings. Republicans on the Senate Judiciary Committee are likely to focus on the Supreme Court’s reversal in her confirmation hearings, which begin in two weeks.

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Today, the U.S. Supreme Court released its decision in Ricci v. DeStefano, the high-profile discrimination case involving firefighters employed by the city of New Haven, Connecticut. In a 5-4 decision, the Court reversed the Second U.S. Circuit Court of Appeals’ decision in favor of New Haven. Essentially, the Supreme Court said the city improperly threw out the results of promotional tests that officials said left too few minorities qualified.

The case has been under a microscope because the Second Circuit opinion was affirmed by Judge Sonya Sotomayor, President Barack Obama’s Supreme Court justice nominee.

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U.S. Citizenship and Immigration Services (USCIS) announced today (June 26) that the Employment Eligibility Verification Form I-9 (Rev. 02/02/09) currently on the USCIS website will continue to be valid for use beyond June 30, 2009. The agency has requested that the Office of Management and Budget approve the continued use of the current  Form I-9. While this request is pending, the Form I-9 (Rev. 02/02/09) will not expire. USCIS will update the form when the extension is approved. Employers will be able to use either the Form I-9 with the new revision date or the Form I-9 with the 02/02/09 revision date at the bottom of the form.

U.S. Representative Barney Frank (D-Massachusetts) introduced the Employment Non-Discrimination Act of 2009 (ENDA) June 24 in the U.S. House of Representatives. If passed, ENDA would prohibit employment discrimination on the basis of sexual orientation or gender identity.

The Employment Non-Discrimination Act is very similar to existing antidiscrimination laws, including Title VII of the Civil Rights Act of 1964, which protects employees and applicants from discrimination based on race, color, religion, sex, and national origin. ENDA would bar public and private employers, employment agencies, and labor unions from basing employment decisions (such as firing, hiring, promotion, or compensation) on an individual’s actual or perceived sexual orientation or gender identity.

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The Equal Employment Opportunity Commission (EEOC) recently filed its third sexual harassment case in less than a year against Oregon agricultural employers. The most recent suit charges that sexual harassment and retaliation occurred at Willamette Tree Wholesale, a retail nursery with 140 acres of farmland and a garden supply store in Molalla, Oregon, where Latina workers were allegedly sexually harassed and threatened, and at least one woman was repeatedly raped.

Regarding the case, EEOC Regional Attorney William R. Tamayo said, “From California, where the fields were called ‘field de calzon’ (or ‘field of panties’) because so many supervisors raped women there, to Florida, where female farm workers call them ‘The Green Motel,’ and throughout the country, we have found women working in agriculture are often particularly vulnerable to sexual harassment. We hope this third Oregon lawsuit will send notice to employers in this industry to stop predatory sexual behavior and abuses of supervisor power.”

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The U.S. Supreme Court held today in Gross v. FBL Financial Services, Inc., that employees who sue their employers for age discrimination must prove that age was the cause of an employment decision, even if they have some evidence that age was a factor in the decision. This 5-4 decision makes it harder for employees to prove age discrimination under the Age Discrimination in Employment Act (ADEA). Under the ADEA, an employer can’t take an adverse employment action against an employee because of his age.

In the case, Jack Gross sued his employer, claiming he was demoted in violation of the ADEA. At the trial, the district court instructed the jury to return a verdict for Gross if he proved, by a preponderance of the evidence (i.e., the claim more likely than not was true), that he was demoted and his age was a “motivating factor” in the decision. The court further told the jury that age was a “motivating factor” if it played a part in his demotion. It also instructed the jury to enter a verdict in favor of Gross’ employer if it proved that it would have demoted him regardless of his age.

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President Barack Obama signed a Presidential Memorandum on Federal Benefits and Non-Discrimination June 17 at an Oval Office event. The memorandum addresses the benefits to which same-sex partners of federal employees may be entitled and is a result of internal reviews conducted by the director of the Office of Personnel Management (OPM) and the secretary of state over the past several months. The reviews were performed to determine which benefits could be extended to same-sex partners of federal employees in the civil and foreign services under existing federal laws and statutes.

According to a fact sheet on the memorandum released by the White House, the reviews identified several benefits that could be extended to federal employees’ domestic partners. Same-sex partners of civil service employees can be added to the long-term care insurance program. Further, supervisors can be required to allow civil service employees to use their sick leave to take care of their same-sex partners and non-biological, non-adopted children.

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(Updated June 17, 2009) The U.S. Equal Employment Opportunity Commission (EEOC) voted Wednesday (June 17) to move forward with revising its regulations to conform to changes made by the ADA Amendments Act of 2008 (ADAAA), which would make it easier for an individual seeking protection under the ADA to establish that he or she has a disability. Last December, the agency considered proposed regulations but deferred any action. Many observers attributed the delay to the Democratic members of the commission who wanted to wait until after President Barack Obama was inaugurated and a new administration in place.

The Commission voted 2-1 to adopt the rules changes at a public meeting this morning at the agency’s Washington headquarters. The five-member body has two vacancies.

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On June 1, 2009, Colorado Governor Bill Ritter signed the Parental Involvement in K-12 Education Act (H.B. 1057) into law. The Act takes effect on August 5, 2009, and requires employers with 50 or more employees to grant leave to employees to attend their children’s academic activities.

Under the Parental Involvement in K-12 Education Act, nonsupervisory employees are allowed up to 18 hours of unpaid leave each school year to attend their children’s educational activities. Such academic activities include parent-teacher conferences and meetings related to special education services, dropout prevention, attendance, truancy, and discipline.

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Governor Doyle recently signed Senate Bill 20, which drastically changes discrimination claims under Wisconsin law. Previously, discrimination claims based under Wisconsin law were processed by the Equal Rights Division of the Department of Workforce Development (ERD). The only remedies available were back pay, attorneys’ fees, and reinstatement (or front pay in some instances).

Under the new law, employees can sue employers in state court for compensatory and punitive damages up to $300,000 if the employer has more than 500 employees. The compensatory and punitive damage claims don’t apply to employers with fewer than 15 employees. For employers with 15 to 100 employees, the compensatory/punitive damage cap is $50,000. For employers with 100 to 200 employees, the cap is $100,000. For employers with 200 to 500 employees, the cap is $200,000.

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