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Supreme Court to Again Review Higher Education Affirmative Action Case

In a week full of front-page news, the United States Supreme Court has agreed to again review the appropriateness of the University of Texas at Austin’s race-based admissions process in the case of Fisher v. University of Texas at Austin.

The Supreme Court first reviewed the school’s consideration of race as a component of its admission process almost a year ago and remanded the case back to the Fifth Circuit Court of Appeals for reconsideration.  Upon re-review the Fifth Circuit again held the University’s practice of using race a factor in its admissions decisions was constitutional. Fisher filed an appeal arguing the Fifth Circuit did not follow the Supreme Court’s direction when conducting the subsequent review.

While the ultimate outcome of this case will certainly impact affirmative action programs of institutions of higher education, its effects on other types of non-admissions affirmative action programs, such as though enforced by OFCCP, remains unknown.

ARTICLE BY Laura Mitchell of Jackson Lewis P.C.
Jackson Lewis P.C. © 2015
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US Supreme Court Ruling Impacts Jail Operations

On June 22, 2015, the United States Supreme Court issued an important decision for all North Carolina counties operating county jails in which individuals are held detainees awaiting trial. In Kingsley v. Hendrickson, No. 14-6368, the Supreme Court, in a 5-4 opinion authored by Justice Stephen Breyer, ruled that in excessive force claims brought by pretrial detainees, the plaintiff need only show the force used against him was objectively unreasonable, not that the officer subjectively intended to injure him. This case is important because the court had never before articulated what standard applies to the excessive force claims of those individuals charged, but not yet convicted, of crimes. For private citizens not charged or convicted of a crime, the standard is one of objective reasonableness (someone being arrested). For prisoners who have been convicted of a crime, the standard is higher and requires the plaintiff to show the officer subjectively intended to cause the harm. As accused but not convicted individuals, pretrial detainees fall somewhere between these two categories, and the court determined the standard applicable to their excessive force claims should be the lesser showing of objective unreasonableness.

Kingsley involved the claims of Michael Kingsley, an individual who was arrested on a drug charge and detained in a Wisconsin jail. He failed to make bail, so he was housed in the jail waiting for his trial.  One day, an officer noticed a piece of paper covering a light fixture in Kingsley’s cell.  Kingsley was ordered to remove the paper, but he refused. The officers then handcuffed him and forcibly removed him from the cell. The parties disagreed over what happened next, with Kingsley claiming the officers slammed his head into a concrete bunk and the officers claiming Kingsley resisted their efforts to handcuff him.  Everyone agreed, however, that one officer deployed his Taser to stun Kingsley for approximately five seconds. The officers left Kingsley in the cell for fifteen minutes, then returned and removed the handcuffs. Kingsley filed a lawsuit alleging the officers’ use of force was excessive.  At trial, the jury found in favor of the officers, but Kingsley appealed, arguing the jury was instructed on an incorrect standard – that of subjective reasonableness.

The Supreme Court agreed. The divided court held a jury must consider whether the force was objectively reasonable, a determination that turns on the “facts and circumstances of each particular case,” taking into account the perspective of a reasonable officer on the scene, not with the 20/20 vision of hindsight. The jury should also consider the legitimate interests a jail has in maintaining internal order and discipline. But to find an officer liable for excessive force under the U.S. Constitution, a jury need not find an officer maliciously and sadistically intended to punish or injure the detainee. Rather, the question for a jury in a pretrial detainee’s excessive force claim is simply whether the officer’s use of force was objectively reasonable, without considering the officer’s intent. This will likely lower the bar for Plaintiffs bringing 1983 claims because the jury instruction for subjective reasonableness required them to prove the officer acted maliciously and sadistically, which is often very difficult to prove. Jurors should still be instructed that 20/20 hindsight can’t be used to decide this issue, but defendants may now have a harder time presenting these cases to juries.

© 2015 Poyner Spruill LLP. All rights reserved.
Wedding and engagement rings

Same-Sex Marriage Equality: What Employers Need to Know After Obergefell

Same-sex couples have a Constitutional right to marry and have their marriages recognized nationwide. In a 5-to-4 decision, the U.S. Supreme Court concluded that states are required to license a marriage between two people of the same sex under the Fourteenth Amendment. Obergefell v. Hodges, 576 U.S. ___ (2015). As a result, same-sex couples may now legally marry in all states. This ruling has massive implications, as rights and benefits extended to opposite-sex spouses will be available to same-sex spouses across the United States.

Marriage Equality Prevails

In an opinion authored by Justice Kennedy, the Court recognized that same-sex couples were not seeking to devalue the institution of marriage, but instead sought for themselves the respect, rights, and responsibilities that accompany a legal marriage. The Court held that under both the Due Process and the Equal Protection Clauses of the Fourteenth Amendment, same-sex couples have the fundamental right to marry.

The Due Process Clause provides that no state shall “deprive any person of life, liberty, or property, without due process of law.” The Court determined that same-sex couples may exercise the right to marry under this Clause for four reasons:

  1. the right to make the personal choice of who to marry is inherent in the right of individual autonomy; choices concerning family relationships, whether to have children, and whether to use contraception are protected intimate decisions that extend to all persons, regardless of sexual orientation;
  2. the right of couples to commit themselves to each other and enjoy intimate association extends to same-sex couples just as it does to opposite-sex couples;
  3. protecting same-sex marriage safeguards children and families because without the recognition and stability of marriage, children of same-sex couples suffer harm and humiliation as well as material costs because of the stigma attached to “knowing their families are somehow lesser” than families of opposite-sex couples; and
  4. marriage is a “keystone” of our country’s social order and national community; governmental recognition, rights, benefits and responsibilities depend in many ways on marital status and same-sex couples should not be denied the benefits that accompany marriage.

The Court also ruled that the right of same-sex couples to marry is a liberty protected by the Fourteenth Amendment’s guarantee of equal protection of the laws. The Court admonished that state laws that ban same-sex marriage deny same-sex couples the benefits afforded to opposite-sex couples, disparage same-sex couples’ choices, and diminish their personhood. The Equal Protection Clause prohibits such “unjustified infringement of the fundamental right to marry.”

Recognition of Marriages Performed in Other States

The Court also ruled that a state may not refuse to recognize the same-sex marriages lawfully performed in another state. The result is that any lawful marriage that has already taken place in the United States, whether same- or opposite-sex, must be recognized in all 50 states.

What This Means for Employers

Multi-state employers that have been dealing with state-specific policies that were dependent on state-law recognition of same-sex marriages may now want to implement a uniform policy that applies to all locations. Here are steps you should consider in light of the legalization of same-sex marriages nationwide:

  • FMLA leave: Same-sex spouses will be deemed spouses under the Family and Medical Leave Act (FMLA) no matter where the marriage took place or where the employee resides. This means that you need to permit eligible employees to take FMLA leave to care for their same-sex spouse with a serious health condition, for qualifying exigency leave if the spouse is being deployed and other qualifying reasons. Update your FMLA policies, forms and practices to permit this leave.
  • Bereavement and other leaves: If you offer bereavement leave for the death of a spouse or in-laws, you should update your policy to reflect that this leave includes same-sex spouses and relatives of the same-sex spouse. If you offer any other leaves that define immediate family or extend to familial situations, such as non-FMLA medical leave or military leave, update those definitions as well.
  • Marital status discrimination: If you operate in states that prohibit discrimination based on an employee’s or applicant’s marital status, you will be prohibited from discriminating based on same-sex marriages.
  • Emergency contacts and beneficiaries: Employees with a same-sex spouse may want to update their emergency contact or beneficiary information listed on group life insurance or retirement plans. Be prepared to administer these changes.
  • Employee benefits: Group insurance, retirement and other employee benefit plans will need to be reviewed and updated. Be certain to consult your benefits attorney and plan administrators for advice on required changes.
  • W-4 Forms and tax updates: In light of potential income tax implications for newly recognized same-sex spouses, some employees may want to change their tax withholding information. Be prepared to update W-4 and state withholding amounts upon request.

These and additional policies and procedures impacted by the Court’s ruling may require that you update your employee handbook, policies on your intranet, plan documents, forms, beneficiary designations and other personnel documents. Be sure to notify and train your human resources professionals and supervisors on all changes.

The Court’s landmark decision grants “equal dignity in the eyes of the law” to same-sex couples. Take this opportunity to review your employment policies and practices so your company does the same.

Copyright Holland & Hart LLP 1995-2015.

U.S. Supreme Court Finds a Constitutional Right to Same-Sex Marriage: Implications for Employee Benefit Plan Sponsors

On June 26, 2015, the U.S. Supreme Court issued a historic decision in Obergefell v. Hodges, holding that the Fourteenth Amendment’s Due Process and Equal Protection Clauses require states to allow same-sex marriage and to recognize same-sex marriages performed in other states.  The decision comes exactly two years to the day from the Court’s decision in Windsor defining “spouse” to include same-sex spouses for purposes of federal law.

As a result of the Court’s decision, the existing 14 state bans on same-sex marriage are invalid, and same-sex spouses are entitled to all of the rights extended to opposite-sex spouses under both federal and state law.

From an employee benefits perspective, it appears thatObergefell may most significantly impact sponsors ofinsured health and welfare plans in states that currently ban same-sex marriage.  Employers and other plan sponsors in those states will be required to offer insured benefits to same-sex spouses because state insurance law will require that the term “spouse” be interpreted to include them.  Based on government guidance issued following the Windsor decision, it seems unlikely that the decision would have retroactive effect, though such claims are possible.

For sponsors of self-insured benefit plans, a question may exist as to whether Obergefell directly impacts a sponsor’s decision not to provide health coverage to same-sex spouses (because state law does not apply to such plans).  However, it would appear that there would be heightened risks under federal and state discrimination laws for plans that define “spouse” in a manner that is inconsistent with the federal and state definitions, particularly since the Court held that marriage is a fundamental right under the Constitution, and an ERISA preemption defense likely would be weaker in this new climate.

It is also noteworthy that, as a result of the Court’s decision, there will no longer be imputed income for state tax purposes with respect to employer-provided health coverage for same-sex spouses, allowing for consistent administration in all states in which an employer operates.  Since Windsor, there have not been federal tax consequences with respect to these benefits, but some states continued to impute income for state tax purposes.

Finally, with respect to federally-regulated benefits such as qualified retirement plans and Code Section 125 benefits (for example, flexible spending accounts), the Court’s decision does not necessarily warrant any change, since those plans have been required, since Windsor, to recognize same-sex spouses.  Of course, plan language should be reviewed for consistency with the decision, and employers in some states may find that there are new spouses seeking benefits under those plans.  There also will be some administrative and enrollment issues, similar to when Windsor was decided.

Employers, particularly those operating in states that currently ban same-sex marriage, should review their benefit plans and policies and consider whether any changes need to be made in light of Obergefell.  Some employers may also reconsider their domestic partner benefits programs now that same-sex couples have the right to marry and have their marriage recognized across the entire country.

We expect that there will be guidance from the U.S. Department of Labor and the Internal Revenue Service regarding the employee benefit plan issues that emanate from Obergefell, so stay tuned.

© 2015 Proskauer Rose LLP.

urban building with billboard

Supreme Court Fair Housing Ruling: Will Plaintiff Housing Victory Help Employers?

Today, in a 5-4 decision, the Supreme Court made clear that disparate impact discrimination claims are cognizable under the Federal Housing Act (“FHA”) despite the lack of explicit language authorizing such a cause of action. Texas Department of Housing and Community Affairs v. Inclusive Communities Project, Inc.

In the process of justifying its ruling, the majority opinion spoke generally about disparate impact and cited to several prior rulings applying disparate impact in the employment context. The Court’s broader guidance on disparate impact liability may be helpful for employers faced with disparate impact lawsuits.

Brief Primer on Disparate Impact Law

Sometimes referred loosely as “unintentional discrimination,” disparate impact claims arise when an employer’s (usually) neutral employment practice has a disparate impact against a group protected by Title VII. For example, in the criminal background context, the EEOC asserts that failing to hire employees based on prior criminal activity has a disparate impact against racial minorities. These lawsuits are largely statistical in nature.

In a Title VII disparate impact lawsuit, the initial burden is on the plaintiff to point to a policy or practice that causes a statistical disparity. If the plaintiff establishes impact, the employer must then show that the policy or practice is job related to the position in question and consistent with business necessity. Over the years, with varying degrees of success, plaintiffs have argued that the “job related and consistent with business necessity” defense is a high hurdle. The Supreme Court itself has struggled to properly define this defense.

Welcome Words from the Supreme Court

In the Inclusive Communities majority opinion, the Supreme Court found the FHA disparate impact defense to be “analogous” to the Title VII defense. The court went on to cite to language from employment discrimination precedent indicating that the “job related and consistent with business necessity” defense should not be an impossible hurdle for employers:

  • Quoting the seminal Title VII ruling Griggs v. Duke Power Co.: an employer may maintain a practice which is a “reasonable measurement of job performance.”

  • Citing Griggs again: “policies are not contrary to the disparate impact requirement unless they are artificial, arbitrary, and unnecessary barriers.”

  • Stressing that limitations on disparate impact claims are “necessary to protect potential defendants against abusive disparate-impact claims.”

  • “Were standards for proceeding with disparate-impact suits not to incorporate at least the safeguards discussed here, then disparate-impact liability might displace valid governmental and private priorities, rather than solely removing artificial, arbitrary and unnecessary barriers.”

In short, the Court has provided support for employers to argue that an employer meets the “job related and consistent with business necessity” defense if its practice is reasonable and “necessary to achieve a valid interest.”

The majority opinion also provided explicit instructions to lower courts:

  •  To be on guard for disparate impact lawsuits that might interject “racial considerations” into decision making.

  • To hold plaintiff’s to sufficient pleading standards: “a plaintiff who fails to allege facts at the pleading stage or produce statistical evidence demonstrating a causal connection cannot make out a prima facie case of disparate impact.”

Time will tell if lower courts rigorously apply Inclusive Communities’ “safeguards” and “limitations” in the employment context. In the meantime, management attorneys will be doing their best to remind lower courts of the need to show restraint when evaluating disparate impact claims.

Jackson Lewis P.C. © 2015
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