Federal Courts Protect Big Law Firms From Competition

justice-scale-761665_1The sad reality is that most victims of illegal employment discrimination have no realistic means of redress.

This is because our court system is absurdly antiquated and has not changed appreciably since it declared itself the place where the buck stops in Marbury v. Madison (1803).

Victims of employment discrimination who are poor or middle class often can’t find an attorney who will take their case because the cost is too high in light of the potential damages. And they can’t effectively represent themselves because federal and state courts have adopted obscure and unnecessary rules and procedures that seem to be designed to keep them out.

There is virtually no public acknowledgement of this problem because apparently it is too complicated or un-glamorous for mainstream media.

I would like to applaud the heroic efforts of an organization that is trying to change this sorry state of affairs – the National Association for the Advancement of Multijurisdictional Practice (NAAMJP) of Los Angeles, CA.  The NAAMJP  has filed lawsuits in several jurisdictions challenging parochial bar admissions rules.

NAAMJP wants to ensure that, once licensed, a lawyer in good standing can practice in any state.

Repealing anti-competitive and  anti-consumer bar admission rules would increase competition among legal service providers and lower costs for consumers. 

The real reason for requiring licensed lawyers to take another state’s bar exam is to discourage them from practicing in that state. In other words, the state bar association is misusing the law to prevent competition. The defenders of the status quo are large and powerful law firms in the state who lobby the legislature and contribute to political campaigns. They are abetted by federal district court judges who want to maintain complete control over their fiefdoms.

According to the NAAMJP, lawyers in the European Union and Canada do not face the kind of  geographical licensing restrictions that are imposed upon U.S.  lawyers (and consumers).

Nevada, for example, requires out-of-state lawyers to take the entire bar exam (a two-day test) as if they had just graduated from law school. This protects a handful of large and complacent Nevada law firms from competition (particularly from California) and enables the state court system to exact high fees for each case filed by an out-of-state attorney or firm. All of this drives up the cost and availability of legal services in Nevada. This is a form of institutionalized corruption that is completely indefensible and yet continues year after year.

Lawyers from around the country regularly contact me for advice about workplace bullying and age discrimination but I cannot represent clients in Nevada because I am licensed in Pennsylvania. Who benefits?  Attorneys in Nevada who know far less about this area of the law than I do.

For anyone who is interested,  The ABA Journal has a story this month about the challenges faced by the NAAMJP  in federal courts, which thus far have shown themselves to be intent upon maintaining the current anti-consumer practices.

The NAAMJP contends that barriers to admission erected by state bar associations violate, among other things, the First Amendment’s guarantee of freedom of association and speech.

Bad Ending for Authors in Google Lawsuit

The U.S. Court of Appeals for the Second Circuit issued a decision Friday that will further erode the ability of authors to make a living.

A three-judge panel of the appeals court affirmed a lower court ruling that permits libraries to send books that are under copyright protection to Google, which then digitalizes the books and returns a digital copy to the library. Google then places the digitalized book in its book search engine, where the public can search the text of the book and read displays of snippets of text free of charge.

Google’s library project makes possible “text mining” and “data mining.” This allows Google and others to ascertain public interest in particular topics and areas. Google hasn’t placed advertising on the site of books that are under copyright but presumably could do so in the future.

So far Google has digitalized an estimated 20 million books, including both copyrighted works and works in the public domain.

It’s a great deal for Google and the libraries.  They each get a free digitalized copy of a book tha tis supposedly copyright protected. And Google, which is worth $364.99 billion, becomes further entrenched as the dominant search engine on the Internet.  What do author’s get?

Authors get nothing.

Continue reading “Bad Ending for Authors in Google Lawsuit”

Workers Search for Fairness in Federal Courts

Interesting  article in The Nation about the U.S. Supreme Court under Chief Justice John G. Roberts Jr:

” … the Roberts Court has been consistently skeptical of the need for judicial redress for victims of state or corporate wrongs. It has imposed strict ‘pleading’ requirements that help corporate defendants get lawsuits dismissed before having to turn over potentially damning evidence to employees or customers, and it has barred classwide remedies even when they are the only meaningful way to hold businesses accountable.”

Author David Cole notes that many of the Court’s decisions were 5-to-4, reflecting the political bent of the justices, five of whom were appointed by Republican presidents and  four of whom were appointed by Democratic presidents. He notes the  one-vote conservative margin could shift in the years ahead, depending upon who is elected to the presidency and who is appointed to the Court.

A common theme of this blog is the inability of  workplace abuse and employment discrimination victims (especially age discrimination victims) to achieve even a modicum of justice in our federal court system, which is heavily tilted toward government and corporate employers.  In my weekly review of  federal appellate court decisions in employment law cases, it is rare to find a decision affirming the right of workers to be treated with respect and dignity.  It is commonplace to find  the case of an aggrieved worker dismissed on the basis of an obscure technicality or because of the legal equivalent of a whim. It is all the more distressing that federal courts seem to be out of touch,  imperiously unaccountable to average Americans (they even refuse to televise their proceedings), and oblivious to the need for innovation and change .

Not only is the U.S. Supreme Court  majority extremely conservative but so are the hundreds of judges with lifetime tenure who populate the federal bench – most of whom also were appointed by Republican presidents.

In my recent book, Betrayed: The Legalization of Age Discrimination in the Workplace, I decry various U.S. Supreme Court rulings that have eviscerated the Age Discrimination in Employment Act of 1967 (ADEA).  Among other things, I cite a 2009 Court decision that raised the level of proof required in ADEA cases high above that of Title VII of the Civil Rights Act of 1964, which prohibits discrimination on the basis of race, sex, religion, color and national origin. I also note the nation’s highest court accords age discrimination its lowest standard of review – so a law that discriminates on the basis of age literally has to be irrational to offend the Court, which accords a much higher level of scrutiny to laws that discriminate on the basis of race and sex.

Is it really a radical notion to suggest that all Americans – even older workers – should be accorded equal justice under the law? US Supreme Court

Chipping Away at the Wage Gap Through Transparency

One reason women consistently get paid less for equal work is  that they don’t know how much their male counterparts are earning.

President Barack Obama’s Pay Transparency Executive Order promises to help chip away at the wage gap by eliminating barriers to transparency in worker pay.

The Office of Federal Contract Compliance Programs (OFCCP), a division of the U.S. Department of Labor (DOL) that investigates pay discrimination in the federal government, recently released a  proposed final rule to implement Obama’s executive order. The Rule was published in the Federal Register on September 11, 2015 and will take effect 120 days from publication – January 11, 2016.

The order, issued on April 8, 2014, prohibits federal contractors and subcontractors from discriminating against employees and job applicants who inquire about, discuss, or disclose their own compensation or the compensation of other employees or applicants.

The pay transparency rule includes a hammer.

Contractors must submit  pay, race and gender data on their employees to the DOL each year. The DOL will use the compensation data to target contractors who appear to be engaging in pay discrimination against women and people of color.

The OFCCP contends the 118-page rule will contribute “to building an economy that works for everyone” and “make the contractor workforce more efficient.”

Employers are required to update their nondiscrimination policies to include language addressing pay transparency. This language must be incorporated into employee manuals or handbooks and disseminated to employees and job applicants.

Employers have two possible defenses to a pay discrimination charge: a general defense, which could be based on the enforcement of a “workplace rule” that does not prohibit the discussion of compensation information, and an “essential job functions” defense.

A third of all American women live in or near poverty – Center for American Progress

The pay gap has ramifications for all women but it  is especially critical for low-income and retired women.

A 2014 report by Maria Shriver and the Center for American Progress found that a third of all American women are living at or on ‘‘the brink of poverty.’’ This  equals to 42 million women – plus the 28 million children who depend on them.

The gap has devestating consequences for women in later life. The Social Security Administration’s formula for awarding retirement benefits is based upon lifetime earnings so the wage gap contributes to poverty in old age for millions of  women who have worked hard all of their lives.

What is the Wage Gap?

Comparing census data on average annual wages in 2013 reveals that women make 78 cents for every dollar that men make.

The DOL states that a  typical woman who works every year between ages 25 and 65 loses $420,000 over her working lifetime because of the earnings gap (based on median annual earnings for full-time year-round workers at age 25 and above in 2013).

The gap is wider for some women of color.  Census data shows  African-American women arre making 64 cents, Latina women making 56 cents, and Asian women making 86 cents per dollar earned by a non-Hispanic white man.

The wage gap is just one of many factors, that contribute to the gender pay disparity, including sex discrimination in hiring,  assignments, promotions and terminations.

Appeals Court Says ‘Bye to English Teacher Blogger

The First Amendment took a beating recently when a federal appeals court panel in Philadelphia, PA,  upheld the dismissal of an English teacher who wrote a semi-anonymous blog containing satirical observations about modern-day teaching at an affluent suburban high school.

Natalie Munroe was hired in 2006 by Central Bucks East High School in Doylestown, PA, earned tenure, and received excellent evaluations. But she became increasingly frustrated with student behavior,  especially with respect to academic integrity and honor, and lack of parental support for teachers. In 2009 she began a personal blog under the name “Natalie M’ that was called, “Where are we going, and why are we in this handbasket?”  The blog was intended for family and friends and had fewer than a dozen subscribers, including Munroe and her husband.

The U.S. Court of Appeals for the Third Circuit noted forebodingly in its ruling that “no password was required to access the blog.”

Munroe was suspended after a local reporter asked a  school official in February 2011  if he was aware that students apparently were circulating material from the blog on Facebook and other social media. Her suspension led to national media attention that inflamed the controversy. Principal  Abram Lucabaugh estimated that 200 parents told the district they did not want Munroe to teach their children.  Munroe was fired in June 2012.

In a 2-1 ruling, the appellate panel upheld the dismissal of Munroe’s lawsuit in which she alleged her termination was retaliatory and violated her right to free speech . The majority said public employees are entitled to discuss issues of “public concern” but the state may impose speech restrictions on public employees that are necessary for efficient and effective operations.  Although most of Munroe’s 84 blog entries had nothing at all to do with her work, the majority said Munroe’s speech was sufficiently disruptive to the school to diminish any legitimate interest in its expression. The lone dissenter observed  the majority had “ducked’ the fact that Munroe’s media appearances and interviews contributed to her discharge and said that a jury should decide whether Munroe’s speech was protected by the First Amendment.  He maintained the school district “forfeited its right to match its operational interests against Munroe’s free speech interests” when it waited two years to fire her and failed to transfer her to another school.

The stated reason for Munroe’s dismissal was  “incompetency” even though she was obviously a better-than-average English teacher. She was a good writer. Her comments were pointed but funny and thought-provoking. And she cared.

Continue reading “Appeals Court Says ‘Bye to English Teacher Blogger”

Sexual Orientation Discrimination in the Workplace

  • Note: The 11th U.S. Circuit Court of Appeals, in a 2-1 ruling in March 2017 declined to expand workplace protections to gays and lesbians under Title VII of the Civil Rights Act of 1964, which already prohibits discrimination on the basis of race, sex, religion and national origin. That ruling in Evans v. Georgia Regional Hospital, is applicable to Georgia, Florida and Alabama.

Harassment on the basis of sexual orientation has been largely ignored in the workplace but this is changing.

Gays, lesbians and transgender workers are not mentioned as a “protected class” under Title VII of the Civil Rights Act of 1964, which prohibits discrimination on the basis of race, sex, religion and national origin. And no federal anti-bullying or anti-harassment laws or regulations protect workers who are not members of a protected class. So workers who were targeted for harassment because they were perceived to be gay, lesbian or transgender historically had little recourse against cruel and harmful harassment.

But the  U.S. Equal Employment Opportunity Commission (EEOC) last year held that Title VII’s “broad prohibition of discrimination” on the basis of sex “will offer coverage to lesbian, gay and bisexual individuals in certain circumstances.”

The EEOC ruling was made in a case filed by Leon Brooker, a  clerk at a U.S. Postal Service distribution service in Atlanta, GA, who has been forced to wage a lonely but important legal battle to be free from sexual orientation harassment. Continue reading “Sexual Orientation Discrimination in the Workplace”

Appeals Court Says Inequality Should Not Bar Justice

There is a persistent myth in America that our adversarial court system gives every litigant an equal chance for justice.

In fact, research overwhelmingly shows that federal courts are like casinos where the government and big business usually have the edge by virtue of their greater resources. They can easily drive individual plaintiffs out of the courthouse through the use of technicalities, strategic delays, and procedural sleight of hand. Meanwhile, the supposed “leadership” of the federal court system has shown little willingness to innovate or experiment  to improve the judicial process or even to engage with the public!

So it is refreshing that a panel on the U.S. Court of Appeals for the Seventh Circuit in Chicago recently acknowledged the bleak circumstances of an Indiana prisoner who filed a federal lawsuit after being denied timely access to a prescription drug to treat gastroesophageal reflux disease (GERD), which can lead to esophageal bleeding or ulcers, chronic scarring, and increased risk of esophageal cancer.

A prison physician in 2009 ordered inmate Jeffrey Allen Rowe to take an over-the-counter strength Zantac pill twice a day. However, after two years, Rowe’s pills were confiscated and he was told he could only take a pill if he bought it or when it was dispensed by a prison nurse at 9:30 a.m. and at 9:30 p.m.  His prescription was dropped altogether for a month in 2011 on the theory that he had a chronic condition that did not warrant the continued use of the drug. He says the prison doctor and nurse eliminated the prescription in retaliation for his complaints.

Rowe alleged he suffered extreme pain because he couldn’t afford to buy the drug and was forbidden to take the prison-dispensed medication with his meals. He filed a lawsuit charging the prison with deliberate indifference to a serious medical need in violation of the U.S. Constitution’s prohibition against cruel and unusual punishment.

U.S. District Court Judge Sara Evans Barker summarily dismissed Rowe’s lawsuit because he failed to present an expert witness to dispute an affidavit submitted by the prison. The affidavit was from a doctor,  who was not a gastroenterologist, who stated that Zantac was effective for 12 hours after it was taken.  The appeals court noted  the manufacturer of Zantac states the drug must be taken within 30 to 60 minutes of eating food or drinking beverages that cause heartburn “to prevent symptoms.”

Circuit Judge Richard A. Posner wrote the 2-1 ruling, which states: “It is heartless to make a fetish of adversary procedure if by doing so feeble evidence is credited because the opponent has no practical access to offsetting evidence.”

Posner said Judge Barker denied Rowe’s requests for appointment of counsel and to hire an expert witness to assist him in the four-year court battle, leaving Rowe at a “decided litigating disadvantage” and unable to offer evidence beyond his own testimony.

 “Shall the unreliability of the unalloyed adversary process in a case of such dramatic inequality of resources and capabilities of the parties as this case be an unalterable bar to justice?” asked Posner.

The majority cites  research from “highly reputable medical websites” on the Internet to show that Rowe raised a significant issue of material fact which warranted going forward with the case. By conducting independent research, the majority acknowledged that “we may be thought to be ‘going outside the record’ in an improper sense.” However, the panel noted that Rule 201 of the Federal Rules of Evidence permits a judge to consider certain facts without requiring the testimony of an expert witness. The panel did not accept its research as “true” but construed it to be sufficient to raise a question of fact that barred dismissal on a motion for summary judgment. The panel said it is appropriate for a judge to do research when it is conducted “with circumspection. In particular, it must not be allowed to extinguish reasonable opportunities for rebuttal.”

The dissent criticized the majority for expecting Judge Barker to challenge an unquestioned expert’s affidavit and to conduct independent factual research instead of relying solely upon the official record.  The majority responded that Judge Barker had failed to “recognize the existence of a substantial issue of material fact, barring summary judgment. Rowe’s evidence of pain contradicted (the prison doctor’s) affidavit.”

The case is JEFFREY ALLEN ROWE, Plaintiff-Appellant, v. MONICA GIBSON, et al., No. 14-3316 (August 19, 2015).

ADA: Strength Through Organizing

Twenty five years ago today,  former President George H.W. Bush signed into law one of the most important pieces of civil rights legislation in  world history – the Americans with Disabilities Act (ADA).

The ADA is the world’s first comprehensive civil rights law for people with disabilities.  The ADA makes it  illegal for employers to discriminate against qualified job applicants and employees based on their physical or mental disabilities. The law also requires employers to provide reasonable accommodations to applicants and employees who need them because of their disabilities, unless doing so would cause undue hardship. Until the ADA was passed, employers refused to hire workers who needed mobility aids, such as a wheel chair.

Passage of the act represents a hard-fought struggle and an  incredible triumph for disabled Americans, who were once the most neglected and powerless in the country.

The foundation for the ADA was set years earlier  in 1977 with the adoption of Section 504 of the Rehabilitation Act of 1973, the first U.S. federal civil rights protection for people with disabilities.  That law extended civil rights to people with disabilities in programs and activities receiving federal financial assistance, including schools and employment services. However, Section 504 l

anguished without regulations to implement the act.  Disability rights activists got fed up in 1977 and organized major demonstrations in 10 cities, including a 150-person sit-in in the office of the U.S. Dept. of Health, Education and Welfare in San Francisco’s federal building . The sit-in lasted 28 days and prompted then-HEW Secretary Joseph Califano to sign the implementing regulations for Section 504.

One of the organizers of the 1977 sit-in, the late Kitty Cone,  who had  muscular dystrophy and used a wheel chair, would later write:

”For the first time we had concrete federal civil rights protection. We had shown ourselves and the country through network TV that we, the most hidden, impoverished, pitied group of people in the nation were capable of waging a deadly serious struggle that brought about profound social change.”

Cone called  the sit in “a truly transforming experience the likes of which most of us had never seen before or ever saw again. Those of us with disabilities were imbued with a new sense of pride, strength, community and confidence. For the first time, many of us felt proud of who we were.  And we understood that our isolation and segregation stemmed from societal policy, not from some personal defects on our part and our experiences with segregation and discrimination were not just our own personal problems.”

The more one learns about the struggle for workers’ rights in America, the more it becomes apparent that anything is possible when people band together to demand their rights.


Starbucks’ De-Caffeinated Response to Age Discrim.

A spokesperson for Starbucks made a mystifying distinction Wednesday in an apparent effort to justify what appears to be blatant age discrimination in hiring under the recently announced 100,000 Opportunity Initiative.

Starbucks is spearheading an effort by more than a dozen major American corporations to hire 100,000 16- to 24- year olds by 2018.  Other partners include Walmart and Microsoft,

In an email, a spokesperson for Starbucks made a distinction between a collective hiring initiative and individual hiring decisions. “Age is not a factor in individual hiring decisions, and our 100,000 jobs for Opportunity Youth is incremental to our already ambitious hiring goals across the nation,” writes Jarryd (no last name provided)  of Starbucks Media Team.

Yeah but the Age Discrimination in Employment Act  (ADEA) makes no distinction between hiring 100,000 workers or hiring individual workers. The ADEA unambiguously states that it is unlawful for an employer “to fail or refuse to hire” any individual “because of such individual’s age.” Would any of these corporations defend a plan to hire 100,000 Christians on the grounds that it was also willing to hire a Muslim or Jew?

The corporations are couching the initiative as a well-intentioned effort to help young people who face systemic barriers to jobs and education. That’s irrelevant too. The ADEA prohibits age discrimination (with a few exceptions that are not applicable here). Does anyone doubt that good intentions were used to justify discriminatory laws throughout history that oppressed women and minorities?  Besides, older workers also face systemic barriers to jobs and education. As a result of age discrimination, a disproportionate number of women and minorities are dumped into an unwanted “early retirement” and decades of poverty or near poverty.

Starbucks also attempted to characterize the future hires as “youth.”   Jarryd said the 100,000 Opportunities Initiative “has the collective goal of engaging at least 100,000 Opportunity Youth.”  However, the dictionary defines youth as “adolescence”; the term is not applicable to young workers who are over the age of 18.

It is a laudable goal to help unemployed youth and young adults find jobs but age discrimination is inherently harmful to the fabric of American society. And did I forget to mention – it’s illegal!

Jarryd did not directly respond to my specific question – “What legal justification exists for engaging in age discrimination in hiring under the initiative?”

Meanwhile, queries to the media office of the U.S. Department of Labor  have been ignored.  Starbucks sent out a press release in which it quoted U.S. Labor Secretary Thomas E. Perez as calling the initiative it a “win-win.” He also expressed hope that other employers would join in. In an open letter to Perez, I noted that by enacting the ADEA the U.S. Congress announced its clear preference for public policy initiative over discriminatory hiring. Did I mention that it is  illegal to discriminate on the basis of age?

The problem of age discrimination is so prevalent in American society that it is invisible.

If it’s not bad enough that the U.S. Secy. of Labor endorsed the initiative, not one media outlet even questioned the discriminatory nature of the program.

Meanwhile, groups that one might hope would express displeasure about this celebration of corporate age discrimination have been  silent,  including so-called advocacy groups like the AARP (the leading purveyor of Medigap insurance in the United States) and unions. Can it be that these groups are not knowledgeable about  the ADEA?   Is it  just that they don’t care?  I would argue that we all should care about age discrimination in employment because it  exacts a terrible toll on its victims and society picks up the tab in lost productivity and higher health and social welfare costs.  Moreover, epidemic and unaddressed age discrimination undermines the basic principle upon which America was founded – equal justice.



I see that you have given your imprimatur to a new hiring initiative by more than a dozen major American corporations that seems on its face to blatantly violate the Age Discrimination in Employment Act of 1967.

Starbucks, Microsoft and Walmart, among others, recently announced the “100,000 Opportunities Initiative” to hire 100,000 16- to 24-year-olds by 2018. The program appears to be an end run around the Age Discrimination in Employment Act of 1967 (ADEA), which prohibits age discrimination in hiring.

You are quoted in a press release  on Starbucks’ web site as stating, “The corporate leaders championing the 100,000 Opportunities Initiative recognize that promoting career opportunities for youth is a win-win, and I hope more employers will follow their lead.”

The press release states the initiative includes apprenticeships, internships, training programs, and “both part-time and full-time jobs.”  The ADEA unambiguously states that it is unlawful for an employer “to fail or refuse to hire” any individual “because of such individual’s age.”

The corporations are couching the initiative as a well-intentioned effort to help young people “who face systemic barriers to jobs and education.”  Yet, federal law does not allow employers to discriminate because of supposedly good intentions.

 The Obama Administration and the DOL should support programs that, for example, prepare high school drop-outs for careers rather than sanction age discrimination by America’s largest corporations.

As I’m sure you know, younger workers do not have a monopoly on systemic barriers to jobs and education. The unemployment rate is high at both ends of the age spectrum but older workers often are forced out of the workplace by age discrimination. Many are dumped into a financially ill-advised “early retirement” as a result of disproportionate long-term, chronic unemployment. A recent report by AARP found that half of the people in the U.S. between the ages of 45 to 70 who lost their job during the last five years are still not working. Older workers who are forced to retire at age 62 incur at least a 25 percent cut in Social Security benefits for the rest of their lives.  Age discrimination literally consigns many older Americans (especially women and minorities) to a life sentence of  poverty or near poverty .

It is unfortunate that the corporations participating in this initiative  refer indirectly to President Barack Obama’s 2010 executive order establishing the Pathways “Recent Graduates” Program, which permits federal agencies engage in age discrimination. The press release announcing the “100,000 Opportunities Initiative” begins this way: “Top U.S. – Based Companies Create Pathways to Economic Opportunity for Young Americans.”  This executive order arguably operates as a legal exemption to the ADEA for federal sector employers but  does not permit private sector corporations to violate the ADEA.

You may ask – why would older workers want entry-level jobs? Author Michael Gates Gill wrote a best-selling book in 2007 entitled, “How Starbucks Saved My Life.”  At age 53, Gill found himself chronically unemployed after being laid off from a high-paid job at an ad agency. He had no health insurance and was diagnosed with a brain tumor. His salvation was a job as an entry-level employee at Starbucks. Today, as a result of the 100,000 Opportunities Initiative, Gill would find a sign on Starbucks’ door stating: Older Workers Need Not Apply.

Please reassess your support for the 100,000 Opportunities Initiative, which really is just a pragmatic effort by big corporations to recruit and train young workers without having to bother with older workers who are disproportionately represented in the ranks of the long-term unemployed.

I understand you are a former civil rights attorney. I am sure you know that age discrimination is no different from any other type of employment discrimination. Age discrimination, like discrimination on the basis of race, sex or religion, is founded on false and harmful stereotypes, fear and animus directed toward a discrete group. I can’t imagine the DOL would support an initiative by America’s biggest corporations to hire only whites, men or Christians.  It is no more acceptable to support discrimination against older workers.

Respectfully, Patricia G. Barnes, J.D., author of Betrayed: The Legalization of Age Discrimination in the Workplace.