Friday, June 24, 2016

Affirmative Action In Holistic College Admissions: Fisher v. University of Texas At Austin

In a 4-3 decision, the United States Supreme Court has upheld the right of the University of Texas to use race as one of many factors relied upon in determining undergraduate admission.

While this case does support affirmative action, the Supreme Court carefully limited this decision to the circumstances before it and repeatedly cautioned the University of Texas (UT) to maintain vigilance to ensure that its use of race continues to be necessary.

In 2003, UT had a multi-faceted and involved admissions process with two distinct tiers. The first tier complied with the Top Ten Percent Law in effect in Texas. Students graduating from a Texas high school in the top 10% of their class were guaranteed college admission under the law. However, this guarantee was capped at 75% of admitted students.

For the remaining 25% of its admitted class and its second tier, UT relied upon a combination of two indexes to create a holistic picture. First, UT looked at the Academic Index, which was calculated using an applicant’s SAT score and academic performance in high school. The second index used was the “Personal Achievement Index” (PAI). PAI was a numerical score that included “the applicant’s essays, leadership and work experience, extracurricular activities, community service, and other ‘special characteristics,’” all of which would provide a comprehensive view of the applicant.

The Supreme Court’s 2003 decision in Grutter v Bollinger triggered UT’s use of race as a “special characteristic” factor.  In Grutter, the University of Michigan Law School’s admission system of holistic review was ruled to be constitutional. Michigan handled race as a “relevant feature” within the “broader context of a candidate’s application.” UT undertook a yearlong study to understand whether its omission of race as a factor in the admission process was allowing it to create “the educational benefits of a diverse student body…to all of the University’s undergraduate students.” At the conclusion of the investigation, UT found that its current policy was insufficient. Thus, UT adopted a new admissions policy that allowed it to take race into consideration as part of the “special characteristics” heading.

Race was utilized in UT’s admissions in a very controlled manner. PAI was rated on a number scale between 1 and 6 based on two components. A review of the two required essays comprised the first component. The second component was a full file review by a different reader who looked to supplemental information submitted by the applicant (such as resumes, letters of recommendation, artwork etc.), re-reviewed the essays, and then looked to the applicant’s potential overall contribution to the student body. “‘Special characteristics’ could have included the socioeconomic status of the applicant’s family, the socioeconomic status of the applicant’s school, whether the applicant lived in a single-parent home, the applicant’s SAT score in relation to the average SAT score at the applicant’s school, the language spoken at the applicant’s home, and finally, the applicant’s race.” Extensive training was provided to readers to ensure consistent scoring for applicants. Finally, a cut-off score for PAI/AI was given and students above that score were admitted. Admissions officers did not know the factors relied upon in reaching the scores given by the readers. The Supreme Court concluded that in this admission process, “consideration of race is contextual and does not operate as a mechanical plus factor for underrepresented minorities.”

It was this post-Grutter policy that was in place when Abigail Fisher applied to UT for undergraduate admission. She was not in the top 10% of her class and was thus part of the 25% “holistic” pool. She was denied admission. Ms. Fisher then sued, claiming that the use of race as part of the admissions process was to the disadvantage of her and other Caucasian applicants in violation of the U.S. Constitution’s Equal Protection Clause. The Equal Protection Clause provides that no State shall “deny to any person within its jurisdiction the equal protections of the laws.”

A public university’s affirmative action program will be subjected to strict scrutiny by the courts. The University’s interest in having such a program must be substantial and program must be necessary to accomplishing that interest.

Ms. Fisher did not challenge any aspect of the Top 10% law and consequently the Court had to accept it as a “given premise.” The diversity contributed by students admitted under that plan was not part of the record to compare to those students admitted via holistic review. Further fact-finding was not available to the Court because the admission process had been in effect just three years at time of Ms. Fisher’s rejection from UT, thus making any statistical evidence too small a sampling. The Court remarked on UT’s continuing obligation to periodically assess whether its admission policy with race continued to meet constitutional strict scrutiny i.e., that race played no larger role than necessary.

Ms. Fisher made four arguments to the Court in asking it to rule that UT’s admission process was unconstitutional. First, UT was required to be more specific about the level of minority enrollment needed to meet “critical mass.” Without that specificity, Ms. Fisher argued it could not be determined whether the admissions program was narrowly tailored. In response, the Supreme Court reiterated that universities are prohibited from instituting particular numbers or quotas. However, a university’s goals must be sufficiently measurable for the purposes of judicial scrutiny. In this instance, UT had met that standard. UT’s goal was an “academic environment that offers ‘a robust exchange of ideas, exposure to differing cultures, preparation for the challenges of an increasingly diverse workforce, and acquisition of competencies required of future leaders.’” These objectives had met the “compelling interest” standard established in prior Supreme Court cases. Moreover, the yearlong study conducted by UT had shown that race-neutral policies had not been successful in meeting those goals.

In her next argument, Ms. Fisher posited that UT had already met its diversity goals through the Top 10% plan and the race-neutral holistic review. Demographic data submitted by UT reflected stagnation in the percentage of minority students enrolled from 1996 and 2003. Other data showed that in 2002, 52% of the undergraduate classes with at least five students had no African-Americans in the class and 27% had just one African-American student. Twelve percent of these classes had no Hispanic students as compared to ten percent in 1996. The Supreme Court concluded that diversity goals had not been met.

The third argument was that consideration of race was unnecessary because it had a minimal impact in advancing UT’s objective. Data reviewed by the Court did not support this argument. In 2003, 11 percent of students enrolled through holistic review were Hispanic and 3.5% were African Americans. In 2007, the numbers went up to 16.9 percent for Hispanic applicants and 6.8% for African-Americans. “The fact that race consciousness played a role in only a small portion of admissions decisions should be a hallmark of narrow tailoring, not evidence of unconstitutionality,” according to the Supreme Court.

In her final argument, Ms. Fisher asserted that there were many other race-neutral methods to achieve UT’s goals. The Supreme Court disagreed, finding that UT had engaged in many outreach efforts to increase diversity prior to 2003 that were not successful. In her last ditch argument, Ms. Fisher argued for relying solely on an academic percentage plan for admissions. Again, the Supreme Court rejected her argument, questioning how many different kinds of diversity would be sacrificed in that scheme.

The opinion was concluded with a final urging to UT to continuously review whether “changing demographics have undermined the need for a race-conscious policy” and to constantly deliberate whether its admissions policies are necessary.

Thursday, June 23, 2016

ACA Broadly Prohibits Sex Discrimination

Final rules phasing in the anti-discrimination portion of the Affordable Care Act have been published by the Department of Health and Human Services (“HHS”). Of particular importance, Section 1557’s prohibition on sex discrimination clearly includes gender identity and sex stereotyping. ACA represents the first time federal law has comprehensively added protection for sex discrimination in healthcare.

With these new rules, women must be treated equally to men in the healthcare they receive and the insurance that they obtain. Sex specific health programs will only be permissible in the presence of an exceedingly persuasive justification. Categorical coverage exclusions or limitation for health care services related to gender transition are discriminatory. Individuals should be treated in accordance with their internal sense of gender. Pregnancy discrimination is also included, although an individual’s rights to access of health programs may be balanced with protections for religious beliefs. Protection for sexual orientation status alone remains unclear.

Section 1557 applies to any health programs that receive federal assistance like hospitals, clinics or insurance companies. All programs and activities administered by a federal agency such as Medicare or Medicaid are also subject to it. Lastly, the Health Insurance Marketplaces are all included within these provisions. These provisions may be enforced through the HHS’s Office for Civil Rights or through filing suit. The HHS requires that covered entities notify program beneficiaries within 90 days of the regulation going into effect.

Wednesday, June 22, 2016

The Case for Banning Email

Statistics show that email takes up about 23% of an average employee’s day. Employees send and receive approximately 112 emails per day. Some companies consider that too much distraction.

Atos Origin, a France-based information technology firm, has been on a mission to eradicate the company’s email. The CEO, Thierry Breton, initiated the mission. Mr. Breton had stopped using email himself several years before banning it in his company. He believed that maybe 10 percent of emails were actually useful. His employees estimated that they spent more than one-quarter of their time managing email with the majority considering it wasted time. Employees within the company now rely on a company social network based on the projects requiring collaboration. Conversations are not pinging in employees’ inboxes and employees choose when to enter discussions.

As a result of steps taken, Atos’ email has been reduced about 60 percent, going from 100 emails to around 40. Atos’ operating margin increased from 6.5 percent to 7.5 percent and earnings per share went up about 50 percent. Research apparently supports the Atos model, finding that banning or restricting email can increase individual employee productivity. When email has been removed, employees unsurprisingly communicated face to face or over the telephone more often. Employees also reported being less stressed, feeling more relaxed and productive.

Tuesday, June 21, 2016

Another Look at Waivers Under ADEA

The Age Discrimination in Employment Act (“ADEA”) precludes discrimination against workers over 40 years of age. Any waiver of an employee’s rights under the ADEA must comply with the Older Workers Benefit Protection Act (“OWBPA”), which requires that an employee “knowingly and voluntarily” give over his or her rights. Allstate Insurance Company recently failed to establish that its releases met the necessary standard.

In moving the status of its insurance agents from employee to independent contractor, Allstate offered four severance options to 6,200 insurance agents. Three of the four options included releases of ADEA claims in exchange for a severance package and benefits. The last option did not require a waiver but offered less compensation and imposed stricter non-compete restrictions. Approximately 400 former agents sued. A jury tasked with reviewing the releases signed by the first 10 plaintiffs found that 8 of the 10 releases were not “knowing and voluntary.”

A district court judge reviewed the jury’s findings. In explaining its finding, the court listed the seven primary factors to be considered in deciding whether a waiver is knowing and voluntary. However, the court cautioned that these factors were not a simple “checklist” but rather components to be balanced in looking at the “totality of circumstances.” In the end, the court upheld the jury’s finding because the waivers were not truly “voluntary.” Allstate refused to negotiate, rendering the time for consideration “effectively meaningless,” and the severance options offered required the agents to pick from financial security or face “financial ruin.” The case will proceed.

Thursday, June 16, 2016

EEOC Seeks Public Input On National Origin Discrimination

The Equal Employment Opportunity Commission (“EEOC”) has released proposed enforcement guidance on the issue of national origin discrimination under Title VII. EEOC’s guidance details official agency policy and outlines how laws and regulations apply to specific workplace situations. Everyone has been invited to comment.

National origin discrimination guidance has not been updated since 2002 and the EEOC has noted that many changes have occurred. This new guidance will address “job segregation, human trafficking, and intersectional discrimination.” The draft update has sections that show instances when national origin discrimination overlaps with other types of discrimination. Particular practices are identified that could help employers avoid charges of discrimination and perhaps aid in employee retention and recruitment. EEOC has stated that the protection of immigrant, migrant, and other vulnerable populations is a national strategic priority.

In 2015, approximately 11 percent of the 89,385 private sector charges of discrimination filed included national origin discrimination. These Title VII violations included unlawful failure to hire, termination, language-related issues, and harassment. The 30 days allotted for public input on the guidance ends on July 1, 2016. Here is a link to the guidance:!documentDetail;D=EEOC-2016-0004-0001

Wednesday, June 15, 2016

Medication’s Side Effects Not Protected By ADA

Lisa Caporicci was a crewmember at a Chipotle Mexican Grill in Florida. She had a history of depression and bi-polar disorder. She advised her supervisor that she took medication for bi-polar disorder. There was no mention of any possible side effects or issues that might arise from her taking that medication. Around a month later, she had to take off a couple days after beginning a new medication for panic attacks. Several days after returning, she appeared inebriated at work, and she was “very slow, messed up orders and was incoherent.” Her supervisor sent her home, and she was fired later that day.

Chipotle had a Drug and Alcohol Policy that prohibited employees from showing up at work under the influence of drugs, alcohol or controlled substances or having those substances in their system. The policy also stated that employees must notify the manager if their prescription medications may negatively impact their work performance.

In her lawsuit, Ms. Caporicci argued that because her medication was for her disability, any adverse action taken based on her medication was therefore based on her disability. The district court in Florida found that courts are divided on this issue. However, the majority position has held that employees may be terminated for misconduct even if that misconduct was based on a disability. Florida’s district court aligned itself with the majority. Ms. Caporicci’s termination was held to be based on the employer’s neutral application of its drug policy, and not on her disability.

Tuesday, June 14, 2016

EEOC Challenges Flu Shot Termination

Baystate Medical Center required all employees to have the flu shot as part of its immunization policy. Stephanie Clarke, a recruiter in the human resources department, refused the flu shot and asked for a religious accommodation. For employees who requested such an accommodation, Baystate demanded that they wear a surgical facemask while at work. Ms. Clarke did not wear the facemask consistently. She complained that the mask impeded her ability to communicate with job applicants because it covered her nose and mouth. Ms. Clarke was suspended without pay. She was told not to return to work until she was either immunized or wore the facemask all of the time. When Ms. Clarke refused based on her religious objection, the hospital considered her response a job resignation.

Title VII prohibits discrimination based on religion. Employers are required to accommodate sincerely held religious beliefs and practices provided they do not impose an undue hardship. Undue hardship has been defined as “more than de minimus” cost or burden on the employer’s business.

The EEOC has filed a lawsuit alleging that Baystate refused to effectively accommodate Ms. Clarke’s religious beliefs and fired her because of her religion. The EEOC statement included the following: “For an accommodation to be meaningful under Title VII, it both must respect the employee’s religious beliefs and permit her to do her job effectively.” It is expected that the EEOC will argue that the facemask made it too difficult for Ms. Clarke to “effectively” perform her position as a recruiter. She was not involved with patient care. However, the court will likely consider whether to give the hospital deference in determining patient safety.