Tag Archives: summary judgment

Why civil rights laws tolerate racial discrimination in the workplace

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The murder by Minneapolis Police of George Floyd sparked clashes between protesters and police this weekend in Nebraska and nationally. Elected officials in Lincoln and Omaha imposed almost unprecedented curfews attempting to quell violence.

The protests focused some attention on the problems with civil rights laws in remedying police violence against people of color. But, civil rights laws are also flawed when it comes to discouraging discrimination on the job.

“But for” and “motivating factor”

An employee must show their employer used race as motivating factor to win a racial discrimination case under state or federal law. The law distinguishes “motivating factor” from the more permissive “contributing factor” standard. Legally an employer could get away with being sort of racist in making an employment decision, so long as they weren’t too racist.

The United States Supreme Court recently increased the quantum of legally tolerated racism towards African-Americans. In the Comcast decision, the Supreme Court held African-Americans must prove race was a “but for” factor to win under 42 USC 1981. Plaintiff’s face an even steeper burden of proof in proving a “but for” factor rather than a motivating factor.

42 USC 1981 outlaws racial discrimination in contracting – including employment. But Section 1981 does not require claimants to file an administrative charge and has a four year statute of limitations. Title VII has a 300 day statute of limitations and requires claimants to file a charge of discrimination with a civil rights agency. Weakening the substantive protections of 1981 undercuts the procedural advantages of bringing a 1981 claim.

Reasonable inference or speculation?

Civil rights laws still pack some punch in stopping racial discrimination at work. The law tolerates some level of racial discrimination in employment. But it is up to a jury to weigh how important racial discrimination was in an employment decision. That is an expensive and risky proposition for an employer. A judge shouldn’t dismiss a case on summary judgment, if an employee shows race was a contributing factor in their termination.

On summary judgment, judges are supposed to give employees the benefit of reasonable inferences. But what one person views as reasonable inference another might view as speculation. Speculation won’t beat a summary judgment motion.

Contributing factor causation would take the guesswork out of summary judgment motions in employment discrimination cases.  The increased likelihood of a jury verdict in a racial discrimination claim would force employers to increase vigilance in preventing racial discrimination in the workplace.

Implementing contributing factor causation in employment discrimination cases and abolishing qualified immunity in police brutality cases won’t make racism disappear. But those proposals are at least concrete measures that would lessen the effects of racism in this country.

I believe it’s important to state that appellate court judges have written these causation standards into civil rights laws. But what judges do, legislators can undo. I hope the undoing starts in Lincoln and Washington DC soon.

The offices of Rehm, Bennett, Moore & Rehm, which also sponsors the Trucker Lawyers website, are located in Lincoln and Omaha, Nebraska. Five attorneys represent plaintiffs in workers’ compensation, personal injury, employment and Social Security disability claims. The firm’s lawyers have combined experience of more than 95 years of practice representing injured workers and truck drivers in Nebraska, Iowa and other states with Nebraska and Iowa jurisdiction. The lawyers regularly represent hurt truck drivers and often sue Crete Carrier Corporation, K&B Trucking, Werner Enterprises, UPS, and FedEx. Lawyers in the firm hold licenses in Nebraska and Iowa and are active in groups such as the College of Workers’ Compensation Lawyers, Workers' Injury Law & Advocacy Group (WILG), American Association for Justice (AAJ), the Nebraska Association of Trial Attorneys (NATA), and the American Board of Trial Advocates (ABOTA). We have the knowledge, experience and toughness to win rightful compensation for people who have been injured or mistreated.

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Biestek v. Berryhill: Bad for SSDI claimants, but good for civil plaintiffs?

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In Biestek v. Berryhill the Supreme Court upheld the partial denial of Social Security Disability Insurance (SSDI) benefits to a claimant based on the opinion of a vocational counselor that the employee could find work in the national economy. The Supreme Court upheld the denial of benefits despite the fact the vocational counselor would not disclose the data that supported her opinion and the ALJ refused claimant’s request for the counselor to reveal the data that formed her opinion.

What interested me in the case, in addition to the vocational rehabilitation issue, was the dissent authored by Justice Gorsuch that was joined by Justice Ginsburg. Viscerally I liked the powerful language of the Gorsuch dissent in a case where I disagreed with the result. After all in a SSDI case the government has the burden to prove the availability of work once a claimant proves impairment. I can’t imagine not being able not being able to evaluate the foundation an adverse opinion. (Particularly an opinion that concluded there was low-skill, light duty manufacturing work available during the Great Recession of the late 2000s/early 2010s)

But ultimately the majority relied on the very deferential “substantial evidence” standard in upholding the denial of benefits. The more I think about the case, I think Justice Sotomayor’s separate dissent was better reasoned, if more nuanced and less emotionally resonant than Gorsuch’s dissent. Nonetheless, I think there are some important takeaways from Biestek.

1. The war on SSDI continues — The Biestek decision indicates that appellate courts will be even more reluctant to reverse denials of benefits. The Biestek decision comes on the heels of anti-applicant legislation and administrative rule changes, rooted in elite consensus against SSDI, that began in the late Obama administration and have accelerated in the Trump administration.

The extreme deference to ALJs could be troublesome in the wake of the Lucia v. SEC decision. In that decision the Supreme Court held it was unconstitutional under the appointments clause to hire ALJs as civil service employees rather than have them appointed by the exectuvie branch. In the wake of the Lucia decision, the Trump administration has decided to change how ALJs are appointed. This has raised concerns that ALJs will be politicized and biased against applicants. The Biestek decision could give politicized ALJs a greenlight to deny benefits without fear of reversal.

2. There are some advantages for plaintiffs in proceedings governed by the rules of civil procedure.  One advantage of administrative type hearings like SSDI are relaxed rules of evidence and procedure that can make it less costly to pursue a claim. But since the rules of civil procedure don’t apply in SSDI, an applicant can be denied benefits on evidence that wouldn’t pass muster in a civil proceeding. 

Thankfully in Nebraska workers compensation, the rules of civil procedure apply (See NWCC Rule 4) and a plaintiff is free to investigate in detali the basis for an opinion made by a vocational counselor.

3. Confidentiality has run amuck in litigation — In Biestek, the ALJ agreed that a vocational counselor could claim confidentiality as a legitimate reason not to disclose the basis for their conclusion that the plaintiff could work. In that regard, Biestek is consistent with a push by corporate defendants to keep court papers and proceedings confidential. I recommend a recent article by Reuters about how confidentiality n litigation helped exacerbate the opioid crisis. I think corporate defendants abuse claims of confidentiality in the litigation process.  The Biestek decision seems to implicitly approve these practrices

4. Biestek could be a good summary judgment case for plaintiffs — The Gorsuch dissent drew parallels between the substantial evidence standard used in administrative proceedings and the substantial evidence standard in summary judgment. But reading between the lines it seems the majority in Biestek believes the substantial evidence standard is a more relaxed evidentiary standard than is believed by Justice Gorsuch.

One study shows that rougly 90 percent of employment law cases are dismissed on summary judgement. Clarification from the Supreme Court that substantial evidence is a relatively relaxed evidentiary standard, could make federal judges less likely to grant summary judgment motions.

The offices of Rehm, Bennett, Moore & Rehm, which also sponsors the Trucker Lawyers website, are located in Lincoln and Omaha, Nebraska. Five attorneys represent plaintiffs in workers’ compensation, personal injury, employment and Social Security disability claims. The firm’s lawyers have combined experience of more than 95 years of practice representing injured workers and truck drivers in Nebraska, Iowa and other states with Nebraska and Iowa jurisdiction. The lawyers regularly represent hurt truck drivers and often sue Crete Carrier Corporation, K&B Trucking, Werner Enterprises, UPS, and FedEx. Lawyers in the firm hold licenses in Nebraska and Iowa and are active in groups such as the College of Workers’ Compensation Lawyers, Workers' Injury Law & Advocacy Group (WILG), American Association for Justice (AAJ), the Nebraska Association of Trial Attorneys (NATA), and the American Board of Trial Advocates (ABOTA). We have the knowledge, experience and toughness to win rightful compensation for people who have been injured or mistreated.

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Workers’ Comp System Not Exclusive for Neb. Case

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Lind v. Benes Heating and Air Conditioning, Inc.

Firm founder Rod Rehm won a major victory for workplace safety in Nebraska yesterday. The longstanding exclusive remedy rule for work-related injury and death cases was limited.

Lancaster County District Court Judge Steven Burns issued a ruling allowing the parents of Neil Cary, a young man killed in a workplace accident outside of Lincoln, to let a jury determine whether the negligence of their son’s employer caused his death. To a non-lawyer, this decision may not sound like news, but this ruling is big news. Historically, the exclusive remedy for injured workers and their families is to sue for limited damages through the separate workers’ compensation court system. So until this ruling, workers’ heirs couldn’t sue a negligent employer for full damages from a work-related death.

Cary’s parents didn’t receive any workers’ compensation benefits for the loss of their son. Workers’ compensation death benefits only pay money for loss of income to survivors who were dependents of the worker. If a parent is not financially dependent on the child, which is usually the case, a parent is not entitled to receive compensation under Nebraska’s workers’ compensation law. Accordingly, burial expenses and end-of-life medical care were the only benefits paid on Cary’s behalf.

The trial court judge ruled that since Cary’s parents were not entitled to any workers’ compensation, he would allow them to seek damages directly from their son’s employer. The judge ruled that workers’ compensation was not the exclusive remedy for these parents. This ruling will allow parents to recover fair compensation from employers who don’t provide a safe workplace.

The offices of Rehm, Bennett, Moore & Rehm, which also sponsors the Trucker Lawyers website, are located in Lincoln and Omaha, Nebraska. Five attorneys represent plaintiffs in workers’ compensation, personal injury, employment and Social Security disability claims. The firm’s lawyers have combined experience of more than 95 years of practice representing injured workers and truck drivers in Nebraska, Iowa and other states with Nebraska and Iowa jurisdiction. The lawyers regularly represent hurt truck drivers and often sue Crete Carrier Corporation, K&B Trucking, Werner Enterprises, UPS, and FedEx. Lawyers in the firm hold licenses in Nebraska and Iowa and are active in groups such as the College of Workers’ Compensation Lawyers, Workers' Injury Law & Advocacy Group (WILG), American Association for Justice (AAJ), the Nebraska Association of Trial Attorneys (NATA), and the American Board of Trial Advocates (ABOTA). We have the knowledge, experience and toughness to win rightful compensation for people who have been injured or mistreated.

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