Supreme Court prohibits affirmative action at undergraduate college level

Reversing its precedent called Grutter, the Supreme Court, in a decision split along political lines, rejected affirmative action.

The majority held that Grutter had permitted affirmative action only temporarily, requiring that such programs have an end date.

To manage these concerns, Grutter imposed one final limit on race-based admissions programs. At some point, the Court held, they must end. Id., at 342. This requirement was critical, and Grutter emphasized it repeatedly. “[A]ll race-conscious admissions programs [must] have a termination point”; they “must have reasonable durational limits”; they “must be limited in time”; they must have “sunset provisions”; they “must have a logical end point”; their “deviation from the norm of equal treatment” must be “a temporary matter.” Ibid. (internal quotation marks omitted). The importance of an end point was not just a matter of repetition. It was the reason the Court was willing to dispense temporarily with the Constitution’s unambiguous guarantee of equal protection. The Court recognized as much: “[e]nshrining a permanent justification for racial preferences,” the Court explained, “would offend this fundamental equal protection principle.” Ibid.; see also id., at 342–343 (quoting N. Nathanson & C. Bartnik, The Constitutionality of Preferential Treatment for Minority Applicants to Professional Schools, 58 Chi. Bar Rec. 282, 293 (May–June 1977), for the proposition that “[i]t would be a sad day indeed, were America to become a quota-ridden society, with each identifiable minority assigned proportional representation in every desirable walk of life”).

Grutter thus concluded with the following caution: “It has been 25 years since Justice Powell first approved the use of race to further an interest in student body diversity in the context of public higher education. . . . We expect that 25 years from now, the use of racial preferences will no longer be necessary to further the interest approved today.” 539 U. S., at 343.

Finding that now “(t)wenty years later, no end is in sight,” the majority reversed Grutter holding that affirmative action will no longer be available to universities and colleges at the undergraduate level. Rather all admission decision will need to be made on a race-neutral basis.

The deeply partisan split suggests this case will be revisited by future Supreme Courts.

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NLRB returns to stricter pre-Trump era independent contractor test

In The Atlanta Opera, Inc., the NLRB reversed its Trump-era precedent SuperShuttle (2019) regarding independent contractors and returned to its Obama-era precedent FedEx II. No longer will the Board be guided by whether the putative independent contractor has a significant “entrepreneurial opportunity” in the relationship. Under this new (old) standard the Board, the Board found that makeup artists, wig artists, and hairstylists at the Opera were employees not independent contractors, permitting them to organize a union.

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Supreme Court revises undue hardship test for religious accommodations under Title VII

In Groff v. DeJoy, the Supreme Court revised the undue hardship test for religious accommodations under Title VII.

Both the ADA and Title VII have an undue hardship test. Title VII requires employers to reasonably accommodate an employee’s religious beliefs, unless the accommodation would pose an undue hardship on the employer. The ADA has similar language regarding accommodation of an employee’s disability. However, the two statutes’ undue hardship tests are very different. Title VII’s test has been that anything more than a minimal burden is undue; whereas, the ADA’s requires proof of a “significant difficulty or expense,” which has been interpreted by the courts and EEOC as a much higher bar.

Title VII’s much lower undue hardship test for religion has been called the “de minimis” test. In this case both parties agreed that the de minimis test was unclear and needed revision. The plaintiff argued that the Court should adopt the ADA’s disability approach, but the Supreme Court rejected that argument, holding that the ADA’s test was too stringent and contrary to Title VII.

Instead the Supreme Court held that Title VII’s undue hardship test will now require employers to prove that a religious accommodation “would result in substantial increased costs in relation to the conduct of its particular business.”

The Supreme Court did not explain how this new “substantial cost” test should be applied, except to note that cost of the potential accommodation and size of the business are at least two of the factors. Rather, the Supreme Court remanded the case to the lower court for further analysis.

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DOL issues guidance regarding FLSA’s PUMP Act

The DOL has issued a Field Assistance Bulletin under FLSA’s PUMP Act. The PUMP Act is a federal law that applies in addition to any state laws. The PUMP Act requires workers be allowed reasonable breaks to express, for up to one year after the birth of a child, in a private space, not a bathroom. This Field Assistance Bulletin is in addition to the DOL’s Fact Sheet 73.

The Field Assistance Bulletin confirms that determining a “reasonable” amount of time to express is an individualized inquiry that will vary by employee and by workplace, it may also vary during the protected one year period in which the PUMP Act requires the break. To illustrate, the Field Assistance Bulletin says one woman (see example named “Irina”) may require 4 20-minute breaks at first then only 2 20-minute breaks after the baby is 6 months old.

Because the “pump break” (which is DOL’s phrasing) is required as “reasonable” in each person’s circumstances, an employer cannot require that the mother express only during scheduled breaks.

An employee and employer may agree to a certain schedule based on the nursing employee’s need to pump, but an employer cannot require an employee to adhere to a fixed schedule that does not meet the employee’s need for break time each time the employee needs to pump. Additionally, any agreed-upon schedule may need to be adjusted over time if the nursing employee’s pumping needs change.

The Field Assistance Bulletin explains that, for non-exempt workers, the pump break must be paid if it is for 20 minutes or less. Additionally if the non-exempt employee is interrupted during an otherwise unpaid pump break, the entire break must be paid.

Julia is (a non-exempt employee who is) on a pump break when she receives a call on her work cell phone from a coworker who provides her with instructions regarding a work project. After she finishes the work call, Julia completes her pump break. Because Julia was not relieved from duty, the time she spent on the call must be counted as hours worked.

Pump breaks for exempt employees must be paid in the sense that they cannot trigger a reduction in the worker’s guaranteed salary.

Cameron is a salaried exempt administrative employee at an assisted living center who has a four-month-old child. Cameron takes three pump breaks a day. Cameron’s employer cannot deduct the time used for pump breaks from their salary

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Eleventh Circuit creates circuit split in failure-to-accommodate cases, inviting Supreme Court review

In Beasley v. O’Reilly Auto Parts, the Eleventh Circuit rejected the argument that failing to accommodate a disabled employee under the Americans with Disabilities Act is itself actionable. The court held that a plaintiff must also prove that he suffered an adverse employment action affecting the terms, conditions or privileges of employment, such as discharge, discipline, demotion, cut in pay, etc.

The Eleventh Circuit’s decision is opposite to the Tenth Circuit’s decision in Exby-Stolly, which was itself a split decision. Therefore, it creates a circuit split that now invites review by the Supreme Court.

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Colorado Court of Appeals holds that a banquet service fee is not a tip and therefore banquet server is not a tipped employee

The Colorado Court of Appeals held that a banquet server was entitled to overtime because he was not exempt under Colorado’s wage-hour laws as a tipped employee. The employer charged a service fee of 22% that was shared with all the servers, including plaintiff, allowing him to earn between $11.36 and $33.05 per hour depending on the amount of banquet sales.

Even though the service charge varied with the amount of sales, as a tip generally does, and even though in the, in the aggregate, it was well in excess of minimum wage, the court held that it did not constitute a tip because, because unlike a tip, which must be voluntary, banquet clients could not decide whether or how much of it to pay. Rather the company simply charged all banquet clients 22% of food and drink.

Additionally, the court rejected the company’s argument at the banquet server was exempt as a sales employee. The company had argued that by providing excellent service the banquet server enhanced sales, but the Court noted he had no actual sales responsibilities.

The case is of particular interest, because it illustrates how Colorado’s new wage-hour laws are likely to be applied by the CDLE and Colorado courts.

First the court was very clear that it was not deciding the case from scratch (“de novo”). Rather than the court explained, it was required to defer to the CDLE’s hearing officer’s decision, unless it was proven to be unsupported by substantial evidence or contrary to the plain meaning of Colorado’s wage-hour laws. The court went to some length to explain that it thought the company had raised a good argument that the service charge should have been considered a tip. But because the issue was arguable either way, the court felt it was required to defer to the CDLE’s hearing officer. 

Second the court noted that the case actually began with the plaintiff, incorrectly, trying to argue that he was, in fact, tipped. When he filed his claim, he argued that he had been shorted the amounts due him under Colorado’s tipped employee laws. When the CDLE investigated, it determined he was wrong, that he wasn’t tipped. But the CDLE didn’t stop there. Rather, it restructured his claim, then reconsidered his circumstances under the non-tipped employee wage-hour laws, and under those laws, laws that the plaintiff apparently had not himself put at-issue, the CDLE awarded him overtime under its own theory.

Thus, the case illustrates how the new Colorado wage-hour laws allow the CDLE broad discretion not only to decide the wage-hour claims filed before it, but also to decide how to structure those wage-hour claims in order to best award relief it determines is owed.

The case was Brennan v. Broadmoor Hotel, Inc.

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Honored to be named in Chambers for 2023!

Honored to be named in Chambers for 2023!

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