LegalMatch: Employment Law

Race Based Basketball League Looking for a Few Good White Men

2010-02-01T11:59:51-08:00

We’ve all probably observed someone say the above phrase, and immediately follow it with something ludicrously racist. In this case, it’s being followed with “I’m starting a basketball league that’s only open to white people”.

The All-American Basketball League, a league which is currently in its planning stages, specifically states in its rules "Only players that are natural born United States citizens with both parents of Caucasian race are eligible to play in the league." Oh boy.

But it just gets better from here. Don “Moose” Lewis, the founder of this league, had this to say about his endeavor: "There's nothing hatred about what we're doing," Lewis said. "I don't hate anyone of color. But people of white, American-born citizens are in the minority now. Here's a league for white players to play fundamental basketball, which they like."

Apparently, composing just shy of 80% of the U.S. population makes white people a “minority.” That’s news to me. And what is “fundamental basketball?”

I shouldn’t have asked, because Moose has an answer. This comes from the Augusta Chronicle, which initially reported this story:

“Lewis said he wants to emphasize fundamental basketball instead of ‘street-ball’ played by ‘people of color.’ He pointed out recent incidents in the NBA, including Gilbert Arenas' indefinite suspension after bringing guns into the Washington Wizards locker room, as examples of fans' dissatisfaction with the way current professional sports are run.”

While this guy’s silly little league, which is extremely unlikely to get off the ground in the first place, can be dismissed with a laugh, it does raise an interesting question: would this league be legal?

Right off the bat, it raises issues about employment discrimination, assuming that he plans on paying his players. Title VII of the Civil Rights Act of 1964 makes it perfectly clear that it’s unlawful to discriminate in employment on the basis of race or national origin, among other things. This league, in its own policies, explicitly discriminates on both bases. Most companies that want to get away with discrimination are just a little sneakier about it.

This seems like a no-brainer, from a legal standpoint. While courts have articulated some exceptions to Title VII’s prohibition on certain types of employment discrimination (particularly sex discrimination) on the basis of what’s known as a “bona fide occupational qualification.” Basically, if a person’s membership in a protected class somehow makes them inherently unqualified for a job, it’s acceptable to discriminate based on that fact. For example, imagine if a casting agency had to fill the part of the female lead in an upcoming play, and they are approached by an actor and actress of equal talent. Obviously, they can rule out hiring the male actor based purely on his sex.

However, no court in the U.S. has ever found that there is a bona fide occupational qualification for race, meaning that this guy is out of luck.

However, if this league doesn’t pay its players, and claims to be a purely recreational organization (but they just happen to sell tickets to their games), they might wriggle out of the federal prohibition on employment discrimination (since the players wouldn’t be employees), and might be able to claim that it’s some kind of private social club, and therefore exempt from other antidiscrimination laws.

Of course, we should all know that just because something might (theoretically, arguably, maybe) be legal, that doesn’t make it a good idea. That’s something every lawyer should probably have tattooed on his or her forehead (backwards, so they can read it in the mirror).

Health Care Reform and The Law

2010-01-14T16:18:31-08:00

If you haven’t been living under a rock for the past month, you’re probably aware that the U.S. Senate recently passed a healthcare reform bill. The bill’s key provisions include barring insurers from refusing or dropping coverage based on a pre-existing medical condition, requiring individuals to purchase health insurance, or face a fine, expanding Medicaid eligibility and providing subsidies for those who cannot afford it, creating health insurance exchanges, designed to create a low-cost option for health insurance.

All of these provisions have been extremely controversial, with supporters arguing that it will reduce costs of health insurance, and make coverage available to millions of Americans who are currently uninsured, and that a healthier population will, in the long run, have economic benefits which more than offset the initial costs.

Opponents argue that the plan will necessitate tax increases, create too much government involvement in highly personal medical decisions, reduce the overall quality of care, and do little, if anything, to control rising costs of health care.

Another argument that has recently gained traction among the mainstream opponents of the healthcare reform bill is that certain provisions are unconstitutional.

Initially, the constitutional argument focused on the “individual mandate” – the requirement that everyone obtain health insurance. The constitutional argument stems from the fact that the federal government has constitutionally-limited power. Basically, Congress can only do that which the constitution specifically authorizes it to do. Of course, one could look at the mind-bogglingly enormous body of federal law, and look for corresponding explicit grants of authority in the constitution, and, in the vast majority of instances, find none. This is because the U.S. Supreme Court has interpreted certain congressional powers extremely broadly.

Most relevant here is the so-called “commerce clause”, which allows Congress to regulate commerce between the states, and with foreign countries. In the past several decades, the Supreme Court has greatly broadened the meaning of the Commerce Clause to cover virtually any activity that affects interstate commerce. For example, in one case, Wickard v. Filburn (1942), the Supreme Court ruled that the commerce clause allowed the federal government to prohibit an individual from growing wheat in his backyard, because, by growing wheat instead of buying it, he affected the market price of wheat, which was a matter of concern across the country, thus allowing Congress to regulate his conduct under the commerce clause.

That precedent has not been overturned, and has in fact been reaffirmed as recently as 2005, when, in the case of Gonzales v. Raich, the Supreme Court used roughly the same reasoning to uphold the federal ban on growing marijuana.

A good case could be made that, based on current precedent, the individual mandate is constitutional. On the other hand some prominent legal scholars would beg to differ, arguing that the delivery of medical services occurs in one place, and does not cross state lines. Of course, this argument appears to ignore the case of Katzenbach v. McClung, which raised the question of the constitutionality of the 1964 Civil Rights act, which, among many other things, prohibited racial discrimination in places of public accommodation. In that case, the owner of a take-out restaurant required African American customers to be served at a separate entrance from white customers, which was prohibited under the Civil Rights Act. The owner argued that the Act was unconstitutional as applied to his restaurant, because the provision of food to individual customers occurred in a single location, and did not cross state lines. The Supreme Court disagreed, because the owner bought food and supplies in interstate commerce, his restaurant could be regulated by the federal government.

Similarly, even though medical services are delivered in a discrete location, the medical supplies and other goods directly involved in the provision of medical services were likely purchased from other states, and thus medical service providers are engaged in interstate commerce, allowing them to be regulated.

Of course, I don’t pretend to know how a court would eventually rule on this matter, but I know how I’d answer a constitutional law exam question that involved these facts.

Another constitutional question is raised by a last-minute compromise that was reached to give senate Democrats the crucial 60-vote supermajority they needed to overcome a Republican filibuster. Because the Republicans have 40 seats in the Senate, and the Democrats (and independents who caucus with them) have 60 seats, and Republicans were unanimously opposed to the Senate bill, every single Democratic vote was needed, effectively giving every Democrat in the Senate veto power over the bill.

Nebraska Senator Ben Nelson, a Democrat who appears to occupy the more conservative wing of his party, had serious reservations, and threatened to vote against cloture (ending debate, and forcing a vote on the bill, which requires 60 votes), which would have effectively torpedoed the measure.

To appease him, greater restrictions were placed on funding for abortion (ostensibly his main issue with the bill), and a provision was added under which the federal government would pay all of Nebraska’s new Medicaid costs, forever. This “Nebraska compromise” gives some constitutional scholars pause. No other state gets all of its Medicaid costs paid for by the federal government, and this measure effectively requires residents of the other 49 states to pay for the healthcare of Nebraska residents who are eligible for Medicaid.

This does not raise any obvious Commerce Clause issues, but implicates Congress’ constitutional power to tax and spend for virtually any purpose.

Congress certainly treats states differently from one another all the time, when it comes to distributing money. On its face, this provision does not seem to be any different.

Whatever the final result, we can be sure that lawyers will be kept busy. Between the likely constitutional challenges to the law, and the myriad new regulations it creates, lawyers for individuals, health insurance companies, and employers will have their work cut out for them.

A School's Right to Discriminate Against a Christian Club

2010-01-05T14:33:52-08:00

Clubs and organizations abound on University campuses. From the chess club to the young democrats to the drama club, these groups are a great way for people with similar interests to come together and share their passions.

That being said, there has always been an element of controversy surrounding those clubs that advocate unpopular positions or specifically exclude members. The root of the problem is that the clubs are sponsored by the University funds (or at least partly), conduct their meetings in school classrooms, and are visible elements of the campus.

The latest case to get national attention and to be heard by the Supreme Court is the case of UC Hastings School of Law and a Christian club. The problem: the club actively excludes homosexuals and non-Christians from membership in the group.

There are about 165 law schools that have a similar Christian group that advocates this type of exclusion in order to better promote more “orthodox” beliefs. The issue before the court will be whether public universities can be required to subsidize openly discriminatory groups or require these types of groups to accept everyone. By following the policy of exclusion, the Christian group loses out on: activity funding, school recognition, the ability to publish in the school newspaper, and use of campus facilities. Obviously, the club claims that there is a freedom of association and freedom of religion violation taking place here.

In a recent LegalMatch study, there is a strong interest in many aspects of religious discrimination; and schools and places of employment are the most cited places where individuals feel that there has been some form of discrimination taking place. That makes sense as those are, for the most parts, public spheres where the tension is most likely to surface. When a person is not working or at school they are usually at their home or church and able to practice (or not practice) in any manner he or she chooses.

In my opinion, I think a private organization has the right to discriminate but when a club or organization is taking public funds (as is the case here) then they need to accept anyone who wants to join. why someone would want to join a club that so openly discriminates against them, is their own issue. my point is that I think this is a case where the option should be available.

FINALLY! Unemployment Rate Down 10%

2009-12-16T16:41:43-08:00

Good new for job seekers! Recent statistics reveal that the unemployment rate has dropped 10%, which is the best showing since December 2007. I don’t need to tell everyone the abc’s of the recession or how or why we got to the point of having such a high rate of joblessness in America. What is promising about this figure is that we are crawling our way out of the recession. Maybe.

The industries most affected by the recession include: construction, real estate, gamming, fashion, and goods and services. One fact that the 10% decline hides is that when people don’t look for jobs, they are not factored into the figure. So those job seekers that are upset about fruitless searches and need a break are still unemployed, they just aren’t unemployed for the purpose of the study.

Though a positive swing in numbers, there is still a long way to go. A recent LegalMatch study revealed an overall increase in unemployment benefit inquiries. That basically means that people are still struggling to find employment in this market and are forced to rely on the weekly income provided by their state unemployment insurance plan.

One study noted that the average unemployed individual that finds himself out of work remains jobless for 28.5 weeks. I find that figure to be depressing. I have many friends who have been laid off within the past year and I have seen the struggles that go along with job hunting. Nevertheless, it is important to remain optimistic and explore fields that are hiring.

Hopefully the unemployment rate will continue to go down and the struggling industries will be able to get out of their slumps. Maybe a holiday spending spree will be the stimulus the economy needs???

Facebook Can Lead To The Denial Of Insurance Benefits

2009-12-02T15:33:19-08:00

It’s no hyperbole to say that technology has changed the way we live. Everything is a lot easier now because of it. Email ensures that we can send messages to other people in mere seconds. Lives have been extended because of advances in medical technology. DNA analysis allows the criminal justice system to be more accurate in its convictions. The list goes on and on.

But like all great things, there are always disadvantages. Take Facebook for example; it’s a ridiculously addictive time-killer that keeps us connected to our friends and family while at the same time draining our society of countless work hours. Well, you can now add tattletale to the list of ways in which Facebook can ruin your life.

The negative effects of social media websites is not a new thing and this certainly is not the first time Facebook has been accused of being the catalyst responsible for destroying a person’s life. But as far as I can tell this is the first instance I’ve heard of in which Facebook has been used by an insurance company as the basis for the denial of benefits.

This case is especially important because the woman, Nathalie Blanchard, whose benefits were denied, claimed she suffered from depression and therefore was granted long-term sick leave to deal with her issues. The problem was that photo updates of her on Facebook showed her out having fun all over town.

Why is that important you ask? Well because she was essentially using Facebook for its exact purpose, to update her friends and family on what she’s been up to, which presents (or rather reinforces) the particularly frightening scenario that even the most mundane and common acts on Facebook can spell trouble given the right situation. Moreover, the same can easily be said about all social media websites in general.

While this is discussion on the pros and cons of Facebook and social media is interesting and all, you guys out there may be wondering what place it has on a law blog; particularly what legal recourse may be available to Blanchard? Well, I’ll tell you, quit nagging me, damn…

As far as I can tell, the best bet she, or anyone in her situation, has is the good ol’ argument of the implied covenant of good faith and fair dealing, which is inherent in all contracts. For those of you who were too lazy to click on that last link, the covenant basically ensures that those entering into any contract must make a good faith effort to adhere to all the terms laid out by the contract. This means not only performing your part of the deal, but also not doing anything that would make it so that the other party can’t perform their end of the deal or anything in general that would make the contract impossible to fulfill.

The classic law school example is making a contract to clean your room when your clock shows a particular time, and then breaking your clock so that it can never reach that time, thereby making the contract impossible to perform. This covenant is especially important in insurance cases due to the accepted opinion that insurance carriers are assumed to be in a better bargaining position than their clients, and as far as I know, courts have always primarily used the covenant in insurance cases.

So how does it apply to Blanchard’s case? Well, it would require that her agent make a full inquiry into whether the Facebook photos of her having fun were really indicative of her having recovered from her depression. Blanchard makes a good argument that she was simply trying to feel better by going out; that being outside doesn’t necessarily equal to her depression being cured. By invoking the covenant, she could argue that her agent didn’t do a substantive enough inquiry since the agent seemingly based her denial on only one factor according to the article: her Facebook photos, thereby breaking the covenant.

I think a court would most likely agree with her argument and force the insurance company to get more concrete evidence to support their denial.

But then again, this case is from Canada and I’m not sure how the court system works over there. Who knows, maybe they’ll rule in the insurance company’s favor and then order Blanchard to ride a moose to work every day (I love Canada, please no letters).

Anyway, the second moral of this story (it seems) is to also pay attention to what jurisdiction you’re in.