If It's Too Good to Be True…

It's probably not smart. This is especially the case when it's the government that comes knocking on the door with a "good deal". In this case, the offer is especially troubling because it's coming from the IRS, an agency which rarely offers a good deal to anybody.

Those of you wedded to the idea of using independent contractors in lieu of employees, pay attention. That goes for those of you just using independent contractors, too. What's happening right now in Washington with respect to this issue is a one-two punch involving the Department of Labor and the IRS. If this diabolical combination doesn't get your attention, nothing will.

DOL recently announced that it was going to start paying a lot more attention to companies making use of independent contractors. There are any number of advantages for a company to use independent contractors, rather than employees, in its day-to-day operations. For one thing, the employer is not responsible for wage tax withholdings, unemployment insurance payments, workers compensation insurance, and a host of other expenses that are required when someone is formally part of the company workforce. In addition, virtually all employment laws apply only to "employees"; independent contractors typically can't make employment-related claims against the company using their services. Given the lack of protection provided to most independent contractors, and more importantly the lack of tax revenue that results from the use of independent contractors, state and federal tax and employment agencies have long focused on ferreting out improper contractor classifications.

The Department of Labor emphasis involves a teaming approach between the federal and state employment agencies to ensure that companies are not calling people independent contractors who are really employees. This classification issue is a complex factual analysis involving as many as 20 separate factors, and varies from state to state. Generally speaking, however, the key factor is who is controlling the work. If the individual worker is in control of how the job is performed, and is not integrated any more than necessary into the company structure, there's a good argument that she is a contractor and not an employee. Moreover, companies employing independent contractors must observe a variety of tax niceties, such as the use of an IRS Form 1099 for payment records. DOL and the IRS are going to be looking very carefully at those niceties, and how work is controlled.

At roughly the same time, the IRS announced a "voluntary settlement program" designed to encourage companies making use of workers in a questionable independent contractor status to reclassify these workers as employees. In exchange for the voluntary acknowledgment by the employer that its contractors are actually employees, the IRS will forgo a multiyear assessment of employment taxes and penalties, and instead use a single year assessment with reduced rates. The employer must agree to treat all of these reclassified contractors as employees from that point forward, of course.

Here's where it gets really troubling, from my perspective. The IRS Announcement says nothing about the limitation of state tax liability, or any other employment law . In other words, an employer that agrees to reclassify its employees under this program might be able to limit its federal tax liability to a single year, but is not protected from its individual state tax agencies coming in and assessing multiyear tax liability reaching back however far the state law allows. This would include unemployment insurance contribution taxes (and the associated penalties), workers compensation insurance contributions (and the associated penalties), and whatever other contributions based on employee status the host state happens to require. Even more troubling is the fact that this reclassification does not waive any liability under the Fair Labor Standards Act, Title VII, the Family and Medical Leave Act or any federal or state EEO laws.

Conceivably, an employer that reclassified an employee under the IRS program could find itself suddenly being sued for failure to pay overtime wages over the last two years (typically not an arrangement found in independent contractor agreements), or for failure to reinstate what it thought was a contractor following an FMLA qualifying absence six months ago, or for the toleration of a hostile work environment, or for an Equal Pay Act violation, or what have you. It's perfectly possible that an employer that reclassified its employees under this IRS provision would the next day find itself facing an audit by federal and state Department of Labor personnel, who have been tipped off by the IRS filing.

So before you jump at this "get out of jail almost free" offer from the feds, look at the affected workforce carefully. You might find yourself in trouble far more costly than any potential savings under this initiative.

A Complete Failure

If this is the best the Obama people can do, then they should quit:  http://abcnews.go.com/Business/Economy/geithner-good-chance-jobs-act-pass/story?id=14609951

$200,000 for each job created?  And the Treasury Secretary thinks this is the best, no, the only alternative?  Yikes.

And take a look at this assessment of ObamaCare by the doctors who will have to implement it:  http://www.forbes.com/sites/sallypipes/2011/09/26/doctor-and-ama-split-over-contentious-issue-of-obamacare/

Every healthcare professional I've talked to says pretty much the same thing.  The PPACA is a looming disaster that will not lower costs (it's not designed to) or improve the quality of healthcare (it's not designed to do that, either).  For employers, it will effectively end health insurance coverage by making it too expensive for all but the richest companies.  It's not just a slippery slope to a government run, single source system, it's a cliff.

A Quick Discrimination Reminder--Concern for Pension Values is Not Discriminatory

A recent case out of the Second Circuit is a valuable reminder that in dealing with an older workforce, an employer can justify its employment decisions based on factors that are closely linked to age and seniority. The decision issued as a Summary Order, which has no precedential effect under Second Circuit rules, but nevertheless provides useful guidance.
The pertinent facts are fairly simple. New York City's Human Resources Administration unilaterally reduced the overtime hours of a long-term employee after he appeared on a list of New York City's top 50 overtime earners (a politically unpopular distinction for any employee) and because the employee had become eligible for retirement. Of particular concern to the City was the fact that the employee's pension benefits would be based on his compensation for his last 12 months of work. Because of this contractual provision, the effect of the employee's typical heavy overtime use would be a significant increase in the value of his pension. Accordingly, the City acted to save money on the employee's pension.
Citing the US Supreme Court Hazen Paper case, the Second Circuit ratified the employer's decision to reduce the hours, even though it was based in large part on a factor with a significant age element. "An employment decision motivated by pension costs, even when strongly correlated with age, is not an ADEA violation."
In short, an employer can take an adverse employment action based on purely economic factors, as long as those factors are not a substitute for age discrimination. Important advice, given the nature of the US workforce.

Paying College Athletes?

It's been a particularly brutal off-season for college football, with scandals at North Carolina, Ohio State, and Miami making plenty of headlines. This comes on top of the scandals that occurred in-season last year, including the heavily compensated recruitment of Cam Newton, presently enjoying a spectacular NFL debut.
And now, on top of the NCAA investigations, we have the shameless, but thoroughly understandable, pursuit of the big bucks that is conference realignment. I really think the seeds for this were set 25 years ago, when Notre Dame got its own TV contract with NBC. Once some other big football schools realized that they could cut separate deals for their games with networks, notably ESPN, and keep all that revenue for themselves, the traditional loyalty to conferences, and the interlocking relationships that made the conference alignments so secure, began to fall apart. There is no reason for Texas A&M, for example, to stay in a Big 12 conference dominated by the University of Texas Longhorn network. Similarly, BYU-a major draw in the Mountain West-saw no reason to be saddled with the small-market woes of Wyoming, Colorado State, Air Force, and New Mexico, and set out on its own. I think wrathful football gods (there are potentially many in Mormonism) may still smite BYU, but the message to other schools was clear: If you are not strong enough to have your own television network, you'd better be aligned with other schools of caliber and heft in order to compete in the sports marketing world.
As the mercenary nature of college football becomes clearer (and let me be clear, I'm under no illusion that the nature of college football has changed in the slightest in the last hundred years or so-it's always been about the money; it's just now there is a lot more of it, and it's harder to hide the machinations of the schools and the players), sportswriters start revisiting the idea of paying college athletes who, after all, are the people generating all this revenue. In other words, given that they are bringing in so much dough, shouldn't these players be treated like employees?
By any comparison, the numbers associated with big-time college athletics (i.e. football and basketball, the major revenue sports) are significant. One study reported that the average Football Bowl Subdivision player is worth about $121,000 per year based on the value of revenues received by NFL players. It's even worse for basketball, a Division I college basketball player, using the NBA's now expired pay system is worth about $265,000 per year.
But treating these players like employees, rather than "student-athletes" has some troubling ramifications. Things like workers compensation coverage, unemployment compensation coverage, unionization, etc. start coming up very quickly once you start down the slippery slope. Moreover, the payout suggestions that I've heard are ludicrous, because even the most generous student athlete payment plan doesn't approach what many of these kids receive from agents, runners, and starstruck alumni.
In other words, paying college football or basketball players is not going to reduce college recruiting and money scandals unless we are prepared to pay them at something approximating the going rate for their celebrity. And that going rate, ladies and gentlemen, is really high. I'm talking Cadillac Escalade/Jaguar XJL/tricked out Hummer -land. Just to get Cam Newton in school apparently cost somebody close to $200,000. And that was before he started lighting up the SEC.
So let's approach this problem realistically-giving players a living stipend of $300 a month is not going to cut down on the sale of uniforms, favors, hookers, flashy cars, and every other type of bling imaginable. If anything, a small payment would likely make the situation worse. At least at this point, the kids know they are not supposed to be receiving money. Once the system agrees to give them something, it then becomes a matter of degree, rather than a prohibition. See Winston Churchill's classic put down over haggling about price for a more salacious explanation.
And, for whatever reason, the courts are not proving to be as friendly to the idea of these players being able to control their own likeness (like an employee could) as we might hope. Electronic Arts just won a major victory in a lawsuit alleging it improperly used a college player's likeness in sports games without his permission. A federal district court judge determined that the game maker had a First Amendment right to use the player's likeness, which outweighed his individual right to control its marketing. I think this is a terrible decision, and one that may not hold up on appeal, but it's currently occupying the space in this area.
The situation is not going to go away. The NCAA does not have the high ground here, financially or morally, and I think it's only a matter of time before teams now setting up their own conferences start setting up their own eligibility rules, as well. Stay tuned.

The Public Fisk and Public Employee Unions

You would be hard-pressed to find a more graphic example of the incestuous and symbiotic relationship between public employee unions and the governments that oversee them than the situation described in the Chicago Tribune's lead story today. Because of the secretive and cloaked process surrounding Illinois state politics, it may not be possible to determine exactly how a few lines of state law were altered in 1991 to benefit public employee union leaders, but the effect today is monstrous: 23 retired union leaders stand to collect more than $56 million from Illinois' overstressed public employee pension fund. In fact, the pensions they are receiving far outstrip the average public employee pension by a factor of 3 to 1. The trade-off, of course, is guaranteed employment in the form of votes for the politicians that orchestrated this stealth wealth transfer.

The more exposure these types of connections receive, such as the ripoff of Wisconsin taxpayers by the state teachers union benefit plan currently being revealed by the contentious revision in WI state law, the better. Local governments' budget woes are quickly making these bloated union financial payouts an unaffordable luxury.

PS-anybody catch the repeated negative references to public employee union strikes, and their effect, in the movie Contagion? Highly unusual for the normally liberal Hollywood worldview, I thought.

UPDATE:  The payoff situation is even worse than originally reported--it seems Chicago management brought back a favored union leader for one day of work in 1994, then phonied up an indefinite leave status, so that he could reap his almost $160,000 retirement pension.

I Got Your Sign Right Here...

From Sobering Thoughts: 

A Risk That I Suspect Was Not in the Job Description

After watching the debacle that was the Amanda Knox trial, and retrial, there's very little about the Italian justice system that should really surprise anyone.
Well, maybe this.
A group of Italian geologists are being criminally prosecuted (with attending civil liability a possibility, as well) for failing to predict an earthquake in 2009.
The quotes in the associated story are almost comical. The Italian prosecutors, as well as the citizens of the destroyed town who are seeking hundreds of millions of dollars in damages from six leading geophysicists and one government official, all say they "know" that earthquakes can't be predicted. What they claim to be suing for is the negligence of the scientists in evaluating and communicating specific risks about potential events to the local population.
Well, I am not versed in Italian jurisprudence, but assessing and adequately warning about specific risks sounds an awful lot like prediction, at least to my untrained ear. And anyway, it wasn't like this thing just happened out of the blue-the village had been subject to shocks and low-level tremors over a period of months leading up to the big one. The town itself had been effectively leveled in 1703 by strong earthquake, comparable to the one that struck in 2009.
The government actually held a meeting in the town of a so-called risks commission to talk about the swarm of smaller quakes and the likely effect. Apparently the information disseminated was scientifically correct, including a statement by one of the geologists that even though there did not appear to be a big risk at this point, since the town was located in a major earthquake zone, no one could be sure. Unfortunately, what a government official conveyed at a press conference once the scientists had finished speaking was a little more definitive-indicating that there was virtually no danger, and that the swarm of smaller quakes was dissipating potential earthquake energy. That assessment, even according to the scientists on the commission, was incorrect.
It's a little reminiscent of the movie Jaws, where the mayor of the town is telling everyone it's safe to go to the beaches while the scientists know that the great white shark is out there selecting a chianti to go with its next meal.
The case will have interesting ramifications. Is it safer for the scientists now to say nothing from this point forward? What exactly are their duties, especially since this national risk commission relies on scientific estimates to make judgments about buildings, transportation, and other high-risk construction?  Sovereign immunity would almost certainly bar such an action here, but given our lawsuit craziness, even a lawsuit like this is not impossible. I could just see a wave of federal court filings after California falls into the ocean, for example.  Sounds like a situation requiring no-fault insurance.

Respondeat Superior in Reverse?

It's a well-established principle that companies are liable for the damages caused by the authorized actions of their employees. Employment law consists of virtually nothing else, save for those relatively rare occasions when a supervisor is sued in his individual capacity for some type of personal tort against an employee. Think assault, battery, defamation, etc.

It's a particularly nasty turn of events when individual management personnel, however, are found liable for the actions of their companies. And it's even worse when the issue of liability in no way turns on whether the corporate officer knows or had any involvement in the illegal activities of others in the company.

But that's the current status of the law under something called the "responsible corporate officer" doctrine, a prosecutorial theory that is reviving under the current administration. Frequently cited as "RCO", the theory provides an extremely powerful tool for prosecutors because it imposes individual liability on corporate officers without the need to show that the officers themselves had any unlawful intent, acted negligently, participated in the wrongdoing, or even had knowledge of the specific federal violation alleged. An RCO prosecution seeks to prove two very simple propositions: the corporate executive was in a position of responsibility and authority in the company such that she had the capacity to prevent the wrongdoing, and that the manager failed to prevent a violation of federal law or regulation.

The RCO doctrine has had its principal application in the food and drug industry (although there have been some rumbles of it in SEC prosecutions). In fact, the doctrine originated in a 1943 Supreme Court case involving violations of the Food, Drug, and Cosmetic Act, and resulted in the conviction of  the president and general manager of a pharmaceutical operation, whose company was repackaging and shipping unadulterated and misbranded drugs.

The government has currently expanded its RCO focus into the realm of health care criminal prosecution. The Commissioner of the Food and Drug Administration recently noted that the agency was seeking to increase the use of misdemeanor prosecutions with the specific intent of holding corporate officers responsible for the actions of their companies. In January, 2011, the FDA issued new guidelines laying out the threat of RCO prosecutions to hold liable corporate officers "for a first-time misdemeanor (and possible subsequent felony) under the [FDCA] without proof that the corporate official acted with intent or even negligence, and even if such corporate official did not have any actual knowledge of, or participation in, the specific offense."

In addition to the potential criminal penalties, there are significant financial issues associated with a conviction under the RCO. Individuals convicted of health care-related crimes are typically excluded from involvement in any federal health care programs. Moreover, any company employing such an individual as an officer, director, agent or management employee is also subject to the exclusion. The ramifications are obvious-any person convicted under this doctrine becomes effectively unemployable in the healthcare field, unless working in that rare facility that does not receive federal funding, even in the form of Medicaid or Medicare funds. And in case you think the feds are kidding about this, HHS recently barred three senior executives of a pharma company-including the general counsel-convicted under the RCO doctrine of drug misbranding, from participation in all federal health care programs for 12 years.

So those of you in the healthcare and pharmaceutical industries can add this to your list of compliance issues. What's most disturbing from a due process perspective is that the best intentioned compliance program in the world is not going to save company senior management if a violation actually occurs. Given the increased federal focus on healthcare management and delivery, the recent expansion of the RCO doctrine is a worrisome development.

UPDATE on the Perdue Pharma case here.

Dysfunctional Hiring 101: The Washington Redskins

 A recent Washington Post article reveals in remarkable detail the hiring process by which Redskins owner, Daniel Snyder, hired Mike Shanahan as his head coach for the 2010 season. Snyder has been widely criticized for his ownership decisions with the Redskins, but this particular process shows a bizarre basis for making employment decisions, as well as almost an impetuous executive decision making process that could not help but undermine the management of the team.

Example: Snyder allowed a personal relationship with one of the players, Clinton Portis - a running back - to literally dictate the choice of head coach. Specifically, Snyder got a call from Portis' agent before the last game of the 2008 season telling Snyder that Portis wanted the then head coach, Jim Zorn, fired or else Portis would no longer play for the Redskins. The basis for the agent's demand? The fact that the coach told Portis to take his hands out of his pockets during a drill at practice. Snyder and his executive vice president of personnel literally forced Zorn to apologize to Portis.  Why Zorn didn't quit at that point is something of a mystery. Zorn had to know then, if he didn't already, that he was completely undermined and could not recover.  What a smart way to run a football team. 

Snyder kept Zorn around for the 2009 season because he was afraid it would look bad if he fired another coach (the 6th in 10 years) who finally seemed to be getting some results with the team. But the article makes clear that Snyder was set on firing Zorn and hiring Shanahan from the start of 2009 forward (another great management technique), and continued to recruit him, especially after the 'Skins lost to the then worst team in football, the Detroit Lions, in September 2009.

The machinations and decision-making process described in the article go a long way to explain why the Redskins are frequently viewed as a dysfunctional organization. The article is worth reading to get a picture of how unbusiness-like and idiosyncratic NFL management can be, even with an asset worth a billion dollars in a very public industry generating billions of dollars each year.

UPDATE:  Snyder's goofy process might well have run afoul of the current NFL hiring rule (known as the "Rooney Rule") that mandates at least the consideration of a minority candidate for a head coaching job.  Not much consideration in this process.

Unhappy at work? Get married, change jobs, and man up

A survey by Captivate, the elevator news company, shows that a typical unhappy person at work is most likely a female professional with a household income under $100,000, who is over 40 and unmarried. The typical happy worker is a 39 year-old male, married, with a household income between $150,000 and $200,000 and one young child and a wife who works part time.  .

I can't vouch for the validity of the survey, which I'm guessing was based on voluntary participants. But it appears that men are consistently happier than women both in the office and at home. This may be the result of something else that shows up in the Captivate survey, namely that  "women take the lead in daily chores." That probably has something to do with it--I know that I would be unhappy at work if at home I faced a never ending cycle of laundry, cooking, cleaning, and shopping, all chores that were consistently performed by majorities of the female respondents.

I suggest, in addition to the cultural forces that result in women performing these "must do" chores at ratios of almost 2:1, that the average standards for guys with respect to this work might be a factor.  Specifically, your basic male minimums in these areas appear to be substantially lower than that of their female counterparts. In terms of laundry, my experience is that the average guy is much less picky about what comes out of the washing machine, and its actual state when wearing it, than his spouse or girlfriend. Similarly, most men that I associate with tolerate a level of household messiness that drives their significant others to despair. And many of my male peers are not allowed to go shopping unsupervised for things that matter .

I'm not sure if there is any message to employers here - work-life balance (or, as one federal judge recently referred to it, "work life choices"), has remained a difficult and divisive issue since women began entering the work place. Perhaps the answer contained in one of the other Captivate responses concerning taking breaks during the work day provides a clue to overall male worker satisfaction. Men are 25% more likely to take breaks for "personal activities" while at work.  The personal activities at the top of men's lists?  Smoking and sex.

Just sayin'.

The Power of Direct Evidence of Discrimination

The Seventh Circuit, just down the street from my offices here in Chicago, recently reinforced how  powerful direct evidence of discrimination is when it's alleged in an employment discrimination lawsuit. The concise description: once a court determines that there is direct evidence of discrimination in the record, pretrial disposition of the case becomes almost impossible.

On appeal,  the Court confronted a layoff situation where 2 Hispanic employees attempted to apply for open positions at a Kraft facility after they were given notice that their jobs were being eliminated. They sued, alleging race discrimination, when Kraft failed to hire either one of them. Their evidence of discriminatory animus included a claim that their supervisor prevented them from applying for new positions because they were Hispanic and that the Human Resources Department ignored their complaints about the supervisor's rejection of their applications. The employees also alleged that the supervisor assigned Hispanics to undesirable tasks, scrutinized Hispanic employees' performance more closely than non-Hispanics, and made racial references such as "I'm white and I'm right" to justify some of his employment decisions.

Kraft defended the claims primarily on the basis that other Hispanics were treated favorably, one of the open positions in question was actually awarded to a Hispanic employee and that other Hispanics were considered for the positions. It also argued that the Hispanic plaintiffs weren't hired because they didn't possess the same skill set as other applicants.

The District Court dismissed the case but the Seventh Circuit reversed. Its decision is noteworthy, because the Court states clearly that the presence of direct evidence of discrimination against a protected group means that how an employer treated other minority group members is irrelevant for purpose of determining if there is enough evidence to go to trial. Direct evidence of discrimination refers to evidence so strong that there is no inference needed that the employer is acting out of a discriminatory motive.  Once a particular decision is associated with direct evidence of discrimination, a discrimination claim cannot be countered pre-trial by inferential evidence of how other minority group members were treated. Or, as the Court put it:  "Title VII would have little force if an employer can defeat a claim of discrimination by treating a single member of the protected class in accordance with the law." 

The lesson here is not reassuring for employers.  Once direct evidence of discrimination enters a case-- e.g. allegations of statements by managers that they are taking a certain action because of race, gender or some other protected factor -- the case is almost always headed for a trial. The only preventative measures for this kind of claim are truly prophylactic, namely by educating managers and Human Resource professionals to be thoughtful and careful about what they say and do with respect to employment decisions, and to avoid even offhand references to race, gender, etc. when talking to employees about terms and conditions of the job.

Social Media Update

In what should be no surprise, an NLRB administrative law judge found for a group of employees against their employer in the first fully litigated social media case under the National Labor Relations Act. The decision is, I hope on the outer edge of what the NLRB believes is sanctionable conduct, given that there was no attempt by the employees to raise any workplace issues with their employer. The conduct involved a group of employees complaining about coworkers and working conditions on Facebook. Several of the employees were terminated after the Facebook postings came to the attention of the employer.
The decision reinforces, again, the necessity for employers to avoid taking precipitous action based on social media conduct involving their workforce. See my post below for more details.

No Remedy for FLSA Retaliation?

 I can usually count on the Fourth Circuit Court of Appeals come through for employers on close cases. A recent retaliation decision by an applicant who filed FLSA wage claims against a previous employer bears this out. Whether it will survive further review is something that will bear watching over the next 12 months.

In this case, the Fourth Circuit was confronted with a situation where a job applicant was turned down by a perspective employer after the company learned she filed an FLSA lawsuit against her previous boss. The applicant alleged that the company's refusal to hire her violated the FLSA's anti-retaliation provision, a not unreasonable claim given that most employment statutes protect job applicants in the same way as they protect current or former employees. Denial of a job opportunity for an improper reason is just as much as an adverse employment action as demoting or terminating a current employee.

Unfortunately the FLSA specifically defines employee as "any individual employed  by an employer" (emphasis added). The Fourth Circuit, following the logic of the district court, interpreted this language literally in finding that there is no protection under the statute for someone who is not "employed".

There was a strong dissent filed in this case, and the US Department of Labor has petitioned for a rehearing. My guess is that this case may ultimately end up before the Supreme Court if it is not reversed following the rehearing. There is string of strong anti-retaliation decisions from the Supremes that have significantly broadened the scope of retaliation claims over the past few years. This case might be one that provides the Court with some opportunity to limit those opinions given the plain language of the FLSA.

Aging Feline Appendages

The Tenth Circuit federal appellate court issued an important opinion recently with respect to the application of the so-called Cat's Paw theory of employment discrimination to age discrimination cases.

I am generally sensitive to any type of age discrimination development because I think that this is the next "big thing" in employment litigation. Certainly demographics argue in favor of a burgeoning number of age discrimination claims as the Boomer population refuses to go gently into that good night.

The Cat's Paw model is fairly straight forward - prohibited discriminatory acts that are accomplished through the manipulation of someone other than the person with the illegal discriminatory bias are just as illegal under federal discrimination law as discrimination that is accomplished directly by the alleged bigot. The Supreme Court validated the basic concept in a matter heard just last term.

The 10th Circuit considered the application of the theory in an age case where two human resource employees, one 62, and one 23, were investigated for revealing confidential medical information about a company employee.  After an investigation, the company terminated both employees. The older employee sued for age discrimination, claiming that the local office manager and HR supervisor were biased against older workers, and that they had influenced the decision by the company's senior HR management to terminate her employment.

As an initial matter, the fact that the company terminated a younger and an older employee at the same time for the same conduct significantly undercuts basic age discrimination claim. Moreover, the Tenth Circuit determined that because this case involved age discrimination, the employee must demonstrate that the discriminatory animus of the two supervisors (who were alleged to influence the ultimate termination decision) was the determining factor that caused the termination. To use legal terminology, age bias must be the "but for" cause of the termination.

This "but for" cause requirement is unique to age discrimination cases under recent Supreme Court precedent. It significantly raises the proof requirement for plaintiffs in age discrimination cases, and the Tenth Circuit correctly applied the standard here. It also helped the employer that there was not one, but two truly disinterested parties who made the termination decision and that these managers conducted independent interviews of the individuals involved in the improper disclosure of information. These factors all worked to isolate the decision makers from the alleged discriminatory animus and short circuited any feline related discrimination claims.  

The case again points up the dramatic importance of establishing and maintaining independent channels of investigation when these types of bias claims come forward.  

Deceiving Appearances

In what I presume was an attempt to create some media buzz, a University of Texas economics professor proposed that ugly people should be treated as if they had some type of disability and legally protected from discrimination that results from their unfortunate physical appearance.

I know that the data show that attractive people receive higher pay, better mortgage rates, and typically end up with higher earning spouses. But why that should be remedied by a federal law, and more importantly, how the law could remedy it, are questions the professor doesn't really answer. In fact, given the population I just saw walking around the Atlanta airport,  the adoption of such an appearance standard would put a significant majority of the country in the legally disabled category.

By way of full disclosure, I put myself in this "protected" category, too, just so you know.

Of course, beauty is in the eye of the beholder. The professor indicates that there would be widespread disagreement in most cases, but that there should be almost universal agreement on perhaps 1%-2% population who are truly repulsive.  How you pare those folks out from the others is something I wouldn't want to deal with.  The fact the courts have to do something like this with respect to disability claims is no argument--I don't think we should reasonably expect judges to measure physical attractiveness, as well.  And appearance measurements are cumbersome--how long does it take to pick a Miss America, for example?

On the other hand, there are municipalities that I am aware of that have banned so called "lookism" or discrimination based on appearance. These ordinances typically focus on protecting people with tattoos, body piercings, or other self-inflicted appearance issues. And there is no doubt that any number of businesses have faced litigation for not hiring or terminating people they consider unattractive by virtue of weight or age. Is it such a big step to include appearance as an outright protected category?