I am honored to have been nominated by my peers to serve as a member of the Executive Committee of the Labor & Employment Law Section of the Mississippi Bar. The Bar helps maintain a collegial and professional relationship among attorneys, and provides continuing legal education to the profession.
Today, as I participated in my first meeting since my nomination, looking around the room I knew every one of the people there (save one) from having opposed them in court. It further impressed on me the honor of that nomination, knowing that I was selected by the very people with whom I had fought bitterly in case after case. It is a mark of the mutual respect and collegiality of the Bar that they selected me to serve with them on this committee.
To give another example, I once sued an administrator who was a former Justice of the Mississippi Supreme Court, and even had to depose him. He had called my client a liar and fired her. My claim was that he violated her civil rights. It was tense.
Later, he was assigned to sit as a judge over one my cases. The opposing party brought up that I had sued him and tried to have him recused. He declined. And he presided fairly over the case. As he said in his order declining to be recused: it
made no difference to me as to Mr. Dillard because I have always respected him as an ethical, diligent attorney who simply represents the interests of his clients.
As Shakespeare said, good attorneys will
strive mightily, but eat and drink as friends.
For me, civil rights are about protecting the powerless, the voiceless, the oppressed.
My practice is about civil rights at work. Work is how we spend most of our waking hours. Work is how we forge a big part of our identities. Work is the engine of our economy and its inequalities. Strong, radical unions are essential at work. Without them, working people often lack bargaining power with their bosses and they lack an effective voice in workplace decisions.
This is why I focus on unions and workplace rights. I personally feel these rights are paramount.
To be most effective in my area, I've made a conscious choice not to get to involved in criminal, family, and other areas of law. But from time to time I do get drawn into something outside my usual practice. Lately I've been inspired to write here about another important area in the civil rights field: family law.
The entire purpose of courts - of the law itself - is to protect the powerless. Without effective courts, the police
convict suspects at gunpoint. Without the rule of law, the wealthy protect their property at gunpoint. In every society, the powerless have only three choices when they come in conflict with those more powerful: somehow become more powerful, lose out, or go to court. Civil rights are empowering.
But every right implies a duty. The rights of one person impose duties on others.
This is most obvious in family law. Children are the most powerless group in our society. Childrens' rights are parents' duties. That is why parents are required to provide their children with food, shelter, and a safe, clean environment - or be prosecuted for criminal neglect. Newborns are completely helpless, able only to cry, sleep and eliminate, and have no higher cognitive functions. And yet, even if the child is catastrophically disabled (effectively a newborn for life) the parent cannot neglect to give them care.
Do parents have rights too? Sure, they can decide how to raise the child. But they have no right to neglect or abuse the child.
It is a burden both parents must carry. If one parent tries to leave all the childcare obligations to another, the law requires that he or she make payments in child support. There are only two early outs: the child dies, or the parents find someone else willing to step in and permanently take on all these duties by formal adoption.
And yet, despite these burdens, it is very uncommon to give a child up for adoption - even among unintended and very reluctant parents - because humans naturally respond to the call of parenthood. Once they see themselves as parents, they want to personally protect, nurture and love their child. It is inevitable: our altricial nature as a species (go ahead, look it up) necessarily means that we carry a powerful instinct to love and care for children.
It's who we are.
Now, there are bad parents, neglectful parents, abusive parents, etc. But it is not because they were forced into parenthood. Giving a child up for adoption is a simple process, and newborns are in high demand. (Birth control is also super easy, and extremely effective - especially for those who use permanent or semi-permanent methods.)
Parental duties begin immediately. A pregnant parent that takes heroin or other drugs knowing they will permanently harm their baby has committed a crime. Fortunately, the burdens of parenthood at this time are light. In fact, the easiest time in a parent's life is typically during pregnancy. All a parent must do is live sorta healthy-ish - do the kind of things we all should be doing to take care of ourselves - for less than a year.
When a pregnant parent deliberately kills their child - usually by taking drugs - it's called
abortion. It is a grievous violation of civil rights. Our laws should prohibit it.
The only way people can countenance it at all is by arguing that the unborn child is not a person. That changes the subject and misses the point. Whether your offspring are legal
persons or not, they are still your children. That makes you a parent. The parent's duty is to help the child become their own person. We owe many duties to future generations. Certainly that includes existing offspring growing in the womb.
I see this as a progressive stance politically - in fact, the only truly progressive stance.
Are there circumstances in which a total abortion ban would be unfair or unjust? Yes. But we don't build the main rules for society around this. Exceptional circumstances call for exceptions, not throwing out the rules. And make no mistake, most abortions today are not exceptional. They are mundane. They are tragic. They must stop.
It is a matter of civil rights.
It is May 6, 2022, and high time for an update on the law of employer-imposed covid vaccine mandates. There have been some changes since I last addressed this issue in August 2021. As predicted, the courts have proven hostile to employee challenges to private employer mandates. Medical exemptions have been restricted to a very small list of conditions. Concerning religious exemptions, although they are enshrined in federal law, the de minimis burden and rational basis tests are still in place, which limits their practical value for employees.
But there have been some changes in state law. Over a dozen states have passed laws limiting employer mandates. Today I will discuss private sector employees in the two states of greatest interest to our firm: Mississippi and Indiana. Government employees will be addressed separately.
Effective March 2022, HB 1001 in Indiana creates a new statory provision, IC 22-5-4.6, which makes significant changes in what is allowed in an employer vaccine mandate. Though it allows mandates, it requires exemptions - the most important one being the exemption for those who have natural immunity from a prior covid infection.
First, though, a few words on coverage. The statute does not protect employees working out-of-state for Indiana employers. It does not protect Indiana employees working for most health-care employers, or federal government contractors who can prove they are subject to a federal mandate. It also does not protect employees working in pro-sports or the entertainment industry.
Other than that, however, the law applies broadly. It protects full-time and part-time employees, volunteers, interns, and even independent contractors. It applies to even the smallest companies, including those with, for example, only one part-time independent contractor.
It requires that any vaccine mandate must allow an employee to
medical reasons, religious reasons, [or because] an employee has immunity from COVID-19 acquired from a prior infection with COVID-19. However, the employer can require real proof for these exemptions.
Let's start with the medical issues. For the medical exemption, this means a professional opinion that the vaccine is medically contraindicated from a professional who has personally examined the employee. The naturally acquired immunity exemption requires proof in the form of a medical test result showing that the employee had covid or has antibodies to covid. But the law is very clear that once the employee satisfies these proof requirements, the employer is not entitled to investigate further, and must grant the exemption.
The religious exemption is different. It does not require supporting statements from a religious authority, and only requires a written statement of the sincerely held religious belief. However, it does not grant an automatic exemption either. Instead, the law incorporates the standards and procedures of Title VII. Which means, as we talked about previously, that the employer can inquire further as to the basis for the religious belief and can also deny exemptions where there is a
de minimis burden under current law.
Finally, the employer can also require up to bi-weekly covid testing for employees with any form of exemption.
Effective late-April 2022, HB 1509 in Mississippi requires a religious exemption for any vaccine mandate. The relevant language in the statute is short and simple, stating in toto:
An employee of any public or private employer who has a sincerely held religious objection to receiving a vaccine for COVID-19 shall not be required to receive a vaccine for COVID-19. This is likely broader than the religious exemption in Indiana because it does not incorporate Title VII's limitations, it does not consider the burden on the employer, and it does not include a
direct threat defense.
But it also does not create a cause of action explicitly. I think the employee may have a tort or contract claim for wrongful termination under Mississippi caselaw, but that is an issue that will have to be resolved in litigation.
Today, active covid infection and transmission numbers have declined dramatically, and we appear to be entering an
endemic stage where covid flare-ups and constant low-level background circulation is (like flu and cold viruses) just a part of our lives. If so, then the sense of emergency, of
direct threat can and should be fading away as well. This will make the legal environment far more hostile to extraordinary covid measures by employers (or government).
To sum it all up, the legal and practical landscape has changed dramatically since last fall. Covid vaccine cases will probably have more legs in today's environment, and it is reasonable to expect that these cases will get a real hearing in court.
Today's post is by the associate Jay Kucia.
Free speech is one of the founding commitments of our state and our nation (not to mention our firm). Historically, college and university campuses have been places where students and faculty can use their academic freedom to freely share thoughts and debate ideas. Former Cabinet member and congresswoman Donna Shalala expressed this truth well when she said:
You can’t have a university without free speech. The Supreme Court has established the same principle in our law. In the 1967 case of Keyishian v. Board of Regents of the University of the State of New York, the Court proclaimed:
Our Nation is deeply committed to safeguarding academic freedom, which is of transcendent value to all of us and not merely to the teachers concerned. That freedom is therefore a special concern of the First Amendment, which does not tolerate laws that cast a pall of orthodoxy over the classroom. The vigilant protection of constitutional freedoms is nowhere more vital than in the community of American schools. The classroom is peculiarly the marketplace of ideas. The Nation's future depends upon leaders trained through wide exposure to that robust exchange of ideas which discovers truth out of a multitude of tongues, rather than through any kind of authoritative selection.
To protect academic freedom, colleges and universities have established a job protection known as tenure. As defined by the American Association of University Professors,
a tenured appointment is an indefinite appointment that can be terminated only for cause or under extraordinary circumstances such as financial exigency and program discontinuation. Designed to be carefully granted to deserving and experienced faculty members, tenure is a tool that schools can use to attract and retain quality scholars. Tenure is also essential to ensure that scholars can speak their minds about issues of public concern. Tenure protects faculty members from losing their jobs simply for voicing unpopular opinions or controversial ideas. As the iconic Judge Posner has written,
the purpose of tenure is to protect academic freedom—the freedom to teach and write without fear of retribution for expressing heterodox ideas. Tenure is so essential that the Mississippi courts have declared it a constitutionally protected property right.
But what would happen if politicians decided that outspoken academics were becoming an inconvenience? What if those in positions of power decided to come after scholars who voiced those
heterodox ideas that Judge Posner wrote about? What if these politicians decided to change the rules so that faculty members could lose their jobs for stepping away from the establishment line?
It appears that the Mississippi Institutions of Higher Learning is doing just that. Made up of political appointees, the Board of Governors of the IHL is, in its own words,
the constitutional governing body responsible for policy and financial oversight of the eight public institutions of higher learning. Put more plainly, the IHL is the state government agency that regulates our public universities. Recently, the IHL decided to use its regulatory power to change the rules.
First, the IHL has begun systematically inserting into every employee's contract language stating that their schools' handbooks are not part of the contract. This means, in essence, that handbooks can be enforced against the employees, but that their schools no longer have to comply with them. This takes away significant job protections for all school employees.
In addition, tenured professors can lose their jobs for a number of poorly defined reasons. The IHL’s new rules say tenured academics can lose their jobs for a lack of
effectiveness in interpersonal relationships,
congeniality, essentially allowing universities to dismiss professors who are not popular enough in the office. But, even more troubling, IHL has now decided that quality professors can lose their livelihoods for a lack of
effectiveness, accuracy, and integrity in communications. While these vague words may sound harmless, the IHL shows its hand in explaining this new rule.
The Board endorses the American Association of University Professors’ (AAUP) Statement of Principles on Academic Freedom and Tenure, which states in part:
When they speak or write as citizens, they should be free from institutional censorship or discipline, but their special position in the community imposes special obligations. As scholars and educational officers, they should remember that the public may judge their profession and their institution by their utterances. Hence, they should at all times be accurate, should exercise appropriate restraint, should show respect for the opinions of others, and should make every effort to indicate that they are not speaking for the institution.
Beyond seriously misrepresenting the AAUP’s principles, this explanation suggests that there are politics afoot at the IHL. After all, universities could use these new rules to target tenured professors for all sorts of politically incorrect speech. A university could fire a conservative professor who questions the effectiveness of government mask and vaccine mandates for a lack of
accuracy. A university could terminate a progressive professor who calls for tougher rules against campus sexual assault for not
exercising appropriate restraint. And, a university could claim a lack of
respect for the opinions of others to remove a moderate professor who criticizes both conservative and the progressive professors for being too political. This kind of politicization of tenure is a grave threat to academic freedom in Mississippi.
Beyond threatening academic freedom, the IHL’s new rules are unconstitutional under the constitutions of both the United States and Mississippi. The First Amendment to the United States Constitution prohibits governments from restricting speech using vague and overbroad rules. It is hard to imagine rules less precise than the ones the IHL has now passed. This bedrock of American law also prohibits the government from discriminating against viewpoints that it disapproves of. Here, the IHL is seeking to crack down on communications it deems to be
inaccurate. That is, tenured professors could lose their jobs for not towing the state-sanctioned line about what is true and false. These rules are even more suspect under the Mississippi Constitution which has been said to be even more protective of free speech as it states that
the freedom of speech and of the press shall be held sacred.
So what can we do in the face of this assault on free speech and academic freedom? If you are a concerned citizen, contact your state legislators and the IHL to respectfully voice your opposition to these new rules. Politicians like those at the IHL should respond to outcry from the people they serve. If you are an academic, be aware of these new policies and understand the risks you face for speaking out until these rules are repealed. Be prepared to organize in groups, like joining United Campus Workers of Mississippi. And, if you feel like your rights are under threat from these unconstitutional rules, contact an attorney to see what you can do to protect your right to free speech.
Protecting academic freedom and the right to free speech requires the people to be vigilant and strong in standing for these principles.
Ketanji Brown Jackon’s appointment to the United States Supreme Court is certainly historic, but what does it mean for workers’ rights? There is good reason for optimism. The National Employment Lawyers Association celebrated Jackson’s nomination and lauded her for her general friendliness to employees. And the great blog OnLabor discussed Jackson’s record on labor unions. Though not directly related, it is worth noting that when she joins the Supreme Court, Jackson will be the first public defender on the bench since Thurgood Marshall. Jackson has also not shied away from calling out the powerful for abusing human rights when that was an unpopular stance to take.
Her actual record on the bench, however, is a bit mixed. I examined over thirty employment discrimination decisions by then-Judge Jackson. I found her to be a clear thinker and writer with a profound respect for precedent. Out of sixteen Title VII cases, she ruled entirely for the employer nine times and the employee three times. Out of age discrimination cases, she ruled entirely for the employer five times and the employee once. For disability discrimination cases, the record is two to one. These do not appear to be great numbers. But what is most interesting about the outcomes of Jackson’s employment discrimination cases is how often she ruled for the employee on some issues and the employer on others. This is a more positive sign than it might appear at first - particularly at the district court level. The key thing to keep in mind is that Plaintiffs frequently bring multiple claims of varying strength in district court. A Judge granting what appears to be only a partial victory to the Plaintiff may actually be providing everything the Plaintiff needs to ultimately prevail. (At the appellate court level this is less true, and partial victories are more often pyrrhic ones. But most of Judge Jackson's record is at the district court.)
We should also keep in mind that Jackson’s new job is different from her recent ones. A district judge or appellate judge following existing precedent faces different constraints than a Supreme Court justice resolving a disagreement about the law among the lower courts or deciding a new issue in the law.
Drilling deeper, her writings show empathy to those who have faced discrimination. In one case, Jackson ruled against the plaintiffs on an important but very technical point (class certification), but her opinion showed that she was committed to the justice and fairness that those who have faced discrimination deserve. Similarly, just over a year ago, Jackson ruled for people with disabilities who were seeking to have their right to equality recognized by Uber. These threads make me optimistic that Justice Jackson may help make the law work better for working people.
On March 30, 2022, the Legislature passed the Mississippi Equal Pay for Equal Work Act. By strong bipartisan majorities, both the State House and the State Senate empowered Mississippi workers to ensure that they will not be paid less for their work because of their sex. Mississippi owes a debt of gratitude to the activists and leaders who have worked so hard for the right to equal pay for equal work. However, the law is far from perfect. While the main purpose of the law is to protect Mississippi women from pay discrimination, some leading advocates have expressed concern and even opposition to the final version of the bill.
Having reviewed the law from my perspective as a practicing employment civil rights lawyer, I agree that the law falls far short of what the people of Mississippi deserve. Still, I think that the law will do some good in some cases. At the least, it will fill in some of the gaps left open by the two primary federal statutes addressing the issue, the Equal Pay Act and Title VII. To understand the effects the new law could have, let’s consider some specific provisions of the law.
The law does not cover everyone, only those who work for an employer with five or more employees. As a practical matter, this is perhaps only a slight expansion of the federal EPA's coverage. And it only covers employees who are full-time, 40+ hours a week. I find it hard to understand why the Legislature believes part-time workers are less deserving of equal pay for equal work than full-time workers. Taken together, these definitions will mean the law is only a very slight expansion beyond existing federal protections.
And the remedy is not very strong. This may be where the new law fails workers the most. Under the MEPEWA, workers who have been paid less because of their sex are only entitled to back pay (with interest) plus legal fees and costs. Meanwhile, the federal EPA allows workers to recover liquidated damages—or double back pay—while Title VII allows workers to recover compensatory damages—money for the emotional and mental pain caused by invidious discrimination. The MEPEWA also fails to provide for punitive damages to punish business that repeatedly and willfully violate the law. If the Legislature wants to truly eliminate sex-based pay discrimination, it should amend the MEPEWA to allow workers to recover liquidated, compensatory, and punitive damages.
Many leading advocates are particularly worried about the language in the law that articulates the reasons other than sex that an employer may use to justify paying workers unequally. Respectfully, I am not particularly worried about this provision. After all, if any non-sex reason is a defense as the statute states elsewhere, then the listing of examples basically does nothing to change the meaning of the statute.
Like any new law, the MEPEWA leaves many questions unanswered. Surprisingly, the law does not define terms like “sex” or "retaliation." Will the law cover discrimination based on sexuality? Will it cover retaliation by workplace bullying and unfair discipline? The answers are not clear
All in all, I am cautiously optimistic about the Mississippi Equal Pay for Equal Work Act. I think it will help workers who could not have found any protection in federal law, but I believe that the people of Mississippi still deserve more. Most of all, I hope that the passage of this law will give more workers the courage to fight for their human rights to be free of discrimination and be paid fairly for their work. I also hope that the Legislature will build on the work it has done here to truly make Mississippi a place of equal employment opportunity.
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