Week 1 - Reinventing Human Resource Management,
National Performance Review (NPR)
What conclusions have been reached by the Winter Commission and Vice President Gore´s National Performance Review (NPR)? What are their recommended changes in areas such as selection, promotion, retention, performance evaluation and discipline? Why? Should such changes take effect, what might be the consequences for the present workforce? For the merit principle?
Click here to go to the NPR assignment page.
The National Performance Review seeks to make Government more responsive and effective at lower cost. A key component of this initiative is the Government Performance and Results Act (GPRA), a Federal law that requires agencies to set goals and measure the extent which they are obtained.
Measurement typically calls for quantification - the process of attaching numbers to output. Companies that produce goods can simply count the number of widgets made and subtract those that prove defective. Many government services, though, are not simple to evaluate. What criteria should be used to measure the performance of a police department? Pressures to achieve quantifiable results can lead bureaucrats to develop bizarre measures of performance and may distort the nature of an agency´s work.
For an impartial evaluation of the GPRA´s accomplishments, click here.
In the Media
"NASA, We Have a Problem". Los Angeles Times Editorial, 3/31/00. NASA´s "faster, better, cheaper" approach turned out faster and cheaper, but not better. As the space agency itself admits, doing more with less meant cutting corners. In turn, cutting corners caused expensive failures and placed the entire Mars exploration program "in shambles".
"Are Failed Mars Probes the Price of Cost Cutting?" Los Angeles Times, OC Edition, 12/26/99, p. A-1. NASA officials and private contractors agree with outside reviewers that cost-cutting measures resulting from the "faster, better, cheaper" approach have contributed to a string of recent, expensive failures in the American space program. According to Edward Euler, director of Lockheed Martin´s Mars program, "we did what we thought was good enough...we did this job with a hell of a lot less people [than in previous projects.] I am worried that we may have gotten fooled." An outside scientist put it more bluntly. John Pike, a space policy analyst at the Federation of American Scientists, said that "the common thread is that they were trying to do it on the cheap". Even Alex Roland, a Duke University technology historian who supports "smaller, cheaper, faster missions" agrees that NASA´s 37 percent failure rate "suggests something is systemically wrong...they have gone too far...they are trying to run the programs too cheaply."
"NASA Has Gad a Rought Ride in 1999." USA Today, 12/10/99, p. 22-A. According to Seymour Himmel, a retired NASA official, a reduced space shuttle workforce has been "sorely trying to do all they´re supposed to do with the staff they´ve got." But a string of mishaps has caused some to question whether NASA´s "cheaper, better, faster" emphasis tries to accomplish too much with too little. Costly errors in 1999 include a marred liftoff and grounding of the space shuttle fleet in July, loss of the Mars observer in September, a continuing malfunction of the Hubble telescope, setbacks to the shuttle replacement program, and most recently, the loss of the Mars probes and polar lander.
"String of Missteps Doomed Orbiter: JPL Found at Fault." Los Angeles Times, OC Edition, 11/11/99, p. A-6. A panel of experts who reviewed a recent series of serious management and operational failures by the renowned Jet Propulsion Laboratories laid much of the blame on NASA´s "better, cheaper, faster" mandate. According to the investigators, the pressure to produce spectacular results in the face of severe budgetary constraints led to a series of mishaps that wasted hundreds of millions of dollars. According to John Pike, space policy director for the Federation of American Scientists, "all of these problems are symptomatic of too much work and not enough people. They are symptomatic of an underfunded program."
"Report Faults Indian Affairs Bureau". Associated Press, 9/9/99. Responding to criticisms of widespread mismanagement, top officials at the Bureau of Indian Affairs (BIA) said that budget cuts, particularly administrative layoffs instituted in 1996, crippled the agency´s ability to carry out essential chores. "All of a sudden, they're looking around and saying, 'Hey, there's nobody here´" said Bruce Babbitt, the agency´s director. BIA executives estimate that a fix would call for 250 new administrative employees, at a cost of $10 to $15 million.
"GAO Report Disputes Gore Claims on Red-Tape Cuts." Los Angeles Times, Home Edition, 8/14/99, p. A-6. In a major report to Congress by its research arm, the Government Accounting Office (GAO), Vice President Al Gore´s reinvention movement was accused of gross exaggeration, including taking credit for measures that were already in place. According to GAO accountants, $22 billion of the $30 billion in claimed savings could not be verified. Alleged errors include $7 billion in savings for nuclear weapons that would have been decommissioned anyways, $8.5 billion in savings at NASA although reforms were already underway, and double-counting alleged savings of $770 million for reorganizing the Agriculture Department. The report led Rep. Dan Burton (R-Ind.), chairman of the House Committee on Goivernment Reform, to say that "...instead of reinventing government, it looks like they were reinventing accounting rules."
"Recycling at Nuclear Plant Worries Watchdogs." Los Angeles Times, Valley Edition, 8/14/99, p. A-9B. Radiation safety experts have warned that radiation-contaminated scrap metal from nuclear facilities has made its way into the commercial marketplace. Distribution of scrap metal from weapons plants was spurred through a major recycling program, announced in 1996 by Vice President Al Gore as part of his government reinvention intiative. According to critics, this effort has generated scrap in amounts that far exceed the Government´s ability to verify that the materials do not pose health hazards to workers and the public.
"Cuts Imperil NASA Safety, Panel Warns." Los Angeles Times, OC Edition, 2/5/99, p. A1. Independent scientific researchers have voiced concern that Federal cutbacks are causing a potentially dangerous situation at the National Aeronautics and Space Administration (NASA). According to these sources, losses of more than 6,100 positions during the past seven years have affected NASA´s ability to safely operate the shuttle fleet and may also threaten to derail its future spaceflight programs.
"New Rules Urged to Rein in Rogue Interstate Movers." Los Angeles Times, OC Edition, 5/10/99, p. A1. According to consumer groups and State attorney generals, the 1995 abolishment of the Federal Interstate Commerce Commission has caused fraud in the moving industry to soar. Larry Kaplan, president of a national organization, said "it´s out of control...the rogue movers have long figured out that there is no Federal cop on the beat." In response, State prosecutors have begun to float proposals that would allow States, for the first time, to regulate interstate movers. The ICC was disbanded as part of the Government reinvention movement.
"Plans Aimed at Halving Truck Fatalities Unveiled." Los Angeles Times, OC Edition, 5/26/99, p. A5. According to a House panel, cuts in inspections during recent years as well as a "cozy relationship between the trucking industry and regulators" have impaired the Government´s ability to act against unsafe trucking companies. Rep. Frank Wolf (R-Va.), chairperson of the House Transportation Committee, has called for decisive Government action, including the removal of truck safety regulators from the Federal Highway Administration, whose mission is to build roads. He strongly criticized the U.S. Transportation Department´s response, which includes increased enforcement, because even the Department agrees that its plans would merely restore inspection activities to 1992 levels.
The Winter Commission recommends that chief executive officers (i.e., mayor, Governor) have direct hire/fire authority over top Government executives. For example, in California, the Insurance commissioner is independently elected and does not answer to the Governor. So he or she is free to set the policies or procedures they deem best. What if the commissioner decides to get real cozy with special interests? But centralizing power in the hands of a single elected chief executive is no sure fix, as it can also lead to cronyism and corruption.
Reducing bureaucratic layers by getting rid of mid-level managers sounds like a good idea. Money for salaries is saved, lower-ranking workers become more "empowered" and decisions are unimpeded by layers of bureaucracy. But unless mid-level managers had been doing nothing, who takes up the slack? Might their discharge lead to a deterioration in the quality of public services? Similar concerns attach to the calls for a reduced Federal workforce, a key (and partially implemented) recommendation of the NPR. (Issues concerning staff reductions will be covered in detail later in the semester.)
Winter and the NPR made other suggestions, including reducing the number of job classifications, extending probationary periods, allowing managers greater discretion to hire and fire, and reducing emphasis on seniority and Veteran´s preference. All these have pluses and minuses. Perhaps there really is no "free lunch". For every policy decision there are consequences, some good, some bad, some intended and some not. That is the "bottom line".
NOTE: These discussions are meant to help focus your readings - not to take their place!
Week 3 - Affirmative Action and Discrimination
US Supreme Court cases
Engquist v. Oregon (no. 07-474, 6/9/08): Discrimination claims by public employees -- that they were arbitrarily treated differently from others -- must be based on gender, race or national origin. Public employees cannot claim they are a "class of one."
Ethnicity and Gender
Equal Employment Opportunity Commission (EEOC)
Federal Laws Prohibiting Employment Discrimination (race, gender, disabilities, age, etc.)
US Supreme Court cases
Ricci v. DeStefano (nos. 07-1428 and 08-328, 6/29/09): White New Haven (Conn.) firefighters were denied promotions because minority firefighters who took the same written test scored poorly. The Court ruled that the city's actions, which were endorsed by lower courts, violated Title VII of the Civil Rights Act, as the mere fact of an adverse impact on a protected group doesn't establish unlawful discrimination.
Gratz v. Bollinger (No. 02-516, 6/23/03). A diverse university student body is a compelling State interest. But an automatic 20-point preference for minority applicants violates the Equal Protection clause of the 14th. Amendment, as the procedure is not "narrowly tailored" but a decisive factor that favors even those who are minimally qualified.
Grutter v. Bollinger (No. 02-241, 6/23/03): Ethnicity can be considered for admission to a law school to promote a diverse law school student body. Justices approved of a system where ethnicity was one of several "soft" factors that were considered. No point system was in use and no one was automatically excluded or considered due to race or ethnicity.
Desert Palace, Inc. v. Costa (No. 02-679, 6/09/03). Even when another, lawful reason is present, it is a violation of T-VII if a protected status (e.g., sex, race) is a factor in the decision to terminate the plaintiff´s employment. Also, proof of a "mixed motive" does not require direct evidence - circumstantial evidence can suffice.
Alexander v. Sandoval (no. 99-1908, 4/24/01). Landmark case that prohibits private lawsuits against Govt. agencies on a claim of disparate impact. In this case, the State of Alabama was sued for requiring that driver license examinations be completed in the English language. The Court held such lawsuits are barred unless intentional discrimination is involved.
Griggs v. Duke Power Co. (401 U.S. 424, 1971). Landmark case defining "disparate impact". Employment practice is illegal if it excludes a protected group and cannot be shown to be job-related, regardless of a lack of discriminatory intent by the employer.
Regents v. Bakke (438 U.S. 265, 1978). Landmark case that discusses quotas and reverse discrimination. It is unconstitutional to exclude a qualified white student from a public medical school (UC Davis) on the basis of a racial quota. However, race can be used as a "factor" in admission decisions as long as doing so does not constitute reverse discrimination.
Wards Cove v. Atonio (490 U.S. 642, 1989): To show "disparate impact", a labor force comparison must consider not all members of a minority group but only those qualified for the job. Plaintiffs must also show that disparate impact was caused by a specific employment practice. Note: PPM Chapter 4 claims that in this decision the Court effectively required plaintiffs to prove that discrimination was deliberate. Read the decision and decide for yourself.
Adarand v. Pena (515 U.S. 200, 1995). More recently, the U.S. Supreme Court ruled that racial classifications imposed at any level of government must meet the standard of "strict scrutiny", meaning that they must be closely examined to insure that preferences are "narrowly tailored" to serve a compelling governmental interest and that they do not abridge the Equal Protection rights guaranteed to individuals by the U.S. Constitution.
U.S. 9th. Circuit Court of Appeals decisions
Smith v. University of Washington (no. 02-35676, 12/20/04): There is a compelling State interest in obtaining a racially diverse student body. Race can be a used as a factor in school admissions as long as the process is "narrowly tailored" to achieve this goal, there is no numerical quota, decisions are individualized and race is simply one of many criteria being used. This decision allowed the University to continue using an "ethnicity substantiation" letter, giving a slight "plus" to Asian Americans and referring many whites to an Admissions Committee.
McGinest v. GTE (No. 01-57065, 3/11/04): A claim of racial discrimination through a hostile work environment was summarily denied by a lower court. The Ninth Circuit reversed, holding that courts must consider the cumulative impact of events - in this case, during a 15-year period. Also, when promotion is denied, a "genuine issue of material fact" requiring trial is raised when the company has no documents supporting its position that the position being sought was "frozen".
Paige v. State of California (No. 01-55312, 5/31/02): To demonstrate that the CHP´s promotional practices violate T-VII of the Civil Rights Act members of a minority group must show that the practices have a "significantly discriminatory impact". This can be accomplished by using the pool of persons who actually seek promotion as the statistical base. In this case the court also found that the CHP was not protected by the "legitimate business need" exception of T-VII.
Swinton v. Potomac Corp. (No. 99-36147, 10/24/01). Employer is liable when an employee is constantly harrassed by other employees because of his race, and a supervisor knows about it but fails to act. It is not a defense that an employer did not know this was going on, or that the employer had a complaint process that the employee ignored.
Hunter v. Regents of the University of California (No. 97-55920, decided 9/9/99). It is permissible for an elementary school operated by the University of California to consider race, ethnicity, gender and family income when admitting students because the process is "narrowly tailored" to allow research for improving the education of the State´s ethnically diverse student population.
California law and court decisions
Proposition 209 - full ballot text and official arguments for/against. This California Constitutional initiative, which forbids the use of racial or gender preferences in State programs, was passed by voters in November, 1997:
Article 1, Section 31, California Constitution (implements Proposition 209).
SEC. 31. (a) The State shall not discriminate against, or grant preferential treatment to, any individual or group on the basis of race, sex, color, ethnicity, or national origin in the operation of public employment, public education, or public contracting.
(b) This section shall apply only to action taken after the section's effective date.
(c) Nothing in this section shall be interpreted as prohibiting bona fide qualifications based on sex which are reasonably necessary to the normal operation of public employment, public education, or public contracting. (d) Nothing in this section shall be interpreted as invalidating any court order or consent decree which is in force as of the effective date of this section.
(e) Nothing in this section shall be interpreted as prohibiting action which must be taken to establish or maintain eligibility for any federal program, where ineligibility would result in a loss of federal funds to the State.
(f) For the purposes of this section, "State" shall include, but not necessarily be limited to, the State itself, any city, county, city and county, public university system, including the University of California, community college district, school district, special district, or any other political subdivision or governmental instrumentality of or within the State.
(g) The remedies available for violations of this section shall be the same, regardless of the injured party's race, sex, color, ethnicity, or national origin, as are otherwise available for violations of then-existing California antidiscrimination law.
(h) This section shall be self-executing. If any part or parts of this section are found to be in conflict with federal law or the United States Constitution, the section shall be implemented to the maximum extent that federal law and the United States Constitution permit. Any provision held invalid shall be severable from the remaining portions of this section.
Connerly vs. State Personnel Board (Calif. court of Appeal, 3d. District, no., C032042, 9/4/01). The State Court of Appeals invalidated five California laws that directed State agencies to set "goals and timetables" for helping women and minorities get State jobs. The Court ruled that this constituted a preference based on gender and ethnicity and was illegal both under the California Constitution (as amended by Proposition 209) and the Federal Constitution.
Hi-Voltage Wire Works v. City of San Jose (Calif. Sup. Ct., no. S080318, 11/30/2000). The Court invalidated a San Jose City ordnance requiring that contractors seeking a City Contract "fulfill either an outreach or a participation component", specifically that they contact at least four women-owned or minority subcontractors and either accept one of their bids or state legitimate reasons for rejecting their bid(s). According to the court, compelled outreach amounts to preferential treatment based on race or gender, which was outlawed by Prop. 209 (Hi-Voltage, the firm that sought the contract, had submitted the low bid but proposed to do all its own work without using subcontractors). According to the Court, the ordnance:
"...[illegally] skews the outcome in favor of subcontracting firms that are owned by women or members of minority groups. Inclusion of those firms can help the prime contractor obtain award of the contract in question. Inclusion of others cannot."
Coalition v. Pete Wilson (No. 97-15030, 9th. Circuit, 1997). In this ruling, the U.S. 9th. Circuit Court of Appeals upheld the Federal constitutionality of Proposition 209. Their judgment was later affirmed by the U.S. Supreme Court.
California Dept. of Corrections v. State Personnel Board (No. C022467, 3rd. Appellate District, 1997). Although its subject is employee discipline, this California Court of Appeals case tells a fascinating story about the human side of affirmative action.
EEOC - facts about age discrimination.
29 USC 621 et seq - ADEA (Age Discrimination in Employment Act): Adds age of 40 and above as a protected category under the Civil Rights Act of 1964. Prohibits "arbitrary" age discrimination in making employment decisions such as hiring, promotion and retention. Note: Under the US Supreme Court´s Kimel decision (see below) States cannot be sued by private persons under the ADEA.
US Supreme Court decisions
Smith v. City of Jackson (no. 03-1160, 3/30/2005: Disparate impact on workers over 40 is prima facie evidence of discrimination under both ADEA and Title VII of the Civil Rights Act. An employer can defend by showing there is a "good business reason" for the rule.
Reeves v. Sanderson Plumbing (no. 99-536, 6/12/2000). Under the ADEA, a Court may enter summary judgment for the employee if he/she presented a "prima facie case" (on the face of it) of age discrimination and there is sufficient evidence that the employer used a pretext to justify their unlawful actions.
Kimel v. Florida Board of Regents (no. 98-791, 1/11/2000). States are immune from lawsuits by private persons under the ADEA. Although Section 5 of the Fourteenth Amendment allows Congress to abrogate a State´s sovereign immunity, the ADEA does not warrant this serious a remedy since age is not an intrinsically protected category under Section 1 of the 14th. Amendment. For example, States may discriminate on the basis of age "if the age classification in question is rationally related to a legitimate state interest." The Court also pointed out that private persons remain protected against age discrimination under the laws of most States.
US Circuit Courts of Appeals decisions (9th. Circuit unless stated)
Enlow v. Salem-Keizer Yellow Cab (no. 02-35881, 11-02-2004): To remain employed, an older Yellow Cab driver was required to pass a special physical exam not required of younger drivers. Court ruled this was prima facie evidence of illegal age discrimination and that a trier of fact would have to decide whether there was a BOQ (bonafide occupational qualification) or RFOA (reasonable factor other than age) that warranted Yellow Cab's actions.
Want to know more?
For excellent, authoritative coverage of employment discrimination law, check out http://www.discriminationattorney.com
Thinking points: What are the goals of affirmative action programs? What circumstances were they designed to address? To what extent have these programs increased the representation of minorities and women in the public sector? Would it have been possible to make the same gains without affirmative action? Have there been unintended consequences? What has been the impact of U.S. Supreme Court and 9th. Circuit opinions? What is the status of affirmative action in California?
Week 4 - Diversity and Glass Ceilings
In the Media
"San Francisco Schools to Diversify." Associated Press, 9/20/99. A new plan proposes to consider factors other than race for admission to public schools in San Francisco. Current rules stem from a Federal lawsuit to remedy prior discrimination against black persons. They require that enrollment at each school represent at least four ethnic groups, of which none can constitute more than 45 percent of the student body. Chinese-American parents are now protesting that these standards bar their children from attending some of the city´s better schools. The tentative settlement, which must be approved by a Federal judge, places socioeconomic status, academic performance and language skill ahead of ethnicity when considering students for admittance. But Chinese-American parents call the proposal "a blueprint to destroy the concept of neighborhood schools in the name of diversity" and claim it is illegal because it fails to be race-neutral.
"Diversity Challenges L.A. Schools to Preserve Harmony." Los Angeles Times, OC Edition, 2/14/99, p. A39. As tensions simmer in Los Angeles City Schools, where a white principal was recently beaten in an allegedly racist attack, there is a scramble to increase the proportion of Latino staff members. While these steps are heavily endorsed by Latino parents and community activists, employees of other races worry about impacts on their careers. Top school administrators and politicians deny a racial agenda. "Is there some kind of quota we´re trying to fill? Absolutely not" said District superintendent, Ruben Zacarias. But some lower-ranking employees are less sanguine. According to John Fernandez, a District teacher and spokesperson for the Coalition for Chicano and Chicana Studies, "Educating for diversity is a crock...Under the guise of diversity comes a disempowerment of the Latino community. I don´t see how people unfamiliar with our language and culture and customs can deal with our problems." Latinos currently make up 69 percent of the student body and 24 percent of the teachers, while whites comprise 50 percent of teachers but only 11 percent of students.
Weeks 5-6 - Sexuality in the Workplace
U.S. Code of Federal Regulations (CFR), Title 29, section 1604: Implements T-VII of the Civil Rights Act with respect to sexual harrassment in the workplace. Defines sex harrassment, provides remedies and enforcement procedures.
US Supreme Court decisions
Burlington Northern v. White (no. 05-259, 6/22/06): T-VII of the Civil Rights Act prohibits employers from retaliating against employees who claim discrimination by creating a situation sufficiently adverse as to discourage a reasonable employee or job applicant from filing a claim. The adverse circumstance need not be job-related.
Arbaugh v. Y & H (No. 04-944, 2/22/06): For the purposes of a sex-discrimination suit, T-VII defines "employer" as someone with 15 or more employees. This element of a discrimination claim must be brought up immediately by a defendant, not after a judgment has been rendered.
Penn. State Police v. Suders (no. 03-95, 6/14/2004): To establish "constructive discharge," plaintiff must show that the working environment was so abusive that quitting was "a fitting response". Employer may assert affirmative defense unless resignation was a "reasonable response" to an adverse action.
Clark County v. Breeden (no. 00-866, 4/23/01). To constitute a violation of T-VII of the Civil Rights Act, sexual harrassment must be "so severe or pervasive as to alter the conditions of the victim's employment and create an abusive working environment."
Meritor v. Vinson (477 US 57, 1986). Sexual harrassment of a subordinate is unlawful sex discrimination as defined by Title VII of the Civil Rights Act. Plaintiff must prove economic harm or the presence of a sexually hostile environment. Plaintiff must show that sexual demands were unwelcome but does not have to prove their response was "involuntary".
Harris v. Forklift Systems (no. 92-1168, 1993). To determine whether environment is hostile or abusive must consider the totality of the circumstances - frequency, severity, degree of threat (physically threatening or merely offensive). Factors such as job performance, job retention and promotion potential can be used to evaluate the consequences of the alleged discrimination on the complanant.
Faragher v. City of Boca Raton (no. 97-282, 1998). Employers are always responsible when harrassment has tangible job consequences, such as discharge, demotion or undesirable reassignment.
Burlington Industries Inc. v. Ellerth (no. 97-569, 1998). When there are no tangible job consequences, an employer can avoid liability if it has taken "reasonable care to prevent and correct promptly and sexually harrassing behavior", such as by adopting an effective policy with a complaint procedure, and that the employee "unreasonably failed to take advantage of any preventive or corrective opportunities".
Click here to read excerpts from the above two opinions
Click here to read a New York Times article that describes the effect of these opinions on the legal aspects of sexual harrassment
US Circuit Court of Appeals decisions (9th. Circuit unless otherwise noted)
Freitag v. Ayers (no. 03-17398, 9/13/06): State Dept. of Corrections can be held liable for not correcting a hostile work environment resulting from male prisoners' sexual harassment of female guards.
Hardage v. CBS (no. 03-35906, 11/1/05): No liability to an employer if (a) harassment does not have tangible job consequences, (b) employer exercised reasonable care to prevent and correct the problem, and (c) the employee failed to take advantage of corrective measures.
Christopher v. National Education Assoc. (no. 04-35029, 9/2/05): Abusing employees because of their gender is sexual harassment even if the acts themselves lack sexual content. In this case a "shouting, screaming" supervisor used foul language, invaded "employees' personal space" and made "threatening gestures", directing it mostly at females.
Holly v. California Institute of Technology (No. 01-56050, 01-56189, 8/15/03): Plaintiff alleged that her boss sexually harrased her. But the Ninth Circuit ruled that her refusal to engage in sex did not result in a "tangible" injury, like being fired or denied promotion (see Faragher and Burlington, above). Since Caltech had a sexual harrassment policy in place and took corrective action, they were protected from a lawsuit on these grounds.
Rene v. MGM Grand Hotel (No. 98-16924, 9/24/02): Gay persons are protected from sexual harassment by T-VII. The law protects everyone regardless of their sexual orientation.
Swinton v. Potomac Corp. (No. 99-36147, 10/24/01). NOTE: This is a case about race discrimination. Employer is liable when an employee is constantly harrassed by other employees because of his race, and a supervisor knows about it but fails to act. When an employer is negligent, it is not a defense that the employer had a complaint process that the employee ignored. (Because of the employer´s negligence, US Supreme Court cases Faragher and Burlington were held not to apply.)
Fontana v. Haskin (No. 99-56629, 8/22/01): "Sexually harrassing behavior" by police of a person in custody violates the 4th. Amendment and is actionable under 42 USC 1983.
Nichols v. Azteca Restaurant Enterprises, Inc. (No. 99-35579, 7/16/01): "An employer is liable for the hostile work environment created by a co-worker unless the employer takes adequate remedial measures in order to avoid liability...An employer is also vicariously liable for a hostile environment created by a supervisor unless: a) the employer exercised reasonable care to prevent and promptly correct any sexually harassing behavior; and b) the plaintiff unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer to avoid harm."
Ray v. Henderson (no. 99-15289, 2000). "Disadvantageous changes in the workplace" such as being excluded from meetings and being denied a flexible starting time (when it is offered to others) are adverse work actions.
Kortan v. Calif. Youth Authority (no. 98-56047, 2000). Merely offensive comments are insufficient to sustain a sexual discrimination complaint. To be illegal, a work environment must be so hostile that it changes the terms and conditions of employment. A lowered employee evaluation is, by itself, insufficient proof that retaliation took place.
Kelly v. City of Oakland (nos. 98-16482, 16684, 2000). Quid-pro-quo sexual harrassment by a superior is a Federal Constitutional tort under 42 USC 1983 and also violates Sec. 12940, Calif. Govt. Code. Punitive damages against the City were upheld because they repeatedly ignored the victim´s complaints.
California Government Code, Sec. 12940. Prohibits sexual discrimination in the workplace. Makes it unlawful for an employer to (sexually) harass an employee or applicant. Employers are strictly liable (no defense) for all harassment done by a supervisor. Employers are liable for harassment by non-supervisors if they do not take immediate and appropriate corrective steps as soon as they discover the unlawful conduct. Employers must also take all reasonable steps to prevent harassment from taking place.
California Labor Code, Sec. 1102.1. Prohibits discrimination in employment due to sexual orientation. (See related news article below.)
California Fair Employment and Housing Act (FEHA)
Prohibited employment practices (incl. sexual harrassment)
California Court decisions
Miller v. Department of Corrections (Calif. Sup. Ct., no. S114097, 7/18/05): Favoritism in promotion and treatment for employees who engage in consensual sexual relationships with a superior, resulting in adverse consequences because they do not, constitutes sexual harassment under the Calif. FEHA.
State Dept. of Health Services v. McGinnis (Calif. Supreme Court, no. S103487, 11/24/03). Under California law (see above) employers are "strictly liable" for sexual harrassment by superiors. But the damages can be reduced if an employee remained silent or failed to take "reasonable" steps to address the problem.
Salazar v. Diversified Paratransit Inc. (Court of Appeal, 2nd. District, no. B142840). Employees cannot sue their company for sexual harrassment by clients or customers.
Carrisales v. Department of Corrections (Calif. Supreme Court, no. S073601, 12/9/99). California Govt. Code sec. 12940 (see above) does not apply to actions between non-supervisory employees. Individuals remain free to pursue redress under any other laws that may apply to particular situations.
Want to know more?
For excellent, authoritative coverage of sexual harrassment law, check out http://www.discriminationattorney.com
Week 7 - Disability Policy, Public Unions, Labor-Management Issues
Note: Since the text does not thoroughly cover the Americans With Disabilities Act (ADA), you should become very familiar with the following materials.
2008 amendments (eff. 1/1/09) intended to liberalize the ADA:
- "Substantially limits a major life activity" is to be broadly construed. Doesn't mean "prevents or severely restricts."
- Eating is a major life activity.
- Impact on major life activity means the unmitigated impact (e.g., impact of diabetes without insulin.)
US Dept. of Justice - Extracts from ADA Questions and Answers: Study this carefully so that you learn the basic definitions and regulations. Here is an example of the kind of information you need to know:
Q - Who is a "qualified individual with a disability?"
A - A person who is disabled under the ADA, meets legitimate skill, experience, education or other requirements of a job they hold or seek, and can perform the essential functions of the position if given a "reasonable accomodation".
ADA employment guidelines
California Fair Employment and Housing Act (FEHA)
California Government Code, sec. 12940. Employers cannot refuse to hire a person, and cannot fire a person, because of their race, religion, sex, marital status, national origin or physical or mental disability. However, employers may refuse to hire and can fire a person who cannot perform essential duties even when given a "reasonable accomodation" to do so. Employment may also be refused or terminated if a person cannot meet Federal or State security regulations.
- Under sec. 12940.1, "heart trouble" is presumed to disqualify applicants for law enforcement and firefighting positions.
- According to sec. 12926.1, California laws goes beyond the ADA. California gives "disability" a broad meaning, requiring that a major life activity be "limited" but not "substantially limited" as required in the ADA.
Calif. Atty General Legal Rights of Persons With Disabilities. Read the Introduction and Chapter I - Employment.
California State Supreme Court Decisions
Colmenares v. Braemar Country Club (S098895, 2/20/2003): Protection against employment discrimination for disabled persons under California law is broader than under Federal law. In California, one is considered disabled if a condition "limits" a major life activity. (Under Federal law a person gains special protection only if their condition "substantially limits" a major life activity.)
US Supreme Court Decisions
U.S. v. Georgia (04-1203, 1/10/06): Individuals may sue States under ADA for Federal Constitutional violations (not decided if individuals may sue States for ADA violations that do not breach the U.S. Constitution).
Raytheon v. Hernandez (02-749, 12/2/03: A formal no-rehire policy can be invoked to refuse re-employment to a person fired for violating rules against using illegal drugs.
Chevron v. Echazabal (00-1406, 6/10/02): An employer can prohibit a disabled person from applying for a position that would directly threaten the employee´s health.
US Airways v. Barnett (00-1250, 4/29/02): It is not "reasonable" to break seniority rules to accommodate a person with a qualifying disability, unless the seniority rules have relevant exceptions or have been flexibly applied in the past.
Toyota Motor Co. v. Williams (00-1089, 1/8/02): Assembly-line worker suffering from carpal tunnel syndrome (CTS) sued Toyota for not being provided a reasonable accomodation. Supreme Court stated this worker did not meet the definition of "disability" under the ADA. According to the Supreme Court, "disability" is a condition that substantially limits a person from performing the variety of tasks central to most people's daily lives, such as "household chores, bathing, and brushing one's teeth". This can differ from the tasks required by one´s specific line of work. (Note - this does not affect suits under California State law, whose definition of a disability is much broader.)
University of Alabama vs. Garrett (no. 99 -1240, 2/21/01). Landmark US Supreme Court decision that prohibits ADA lawsuits against State governments. Two ADA lawsuits were filed by Alabama State employees against the State university system. In one, Garrett was demoted four months after she returned from medical leave for cancer surgery. In the other, Ash sued because of alleged discrimination due to severe asthma. The Court held there is no proof that States have engaged in a "pattern of discrimination" in violation of the Fourteenth Amendment. Therefore, there is no valid Constitutionally-based excuse to abrogate State immunity from Federal lawsuits as granted by the Fourteenth Amendment. NOTE: This decision exempts State agencies from the ADA - not private employers.
Murphy v. UPS (no. 97-1992) and Sutton v. United Airlines (no. 97-1943). On June 22, 1999, the US Supreme Court ruled that:
1. Common health conditions such as poor vision and hypertension (high blood pressure) that can be corrected or mitigated are not "disabilities" under the ADA.
2. Being precluded from holding a specific job does not constitute a limitation of a "major life activity" as defined by the ADA.
Both reasons were cited by the court in turning away the claims of persons with poor (but correctable) vision who were refused employment by United Airlines, and a mechanic with hypertension who was fired by UPS because of his inability to safely operate a truck.
Albertsons v. Kirkinburg (no. 98-581). In this case, which involved a truck driver with monocular vision, the Court held that the ADA does not prevent an employer from turning away all applicants who do not meet a published Federal safety regulation even if the Federal government has issued an individual waiver.
Bragdon v. Abbott (no. 97-156). Person who is infected with the H.I.V. (virus), even if the disease has not produced symptoms or progressed to A.I.D.S., is covered by the ADA.
US 9th Circuit Court Decisions
Rohr v. Salt River Project (no. 06-16527, 2/13/09): Depending on an individual's particular dietary restrictions diabetes can amount to a disability, to the extent that it restricts a major life activity of eating.
Josephs v. Pacific Bell (no. 03-56412, 12/27/05): Violation of ADA to refuse to reinstate an employee because of a past history of severe mental illness. Court found that the plaintiff's mental illness was a "disability" under ADA and that prior to his (non work-related) suspension the employee had been performing well.
EEOC v. UPS (no. 03-16855, 9/15/05): Under California's FEHA, UPS employees who can only see from one eye are "disabled" (see different conclusion under Federal law). But UPS is shielded from liability by FEHA's "safety of others" defense, as it proved that drivers with only monocular vision are more likely to pose a danger.
Coons v. U.S. Treasury (no. 02-15665, 9/1/04): Ability to travel - specifically, by air - is not a "major life activity" that could qualify someone as disabled under the ADA.
Hernandez v. Hughes (no. 01-15512, 3/23/04): An unwritten "no-rehire" policy was used to justify not rehiring an employee forced to resign due to a drug addiction. Whether this policy existed is in dispute, so a jury must decide. (Note: contrast to US Sup. Ct. decision, Ratheon v. Hernandez).
EEOC v. UPS (no. 01-15410, 9/20/02): Even a serious visual impairment such as monocular vision (one eye) is not necessarily a disability under the ADA. Here the claimants could drive, use tools, play sports. Employers can prefer certain physical characteristics as long as they do not automatically rule out persons who are indeed disabled.
Thompson v. Davis (No. 01-15091, 3/8/02): Under the ADA, a prior history of drug addiction "that limits one´s [present] judgment, ability to learn, ability to comprehend long-range effects of their acts, ability to maintain stable social relationships, [and ability to maintain] stable employment" is a qualifying disability. Note: active drug abusers do not qualify under the ADA.
Morton v. United Parcel Service (No. 99-17447, 11/30/01): Simply including a task in a job description does not make it an "essential job function". If an employee cannot perform certain tasks, they are entitled to a reasonable accommodation to the extent that it does not impose and undue hardship on the employer given the actual necessities of the business.
Hutton v. Elf Atochem North America, Inc (No. 00-35683, 11/28/01). It is legal to fire a disabled person who poses a "direct threat" to the safety or health of himself or others, when the threat cannot be reduced or eliminated through a reasonable accommodation. Factors to consider include the duration of the risk, the nature and severity of the harm, the likelihood it will occur, and its imminence.
Cripe v. City of San Jose (No. 99-15253, 8/17/01). Disabled officers cannot be automatically barred from applying for specialized assignments, since the ability to make a physical arrest is not necessarily an "essential job function".
Demshki v. Monteith (No. 00-15599, 07/02/01). Dismissed ADA lawsuit against the California Senate Rules Committee. Cited Alabama v. Garrett, 531 U.S. 356 (2001), where the Supreme Court held that the Eleventh Amendment prohibits private persons from suing State agencies for violations of the ADA.
Humphrey v. Memorial Hospitals Assoc. (No. 98-15404, 02/13/01). Employer has an "affirmative duty" to explore methods of accommodation before termination.
Willis v Pacific Maritime (No. 97-16778, 1/10/01): Employers cannot be compelled to offer a disabled person a position that is subject to Union seniority rules.
Eshazabal v. Chevron (No. 98-55551, 2000). Employer cannot defend against an ADA lawsuit by claiming that they were trying to prevent harm to the health of the plaintiff. (Can defend by claiming that the plaintiff posed a threat to the welfare of another person). Later REVERSED by US Supreme Court (see above). On rehearing (7/23/03), the Ninth Circuit ruled that an employer an individual´s ability to safely perform the essential functions of a job must be individually assessed.
Zukle v. Regents of the University of California (no. 97-16708, 1999). Zukle, who suffers from a reading disability, was enrolled at the UC Davis Medical School but performed poorly. Although she was given special accomodations her performance allegedly continued to be subpar and she was dismissed from school. Zukle sued in Federal District Court, claiming discrimination based on disability, sex and race, and sexual harassment. The 9th Circuit affirmed the lower court´s dismissal of her lawsuit.
Nunes v. Wal-Mart (no. 97-17147, 1999). Wal-Mart refused a request for a medical leave, stating that the plaintiff was totally disabled and that granting a leave would impose an undue hardship. Although a lower court agreed with Wal-Mart and summarily dismissed the case, the Circuit Court held that the plaintiff was not totally disabled, so the possibility of reaching a reasonable accomodation remained a fact to be determined at trial.
California State Court Decisions
Hastings v. Department of Corrections (C.A. 3rd, no. C041708, 7/22/03): Employer accommodation need not extend beyond the job classification held by an employee when he/she became disabled.
Public Employee Unions, Labor-Mgmt issues
www.afscme.org: Website for the American Federation of State, County and Municipal employees, the largest public employee union in the U.S. It is affiliated with the AFL-CIO.
United States Code, Title 5, Section 7101, gives most Federal employees the right to join a labor organization, affords labor organizations the right to negotiate on behalf of their members as to working conditions and provides a mechanism for resolving disputes. However, work actions such as slowdowns, stoppages and strikes are expressly forbidden.
United States Code, Title 5, Section 7114, requires that federal agencies and employee unions "meet and negotiate in good faith for the purposes of arriving at a collective bargaining agreement". State labor laws typically have similar "meet and confer" provisions.
California State labor laws that apply to local and State public employees are in the California Government Code, Secs. 3500-3510, also known as the "Meyers-Milias-Brown Act." Exercise: Compare these provisions to Federal public employee labor law. Can you find anything in California law that prohibits strikes or job actions? What about law enforcement officers?
US Supreme Court cases
Alden v. Maine (No. 98-436, 6/23/99). States are sovereign entities and are immune from being sued, against their will, by State employees in either Federal or State court for violations of Federal labor laws. However, States may be sued for such violations by an agency of the Federal government.
Federal Employees v. Dept. of Interior (No. 97-1184, 3/3/99). The Federal Labor Relations Authority has the power to decide, on a case-by-case basis, whether parties to a labor contract must "meet and confer" during the term of a valid contract about issues not covered in that contract.
Central State University v. American Assoc. of University Professors (No. 98-1071, 3/22/99). The Supreme Court upheld Ohio State law increasing the proportion of time that professors must spend teaching (as opposed to conducting research). This provision was exempted from collective bargaining, thus making it non-negotiable. A university professor´s union had challenged the law on equal protection grounds.
Weeks 8, 9, 10 - Selection, Promotion, Appraisal, Discharge;
Pay and Benefits
Federal Police Officer Classification Standards
Supreme Court decisions
San Diego v. Roe (no. 03-1669, 12/6/04): A police officer was fired for selling videotapes of himself, wearing a recognizable uniform and engaging in explicit sexual activity. Court approved of the firing because the subject matter of the activity did not address an issue of public concern and was thus not protected by free speech rights.
Allen v. Iranon, No. 99-16896 (03/13/02): It is a violation of 42 USC 1983 to retaliate against a Government employee for legitimately exercising free speech (1st. Amendment) rights. In this case the Government claimed the plaintiff was really fired for other, valid reasons, but the Court held these other reasons did not amount to a "fireable" offense.
Frank v. United Airlines, Inc., no. 98-15638 (2000): Airline weight standards that impose a more stringent standard on women must be based on a bonafide occupational qualification. They are otherwise disparate treatment (based on gender) and unconstitutional.
Gilbrook v. City of Westminster,no. 96-56306 (1999): Firefighters claimed they were fired because of their political activism, including making a speech after a fatal fire that accused the city of wrongdoing: "This tragedy is the direct result of the Mayor and [City] Council placing politics above the safety of the people". They filed suit for a Constitutional deprivation of their First Amendment rights "under color of law," under 42 USC 1983.
In this case there may have been objective reasons (such as filing false overtime reports) to support the firefighters´ discharge. Normally, when a motive for firing seems "mixed" - partly permissible, partly not - a Court must determine whether the employer would have reached the same decision based only on permissible reasons. However, in this case the jury also found that the disciplinary process would not have begun except for the Fire Chief´s retaliatory motive. Accordingly, the Court ruled that if a disciplinary process begins because of impermissible motives, there is liability even though legitimate reasons to fire are ultimately discovered.
California Constitution - Merit System
Art. VII § 1 (a) The civil service includes every officer and employee of the State except as otherwise provided in this
Constitution. (b) In the civil service permanent appointment and promotion shall be made under a general system based on merit ascertained by competitive examination.
California labor laws
California Labor Code, Sec. 2922. Employment with no specified term (no contract) can be terminated at the "will of either party".
- At-will. In private enterprise, unless there is a promise of continued employment or special treatment in a contract, labor agreement or employee manual, employment is considered "at-will". "At-will" employees do not have a "property interest" in their job. Unless an "at-will" employee is in a protected category (e.g., disabled person) or there is an impermissible motive (e.g., racial or gender discrimination) he/she can be fired for any reason, or for no reason at all. (If employers have established internal rules or procedures that apply, they must be followed.) To learn more about "at-will" employment, click here.
California Labor Code, Secs. 1171-1205. Basic rules about wages, hours and working conditions.
- Exempt or non-exempt from requirements to pay overtime? "Non-exempt" employees are entitled to overtime pay (hours in excess of eight per day or forty per week). "Exempt" employees are not entitled to overtime pay. Under the Labor Code, persons who hold professional, executive and administrative positions are "exempt". "Professional" means someone who is licensed to practice a specifically named profession, including medicine, teaching or accounting (law enforcement is not included.) "Executive" means a manager with substantial discretionary authority. "Administrative" means someone who performs specialized tasks directly for an executive.
California Government Code, sec. 12940. Employers cannot refuse to hire a person, and cannot fire a person, because of their race, religion, sex, marital status, national origin or physical or mental disability. However, employers may refuse to hire and can fire a person who cannot perform essential duties even when given a "reasonable accomodation" to do so. Employment may also be refused or terminated if a person cannot meet Federal or State security regulations.
California Government Code, sec. 12941. Employers cannot refuse to hire or employ, or to discharge, dismiss, reduce, suspend, or demote, any individual over the age of 40 on the grounds of age. However, individuals must meet "bona fide requirements for the job or position" and employers have the right to select "the better qualified person from among all applicants for a job." (Note: see Marks v. Loral, below.)
California Government Code, sec. 12941.1 (signed by Governor on 8/2/99). Passed in reaction to Marks v. Loral (see below), this bill declares the Legislature´s intent that "using salary as the basis for differentiating between employees when terminating employment may be found to constitute age discrimination if use of this criterion disproportionately affects older workers as a group."
California Court Decisions
Harper v. City of Los Angeles (no. 06-55519, 7/14/08): Improper and "negligent" personnel investigations, and city policies that encourage filing criminal charges against employees even when probable cause is lacking, are a Constitutional violation, making the city liable under sec. 1983.
Dore v. Arnold Worldwide (Calif. Supreme Court, no. S124494, 8/3/2006): A letter offer that specifically states employment is at-will means just that, and without proof that more was promised an employer need not justify (give "cause" for) termination of employment, even if the employee suffered relocation and other expenses.
Calif. State Personnel Board v. Calif. State Employees Assoc. (Ca. Sup. Ct., no. S122058, 7/28/05): Contract that specifies promotion of Calif. govt. employees shall be exclusively based on seniority is invalid as it directly conflicts with the Constitutional merit requirement set out in Art. VII, sec. 1 (see above).
Toscano v. Greene Music (124 Cal. App. 4th, 685). Someone who quits one at-will job to take another may be entitled to damages if the employment offer is withdrawn. These damages would be based on the income that the job seeker would have expected to earn at his former at-will position for the remainder of his career, taking into account the likelihood that his employment would have continued.
Guz vs. Bechtel (Calif. Supreme Court, no. S062201, 10/5/2000). Plaintiff, whose employment was "at-will", was discharged through the disbandment of his work unit. Plaintiff sued for breach of contract. Court found that employer´s personnel policies implied certain rights, but that these rights did not prevent the employer from reorganizing and eliminating work units as it saw fit.
Skelly v. State Personnel Board (539 P.2d 774, 783-84, Cal. 1975). Public employees with tenure (permanent status) have a property interest in the continuation of employment which is protected by the right of due process. Under "due process" a person must be formally advised of the reasons for a decision and have an opportunity to formally reply.
California State Court of Appeals Case, Marks v. Loral (4th. District Court of Appeal, no. GO 17833, 1997). Approves firing older, higher-paid workers and replacing them with younger, lower-paid employees if done for strictly economic reasons. Note: This decision, which was allowed to stand without comment by the California Supreme Court, was countered by Calif. Government Code sec. 12941.1 (see above).
Weeks 11, 12 - Liability Issues
Civil action for deprivation of rights (42 USC 1983): "Every person who, under color of (any law) subjects...any...person...to the deprivation of any rights, privileges, or immunities secured by the Constitution...shall be liable to the party injured in an action at law...."
Federal Employees Liability Reform and Tort Compensation Act (28 USC 2679). Also known as the "Westfall Act", allows lawsuits by citizens who claim they were injured by a Federal employee. Transfers such lawsuits to Federal Court and makes the United States the sole defendant if the Attorney General or the Court certify that the official´s acts were within the scope of their employment. Normally confers immunity on officials who make a discretionary decision - that is, decide a matter where a specific course of action is not required by law or agency procedure.
US Supreme Court decisions
Mullenix v. Luna (US Sup. Ct., no. 14-1143, 11/9/15): Officer waiting at an overpass with a rifle shot and killed a fleeing felon to end a wild, high-speed pursuit. Supreme Court ruled that the officer was entitled to qualified immunity, as it was not clearly established that the Fourth Amendment prohibited an officer from using deadly force under such circumstances.
Kingsley v. Hendrickson (14-6368, 6/22/15): To prevail, plaintiff in excessive force claim must only show that, from the perspective of a reasonable officer on the scene, the force was objectively unreasonable. Jury instructions requiring jurors to weigh officers' subjective reasons for their behavior are incorrect.
City and County of San Francisco v. Sheehan (13-1412, 5/18/15): Officers charged into a room they knew was occupied by a mentally ill person armed with a knife, then shot and killed her. They are entitled to qualified immunity because "no clearly established law" requires police accommodate mental illness.
Plumhoff v. Rickard (12-1117, 5/27/14): Firing a volley of shots at a motorist who refused to end a high-speed chase that placed citizens at great risk, resulting in the death of the motorist and another occupant, was a reasonable use of deadly force and did not violate the Fourth Amendment.
Tolan v. Cotton (13-551, 5/5/14): When considering a petition for summary judgment filed by an officer seeking qualified immunity, courts must consider the evidence in a light most favorable to the citizen who is seeking redress; in this case, for the alleged use of excessive force.
Stanton v. Sims (12-1217, 11/4/13): Federal and State courts are "sharply divided" over whether officers may breach curtilage in pursuit of misdemeanor suspects. Since the law is not firmly established an officer who does so is not "plainly incompetent" and is entitled to qualified immunity.
Messerschmidt v. Millender (10-704, 2/22/12): When police are not "plainly incompetent," there are facts to support their view, and their work was vetted by a superior, a deputy D.A. and a judge, they are entitled to qualified immunity even if a warrant is overbroad.
Ashcroft v. al-Kidd (10-98, 5/31/11): (1) If a detention and arrest are objectively reasonable, motive and subjective intent are irrelevant. (2) Qualified immunity applies unless the government violated a clearly established statutory or constitutional right.
Van De Kamp v. Goldstein (07-854, 1/26/09): Prosecutorial absolute immunity extends to all processes within a prosecutor's office that might affect trial preparation, including administration, information systems, supervision and training.
Pearson v. Callahan (07-751, 1/21/09): Says that Saucier rule (see below) for deciding whether there is qualified immunity is too inflexible. Leaves it to judges to apply Saucier if the circumstances warrant.
Scott v. Harris (05-1631, 4/30/07): Upheld summary dismissal of 1983 action, holding that forcing a vehicle off the road is not an unreasonable use of force under Fourth Amendment because fleeing driver "posed a substantial and immediate risk of serious physical injury to others."
Hartman v. Moore (04-1495, 4/26/06): Court upheld dismissal of a claim of retaliatory prosecution against Federal prosecutors, who have sovereign immunity. For the lawsuit to proceed against Federal agents, there must be evidence of a lack of probable cause for the underlying charges.
Castle Rock v. Gonzales (04-278, 6/27/05): Unless laws or regulations unequivocally direct police to take a specific action under circumstances that are traditionally discretionary, their failure to act is not a Due Process (Fourteenth Amendment) violation. In this case police did not promptly respond to a woman's complaint that her estranged husband took their children in violation of a restraining order. He later murdered the kids.
Brosseau v. Haugen (03-1261, 12/13/04): Officer who acts in "reasonable misapprehension" of Constitutional law is shielded by qualified immunity. In this case an officer shot a fleeing suspect in the back because she thought his vehicle might endanger nearby officers who were on foot. This particular action, although wrong, was not a "clearly established" use of excessive force.
Chavez v. Martinez, (01-1444, 5/27/03): Coerced statements that do not lead to "a criminal case" are not Fifth Amendment violations.
Hope v. Pelzer (01-309, 6/27/02): Qualified immunity shields persons from liability for constitutional violations if their actions did not violate "clearly established statutory or constitutional rights of which a reasonable person would have known." But when a practice is obviously cruel (using a hitching post to punish prisoners) there is no qualified immunity, as there is inherent notice that the conduct is unconstitutional.
Saucier v. Katz (99-1977, 6/18/01): Two steps to consider when qualified immunity is claimed as a defense: (1) In a light most favorable to the challenger, was a Constitutional right violated? (2) If so, had this Constitutional right been clearly established by law or court decision? That is, would it have been clear to a reasonable officer that, based on law or court decision, his/her conduct was unlawful? (Saucier rule made optional by Pearson v. Callahan, above.)
Wilson v. Layne (no. 98-83, 5/24/99). Law enforcement officers are covered by qualified immunity even though their acts violate the Constitution if the "state of the law was not clearly established at the time [the event] took place." In this case, officers allowed news media representatives to accompany them into a house during service of a search warrant, an intrusion that the US Supreme Court - for the first time - held as being contrary to the Fourth Amendment.
Sacramento v. Lewis, 523 U.S. 833 (1998). Police not liable for harm caused during a pursuit unless their actions "shock the conscience" and therefore violate the Due Process clause of the 14th. Amendment. One example might be when when there is evidence that the police intended to harm the suspect.
Heck v. Humphrey (no. 93-6188, 6/24/94). Someone who has been convicted cannot bring a lawsuit under section 1983 challenging the government's underlying actions unless the conviction has been reversed or otherwise declared invalid.
Graham v. Connor, 490 US 386 (1989): Claims of excessive force under the 4th. Amendment depend on whether the officers' actions are "objectively reasonable in light of the facts and circumstances judged from the perspective of a reasonable officer on the scene". There must be "an allowance for the fact that police officers are often forced to make split-second decisions about the amount of force necessary in a particular situation."
Anderson v. Creighton, 483 US 635 (1987): Qualified immunity for law enforcement officers under Malley v. Briggs extends even to actions that are illegal, as long as the officer reasonably believes they are not.
Malley v. Briggs, 475 US 335 (1986): Limits police officers to qualified (not absolute) immunity. Police officers are immune from being sued for a Constitutional tort when their acts are "objectively reasonable", meaning that any reasonably well-trained officer facing the same circumstances would not think that the conduct creates unnecessary danger of unlawfully depriving someone of their rights.
Tennessee v. Garner, 471 U.S. 1 (1985): Police cannot use deadly force to apprehend a fleeing suspect unless the officer has "probable cause to believe that the suspect poses a threat of serious physical harm, either to the officer or to others."
Monell v. New York City, 436 US 358 (1978): Local governments are "persons" under 42 USC 1983 and can be sued for unconstitutional violations committed in furtherance of official policy or informal customs.
US Circuit Courts of Appeal Decisions (9th. Circuit unless otherwise stated)
Garcia v. County of Riverside (9th. Cir., no. 13-56857, 2/3/16): Qualified immunity denied for police who failed to take routine steps to investigate an arrestee's claim of mistaken identity despite an "obvious physical discrepancy."
Yousefian v. City of Glendale (no. 12-57269, 3/5/15): Claim of liability by a municipality "necessarily" fails if claims against its employed police officers fail.
Cortez v. Skol (no. 12-16688, 1/26/15): Summary judgment for defendant improper in case of prison guard who was deliberately indifferent to a prisoner's safety.
C.B. v. City of Sonora (no. 11-17454, 10/15/14): No qualified immunity to police officers who handcuff an 11-year old student with ADHD who is refusing to leave a school playground, as no reasonable officer would have believed that doing so was necessary.
Tatum v. Moody (no. 10-55970, 9/17/14): Ninth Circuit affirmed jury finding under 42 USC 1983 that police officers acted with deliberate indifference or reckless disregard for the plaintiff's Fourteenth amendment due process rights by failing to disclose that another person confessed was convicted for some of the crimes for which plaintiff had been detained, awaiting trial, for 27 months.
Tarabochia v. Adkins (no. 11-35837, 9/9/14): No qualified immunity for officers who stop a vehicle without reasonable suspicion that "unlawful activity" had been committed or was about to be committed.
Green v. City & County of San Francisco (no. 11-17892, 5/12/14): Jurors must decide if police used excessive force in a "high-risk" traffic stop of supposedly stolen vehicle without verifying plate.
Sheehan v. San Francisco (no. 11-16401, 2/21/14): Whether police unreasonably provoked a violent response from a known mentally ill woman, leading her to be shot, is a triable issue of fact.
A.D. v. California Highway Patrol (nos. 09-16460 & 09-17635, 4/3/13): No qualified immunity when an officer intends to cause harm (in this case, emptied his gun, shooting and killing a motorist who was ramming unoccupied police vehicles after a high-speed chase) "unrelated to a legitimate law enforcement objective."
Hayes v. County of San Diego (no. 09-55644, 3/22/11): San Diego deputies on a call about a suicidal man shot and killed him when he raised a knife while six feet away. One officer had a Taser but did not use it. Reinstating a lawsuit against the deputies, the Ninth Circuit ruled that excessive force is normally a question of fact, so summary judgments should be used "sparingly."
Liberal v. Estrada (no. 08-17360, 1/19/11): Officers were denied qualified immunity for a traffic stop and their subsequent actions. No reasonable suspicion for stopping a car for tinted windows when the windows are rolled down. A reasonable officer would know that a 45-minute detention after the stop was unreasonable. A search of the vehicle was also unreasonable, as the "consent" was given under duress.
Millender v. County of L.A. (no. 07-55518, 8/24/10): No qualified immunity for officers who executed a "facially" invalid search warrant that was irreparably overbroad in describing the things to be seized. Here deputies seized guns that were nothing like the sawed-off shotgun described by the victim of an assault.
Mattos v. Agarano ( no. 08-15567, 1/12/10): Officer trying to arrest a man for domestic violence entitled to qualified immunity for using the Taser in close quarters against the man's wife when they bumped and she touched him, although not aggressively.
Bryan v. McPherson (no. 08-55622, 12/28/09): Tasers are an "intermediate" level of force whose rationale for use has been clearly established. No qualified immunity for officers who use them on a subject who is acting strangely but does not present an immediate threat.
Stoot v. City of Everett (no. 07-35425, 8/13/09): Coerced statements that lead to an arraignment and pre-trial proceedings are Fifth Amendment violations as they resulted in a "criminal case". (See Chavez v. Martinez, Supreme Court, above.)
Hopkins v. Bonvicino (no. 07-15102, 7/16/09): No qualified immunity for officers who entered a residence without a warrant to detain a person whom a citizen had accused of driving drunk and causing an accident.
Johnson v. County of Los Angeles (no. 07-55935, 3/13/09): Leon standard affords qualified immunity to officers who relied on a search warrant that, while defective, was applied for and issued in good faith.
Tennison v. Sanders (no. 06-15426, 12/8/08): No qualified immunity for police officers who fail to affirmatively alert prosecutors of exculpatory information (they simply placed notes in a file), as notifying the defendant is required by the Brady decision and the Due Process clause of the Fourteenth Amendment.
Porter v. Osborn (no. 07-35974, 10/20/08): In "fast-paced" situations where there is no time to deliberate the proper standard for deciding whether officers are entitled to qualified immunity, or whether their behavior shocks the conscience, is if he/she "acted with a purpose to harm for reasons unrelated to legitimate law enforcement objectives."
Beck v. City of Upland (no. 05-56901, 5/28/08): Simply because a prosecutor authorizes an arrest does not immunize officers when there is no probable cause to arrest and there is evidence of a retaliatory motive.
Price v. Sery (no. 06-35159, 1/22/08): Officer shot and killed a driver. Rejecting qualified immunity, the Court found "genuine issues of material fact regarding whether the City's longstanding practice violated Perez's constitutional rights." This practice apparently condoned the use of lethal force even when officers had an unreasonable belief that their lives were in danger.
KRL v. Aquaro (no. 06-16282, 1/16/08): No qualified immunity when a lead investigator serves a search warrant "so lacking in particularity and probable cause that a reasonable lead investigator would have known it was unconstitutional." Higher standard for a lead agent because other investigators depend on his or her judgment.
Bingue v. Prunchak (no. 05-16388, 1/15/08): Officers in high-speed chases entitled to qualified immunity unless plaintiffs can demonstrate an intent to harm, per Sacramento v. Lewis.
Goldstein v. Van De Kamp (no. 06-55537, 3/28/07): Prosecutors do not have absolute immunity for administrative/management lapses, such as failing to have adequate policies or to adequately train and supervise subordinates. (REVERSED by US Supreme Court, Van De Kamp v. Goldstein.)
Davis v. City of Las Vegas (no. 04-17284, 2/28/07): Officer who repeatedly slammed a handcuffed prisoner into a wall, breaking his neck, should have known that his use of force was excessive, and is not entitled to qualified immunity.
Tatum v. San Francisco (no. 05-15055, 4/3/06): Constitution does not require officers to administer CPR when someone is in distress. All that is required is to summon medical aid, which officers did.
Moreno v. Baca (no. 02-55627, 12/9/05): Officers who arrest and search a person without cause are not entitled to qualified immunity although they discover, after the fact, that their target was on parole and subject to a parole search.
Diaz v. Parks (no. 02-56818, 8/16/05): A RICO civil suit is available to plaintiffs who lose employment or employment opportunities due to alleged misconduct by officers acting in concert. In this case (part of the Rampart scandal) officers allegedly planted a gun, causing the plaintiff to be unjustly imprisoned for assault with a deadly weapon. (No judgment was rendered as to the merits of the claim.)
Kennedy v. City of Ridgefield (no. 03-35333, 6/23/05): No qualified immunity when the State "creates or augments" a known danger, as this is a clear violation of a Constitutional right. In this case a police officer told a rape suspect's mother that her son had been accused by the victim's mother, even though the victim's mother had asked this not happen. The officer also promised to provide special protection and did not. The suspect later shot and wounded the complainant and killed her husband. (Also see Grubbs, below).
Genzler v. Longanbach (no. 02-56572, 6/7/05): No absolute immunity for a prosecutor and an investigator who allegedly encouraged a witness to lie during a police interview, before the judicial process was underway.
Blanford v. Sacramento County (no. 03-17146, 5/6/05): Shooting and crippling a man armed with a 2 1/2 foot sword who refused to drop the weapon and tried to break into someone else's home, which may or may not have been occupied, was not a clearly established Constitutional violation and would be objectively reasonable to a reasonably well trained officer.
Baldwin v. Placer County (no. 04-15848, 4/19/05): No qualified immunity for officers who executed a search warrant because: (a) officers burst in without giving notice, with guns drawn, when doing so was clearly unnecessary (b) affidavit was partly based on falsified information.
San Jose Hells Angels v. City of San Jose (no. 02-16329, 4/4/05): No qualified immunity for officers who seized truckloads of personal property, including several motorcycles, for the sole purpose of proving that Hells Angeles clubhouses had "common symbols" (thus qualifying it as a street gang) as a reasonable officer would have known that doing so violated the Fourth Amendment. Same conclusion for shooting two dogs, as there were no exigent circumstances and officers had a week to plan how to handle the animals using less lethal means.
Swift v. Christian (no. 02-57136, 10/5/04): Parole agents only entitled to qualified immunity for commonplace decisions such as recommending revocation, which is analogous to a detective recommending prosecution. Only those who actually participate in the ultimate decision of granting or revoking parole are entitled to absolute immunity.
Genzler v. Longanbach (no. 02-56572, 9/27/04): Prosecutors entitled to absolute immunity when they perform a quasi-judicial function such as advocacy. If they participate in an investigation they are only entitled to qualified immunity.
Motley v. Parks (no. 02-56648, 9/21/04): No qualified immunity for conducting a warrantless parole search where officers should have known that the parolee was in custody. Parole officer did not know about the search and had not asked for it to occur.
Johnson v. City of Sequim (no. 03-35057, 08/31/04): Chief of Police arrested a person who refused to stop videotaping him in a public place. No qualified immunity because there was clearly established law that the person had a Constitutional right to tape and that a reasonable officer would have known so.
Boyd v. Benton County (no. 02-35776, 6/28/04): Use of flash-bangs was excessive force; however officers had qualified immunity because (a) law on the use of flash-bangs not clearly established at the time and (b) use not so "patently" outrageous that a reasonable officer would necessarily view it as a Constitutional violation.
Wall v. County of Orange (No. 2-56032, 4/16/04): If a plaintiff´s allegation of a Constitutional violation, when taken in its "most favorable light", presents a material issue of fact, then the case must proceed to trial.
Olson v. U.S. (no. 03-15141, 4/2/04): Federal mine inspectors who failed to follow their agency´s official procedures are not shielded from lawsuit by the "discretionary function" exception to the Federal Tort Claims Act.
Galvin v. Hay (no. 00-17425, 3/18/04): When the law is not settled, and when officers act "reasonably", qualified immunity applies even if a Constitutional violation took place. Here officers arrested protestors who refused to move to a remote area, something the Court found to be needleslly restrictive and in violation of the First Amendment.
Beier v. City of Lewiston (no. 02-35516, 1/14/04): Police officers are not entitled to qualified immunity when they arrest a person for violating a protective order without knowing the terms of the order, as doing so is unreasonable and runs against established law.
Drummond v. City of Anaheim (no. 02-55320, 9/10/03): Officers not entitled to qualified immunity when they unnecessarily apply physical force to an unresisting person, as doing so is a clear Constitutional violation. (In this case the person was mentally ill and not suspected of committing a crime.)
Martinez v. Chavez (no. 00-56520, 7/30/03). No qualified immunity when facts (taken in the light most favorable to plaintiff) suggest an interrogation so brutal it violates the Due Process clause of the 14th. Amendment (officer relentlessly interrogated person who had been shot multiple times.)
Hargen v. Brousseau (no. 0135954, 8/4/2003): Officer shot fleeing subject wanted for drug and other crimes. There was no evidence the subject posed a physical threat to anyone. Since the officer may have violated clearly established law (Tennessee v. Garner, US Sup. Ct., 1985, see above) there is no qualified immunity.
Mena v. Muehler (No. 01-56673, 6/23/03): During a search warrant, officers rousted a compliant non-suspect from bed with a submachinegun and kept her handcuffed for two hours in a cold garage. Justices held officers were not entitled to qualified immunity.
Marquez v. Gutierrez (No. 02-15017, 3/06/03): Constitutional and qualified immunity inquiries must be conducted separately. Even if there is a Constitutional violation there is qualified immunity if the law in the area is not settled and a reasonable officer faced with the same circumstances would have believed that the actions were lawful and appropriate.
Ganwich v. Knapp (No. 01-35677, 2/11/03): Holding employees for nearly 5 hours during a search warrant, refusing them phone calls or permission to leave unless they talk to police, all without probable cause to arrest, is an obvious Fourth Amendment violation.
Patel v. Searles and Swanson (2nd. Circuit, 9/30/02): There is no qualified immunity when there is evidence, in the light most favorable to a plaintiff, that reckless police investigative tactics ruined a suspect´s relationships with other family members, thus violating the right to intimate association.
Clement v. Gomez (No. 01-16088, 8/06/02): Qualified immunity does not shield guards who are "deliberately indifferent" to inmate medical needs. (See also Ford v. Caden, above, and Robinson v. Prunty, below).
Billington v. City of Boise (No. 00-36062, 6/21/02): As long as there is no clear Constitutional violation, qualified immunity "protects police officers forced to make split-second decision about how to deal with an emergency situation even if [the officer´s act] is a mistake in retrospective".
Gibson v. County of Washoe (No. 99-17338, 5/22/02): Jail regulations allegedly deprived an inmate of care, resulting in his death. The court held that a municipality is liable if it directly or through "omissions" (e.g., failure to supervise, poor written regulations, etc.) violates someone´s Constitutional rights or directs or allows an employee to do so.
Santos v. Gates (No. 00-56114, 4/23/02): After considering the plaintiff´s allegations of fact under the most favorable light, if a judge believes that a jury could "reasonably" conclude that officers violated a Constitutional right, then the judge cannot dismiss the case - it must be decided by a jury.
Fairley v. Luman (No. 99-56483, 2/15/02): Within the meaning of the law, the term "persons" applies to City governments, which can be found liable for Constitutional violations.
Carey v. Nevada Gaming Control Board (No. 00-16649, 2/04/02): Officer does not have qualified immunity for enforcing a State law that had been clearly ruled unconstitutional. (Officer arrested a person for failing to identify themselves.)
Alfrey v. United States of America (No. 00-35838, 1/11/02): Prison employees cannot be sued for not performing a function that is "discretionary" - where they exercise judgment, such as to whether or not to search a cell. In this case, where employees did not perform a required inmate evaluation, leading to the cellmate´s murder, they are not immune, because the obligation was "non-discretionary".
Headwaters v. Humboldt County (No. 98-17250, 1/11/02): Under Saucier v. Katz, a reasonable juror could conclude that (1) dabbing pepper spray in the eyelids of a protester, then refusing to wash it out, was Constitutionally excessive, and that (2) a reasonable officer would know that it was Constitutionally excessive.
Jackson v. City of Bremerton (No. 99-36159, 10/5/01): To determine whether a 42 USC 1983 violation took place it is necessary to use the test from Saucier v. Katz, 121 S. Ct. 2151. First, it must be found that an officer violated a constitutional right; second, whether an officer reasonably believed that his conduct did not violate an "established" constitutional right.
Amos v. Page (No. 99-16214, 7/26/01): Unless actions are mandated by law or regulation, it is not a Constitutional violation when the Government simply fails to act. But failing to act because of a person´s race violates the Equal Protection Clause of the Constitution, even if the person´s race was wrongly identified.
Milstein v. Cooley (No. 99-56682, 7/20/01): Prosecutors are not entitled to absolute immunity for acts not directly related to their prosecutorial function, such as acting as an investigator, fabricating evidence or talking to the media. They are entitled to absolute immunity when seeking a criminal complaint, an indictement or an arrest warrant and for actions taken in connection with their roles as advocates during court proceedings.
Watts v. County of Sacramento (No. 00-15099, 7/16/01): Even when officers have an arrest warrant, an anonymous tip that a wanted person is at someone else´s home is not enough reason to forcibly enter that location and phsyically detain the suspect. In this example, a person somewhat similar in appearance to the wanted person, and with the same first name, opened the door while wearing boxer shorts.
Navarro v. Block (No. 99-55623, 5/11/01): As is common practice elsewhere, the L.A. County Board of Supervisors normally "indemnifies" deputy sheriffs who are assessed punitive damages (the County pays instead.) Here, plaintiffs claimed that the practice is in "bad faith" and caused deputies in this case to behave poorly. The Federal judge denied the County´s bid for summary dismissal and allowed the case to proceed to trial.
Charfauros v. Board of Elections (No. 99-15789, 5/10/01): Members of an election board cannot claim qualified immunity when they purposely violate a citizen´s right to vote - a clearly established Constitutional right.
Robinson v. Prunty (No. 00-55922, 5/7/01). Prisoners have an "established right" to be protected from known threats to their safety. Qualified immunity may not shield guards who are "deliberately indifferent" to these threats (but see Ford v. Caden, above).
Jeffers v. Gomez (Nos. 99-15867, 99-15868, 99-15869, 99-15870, 2/20/01). Since there is "clearly established law" that allows prison guards to use deadly force to restore or maintain discipline, guards who do so "in good faith" (not maliciously or sadistically) have qualified immunity from suits under sec. 1983.
Lee v. County of Los Angeles (No. 98-55807, 02/14/01). Officers arrested a mentally disabled person whom they mistakenly believed to be a fugitive. This led to the man´s imprisonment for two years. The officers´ failure to take "reasonable steps" to identify the man is a Fourth Amendment violation and subjects them to liability under sec. 1983.
Cunningham v. Williams (No. 98-55108, 9/15/2000) (vicarious liability) "Supervisors can be held liable for a) their own culpable action or inaction in the training, supervision, or control of subordinates; b) their acquiescence in the constitutional deprivation of which a complaint is made; or c) for conduct that showed a reckless or callous indifference to the rights of others".
Devereaux v. Perez (No. 97-35781, 7/12/00). Infamous Wenatchee child-abuse scandal. Defendants in a criminal case claimed improper interrogation techniques of child witnesses. Court held that the techniques were not so "patently violative of a constitutional right that reasonable officials would know...that the action was unconstitutional." Similar conclusions reached in related cases, Cunningham v. Perez & Wenatchee (9th Cir., no. 02-35792, 10/3/2003) and Gausvik v. Perez (9th Cir., no. 02-35902, 10/3/03).
Deboer v. City of Bellingham (No. 97-35363, 3/17/2000). After being denied a search warrant, and after a State agency refused to conduct an audit, police officers, under direction of City officials, seized business records and private items from a business being conducted on city property. The Court held there is no qualified immunity when "conduct is so egregious that a constitutional violation would have been apparent to reasonable officials without any guidance from the courts".
Sigman v. U.S.A (No. 98-35913, 3/29/2000). Despite being diagnosed as mentally ill, a member of the Armed Forces was given assignments, denied treatment and given an honorable discharge in violation of military rules. After discharge, he returned to his base and shot and killed four persons. The Court held that sovereign immunity only bars lawsuits for "discretionary" decisions. It does not bar claims of negligence based on failure to follow required procedures.
Lalonde v. County of Riverside (No. 98-55887, 2/25/2000). The determination of whether a reasonable officer could have believed his conduct was lawful cannot be summarily decided by the trial Court if the material facts (what the officers actually did) are in dispute.
Bari v. Sims (No. 97-17375, 9/25/99). Police officers and FBI agents who made "false or reckless" statements in support of arrest and search warrants are not entitled to a summary dismissal of a lawsuit for Federal Constitutional torts (42 USC 1983). There is a legitimate controversy whether (quoting Anderson v. Creighton, above) "a reasonable officer could have believed [the arrests] to be lawful, in light of clearly established law and the information the [arresting] officers possessed" (4th. Amendment.)
Wakefield v. Thompson (No. 96-16323, 5/27/99): It is a Constitutional violation actionable under 42 USC 1983 for the Government to negligently fail to provide a minimal supply of medication to a newly discharged parolee with a serious medical condition.
L.W. v. Grubbs (no. 95-35968, 8/9/96): An officer is liable under the "state-created danger" theory if (1) they created or increased a risk to the plaintiff and (2) they acted with deliberate indifference to a known or obvious danger.
Actup!/Portland v. Bagley (988 F.2nd 868, 1993): Established a two-part test to determine whether an officer´s action was "objectively reasonable" and thus entitled to qualified immunity : 1) Was the law governing the official's conduct clearly established? 2) Could a reasonable officer have believed the conduct was lawful?
California State Supreme Court Decisions
Lugtu v. Cal. Highway Patrol (No. S088116, 08/16/01): A State "tort law" case (not Federal section 1983). Officers have a duty to exercise reasonable care and to avoid unnecessarily exposing persons to harm.
California Court of Appeals Decisions
People v. Malfavon (C.A. 4th, no. G029409, 9/30/02): County and its social services agency are immune from lawsuit for the discretionary acts of an employee.
Calif. Government Code, Secs. 820-823: Liability of public employees.
Section 820.2: A public employee is not liable for an injury resulting from an act or omission in a "discretionary" situation (employee decides how to act) even if the discretion is abused. (In contrast, public employees may be liable for failing to perform a "ministerial duty", which obligates them to perform a certain duty in a specific way, without the application of discretion.)
Section 820.4: Except in cases of false arrest or imprisonment, a public employee who "exercises due care" is not liable for an act or omission when enforcing the law.
Calif. Vehicle code, Sec. 17004: A public employee is not liable for damages resulting from the operation of an emergency vehicle while responding to an emergency call or while in pursuit of a suspected violator.
Weeks 13, 15 - Employee Discipline and Reductions in Force
US Supreme Court decisions
Cleveland v. Loudermill, 470 US 532 (1985). The Due Process Clause of the Constitution requires that persons be given a "predetermination" hearing before they are deprived of any significant property interest, as in a job. According to the Court, "the pretermination hearing need not definitively resolve the propriety of the discharge, but should be an initial check against mistaken decisions - essentially a determination of whether there are reasonable grounds to believe that the charges against the employee are true and support the proposed action. The essential requirements of due process are notice and an opportunity to respond."
Whether and the extent to which a person has a "property interest" in a job is determined by State law. Laws normally specify that employees on probation do not have a property interest.
Federal Appeals Court Decisions
Cochran v. City of L.A. (9th. Circuit, no. 98-56834, 8/17/2000): Plaintiff is a police Sergeant. Court held that speech that is private or internal in nature (does not address larger issues of public policy), that impairs discipline and creates racial and sexual tensions may be prohibited without violating the First Amendment.
California Public Safety Officers Procedural Bill of Rights Act (secs. 3300-3311 Calif. Government Code). Provides safeguards for peace officers who are being investigated by their agency for misconduct.
For more information on police officer rights, click here.
California Supreme Court decision
Calif. Teachers Assoc. v. California, no. S067030, 5/10/99. Overturns State law requiring that teachers who challenge disciplinary actions must pay half the cost of the hearing should they lose their case. In this 4-3 ruling the majority Justices held that being potentially liable for thousands of dollars in costs casts an unconstitutional "chill" on the ability of a tenured teacher to exercise their due process guarantees.
California Court of Appeals decision
Lybarger v. City of Los Angeles, 40 Cal. 3d 822. This decision applies to public employees who are ordered to talk under threat of being fired or administratively punished. Unless an employee has waived his/her protection against self-incrimination by being advised of their Miranda rights, such compelled statements are not admissible in a criminal prosecution. This is known as the "Lybarger" doctrine.
Week 16 - Privatizing Government Services
In The Media
"Largest Welfare Privatization Near?" Los Angeles Times, February 8, 2000. Members of the Los Angeles County Board of Supervisors tentatively agreed to farm out 25 percent of welfare job training and placement programs to private companies. The alleged purpose of this move, which is opposed by current welfare employees, is to help officials determine whether these tasks should be performed by the private sector. A past experiment to privatize welfare was abandoned when a new, Democratic majority on the board determined that the companies hired to do the job had "performed poorly."
Thinking point: What drives Government decisions in this area: data or politics?
"State Scraps Plans for Privately Run Prison Facilities." Los Angeles Times, December 18, 1999. Plans to house 2,000 State prison inmates in private prison facilities were abandoned by California officials, who said that the extra capacity was not needed. This move leaves the Corrections Company of America (CCA), which built a large facility in the desert, literally "high and dry". CCA´s prison, which could serve an inmate population of 2,300 inmates, currently houses a total of 16 inmates, all Federal prisoners. One party, though, is pleased by the State´s decision. The California Correctional Peace Officers´ Association (CCPOA) - the union that represents state prison guards - has opposed privatizing prisons. CCPOA donated $2 million to Governor Grey Davis´ recent successful campaign.
"Public-Private Toll Road Fight: Priorities Clash." Los Angeles Times, OC Edition, December 10, 1999, p. B-1. In the wake of an attempt by CPTC, the private owner of the 91 toll road, to sell its money-losing business to a nonprofit group that it helped create, public officials are sounding concern about the wisdom of handing over public functions such as transportation management to the private sector. CPTC´s action to divest itself of the toll road comes on the heels of its lawsuit that has kept Caltrans, the State transportation agency, from adding auxiliary lanes next to the toll road to improve motorist safety. According to CPTC, the State´s proposal would reduce use of the toll road and violates its franchise agreement. Caltrans spokesperson Deborah Harris termed the conflict "an issue of public safety v. private profit".
"Toll Road Transfer Deal Bothers State Treasurer". Los Angeles Times, OC Edition, December 7, 1999, p. A-1. California Private Transportation Co. (CPTC), who financed and built the toll express lanes on the East 91 freeway, has established a nonprofit group to buy the money-losing operation for $274 million. NewTrac, the proposed new owner, would finance the purchase through the sale of tax-exempt bonds by the State of California. Critics claim that the road´s valuation is grossly inflated and that deal amounts to a taxpayer funded bail-out of CPTC, whose ridership projections substantially overestimated potential revenues. According to CPTC the road, which was used by 8,634 fewer cars in July, 1999 than in July 1998, can better pay for itself if it is operated by a nonprofit group. But State Treasurer Phil Angelides is concerned that even a nonprofit would find it difficult to pay off the bonds, as doing so would require that toll revenues increase by nearly 6 percent each year.
For your information: There is insufficient money to build new highways using gas taxes alone. (Gas taxes are quickly spent merely maintaining the roads we have.) So new freeways must be built by governments with proceeeds from the sale of bonds. The 91 toll road is different, though, as the $126 million project was privately financed. The State issued a franchise to CPTC, to whom they pledged all toll revenue for the next 35 years. To prevent competition, CPTC was also given veto power over any expansion of the 91 freeway from the Orange County line to the I-15. Although tolls have risen several times since the road´s opening in December, 1995, ridership has proven insufficient to stem mounting losses. CPTC is a profit-making corporation, so it must pay corporate income taxes on its earnings. But the proposed new owner would be a non-profit, meaning they would not pay income tax.
"Seniors Stuck for Six Hours on OCTA Bus." Orange County Register, 10/21/99, p. B-1. After a fruitless six-hour search for a non-existent address, the driver of a bus used to shuttle elderly persons finally allowed its seven riders to exit. According to Bill White, who runs an adult day care center where the passengers are patients, "several seniors wet themselves, threw up and complained of back pain from being confined for so long." The shuttle service, which is run by a private company on contract with the OCTA, was privatized in July, 1999, to save money (see related story below).
"New Mexico Transfers 109 Prisoners." Associated Press, Sept. 3, 1999. After a riot in a private prison resulted in the stabbing death of a guard and the wounding of an inmate, New Mexico authorities transferred 109 prisoners to a maximum-security lockup in Virginia. Authorities called this action a warning to managers of Wackenhut Corporation, who ran the institution. During the past nine months, four inmates have died and two guards have been injured at other private prisons in New Mexico, who houses nearly one-third of its inmates in for-profit institutions.
"Private Prison Has Everything But Prisoners." Los Angeles Times, OC Edition, July 13, 1999. A recently completed $100 million private prison that was built with the intention of housing State inmates stands empty amid resistance from Governor Gray Davis, who said that he is not "comfortable" with the idea of having a prison operated by private enterprise. Corrections Corporation of America, the prison´s builder, got its start in the 1980´s through Republican support of the privatization movement. Its business has stalled due to problems in managing other facilities as well as the election of Democratic chief executives, who receive hefty contributions from public employee unions.
"Lack of Oversight Blames for Stanford 9 Test Snafu." Los Angeles Times, OC Edition. California´s recent release of misleading statewide academic scores was blamed on negligence by the private company responsible for the $34 million program. According to the contractor, Harcourt Educational Measurement, the highly flattering results were actually due to misclassifying 250,000 English-proficient students as being non-fluent. California Dept. of Education officials said they were powerless in the matter because the State Board of Education, an elected body, prevented State officials from monitoring the testing process. State Board president Robert Trigg said that the Board was opposed to creating an "enormous" compliance bureaucracy but would recommend that the contractor hire an independent auditor to oversee testing in the future.
"OCTA to Hire Private Firm to Take Over Van Services." Los Angeles Times, OC Edition, 6/29/99, p. B1. After analyzing numerous bids, Orange County transportation officials decided to privatize van service for the elderly and disabled. Mike Ward, an OCTA board member and Irvine councilman, brushed aside fears that privatizing the service might impair its quality. "I like the idea of outsourcing...As an elected representative...it is imperative to look at anything that saves taxpayers a lot of money." Two board members voted against privatization because the OCTA was not asked to bid. Instead, the projected savings were computed using the consultant´s estimated cost of providing in-house van services.
"Van Rides May be Privatized." Los Angeles Times, OC Edition, 6/25/99, p. B1. Orange County transportation officials have suggested that County vans being used to transport senior citizens and disabled persons be turned over to private contractors. According to proponents, doing so would save millions of dollars and result in better, more flexible service. However, others are concerned that the quality of the service would deteriorate. Greg Winterbottom, a Transportation official and wheelchair user, wants more information before making a change, as doing so would affect "riders who are the least able to speak out in their own defense."
"´Living Wage´ Law OK´d by County Supervisors." Los Angeles Times, 6/16/99, p. A1. By passing an ordinance that sets a minimum wage of $8.32 an hour with health insurance, and $9.46 an hour without, L.A. County became the largest government unit in the United States to require that companies who provide contract services to county government pay full-time employees a salary sufficient to keep a family of four off the welfare rolls. Labor unions, which championed this cause, did not get all they wished for, as the law does not apply to part-time employees.
"Davis Seeks to End Private Janitor Services." Los Angeles Times, OC Edition, 6/8/99, p. A3. Gov. Gray Davis proposed to hire State employees to replace contract janitors who presently clean the State Capitol. While opponents claim that Davis is merely trying to pay off political debts to organized labor, which strongly supported his election, the Governor claims it is an issue of fairness, as private janitors are paid substantially less than State employees. Davis´s staff also points to other potential benefits, including higher morale and a more stable workforce. Perry Kenny, President of the California State Employee´s Association, hailed the move, which he termed "a matter of respect for workers."
"Unions Fight to Lift Pay for LAX Workers." Los Angeles Times, OC Edition, 3/4/99, p. C1. Because some contracts between the City and private firms have years to run, the "living wage" ordinance, which sets minimum pay at $7.39 per hour plus benefits, does not apply to Airport workers such as Argenbright baggage security checkers, who still receive the minimum wage of $5.75 per hour and no benefits. Labor organizations are trying to organize these employees to give them additional leverage for securing a pay increase. Some would have no other recourse until the year 2025, when their employers´ contracts with the City expire.
"Lives Get a Little Bit Better on a Living Wage." Los Angeles Times, OC Edition, 2/7/99, p. A26. To save money and keep taxes low, many jobs previously done by Government employees have been contracted to private companies, who pay their workers much less and provide no health benefits. For example, most janitors at the Los Angeles International Airport are employed by firms that until recently were paying minimum wage ($5.75/hour). Last year, the City Council passed a "living wage" ordinance that required companies who do business with the City to pay their employees a "living wage", which is calculated using various factors. This law was passed in the face of strong opposition from the Mayor and business groups, who complained that it would raise the cost of doing business. Janitor´s wages were increased about $2.00/hour and they now receive health benefits. Still, incomes of those with families fall below the Federal poverty line. Meanwhile, the few Airport custodians who are directly employed by the City make as much as twice more.
Thinking points: Can you think of public costs that are associated with poor pay? What are the public policy implications when privatization leads to substantially lower wages?
"Seal Beach Just Wants Navy Base to Stay." Los Angeles Times, OC Edition, 3/14/99, p. B1. In an effort to save $8 billion by the year 2005, the US Navy is putting the storage of munitions out to bid by private companies. This could have a significant impact on the City of Seal Beach, home of the Naval Weapons Station, the largest arms depot on the West coast. While some citizens say that turning over the handling and storage of bombs, rockets, torpedoes and other high explosives to private contractors would be fine, others worry that civilians could bungle these tasks. As one local councilman pointed out, "...armed forces discipline is different from what civilian discipline is." But the councilman would put aside his doubts to save the base: "If (civilianizing) is the only way they could keep it open, I would say fine."
Thinking points: If you lived near the base, how would you feel?
"Poor Hurt by Hospital Sales, Study Suggests." Los Angeles Times, OC Edition, 5/11/99, p. A3. A newly-released study by Consumer´s Union of public, nonprofit hospitals that were sold to profit-making corporations revealed that in nearly every case charity care suffered, with drops as high as 94 percent at one newly privatized institution. Officials representing the hospitals claimed that the study was inaccurate as it misconstrued the definition of what constitutes "charity" care. Consumer´s Union publishes Consumer Reports magazine.