Avi Kumin, a partner at Katz, Marshall and Banks in Washington, discusses the world of plaintiff-side employment law post-Nassar, judicial reviews of the Equal Employment Opportunity Commission's conciliation efforts, and other topics affecting employment rights litigation.

Bloomberg BNA: The U.S. Supreme Court's decisions in University of Texas Southwest Medical Center v. Nassar and Vance v. Ball State University are seen as legal setbacks for plaintiffs' bar. Which ruling poses the greatest challenge in defending workers' discrimination claims and why?

Kumin: In my opinion as a plaintiffs' attorney, the Nassar decision will have a far greater impact than the Vance decision. The Nassar decision required a showing of "but for" causation for Title VII retaliation claims, while Vance took a narrow view of who constitutes a "supervisor" for purposes of unlawful harassment claims.

Justice Ginsburg's dissent in Nassar argues that the majority decision seemed "guided neither by precedent, nor by the aims of legislators who formulated and amended Title VII" but by "a zeal to reduce the number of retaliation claims filed against employers." It may well have that impact. 

Nassar alters the landscape of retaliation claims considerably by shifting the burden of proof for already very difficult claims even further towards the plaintiff and by removing the possibility of a mixed-motive case. It therefore will allow defendants to escape completely--without even declaratory or injunctive relief, or attorneys' fees--even when a plaintiff proves that unlawful retaliation was one of the motivations for the employment decision. 

Nassar is also likely to be confusing to juries, by requiring one causation standard for discrimination claims and a completely different one for an accompanying retaliation claim within the same case and under the same statute. That potential for confusion will make it even more difficult for a plaintiff to fulfill his or her burden at trial.

Bloomberg BNA: The federal appeals courts vary on the level of scrutiny a court may apply in reviewing EEOC's conciliation efforts. What are the pros and cons of having the courts conduct a substantive or cursory review on whether the EEOC made a good faith effort to conciliate a discrimination charge before it pursued litigation based on that charge?

Kumin: Before the EEOC initiates a complaint against an employer, it is statutorily required to first attempt to resolve the matter through a conciliation process. If that conciliation effort is unsuccessful and the EEOC files suit, the expense and reputation harm to a defendant can be considerable.

Some employers have therefore defended against EEOC-initiated suits by claiming that the EEOC did not legitimately negotiate with them in good faith and should be required to conciliate further. 

While most of the federal circuit courts of appeals have held that the courts have no authority to review this EEOC process, a few circuit courts of appeals have held that the courts may review conciliation efforts to ensure that the EEOC responded "in a reasonable and flexible manner to the reasonable attitudes of the employer" during settlement negotiations.

The "pros" of such judicial review are both to ensure that the EEOC fulfills its statutory obligations, and to give as many cases as possible the best opportunity to get resolved at early stages before demanding time in the federal court system. The "cons" of such judicial review are that the suits geared to requiring the EEOC to resolve cases before they are litigated ironically have the potential to themselves clog up the courts, and in every case there's always the potential to have the court second-guessing the EEOC's legitimate efforts.

Moreover, a lot of litigation could be spent over requiring a basic process, but ultimately if the EEOC and the employer simply do not see eye-to-eye on settlement--as the original breakdown of the conciliation process suggested in the first place--the result will likely be the same even after a good-faith conciliation. 

I believe that the pros of allowing judicial review outweigh the cons, but that the courts should give substantial deference to the EEOC's testimony about its efforts in conciliation.

Bloomberg BNA: Are there any topics floating under the radar that you think will gain prominence in the next couple of years?

Kumin: Currently, there is no law in any state that prohibits workplace bullying unless the bullying was based on a protected status. 

Since 2003, however, anti-bullying laws--which typically prohibit abusive conduct done with the intent of causing distress to the victimized employee--have been proposed in at least 25 states, and 11 states are actively considering such laws now. If such state laws begin to pass--which appears to be the direction this is heading--it will be up to the courts to interpret this new area of the law and give meaning to the protective intent of the statutes without enabling every workplace gripe to lead to a legal claim.

In terms of federal policy, I would like to see Congress pass the Civil Justice Tax Fairness Act of 2013. The law would restore the tax-free status of noneconomic damages in employment cases (as is the case for noneconomic damages for physical injuries in other tort cases) and allow compensation for lost wages to be taxed as if it was received over multiple tax years (as would have been the case had the alleged discrimination not occurred and the wages were received during multiple work years). 

This would not only represent more fair tax treatment for victims of discrimination, but would make civil rights cases easier  to resolve pre-litigation. While not much is getting through Congress these days, this proposed law actually has bipartisan support and the backing of both employee-side and employer-side groups. 

I also think Congress is long overdue to amend 42 U.S.C. § 1981a, in order to update the damages caps for compensatory and punitive damages applicable to Title VII and other civil rights statutes. Since the passage of that law in 1991, inflation has eroded the value of the dollar by 72 percent, but the damages caps have not been adjusted. 

In addition, the bottom cap of $50,000 applicable to employers with up to 100 employees is so small as to make even strong cases of discrimination too risky financially, and to render even a successful plaintiff very un-whole. In the coming years, I hope that Congress will update the damages caps to more realistic amounts and allow them to keep pace with inflation.

Bloomberg BNA: Any final thoughts on litigating workers' discrimination claims?

Kumin: One of my favorite parts of the litigation process is the period before a complaint is filed. If both parties are willing to engage in a thorough exchange of information, that dialogue can frequently lead to resolution, through realization of both sides' strengths, weaknesses and misunderstandings. 

Even in situations in which settlement is not possible and litigation will be necessary, I still believe it's important for both sides to understand the perspective of the other litigant--and for their attorneys to practice constructive communication with each other--before the more contentious process of litigation begins.

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