Thursday, October 2, 2008

Ollie's Barbecue and the Interstate Commerce Clause

If someone asked me what I considered to be one of the most important cases decided by the U.S. Supreme Court, I would answer Ollie's Barbecue. (The case's official name is Katzenbach v. McClung (1964).)

It was the year 1964 and Ollie's Barbecue had been a local landmark in Birmingham, Alabama since 1927, when it first opened; loved by locals for its signature barbecue sauce and best-of-the-south barbecue pork and beef. And, also since it opened in 1927, Ollie's Barbecue had a strict rule against serving Blacks in the dining room. At Ollie's Barbecue, it was "take out service only for Negroes."

The United States Congress passed the Civil Rights Act of 1964, which was effective on July 2, 1964, and which prohibited such disparate treatment based on race. The law states:

"[A]ll persons shall be entitled to the full and equal enjoyment of the goods and services of any place of public accommodation without discrimination or segregation on the ground of race, color, religion, or national origin." Section 201(a) of Title II.

The Civil Rights Act specifically applied to any "restaurant . . . principally engaged in selling food for consumption on the premises . . . if it serves or offers to serve interstate travelers or a substantial portion of the food which it serves . . . has moved in commerce." Sections 201 (b) (2) and (c).

Ollie's Barbecue refused to desegregate its dining room and refused to serve anyone but whites. The restaurant did not deny that it was "principally engaged in selling food for consumption on the premises." Nor did the restaurant deny that it "serves or offers to serve interstate travelers." What Ollie's Barbecue argued was that Congress exceeded its authority under the U.S. Constitution in even passing the Civil Rights Act of 1964 and attempting to have it apply to a small local restaurant like Ollie's Barbecue.

The Supreme Court disagreed and found that the Congress acted within its powers -- and Ollie's Barbecue was forced to serve non-whites in its dining room.

The basis of the Supreme Court's decision speaks to the important question of the power of congress to regulate private activities. The U.S. Constitution, written on behalf of "We the People," gives Congress certain powers and states explicitly in the 10th Amendment that the federal government enjoys only those powers expressly authorized by the U.S. Constitution and that "The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people." In other words, if "We the People" did not authorize the federal government to regulate in a certain area, such attempts at regulation are unconstitutional.

In Article I, Section 8 of the Constitution, "We the People" gave Congress the authority "[t]o regulate Commerce . . . among the several States" and Clause 18 of the same Article grants Congress the power "[t]o make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers . . . ."

Ollie's Barbecue argued that it was a small local restaurant that barely impacted interstate commerce. Ollie's Barbecue argued to the Supreme Court that "We the People" did not intend to give Congress the authority to regulate such a business.

Desperate to continue their segregationist ways, Ollie's Barbecue argued that even if the law may be appropriately applied to some restaurants it was unconstitutional for Congress to say it applied to all restaurants without a case-by-case analysis. The Supreme Court rejected this argument as well.

"[Ollie's Barbecue" contend[s] that Congress has arbitrarily created a conclusive presumption that all restaurants meeting the criteria set out in the Act 'affect commerce.' Stated another way, they object to the omission of a provision for a case-by-case determination - judicial or administrative - that racial discrimination in a particular restaurant affects commerce . . . . Here, [] Congress has determined for itself that refusals of service to Negroes have imposed burdens both upon the interstate flow of food and upon the movement of products generally. Of course, the mere fact that Congress has said when particular activity shall be deemed to affect commerce does not preclude further examination by this Court. But where we find that the legislators, in light of the facts and testimony before them, have a rational basis for finding a chosen regulatory scheme necessary to the protection of commerce, our investigation is at an end. The only remaining question - one answered in the affirmative by the court below - is whether the particular restaurant either serves or offers to serve interstate travelers or serves food a substantial portion of which has moved in interstate commerce."

The Supreme Court concluded with a generous declaration about the constitutionality of the Civil Rights Act of 1964:

"The power of Congress in this field is broad and sweeping; where it keeps within its sphere and violates no express constitutional limitation it has been the rule of this Court, going back almost to the founding days of the Republic, not to interfere. The Civil Rights Act of 1964, as here applied, we find to be plainly appropriate in the resolution of what the Congress found to be a national commercial problem of the first magnitude. We find it in no violation of any express limitations of the Constitution and we therefore declare it valid."

Things turned out just fine for Ollie's Barbecue, notwithstanding its contention before the Supreme Court that serving Blacks in the dining room would devastate their business. In fact, business thrived for another 35 years, until Ollie's Barbecue moved to a suburban location in 1999, and closed down two years later, in 2001.

Monday, September 15, 2008

Check Out My New Website

H/t to Bill Ayton for putting together a great website for my law practice.

Come on over and check it out:

Diabetes and the Americans with Disabilities Act

By nearly all accounts, the intent of Congress when it passed the Americans with Disabilities Act (the ADA) and when it was signed into law by the first President Bush in 1990, was to have the ADA apply to discrimination in the workplace against folks with diabetes, and other people with medical conditions that are treatable.

However, several Supreme Court decisions have taken away nearly all ADA protection for people with diabetes and other manageable disabilities. It looks like Congress is about to send to President Bush a veto-proof bill that will override these Supreme Court decisions.

One of the Supreme Court cases which limited the application of the ADA is Sutton v. United Airlines (1999) where several severely myopic job applicants claimed that the United Airlines vision requirements discriminated against them under the ADA. As part of their claim, they proved that their vision could be corrected to perfect vision and, hence, did not interfere with their ability to do the job of airline pilot. By refusing to hire them per the United Airlines vision policy, they argued, they were being discriminated against in violation of the ADA.

The Supreme Court flipped this on its head, and relying on the fact that they had perfect vision once the disability was corrected found that they were not covered by the ADA. The Court explained:

"[W]e hold that the determination of whether an individual is disabled should be made with reference to measures that mitigate the individual's impairment, including, in this instance, eyeglasses and contact lenses."

So what does this have to do with diabetes?

Relying on the Sutton case, in 2004 the federal circuit court in Nebraska threw out a case brought by an insulin-dependent diabetic against Wal-Mart after he was fired for needing to break up his lunch period into 10-minute breaks so that he could maintain his insulin regiment. When a new supervisor came on board he announced his intention to enforce Wal-Mart's rules which prohibited this arrangement and the worker was ultimately fired. He brought suit under the ADA.

The Court in this case (Orr v. Wal-Mart Stores, Inc. (8th Cir. 2002)), threw the case out, relying on Sutton. The Court stated:

"The Supreme Court in Sutton expressly ruled that '[a] ‘disability’ exists only where an impairment ‘substantially limits' a major life activity, not where it ‘ might,’ ‘ could,’ or ‘ would ’ be substantially limiting if mitigating measures were not taken.' Sutton, 527 U.S. at 482, 119 S.Ct. 2139 (emphasis added). Therefore, neither the district court nor we can consider what would or could occur if Orr failed to treat his diabetes or how his diabetes might develop in the future. Rather, Sutton requires that we examine Orr's present condition with reference to the mitigating measures taken, i.e., insulin injections and diet, and the actual consequences which followed. See id."

The 8th Circuit never got to the question of Wal-Mart's refusal to accommodate Mr. Orr's disability because they determined he was not covered by the ADA. The matter was appealed to the Supreme Court by Mr. Orr, and the Supreme Court refused to hear the case.

All of this may be on the brink of changing, and returning the law to its intended coverage. On September 11, 2008, the Senate passed a bill to expand workplace protections for people with disabilities. The bill’s chief sponsor, Sen. Tom Harkin, D-Iowa, explained the purpose of the bill:

“The erosions of rights created by these court cases have created a bizarre Catch 22 where people with serious conditions like epilepsy or diabetes could be forced to choose between treating their conditions and forfeiting their protections under the ADA, or not treating their conditions and being protected.”

The legislation is similar to a bill passed in June by the House of Representatives. Minor differences between the two bills are expected to be ironed out quickly so a final version can be sent to President Bush.

The bill, S. 3406, provides that a person may be disabled even though measures such as medication, prosthetics and assistive technology are used to mitigate the disability.

Stay tuned.


Thursday, August 14, 2008

Mandatory Arbitration of Discrimination Claims?

The Supreme Court is set to resolve a percolating dispute among the Circuit Courts: Does a mandatory arbitration clause in a union collective bargaining agreement mean that the employee has no right to sue for discrimination and must, instead, bring their claims of discrimination to arbitration.

In this case -- 14 Penn Plaza LLC v. Pyett (07-581) -- the arbitration clause in the collective bargaining agreement stated that "All such claims [of age discrimination] shall be subject to the grievance and arbitration procedure [in the collective bargaining agreement] as the sole and exclusive remedy for violations."

The Second Circuit, which includes New York State, ruled that the employee retains the right to bring his own claim under federal law for age discrimination, and that the union cannot waive that right through collective bargaining.

The 2nd Circuit held that "arbitration provisions contained in a [collective bargaining agreement], which purport to waive employees' rights to a federal forum with respect to statutory claims, are unenforceable."

Oral argument in front of the Supreme Court wil occur next term, October 2008. Stay tuned.