Question #1
In response to increasing medical knowledge about the genetic source of obesity, Congress enacts and the President signs the “Obesity Rights Act” (ORA). The statute reads as follows:
Section: 1: Findings
The Congress hereby finds that the obese are subject to unreasonable and unfair discrimination in employment, given prejudice against and misunderstanding of, the condition of obesity. The Congress also recognizes that a desire to earn a profit may require a business to consider the physical attributes of certain members of its work force, and that this is a legitimate consideration.
The Congress also finds that obesity is not a legitimate tool for determining the capability of any person to contribute to an efficient workplace.
Section: 2: Discrimination
It is a violation of federal law for any employer to discriminate unreasonably against any person based on the person’s weight, except where weight is a bona-fide occupational requirement and where all reasonable attempts accommodate the person. have been made to
Section: 3: Definitions
“Employer” means any person, partnership, corporation or other business entity, or state or subunit of state government, that employs any person.
Section: 4: Relief
Any person may sue to enforce the provisions of this act in any federal court where venue is proper. A court may order damages, backpay, or other relief, as appropriate.
Section: 5 Regulations
(a) The U.S. Department of Labor is authorized to promulgate regulations to enforce these provisions. Violations of any valid regulation shall be considered violation of federal law.
1.Adams v. Baker
Albert Adams, a junior auditor for the State of Baker, is fired for being obese. He sues the state and the state’s head auditor under the law, requesting back pay, damages, and an injunction against the head state auditor forbidding him from firing or demoting Adams. What constitutional defenses could Baker make to the lawsuit and the requests for relief?
2.Confederation for the Prevention of Obesity Discrimination (CPOD) v. Department of Labor
Meanwhile the Department of Labor promulgates the following regulation:
Reg A: A “bona fide occupational requirement” is any requirement that, in the eyes of a reasonable employer, is reasonably necessary to prevent a loss of business or profit, taking into account reasonable customer preferences.
The Confederation believes that this regulation is far too lenient, and contravenes the intention of the statute. On the day the regulation is promulgated it sues the Department of Labor. Does it have standing?
3. Everett v. Fair Skies Airlines
Edwina Everett is a flight attendant for Fair Skies, based in Chicago, which is also the airline’s corporate headquarters. Edwina brings a lawsuit against Fair Skies, claiming a violation of Illinois employment law. Illinois employment law is all common law, and has evolved to the point where, according to one recent court decision, “any unreasonable discrimination which robs the people of the state of the talents of willing workers, is a violation of Illinois law.” Edwina sues Fair Skies in state court on the state law cause of action. What federal constitutional arguments would Fair Skies have in defense?
You may assume the following:
1. During its consideration of the ORA, Congress heard evidence that, as a psychological matter, people make assumptions about people’s self-control and discipline based in part on whether they are obese. Congress was also told that, in a public opinion poll, 67% of Americans said they would be uncomfortable working with an obese person.
2. Three individuals testified to Congress that they were fired from jobs, one from a job with New York state government, one with a large corporation and one with a small business, based solely on their obesity, despite achieving good performance reviews.
3. The CPOD was formed “to fight, in the legislatures, the courts, and in public opinion, all forms of discrimination and stereotypes about, and oppression of, obese persons.”
View Answer
I. Adams v. Baker
1. Congressional Power to Enforce the 14th Amendment
Baker could attempt to argue that Congress lacks the constitutional authority to enact the ORA. The most likely sources of such power are the Commerce clause and Section 5 of the Fourteenth Amendment. Because Section 5, unlike the Commerce clause, would allow Congress to authorize damages and back pay awards, Seminole Tribe v. Florida (1996), that source will be analyzed first.
a. Congress has the power to “enforce” the Fourteenth Amendment. This allows Congress to enact laws that go beyond the liability rule announced by the Supreme Court, to remedy and prevent violations of that underlying rule (Boerne v. Flores (1997)). However, such statutes must be “congruent and proportional” to the underlying constitutional violation.
Is the ORA congruent and proportional? Probably not. The statute was most likely enacted to protect the equal protection rights of the obese; there is no fundamental right to employment that Congress might be seen as protecting. Obesity is not a suspect class; thus, such classifications get only rational basis scrutiny when challenged in court. This fact means that it will be harder for Congress to demonstrate a strong need for the legislation (Nevada v. Hibbs (2003)).
Here the evidence supporting the Section 5 basis for the ORA is weak. There is little evidence that states themselves are discriminating, and no evidence that any such state discrimination is actually unconstitutional. While such weak evidence was accepted in Hibbs, in that case the challenged statute aimed at protecting the equality rights of women, which the Court has considered much more important, and thus which Congress has much more latitude to protect. Thus, the evidence in this case – public opinion evidence about the discomfort people feel about obese individuals, and a small amount of unexplained discrimination, only one instance of which was performed by a state – is probably insufficient.
It may be that the statute is weak enough that it could be supported by this weak evidentiary showings. But, given the rational basis review given obesity classifications and the weak evidence suggesting the seriousness of obesity discrimination, its probably the case that the Court would accept only a statute that prohibited the type of obesity discrimination that a court itself would find to be unconstitutional. There is no evidence that the statute is that limited.
Conclusion: Probably no Section 5 basis for the statute.
2. Commerce Clause:
The Court in U.S. v. Lopez (1995) said that Congress can regulate channels or instrumentalities of interstate commerce, or activities that substantially affect interstate commerce. Employment is not a channel or instrumentality of interstate commerce; thus, if the statute is a valid regulation of interstate commerce, it is because employment substantially affects interstate commerce.
In U.S. v. Morrison (2000) the Court said that, if the activity being regulated is economic, then the substantial effects inquiry could be done by aggregating individual instances of the activity being regulated, and that Congress would be deferred to in determining whether, in the aggregate, that activity substantially affected interstate commerce. Employment is clearly an economic activity unlike, in Lopez, school violence and, in Morrison, gender-based violence. Aggregating employment relationships it is clear that they have a substantial effect on interstate commerce.
Conclusion: The ORA is probably a valid regulation of interstate commerce. But note that this does not mean that Congress may make states liable for retrospective relief such as damages or back pay (Seminole Tribe). Thus, Adams could not make such a claim against the State of Baker.
3. Regulation of a Traditional Government Function:
In National League of Cities v. Usery (1976) the Court held that an otherwise valid Commerce regulation could not apply to a state’s performance of a traditional government function. However, in Garcia v. San Antonio Transit Authority (1985), the Court overturned that result and allowed such regulation. Thus, there is no need to consider whether auditing is a traditional governmental function; to the extent the statute regulated the state as an employer, it is valid under the Commerce Clause
4. Eleventh Amendment
Young relief: There is no problem with Adams’s request for an injunction against the head auditor. Such a request is the kind of relief authorized by Ex parte Young (1908), as long as the relief is based on a federal, not a state, law violation, the suit is brought against a state official, not the state, and the injunction would not impair the state’s sovereignty too much (Idaho v. Coeur d’Alene Tribe (1997)). All of these requirements are met here: the underlying law is federal, the request is aimed at the auditor, not the state itself, and an injunction against employment discrimination doesn’t impact the state in the way that the requested relief did in Idaho, where the plaintiff requested an injunction against the state official asserting sovereignty over certain territory claimed by the state.
II. CFOD v. Dept of Labor:
1. Standing
For an association to have standing it must satisfy the following three requirements: at least one member must have standing the topic of the lawsuit must be germane to the association’s reason for existence the relief requested must work in the absence of a named individual member (United Food Workers v. Brown Group (1996))
a. Prong 1: One member would almost surely have standing here. Standing requires injury, causation and redressability (Warth v. Seldin (1974)). If the regulation is too lenient then most likely a fired person will be injured; at the very least the person’s job is less secure. The injury would be caused by the lenient regulation and the injury would be redressable by a court.
b. Prong 2: Given what is said about the purpose of the organization there’s no question but that the suit would be germane to the organization’s purpose of preventing discrimination against the obese.
c. Prong 3: Unlike damages, an injunction would benefit the individual members without any need for that member to be a formal part of the lawsuit. An injunction would prevent the regulation from taking effect, which would automatically benefit members.
2. Conclusion: The Confederation would have standing.
II. Everett v. Fair Skies
1. Preemption
The question is whether the ORA preempts state law, and, if not, whether the state law is nevertheless void under the dormant commerce clause. Preemption may be express or implied. Here, there is no express statement that Congress intended to preempt state law.
Is there implied preemption? Implied preemption may be based on conflict or field preemption.
Field preemption occurs when the federal regulatory scheme is so pervasive that it indicates a congressional intent to occupy the entire regulatory field. There is no indication that the ORA is so broad as to occupy the field of obesity discrimination; thus, field preemption is unlikely.
Conflict preemption may occur either when it is physically impossible to comply with both laws, or when compliance with the state law would frustrate federal objectives.
It’s not physically impossible for an employer to comply with both laws; an employer could simply comply with the broader Illinois rule which would automatically comply with the federal rule.
It’s possible, though, that the state law would conflict with federal objectives. The ORA seems to reflect a federal policy that some obesity discrimination may be appropriate, if it responds to consumer preferences. Compliance with the Illinois rule would force employers not to discriminate even though federal policy might not only allow, but prefer, such discrimination. For that reason there is a chance a court would find the Illinois rule to be preempted.
2. Dormant Commerce Clause:
Assuming that the Illinois rule is not preempted it would be necessary to determine whether it violates the dormant commerce clause. The rule is that if a state statute directly regulates interstate commerce it will almost assuredly be struck down. (New Energy v. Limbaugh (1988). If it discriminates against interstate commerce, the statute will be subjected to strict scrutiny, which will require that be no less commerce-restrictive alternative to achieving the legitimate government interest sought to be furthered (Dean Milk v. Madison (1950). If it regulates interstate and in-state commerce evenhandedly, then it will be subject to a relatively deferential test under which the burdens on interstate commerce will be considered in light of the in-state benefits the statute provides (Minnesota v. Clover Leaf Creamery (1981)).
Here, the statute clearly is not discriminatory, as it is evenhanded both ostensibly and in application ‘ all employers must comply, and there’s no indication that out-of-state employers are especially burdened. Thus, under the deferential benefit-burden balancing test, the common law rule will probably survive, given the benefits it provides in’state in terms of equality of treatment.
Conclusion: If the Illinois rule is not preempted then it will probably survive and Everett can bring her suit under that rule.
