The Right to Bring a Qui Tam Action Can be Revoked by Amendment — Even if You’re Already Half Way Through Your Lawsuit

Let’s say I offer $100 to anyone who finds my lost dog. Let’s say you’ve already started looking for that dog, at night in the freezing cold, because you want that $100. Let’s say you’ve found the dog and are on your way back to my apartment. But, then I change my mind — I don’t want the dog and I don’t want to give you money. Can I say too bad?

What if it wasn’t me who was offering the money, but Congress?  Continue reading

Court to Decide Questions of Mixed-Motives in Retaliation Claims Under Title VII

The Supreme Court has agreed to hear the case of Univ. Texas Southwestern Med. Center v. Nassar, which concerns the standard of causation in retaliation cases under Title VII. If an employer absolutely intended to retaliate against someone for taking a “protected action” (like complaining about discrimination), but would have fired that employee anyway for some unrelated reason, is the employer still liable for its illegal motives?  Continue reading

Birth Control Discrimination in the Details Part II: What’s Pregnancy Got to Do With it?

This is a three-part follow up on a piece I wrote for Slate magazine on whether discrimination against people taking prescription birth control is illegal under federal anti-discrimination law.

What does pregnancy have to do with birth control? Clearly, there is some overlap: women take birth control to avoid becoming pregnant, only women can become pregnant, and only women can take prescription birth control. The latter two facts may change at some point in the distant future, but at the moment, they hold true. Continue reading

Birth Control Discrimination in the Details Part I: A Little Foray Into Legislative Intent

This is a three-part follow up on a piece I wrote for Slate magazine on whether discrimination against people taking prescription birth control is illegal under federal anti-discrimination law.

The Slate article I wrote a while back focused on a bill that had just passed the Arizona House (but which has since been scuttled). The bill focused mostly on allowing employers to refuse coverage of prescription birth control. However, my primary problem with the bill, as I stated in the piece, is that “If [a woman’s] employer is seriously opposed to birth control, and wants to discriminate against her for taking it—even though she’s paying for it herself—a provision in the Arizona bill would allow that.”

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Hosanna in the Details Part II: Leaving the Worst for Last

A more general overview of my views on the decision can be found here.

In Part I, I discussed how existing employment law could have been used as a framework to resolve the dispute in Hosanna without implicating any complex questions of church and state, so long as the courts were clear that reinstatement was not an available remedy. I argued that the existing pretext analysis would have allowed the court to find that Perich (the plaintiff) was discriminated against because she was disabled, and the court could have done so without implicating any First Amendment or Establishment Clause issues.

In Part II I want to complicate matters and discuss a hypothetical scenario in which the church’s beliefs actually do come into play, a situation in which the fact that the employer is a religious organization actually matters. Essentially, I want to argue that the most complex questions involved — who counts as a “minister” and what does a “minister” do in a given church — should be the final tier of analysis, reached by the court only when all else has failed.

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