tion when a state (or political subdivision), even though exercising a traditional governmental function, intrudes impermissibly upon the collective bargaining process, denying to one party in the process a weapon Congress intended to be left to the free play
here a "goal." but Court-ordered and subject to stiff contempt fines if not met by a certain date. These justices were joined by one who concurred only if the relief did not require the laying-off of non-
of economic forces.
viewed as a quota, not a goal. but would support relief for nonvictims if limited to goals; finally, two justices would disapprove any
AMOCO IV Rejected In a case described as a rare departure" from the Court's special deference to the NLRB in representation cases, the Supreme Court in NLRB v. Financial Inslilution Employees Local 1182. _ _ U,S. _ _. 106 S.Ct. 1007 (1986). overturned the Board's rule allowing non-union employees to vote in a certified union's decision
whether to affiliate with another union. The Court viewed this as an internal union matter and viewed
the Board's rule as contrary to the goal of labor peace and inconsistent with the NLRA. Under this new formulation, only if the affiliation somehow raised a question of representation would the act authorize the Board to conduct an election.
EMPLOYMENT LAW Affirmative Action Since its decision in Firefighters Local Union No. 1784 v. Stotts. _ _ U.S. _ _. 104 S.C!. 2576 (1984), the Court has taken several
minorities; another justice dissented because the order was
racial preference for non-victims.
In Local 93, Firefighters v. Cleveland. 106 S.Ct. 3063 (1986). the Court reviewed race-conscious
relief in the context of a consent decree. Here the vote was 6-3 approving such relief. Whatever the limits placed upon courts under §706(g), a consent decree-a voluntary settlement-may under Weber include reasonable raceconscious relief that includes nonvictims. even if that relief is broader than the court might have awarded at trial. The Court based its reasoning in part on the concept that, since §706(g) was written in part to preserve managerial discretion, it did not make sense to apply it as a strict limitation in a voluntary setting. By contrast, Stotts was an attempt by a court to modify a consent decree in a manner inconsistent with the statute.
polarization seems to have devel-
In Wygant v. Jackson Board of Education. _ _ U.S. _ _. 106 S.Ct. 1842 (1986), the Court in yet another 5-4 decision considered the legality of race-conscious layoff clauses in a collective bargaining agreement. The clause in effect required the layoff of tenured
oped on the Court and opinions are forming from pluralities, collected
non-minority teachers while less senior probationary minority
concurrences and partial dissents. It remains to be seen whether the appointment of Justice Scalia will affect this tenuous balance. In Local 28. Sheet Metal Workers' International Ass'n v. EEOC. _ _ U.S. _ _. 106 S.Ct. 3019 (1986). the Court considered whether court-established "goals" violated either Title VII or the Equal Protection/Due Process clauses. A key issue in this case was whether it is permissible under §706(g) of the 1964 Civil Rights Act to provide raceconscious relief which benefits persons who are not actual victims of discrimination ("non-victims"). A four-justice group held that §706(g) did not bar such relief 8/Arkansas Lawyer/January 1987
teachers were retained. The majority in this opinion was obtained by a concurrence which would disapprove any layoff decisions made solely on the basis of race, with no more justification than this record provided. as violative of the Equal Protection Clause. At least three justices expressly disapproved of the "role model"
cases raising affirmative action
issues, apparently in hopes of lay· ing the subject to rest. Instead, c
Sexual Harassment The Supreme Court Meri tor Savings Bank v. Vinson. _ _ U.S. _ _, 106 S.Ct. 2339 (1986), considered a court of appeals decision which would have applied absolute liability, without employer notice of the offending conduct, for sexual harassment. The court of appeals had remanded because the district court failed to consider the facts under the "hostile environment" theory - that is, unlike quid pro quo harassment which withholds or promises a benefit. this harassment is not conditioned per se upon a benefit. but rather looks to the intolerable, offensive or abusive nature of the environ-
ment created in the work place by such harassment. The Supreme Court. as expected, recognized the "hostile environment" cause of action,3 but
declined the invitation to state a definitive rule on employer liability (absolute or otherwise). Instead, the Court invited the courts to look to traditional agency principles to determine whether liability should apply in a particular case. Employers under those principles are not "automatically" liable for the acts of supervisors, but by the same token cannot "automatically" defend because they have an anti-sexual harassment policy or because they had no actual notice of the harassment. The Court cited the Restatement (2d) of Agency §228, which provides that the conduct of a servant is within the scope of employment only if it is the kind he is employed to perform and is actuated at least in part by a purpose to serve the master. For future protec-
tion, then, every employer should consider adopting a strong antisexual harassment policy which includes a grievance procedure
and, where applicable. provides that a grievant may circumvent or
bypass the harasser and complain to higher management if he or she wishes.
theory (minority children require
minority teachers as role-models) advanced by the defendant Board as a reason for its lay-off policy. The Court applied "strict scrutiny" analysis and found that the means used were not narrowly tailored to achieve a compelling state interest; the clause was therefore unlawful.
Attorneys' Fees The Court decided several interesting issues concerning
attorneys' fees in civil rights (or other statutory fees) cases. Last year, the Court had determined that attorneys' fees could be included in the lump sum offer of judgment (Rule 68. Fed. R. Civ. P.l,