Pay Plan That Uses Prior Pay For Starting Pay Discriminates Against Women Under The Equal Pay Act

Judge Reinhardt, of the Ninth Circuit, starts his opinion in Rizo v. Yovino, with a roar.

The Equal Pay Act stands for a principle as simple as it is just: men and women should receive equal pay for equal work regardless of sex. The question before us is also simple: can an employer justify a wage differential between male and female employees by relying on prior salary?

Judge Reinhardt carefully crafts a very strong opinion holding that a wage differential between male and female employees that relied on prior salary violated the Equal Pay Act. This Opinion if upheld by the United States Supreme Court would be a landmark opinion.


The facts in this case are also simple and undisputed. Aileen Rizo was hired as a math consultant by the Fresno County Board of Education (County) at step 1 with a starting pay of $62,133 for 196 days of work plus a master’s degree stipend of $600. Previously, she was employed in Maricopa County, Arizona as a middle and high school math teacher and earned an annual salary of $50,630 for 206 working days plus $1,200 per year for her master’s degrees in educational technology and mathematics education. Rizo’s new salary upon joining the County was determined by taking the hired individual’s prior salary, adding 5%, and placing the new employee on the corresponding step of the salary schedule.

During a lunch with colleagues Rizo learned that her male colleagues had been subsequently hired as math consultants at higher salary steps. She then filed a complaint about the pay disparity with the County, which responded that all salaries had been set in accordance with SOP 1440, rejecting her complaint. Rizo then sued Jim Yovino in his official capacity as the Superintendent of the Fresno County Office of Education claiming a violation of the Equal Pay Act (Act).

The County asserted that, Rizo was paid less than her male counterparts for the same work was based upon her prior salary, which was a permissible affirmative defense to her concededly lower salary than her male counterparts under the fourth, catchall clause, a “factor other than sex” under the Act. The district court denied summary judgment, reasoning that SOP 1440 “necessarily and unavoidably conflicts with the Act ” because “a pay structure based exclusively on prior wages is so inherently fraught with the risk—indeed, here, the virtual certainty— that it will perpetuate a discriminatory wage disparity between men and women that it cannot stand.” The district court then certified the following legal question to the Ninth Circuit, which eventually ruled on the question sitting en banc (the full Circuit):

“whether, as a matter of law under EPA, 29 U.S.C. § 206(d), an employer subject to the EPA may rely on prior salary alone when setting an employee’s starting salary.”

In order to better frame the issue let’s start with how a violation is proven under the Equal Pay Act.

“…a plaintiff must show that her employer paid male and female employees different wages for substantially equal work; however, not all differentials in pay for equal work violate the Equal Pay Act, because the Act includes four statutory exceptions—“(i) a seniority system; (ii) a merit system; (iii) a system which measures earnings by quantity or quality of production; or (iv) a differential based on any other factor other than sex”— which operate as affirmative defenses.”

The County argued that (iv) “any other factor other than sex,” (referred to the catchall exception), allowed an employee’s prior salary to be used by an employer in setting the starting salary.

Therefor, the determinative question was the meaning of the phrase “a differential based on any other factor other than sex” under the catchall exception to the Act. The answer to this question is a matter of statutory construction; therefore, the court used a number of well-recognized analytical legal tools to discern the meaning of this language.

The Ninth Circuit reasoned that the pay plan violated the purpose of the Act because Congress enacted it to put an end to the “serious and endemic problem of employment discrimination in private industry” and to carry out a broad mandate of equal pay for equal work regardless of sex. “The purpose of the Act is clear: to put an end to historical wage discrimination against women.”

The Ninth Circuit reasoned in light of the clear intent and purpose of the Equal Pay Act, it could not construe the Act as justifying setting employees’ starting salaries on the basis of their prior pay because this perpetuates existing wage disparities between men and women. “Congress simply could not have intended to allow employers to rely on these discriminatory wages as a justification for continuing to perpetuate wage differentials.”

Next the Court looked at the text noting that the text showed that the phrase “any other factor other than sex” follows a series of exceptions. Several rules used to determine the meaning of the text now come into play. The Court applied the canon noscitur a sociis— “a word is known by the company it keeps.” The three specific exceptions prior to the catchall exception are based on systems of seniority, merit, and productivity; therefor, since these three terms all relate to job qualifications, performance, and/or experience it follows that the catchall exception should be limited to legitimate, job-related reasons as well. A related canon, ejusdem generis, also supported the Courts interpretation of the catchall term because general terms at the end of a list of more specific ones are construed to embrace only objects similar in nature to those objects enumerated by the preceding specific words. The Court concluded that allowing an employer to justify a wage differential between men and women on the basis of prior salary is wholly inconsistent with the statutory language.

In addition, the legislative history of the Act also supports the Court’s interpretation that the catchall exception is limited to job-related factors. During the legislative proceedings industry leaders argued that the earlier exceptions to the Act were specific and under inclusive; therefore, the Court concluded that the catchall exception was added to the final Equal Pay Act in direct response to these employers’ concerns that their legitimate, job-related means of setting pay would not be covered under the exceptions already in the bill. Representative Robert Griffin, author of the Landrum Griffin Labor Law, put it best by describing the catchall exception, as a broad principle, and those preceding it are really examples.”

Furthermore, interpretations of the Act lend support to the interpretation that prior salary used as a basis to establish initial salary for an employee was not a legitimate measure of work experience, ability, performance, or any other job-related quality although it may bear a rough relation to legitimate factors other than sex.

Based on the above analysis the Court held that the Act was violated by using prior salary as the basis for the starting salary for female employees making this a landmark case in the 55-year history of the Act, if it upheld by the United States Supreme Court.

Judge Reinhardt, the “Liberal Lion” of the liberal 9th Circuit, ends his opinion with gigantic roar:

“‘Collectively, the gender wage gap costs women in the U.S. over $840 billion a year.” If money talks, the message to women costs more than “just” billions: women are told they are not worth as much as men. Allowing prior salary to justify a wage differential perpetuates this message, entrenching in salary systems an obvious means of discrimination—the very discrimination that the Act was designed to prohibit and rectify.’”

But not so fast. Judge Reinhardt, the author of the opinion and the Ninth Circuit are big targets for the United States Supreme Court. Even though the opinion is strong and very well reasoned the Ninth Circuit as a liberal bastion has been overruled many times by the Supreme Court including some of the opinions authored by Judge Reinhardt. Stay tuned.

If you have a pay practice similar to the issue in this case, you should exercise extreme caution in following that practice until there is some final resolution. You may also want to check your pay plan since my experience is that pay plans generally have similar provisions, which are used to resolve the fundemental question of where an employee starts on the pay plan.

Howard Wright© 2018

For a more detailed analysis of Rizo v, Yovino see April 2018 MMAA Newsletter.

 Posts That Are Related

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Does Title VII of the Civil Rights Act Prohibit Employment Discrimination Based on Sexual Orientation?

A gay couple married. The next day when they reported to work they were fired because they were gay. They had a constitutional right to get married  but no protection from  employment discrimination  based on  their sexual  preference. Sounds widely contradictory and fundamentally unfair but that is the current status of federal law except in the 2nd Circuit thanks to a recent landmark  opinion by the 2nd  Circuit  in Zarda v. Altitude Express,that held Title VII prohibits sex discrimination based on sexual orientation.

The United States Supreme Court has not addressed whether  Title VII prohibits sex discrimination based on sexual orientation making this  one of the big unanswered legal questions. To understand the import of this case see  an excellent discussion  related to an earlier case with similar issues that got sidetracked before it could be appealed to the Supreme Court in  Constitution Daily by Lyle Denniston. The opinion by the Second Circuit in Altitude Express could set the stage for review by the United States Supreme Court on whether or not the Title VII prohibits discrimination based on sexual orientation because the opinion creates a split in the Circuit Courts  making it more likely that the United States Supreme Court will step in and answer this important question.

Missouri courts have also struggled with whether or not the Missouri Human Rights Act (MHRA) prohibits discrimination based on sexual orientation. So far the Missouri Supreme Court has not addressed whether or not the MHRA prohibits sex discrimination based on sexual orientation although a recent case decided by the Western District in Lampley v. Missouri Commission On Human Rights, held that sex stereotyping was gender discrimination.  My December 5, 2017, Post on the Lampley case provides an update on the current status of sex discrimination cases in Missouri.

The facts in Altitude Express, are straightforward. Donald Zarda, a gay man, worked as a skydiving instructor at Altitude Express.  As part of his job, he regularly participated in tandem skydives, strapped hip-to-hip and shoulder-to-shoulder with clients.   Zarda told a female client with whom he was preparing for a tandem skydive that he was gay and he had an ex-husband to prove it.  Zara was fired because of his comment. parachute

Zarda filed a complaint with the EEOC, which was eventually appealed to the Second Circuit.

In determining whether or not Title VII prohibits sexual orientation discrimination, the 2nd Circuit was guided by the text and, in particular, by the phrase “because of ․ sex.”  In interpreting this phrase, the court construed the text in light of the entirety of the statute and relevant precedent.

Title VII, provides that an employer has engaged in “impermissible consideration of sex in employment practices” when “sex was a motivating factor for any employment practice,” irrespective of whether the employer was also motivated by “other factors.” Therefore the 2nd  Circuit concluded that , if the action was “because of sex” it was “a motivating factor” and the employer had violated the Act. The 2nd Circuit further concluded that Congress intended to make sex “irrelevant” to employment decisions and that if the if sexual orientation discrimination is motivated, at least in part, by sex it is sex discrimination.

Furthermore, “… the most natural reading of the statute’s prohibition on discrimination… ” is that if it is “because of sex” it extends “…to sexual orientation discrimination because sex is necessarily a factor in sexual orientation.”

Local governmental officials need to be aware that the law in this area is currently in a state of flux at both the federal and state level; therefore, if presented with similar issues extra care needs to be taken until there is a resolution of whether or not an employment decision based on sexual orientation constitutes employment discrimination. For a more detailed examination of Zarda v. Altitude Express, see my comments in the March  2018 edition of the MMAA Newsletter.

Howard Wright © 2018

Posts that are related and may be of interest

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Search Warrant Not Required to Search Abandoned Cell Phone

Both the United States and Missouri Supreme Courts require a search warrant for a police officer to search a cell phone, except in certain circumstance. One well-recognized exception to this rule is exigent circumstances, defined as “whether the facts… would lead a reasonable, experienced officer to believe that there was an urgent need to render aid or take action.”

Are there other exceptions? An Eighth Circuit Court of Appeals opinion recently held that the police do not need a search warrant in order to search an abandoned cell phone.

cell phoneIn this case police officers in St. Paul, Minnesota received a report of two vehicles exchanging gunfire and were dispatched to a scene where a Buick crashed into a house. The wrecked Buick had bullet holes along its passenger side and a shot-out rear window.  The officers noticed a key in its ignition and a handgun on the driver’s side floorboard.  A witness informed the officers that after the crash the other vehicle’s shooter continued to fire at the Buick. The two male occupants of the Buick fled on foot leaving behind a cell phone. The officers found a man matching the description hiding behind a shed, a block and a half away, who was identified as Prentiss Crumble.

The police then obtained a search warrant for the cell phone left in the car and then conducted a search of the phone finding a video of Crumble on the phone brandishing his handgun similar to one that was recovered from the abandoned vehicle. The cell phone video was recorded shortly before the shooting. Crumble was then charged with a felony possession of a firearm. He then moved to suppress the evidence recovered from the cell phone. The federal district court concluded that the evidence from the cell phone was admissible because Crumble had abandoned his cell phone. Crumble appealed to the Eighth Circuit Court of Appeals.

The Eighth Circuit noted that the Fourth Amendment protects citizens “against unreasonable searches and seizures.”  In order to claim the protection of the Fourth Amendment, a defendant must demonstrate that he or she personally has a “reasonable expectation of privacy in the place searched․” The Opinion starts with the premise that a defendant does not have a reasonable expectation of privacy in abandoned property; therefore, the police had the right to search the cell phone without a warrant.  The Court noted that case law strongly supports the proposition that a “… warrantless search of abandoned property does not implicate the Fourth Amendment, for any expectation of privacy in the item searched is forfeited upon its abandonment.”

So what does this mean or more specifically when have you abandoned your cell phone? After all emails, text messages, pictures, calendar, photos, call records, contacts, music, and other important personal matters can be found on our cell phones. Surely when you lose your cell phone have not abandoned it.  In fact, if you’ve ever lost your cell phone, as I have,  your anxiety level is high and I guarantee you that you are frantically searching for your cell phone.

It seems pretty clear to me that the Eighth Circuit has teed this case up for review by the Supreme Court because the opinion does not rely upon the fact that the police officers obtained a search warrant.  The search warrant is simply a backup in case the abandonment theory fails.  If this case stands, it would be a major victory for law enforcement. Since our entire lives seem to be tied up with information stored on our cell phones I would be very cautious about this opinion because courts will be very careful in laying down guidelines as to when a cell phone has been abandoned.  I expect that the court will be very cautious in determining that losing a cell phone constitutes abandonment.  Stay tuned.

Howard Wright© 2018

Other Posts that are related and may be of interest:

Can the Police Search a Magnetic Tape on the Back of a Credit, Gift or Debit Card Without Obtaining a Search Warrant? – Dec 12, 2016 2:03 PM

Police Cannot Search Cell Phone Without A Warrant – Aug 6, 2014 7:41 AM

Search and Seizure In World Without Walls Feb 7, 2012 11:07 AM



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High Speed Police Chase Highlights The Need For Risk Management Training

Risk Management

Municipal officials are charged with setting policy for local governmental operations ranging from highly complex situations, like training  for the high-speed chase described below, that resulted in serious injury to an innocent person that cost the Kansas City one million dollars, to the rather mundane but important issue of making sure the property of the city is safe. In many ways, this is a risk management exercise that can pay off in significant dividends by reducing unnecessary injuries to citizens and costs to the taxpayers by utilizing good risk management policies.

High Speed Police Chase Highlights The Need For Risk Management

A recent lawsuit involving a high-speed chase in Kansas City highlights risk management issues. In the early morning hours a police officer observed a vehicle speeding through a red light. This information was forwarded to other police officers that observed the vehicle having difficulty in maintaining its lane of travel, speeding through stop signs, and stop lights before the officer lost sight of the vehicle.  Later the vehicle was again located parked near an intersection with the driver’s leg and arm outside the fully opened driver door.  Before the driver exited the vehicle, the officer’s spotlight alerted the driver who then sped off at high speeds approaching 100 mph while continuing to run through red lights and stop signs swerving out of the drivers lane and nearly running two vehicles off the road.

In coordination with other police officers, the officers decided to deploy “stop sticks,” or tire-deflation devices in the anticipated line of travel. When the vehicle hit the stop sticks, the SUV veered, flipped, and crashed into Mr. Moody’s vehicle, which was stopped because the officers were in the roadway deploying tire-deflation devices.   This resulted in serious injuries to Mr. Moody (a totally innocent person and cooperating citizen). Mr. Moody could not remember anything about that night, except it occurred after he left work, while driving to his security job at a nightclub. You know how it works. The innocent get punished. Sad but true.

cars hitting3426374007_b30a65d407

Naturally, Mr. Moody sued everyone in sight for damages and eventually obtained a $1 million dollar jury verdict against the Board of Police Commissioners of Kansas City (Board). The evidence supporting the jury verdict showed that:

“…the dash-cam video showed that Mr. Fields accelerated from about 60 miles per hour to about 100 miles per hour over the course of 20 seconds during which time Officer Brulja did not report that this was occurring until just before the crash.  He had conceded on cross-examination that the KCPD tire-deflation-device deployment policy indicated that stop sticks cause a “rapid” release of air when struck.  It would not have been unreasonable for jurors to conclude that the natural and probable consequence of Officer Brulja’s failure to accurately report the SUV driver’s speed and acceleration as stop sticks were deployed was the crash that injured Mr. Moody.”

Based on this evidence the appeals court concluded that vehicle policies of the Board were violated by the following actions:

“(1) the officers’ conversations indicated that the chase was a personal challenge; (2) the officers had information from which they could have identified Mr. Fields and apprehended him at a later time, but chose instead to pursue him; (3) the pursuit took place over roads with icy patches, and Mr. Fields drove the SUV erratically at very high speed, forcing other vehicles off the road, creating danger to the public that a jury could have found exceeded the danger presented by his remaining at large; and (4) tire-deflation devices were deployed in a manner that did not ensure public safety.”

 Policy And Training

In this case, the Board had established policies, which the police officers were required to follow in the case of a high-speed chase. Writing good policy seems like the easy part. The more difficult part is how to train officers to implement the policy. Whether or not the officers were properly trained in this case is unknownalthough they were not able to implement the policy in real time.  I do recognize that a police officer’s job is extremely difficult making it hard to be judgemental. What is clear (in my mind), is that this case offers a real-life model for a training exercise with respect to high-speed chases. You may want to include it in your training.

For a more detailed discussion of this case you may want to review my analysis in the December 2017 Missouri Municipal Attorneys Newsletter.

Howard Wright© 2018

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No Constitutional Right To Grow Marijuana

St. Louis City police detectives went to Shanklin’s residence after a “utility inquiry” showed excessive electricity use, consistent with marijuana cultivation. The police discovered more than 300 live marijuana plants, several hundred grams of packaged marijuana, a mesh dryer, and a digital scale commonly used to prepare and package marijuana for distribution.

pig with lipstick

Constitutional Amendment

Shanklin was charged with producing a controlled substance in violation of state law. Shanklin was found guilty and he appealed to the Missouri Supreme Court arguing that the state law was unconstitutional because it violated his constitutional right to farm guaranteed by article I, section 35, which provides:

“That agriculture which provides food, energy, health benefits, and security is the foundation and stabilizing force of Missouri’s economy. To protect this vital sector of Missouri’s economy, the right of farmers and ranchers to engage in farming and ranching practices shall be forever guaranteed in this state, subject to duly authorized powers, if any, conferred by article VI of the Constitution of Missouri.” (Amendment)

The Court reasoned in State of Missouri v, Shanklin, that the first sentence of the Amendment was prefatory and did not provide a constitutional right to engage in unregulated agriculture. The Amendment did not include any language suggesting that it was intended “to nullify or curtail long-standing laws regulating or prohibiting, cultivation, and harvest of controlled substances.” In addition, the Amendment recognizes farming and ranching practices are subject to local governmental regulation making it absurd to conclude that the Missouri voters intended to curtail state and federal regulatory authority over illegal drug trade while allowing local government to regulate the practice. State of Missouri v, Shanklin, (No.  SC96008, 12/5/17)

In an earlier Post, I noted that the hopes of the Missouri Farm Bureau, that the constitutional Amendment, guaranteeing the right to engage in farming and ranching would be interpreted broadly, was dashed by the Missouri Supreme Court in Shoemaker v. Kander. The Court’s statement in  Shoemaker  that “…no constitutional right is so broad as to prohibit all regulation” poured cold water over the Farm Bureau’s effort to make farming a constitutionally protected activity free from regulation.  

 Howard Wright© 2017

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Sex Stereotyping Is Gender Discrimination

In the last two years, the Court of Appeals for the Western District of Missouri (Western District) has decided three significant cases, all interrelated, dealing with gender discrimination, gender identity and sex stereotyping. The latest, decided by the Western District in October of 2017, (Lampley v. Missouri Commission On Human Rights), is a case of first impression, holding that sex stereotyping was gender discrimination; thereby, violating Missouri employment discrimination laws. Before discussing the sex stereotyping case in Lampley, it is useful to look at two earlier cases by the Western District because they provide important background.statue-of-liberty-1758290_960_720

In Pittman v. Cook Paper Recycling Corp., (a 2015 case) the President of Cook Paper repeatedly called Pittman a homosexual male who worked as a controller for Cook Paper obscene names and stated that he did not approve of the male companion that Pittman was seeing. When Pittman terminated his relationship with his male companion Pittman filed suit alleging that Cook Paper had created a hostile work environment, which led to Pittman being treated differently than persons who separated while in a traditional male/female relationship. The Western District held that Pittman did not state a cause of action because employment discrimination under the Missouri Human Rights Act (MHRA) applied only to male female gender discrimination. In other words, the meaning of the word “sex” in the MHRA meant gender (male or female); therefore, the statute was intended to only apply in situations where females were discriminated against by being treated differently than males or vice versa.

In the Pittman case, there was a vigorous dissent by Judge Gabbert, who argued that the definition of “sex” was much broader then gender discrimination and included “the phenomena of sexual instincts and their manifestations,” thereby making the MHRA applicable to other forms of sex discrimination than just gender. For a more detailed discussion of this case see my Post (“All About Sex”) arguing that the Western District majority opinion was in error. Unfortunately, the Missouri Supreme Court did not review the Pittman case leaving us with the holding by the Western District that sex discrimination in employment was limited to discrimination based upon gender. Gays, homosexuals, and transgender persons claiming sex discrimination need not apply.

The second case, (R. M. A. v. Blue Springs) a public accommodations case based on sex discrimination, was decided in August of 2017. This case involved a junior high school student (R.M.A.) who alleged that he was a female to male transgender teenager who transitioned to “living as a male” by changing his name to a male name and by changing his birth certificate to show that he was a male, based upon a certification by a doctor that a medical procedure has occurred making this change. As a result the state changed the gender on the birth certificate of R.Sex M.A. from female to male as permitted by Missouri law.

Based on these changes to his sexual identity, R.M.A. contended that he should be able to access the same locker rooms and restrooms as other boys who participated in physical education, which request was denied by the school district. R.M.A. sued and the Western District noted  that the history of the MHRA showed numerous attempts by the legislature to change the law to include sexual preference in the MHRA leading the court to conclude that the legislature never intended to include discrimination based upon gender identity in its original legislation, discrimination based on gender identity. In addition, the court relied on its earlier Pittman opinion, which held that the legislature did not intend to include within the definition of “sex” the concept of sexual orientation because it intended the word “sex” to relate to male/female “gender related traits.” Again, Judge Gabbert dissented arguing that this case represented a clear example of discrimination based on sex. After all, as Judge Gabbert noted that “but for” R.M.A.’s sexual anatomy the discrimination would not have occurred.

This brings us to the third and most recent case, Lampley v. Missouri Commission On Human Rights, decided in October of 2017. Lampley an employee alleged his employer discriminated against him based on sex stereotyping, because his behavior and appearance contradicted the stereotypes of maleness held by his employer and managers.   Lampley argued these stereotypes motivated his employer to harass him and treat him differently from similarly situated male employees who conformed to male gender stereotypes.

Lampley filed a sex discrimination case with the Missouri Commission on Human Right (MCHR). The MCHR, after investigation, terminated the proceedings, stating it lacked jurisdiction over claims based on sexual orientation. Lampley appealed to the Missouri Court of Appeals, Western District, which held in a case of first impression that “gender stereotyping” is a form of sex discrimination based on gender and is actionable under the MHRA. Interestingly, Judge Gabbert, who had dissented in the two earlier cases, wrote the opinion in Lampley v. Missouri Commission On Human Rights, relying upon the narrow definition of “sex” (sex refers to only male-female gender).

In Lampley v. Missouri Commission On Human Rights, Judge Gabbert relied upon the 1989 opinion by United States Supreme Court in Price Waterhouse, which held by a plurality that:

“we are beyond the day when an employer could evaluate employees by assuming or insisting that they matched the stereotype associated with their group, for ‘in forbidding employers to discriminate against individuals because of their sex, Congress intended to strike at the entire spectrum of disparate treatment of men and women resulting from sex stereotypes.”

The Western District also relied on earlier Missouri cases where the Missouri courts recognized that stereotyping based upon the type of work a pregnant woman could perform or a person’s age was a limitation for eligibility to work was discrimination based on stereotypingFor a more in depth analysis see MMAA November 2017 Newsletter.

So where are we with respect to resolution of these important issues? Will the Missouri Supreme Court review the Western District’s opinion in Lampley v. Missouri Commission On Human Rights or will it turn down Lampley like it did in Pittman, leaving us to dangle in the wind?

Outside federal forces may affect whether or not Missouri courts no walk or slow walk the review of Lampley v. Missouri Commission On Human Rights. See excellent article on July 11, 2017 by Lyle Denniston, in the Constitution Daily on “Major sex quality dispute on the way to Supreme Court.” Venturing a guess it would seem to me that Missouri might delay any decision until there are further developments at the federal level.

Howard Wright @ 2017

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Eastern District Issues Landmark Decision Upholding The Power Of Home Rule Cities To Tax Without A Grant From General Assembly

St Louis

The opinion in Neuner v City of St. Louis is one for the ages.  It is the most significant opinion, with respect to constitutional home rule powers, since the adoption of the 1971 amendmenOnt to the Missouri Constitution granting constitutional home rule cities all powers that the general assembly could grant that are not denied by its charter or by statute.  This opinion is extremely well reasoned and written (brilliant) and should (hopefully) withstand the scrutiny of the Missouri Supreme Court.

Article 6, Section 19(a) grants to constitutional home rule cities all the powers that the general assembly has the power to confer unless limited by its charter or by statute.

The question: Are the power in Article 6, Section 19(a) limited by Article 10, Section 1 of the Missouri Constitution, which provides that the taxing power of political subdivisions may only be exercised “under power granted to them by the general assembly”?  The 2017 opinion by the Western District in Neuner v City of St. Louis answers this question by concluding that Article 6, Section 19(a) is not limited by Article 10, Section 1, thereby, answering one of the most perplexing questions for municipal attorneys.

There are three parts to the Court’s opinion.  First, there is a historical analysis, which conclusively shows that the drafters of the 1875 Missouri Constitution did not intend Article 10, Section 1 to limit the taxing power of the City of St. Louis as a city authorized to adopt its own charter, provided that the city charter included provisions for such taxation.  This view prevailed for 64 years until 1943 when the Missouri Supreme Court reversed its earlier opinions by holding that the charter provisions that authorized the City to tax without a grant to tax from the General Assembly to the City of St. Louis were limited by Article 10 Section 1.  The Missouri Supreme Court did not discuss any of the pre-1943 opinions other than to simply overrule a 1933 opinion.  The 1943 opinion and subsequent opinions prevailed until 2017, at which time the Eastern District concluded in Neuner v City of St. Louis that the home rule city constitutional amendment in 1971 allowed constitutional home rule cities to tax without a grant of power to tax from the general assembly.

What does this mean? 

The most obvious is that when faced with problems   requiring a revenue source constitutional home rule cities in Missouri  (approximately 43 cities) have the power to provide funds through taxation to solve these problems subject to approval of a tax by the voters. This has the effect of unleashing the full creative power of  constitutional home rule cities to solve problems.

To read the full analysis of the opinion see my full Post in the October issue of the Missouri Municipal Attorneys Newsletter by clicking  here.

Howard Wright© 2017

Appeals in Neuter v City of St. Louis,  have now but exhausted making the above decision final since the Missouri Supreme Court did not cause case to be transferred to the Supreme Court.

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Eighth Circuit Upholds Minnesota Law Prohibiting Robocalls

It is hard to find anything more annoying or despised than

Recently the Eighth Circuit in Gresham v. Swanson, upheld a Minnesota law prohibiting robocalls against a free speech challenge.  The Petitioner in the Minnesota case sought a preliminary injunction against enforcement of the Minnesota statute, which was denied by the district court. The Eighth Circuit upheld the district court’s decision on the grounds that it was unlikely that the Petitioner would succeed on its First Amendment claim.

The Minnesota statute is simple and well written. It provides that:

“…a caller may not make a robocall what unless “(1) the subscriber has knowingly or voluntarily requested, consented to, permitted, or authorized receipt of the message; or (2) the message is immediately preceded by a live operator who obtains the subscriber’s consent before the message is delivered.” Subsection (b) then provides that subsection (a) does not apply to: “(1) messages from school districts to students, parents, or employees, (2) messages to subscribers with whom the caller has a current business or personal relationship, or (3) messages advising employees of work schedules.” § 325E.27(b). Subsection (b) also exempts from the requirements of subsection (a) “messages from a nonprofit tax-exempt charitable organization sent solely for the purpose of soliciting voluntary donations of clothing to benefit disabled United States military veterans and containing no request for monetary donations or other solicitations of any kind.”

The Eighth Circuit concluded that the first three exceptions in the statute were not content-based restrictions and were based upon valid time, place, and manner restrictions. Subsection (b) of the Act exempting messages from not-for-profit tax-exempt charitable organizations sent solely for the purpose of soliciting voluntary donations of clothing to benefit disabled military veterans was found to be content based and unconstitutional, which the Court severed from the rest of the statute. Other states have made the same mistake by carving out exceptions for not for profits and other similar organizations only to find out that courts invalidated their statute. The Minnesota statute and the opinion by the Eighth Circuit upholding the statute indicates that the statute should survive any challenge making it a good model  by Missouri.

bill of rights

Bill of Rights

Federal and State Statutes

Federal – The Telephone Consumer Protection Act (Act) limits the use of certain automated calls or texts and prerecorded voice calls (all of which are sometimes called “robocalls”), primarily made to cell phones.  The Act and the  implementing rules apply to political campaign-related calls or texts; however, the Act allows robocalls made to telephone landlines, even without express consent.

State – Missouri also has a no  call list but the exceptions to the law swallow the prohibitions. Organizations that are exempt include nonprofit organizations and charities, companies that you’re already doing business with (like your bank or cable TV provider), political groups, and research groups, making it particularly ineffective with respect to citizens who have land lines who do not want these calls.

What can you do  to block robocalls

First, get on the federal and Missouri no call list. There are many online articles, including an article by Huffington Post, that provides information about how to block robo calls.

Initiative Petition –  It would seem that  there is no possibility that the Missouri legislature would ever adopt a law prohibiting  robocalls like Minnesota. After all, many legislators use robocalls and there are well organized and financed groups that have a business interest in continuing the use of robocalls. Citizens who are annoyed by these calls may want to consider other action like an initiative so the voters can decide. 



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Westboro Baptist Church Redux    

Westboro Baptist Church is like a bad penny. You know the punch line. It keeps showing up.

So here’s another Eighth Circuit Court of Appeals decision,  in a long line of  Eighth Circuit, Westboro Baptist Church cases, upholding an Iowa state law that prohibited protests within 500 feet of a cemetery, mortuary, church, or other place of worship during a funeral within one hour before and two hours after the funeral.


First, a review of this case before discussing its implications.

The Eighth Circuit Court of Appeals in August of 2017, upheld a Nebraska law prohibiting protest activities within 500 feet from a cemetery, mortuary, church, or other place of worship during a funeral from one hour prior to and two hours following a funeral.   This case increased the  buffer zone distance from 300 feet to 500 feet, recognized in an earlier decision of the Eighth Circuit in 2012,  upholding an ordinance of the City of Manchester, Missouri, which restricted such protest activities within 300 feet and one hour prior and one hour after the funeral service.  The Eighth Circuit concluded that the state statute was a reasonable time, place, and/or manner restriction that did not violate the rights of the protesters.  Seemingly going from 300 to 500 feet  was no big deal, although a buffer zone distance of  500 feet, makes it one of the longest free speech buffer zone cases to be upheld.

By contrast  consider a  35 foot buffer zone in front of an entrance to an abortion clinic was unconstitutional because it was not the least restrictive means.  It is hard to square these   two opinions, except that innately we somehow know that a funeral is a very special  time when mourners, relatives, and friends are entitled to grieve and pay respect to the departed, in their own special way, without outside intrusion. It seems that the Supreme Court is willing to treat  protests at funerals  differently than protests at abortion clinics,  without recognizing the differences except by implication.

I always thought that the right of privacy  was a big factor, which seemed to me  where the Eighth Circuit was going  as I have argued for  in earlier Posts. In my mind, it is hard to make a  real substantive distinction between the two  outcomes.  It seems to me that this is just a matter of  subjective perspective.

List Of Westboro Church Posts By Howard Wright With Links


Posted on  by .| have described Westboro Baptist Church as the Church that loves to be hated in an earlier Post. I might add, they also love to rile up citizens into egging on state and local government officials to enact laws that … Continue reading 

Westboro Baptist Church Loses Challenge to Ordinance Prohibiting Picketing of Funeral Service

Westboro Baptist Church is a church that loves to be hated. It is a small group (Shirley and Megan Phelps-Roper and others) that pickets funerals of dead veterans with signs that state that the veterans died because of God’s wrath … Continue reading 

Posted in Law and Policy |

Westboro Baptist Church – Beginning of the End for Picketing of Funerals?

The ongoing saga of the Westboro Baptist Church and their despicable picketing of veterans’ funerals continues unabated despite the efforts of hundreds of local communities  and about 40 states that have passed laws prohibiting the picketing of funerals. The Eighth … Continue reading 

United States Supreme Court Closes Door on Damages in Westboro Baptist Church Case

In the face of hateful picketing by members of the Westboro Baptist Church, Albert Synder, the father of a soldier who was killed in Iraq in the line of duty filed a claim for damages against members of the Westboro Baptist … Continue reading 

Westboro Baptist Church Preaches Hell, Fire, and Damnation at Veterans Funerals.

Phelps-Roper (Roper) is a member of the Westboro Baptist Church that believes that God is punishing America by killing American soldiers for what her Church considers the sin of homosexuality. As part of her religious duties Roper believes funerals are … Continue reading 

Thirty-five Foot Buffer Zone For Abortion Clinics Unconstitutional.

In McCullen v. Coakley, the United States Supreme Court struck down a Massachusetts law that made it a crime to knowingly stand on a ”public way or sidewalk” within 35 feet of an entrance or driveway of a reproductive health … Continue reading 

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Harris–Stowe State University Gets Hit With Five Million Dollar Racial Discrimination Lawsuit

Harris–Stowe State University (Harris–Stowe), located in the City of St. Louis, recently lost an employment discrimination case based on reverse discrimination (black on white) where the jury awarded over $5 million dollars  in compensatory damages,   punitive damages and attorney fees.

bill of rights

Bill of Rights

Normally, I write about cases that announce important new principles of law. Harris-Stowe is not that kind of case. Nevertheless, this case is extremely useful because it provides a ready-made checklist showing important issues that need to be considered before  dismissing or taking other serious disciplinary action against an employee. The actions of Harris-Stove were so bad that the court made a special point of chastising the Board of the   University.

“In a time where claims of discrimination are most often proven through circumstantial evidence due to the covert and subtle nature of discriminatory conduct, this case stands apart. Rarely have we seen such manifest and open evidence of racial discrimination.”

Before launching into a serious disciplinary action you need to be aware of the strengths and weaknesses of your case. Don’t launch unless you have a good case backed by the record; instead, consider a lesser form of discipline that fits the mold of progressive discipline, unless the actions are so egregious that immediate action is required and even in those situations consider suspending the employee until a full investigation is completed.

Hint, best way to avoid  the mistakes of Harris-Stowe is to use a checklist and make sure your attorney or HR director has reviewed the file showing that consideration was given to the items on the checklist. A checklist allows you to weigh the strength and the weakness of an employment action, particularly from the standpoint of how the evidence could adversely affect the ability of the local government agency to defend the disciplinary action.

The Harris-Stowe case provides a backdrop for a good checklist based on the examination of the facts, which shows why the jury awarded the employee over                               $5 million dollars. In other words, we are going to look at the worst of the worst to see what we can learn from  mistakes. I take no great enjoyment in making these comments in light of long and esteemed history of Harris-Stowe.Harris-Stowe 5751754be18a1-image


My purpose is to reflect on past mistakes so we can learn for the future. Following is a list of glaring mistakes that made the Harris-Stowe case a nightmare                       to defend.

Past Performance Ratings – Of course, always check to see how the employee performance was rated in the past.  Obviously the performance of the employee at the time of the employment action is unsatisfactory. When past performance ratings are  excellent this is a red flag requiring an explanation from the supervisors.  Wilkins performance ratings were excellent from 2001 until almost to the day when the employment action was taken in 2010.

Bad Statements – Always look for bad statements in the work place by supervisors or fellow employees since these can have a tremendous impact on the outcome of the case. I do more than look; I literally comb the work environment because these statements can blow up in your face or your opponent destroying the ability to defend or the employment action. In the Harris-Stowe case Smith, the Dean of the Education Department, had repeatedly proclaimed her belief in “black power” prior to being appointed Dean.  Despite an order from the court directing that Harris–Stowe protect emails some emails were deleted.  These emails purportedly contained statements that the Board wanted to make the department “Blacker” at the expense of white employees leading to an instruction to the jury that the loss of these emails created a presumption that they contained information that was adverse to Harris–Stowe.

Follow Normal Procedures –  Wilkins, the employee, terminated in Harris-Stowe, notified the president, vice-president, Dr. Smith, and the human resources director by email that her termination did not comply with Harris-Stowe policies and that she was contemplating legal action. Harris-Stowe policies required that this notification officials should be considered a complaint of race discrimination, which required that there had to be an investigation. There was no investigation as required by the policies of Harris-Stowe.

Reason Given For Termination Was Pretextual – The termination of Wilkins did not comport with Harris-Stowe existing policy on reducing its work force. Under the reduction-in-force policy, Harris–Stowe was required to terminate non-adjunct faculty by seniority.  Contrary to its internal policies, Harris-Stowe officials terminated Wilkins over the less senior African-American instructors while adding teaching staff, which made the effort to reduce the budget deficit look nonsensical.

Failure to have a policy of progressive discipline; treating Wilkins with contempt while removing her from the Harris-Stowe campus (It looked like she was under arrest when she was removed by security from the campus); hiring new teachers despite the budget reductions when Harris-Stowe was engaged in a reduction of its workforce due to budget limitations; and failure to explain in any way why the Wilkins was terminated show why there was a large verdict.  This list could go on and on. 

The above analysis focuses on the major glaring errors and should not be considered a comprehensive list. You may want to use the following link in developing your own checklist. Consider also the following short  check list.

Howard Wright © 2017

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