The Supreme Court’s Reverse Discrimination Ruling

Yesterday’s Supreme Court ruling in favor of white firefighters will undoubtedly leave employers confused. The case out of New Haven, Conn. claims the white firefighters were denied promotions unfairly because of their race. To add to the confusion, the 5-4 ruling reverses a decision that Supreme Court nominee Sonia Sotomayor endorsed as a federal appeals judge.

To help explain the effects this ruling will have on employers, we turned to Brian LaFratta, attorney with Fisher & Phillips, a nationwide labor and employment law firm.

Emily: What sort of implications will today’s ruling have on employers?

LaFratta: This opinion will have significant implications for employers.  First, the court’s holding makes it more difficult for Plaintiffs to prevail on disparate impact claims. Second, the court held that the fear of litigation by one group of employees is not a valid reason to discriminate against another group of employees. This will impact employers’ handling of employment litigation threats, as they will have to be careful to resolve such threats in a manner that does not adversely affect employees in other classes. Third, the opinion demonstrates the inherent difficulties with employment examinations, as in this case the employer was in a no-win situation, facing a lawsuit regardless of how it resolved the examination controversy.

Emily: Will these implications be felt in only one sector or throughout all industries?

LaFratta: The decision will directly affect employers who utilize employment examinations, and thus primarily public sector employers. Such employers will have to be careful to construct valid tests, as they may be exposed to lawsuits depending on the results of the test. Also, employers faced with questionable test results will not simply be able to scrap the test results, as doing so would open them up to lawsuits by the successful test-takers. With respect to the court’s prohibition on using threatened litigation as a basis for discrimination, that would apply to all employers.

Emily: Would you say that this decision will change the landscape of civil rights law forever?

LaFratta: I wouldn’t go that far. Disparate impact claims (such as the one here) are not nearly as common as disparate treatment claims, so the impact of this lawsuit, although significant, is not that far reaching. I think the decision will have a bigger impact on how employers handle the use of employment tests and respond to litigation threats, which are more internal corporate matters. However, as it is a Supreme Court decision, it is “the law” until the Supreme Court reverses it or Congress tries to amend Title VII in a way to reverse it.


Thanks to Mr. LaFratta for shedding some light on the topic.

To test or not to test, employers must decide carefully.

Jackson’s Tour and Cancellation Coverage


Michael Jackson’s death may stick insurers with a $24 million bill over cancelled concerts.

Apparently, AEG Live, the promoter of Jackson’s 50 concert dates, purchased cancellation coverage for only three dates on the tour. This was because insurers found the singer too frail and too large of a risk when it came to coverage.

Insurance market Lloyd’s of London said its member corporations had underwritten some insurance taken out for the Jackson concerts, but said AEG is likely to be have had multiple policies with several insurers, who would each have taken on a portion of the risk.

It was reported that Los Angeles-based AEG would self-insure any shows it was unable to obtain insurance for. Though it is not yet clear which other insurers, if any, AEG used for coverage, what is clear is that someone will be stuck with a large bill for a tour that many feel was too risky and overly ambitious from the start.

IT Pros Not Protecting Sensitive Data

A recent survey by Credant Technologies shows that IT professionals really don’t have the time to be bothered with protecting their company’s sensitive data. The survey focused on mobile usage among 227 IT professionals — the majority of which hold a position at companies that employ more than 1,000 people.

Thirty five percent revealed they just don’t get around to using a password on their business phones and smartphones, even though they know they should as they contain sensitive and confidential information! Surprisingly, IT professionals are only marginally better at using passwords than the general population, as a survey conducted earlier in the year by CREDANT found that 40% of all users don’t bother with passwords on their mobile phones.

The sorts of information that IT professionals are storing on their smartphones and mobiles, many of which are totally unprotected with a password, include:

  • 80% Business names and addresses
  • 66% Personal names and addresses
  • 23% Business emails
  • 16% Personal emails
  • 12% Bank account details
  • 12% Business diary with details of all their appointments and meetings
  • 7% Personal diary
  • 5% Credit card information
  • 4% photos
  • 1% Passwords and Pin numbers

Andrew Kahl, Sr. VP of Operations & Co-Founder from CREDANT Technologies explains “It is alarming to note that the very people who are responsible for IT security are not much better at protecting the information on their business phones than most of their co-workers, who don’t necessarily know any better. If a mobile or smartphone goes missing and isn’t protected with a password, and contains business names and addresses and other corporate data such as business emails, then the company is immediately in breach of the data protection act by failing to meet some of its principals on electronic data.”

A scary thought, considering that last year alone saw 656 different security breach incidents, an increase of 47% over 2007’s total of 446, according to the Identity Theft Resource Center. ITRC also claims that the bulk of breached data was unprotected by encryption or passwords.

If IT professionals are failing to protect sensitive data, who is succeeding?


Security Breach Sentence: $9.75 Million

On January 17, 2007, an individual hacked into the computer systems of TJX Companies (parent company of T.J. Maxx and Marshalls) and stole credit card information on at least 94,000,000 individuals. It ranks as the largest security breach ever recorded, according to

And as reported today, the company has agreed to pay $9.75 million to 41 states as part of its settlement.

Framingham, Mass.-based TJX Cos. said Tuesday it will pay $2.5 million to create a data security fund for states as well as a settlement amount of $5.5 million and $1.75 million to cover expenses related to the states’ investigations. But TJX stressed that it “firmly believes” that it did not violate any consumer protection or data security laws.

Under the settlement, TJX must also prove that its computer systems meets stringent data security requirements.

Eleven people were charged with hacking into the systems of TJX and other retailers to steal credit card information. The legal proceedings for those individuals are still under way.