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Topic: "Discrimination - Age" | Main

5th Circuit recognizes ADEA hostile work environment claim
September 12, 2011 by Ross Runkel at LawMemo

For the first time, the 5th Circuit has recognized a hostile work environment claim based on the Age Discrimination in Employment Act (ADEA).

Dediol v. Best Chevrolet Inc (5th Cir 09/12/2011).

Milan Dediol was 65, employed as an auto salesperson. He produced evidence that his manager, half a dozen times daily for eight weeks, called him names like "old mother******," "old man," and "pops."

The trial court granted summary judgment for the employer; but the 5th Circuit reversed.

The 5th Circuit said that the pervasiveness of these alleged comments created a genuine issue of material fact concerning an ADEA hostile work environment claim.

In addition, there was evidence of physically threatening or humiliating conduct: that his manager charged at him during a staff meeting, often threatened to kick his ass, and removed his shirt and said "You don’t know who you are talking to. See these scars. I was shot and was in jail."

My view:

On its facts this was an easy case. Clear evidence of a hostile work environment, created by a manager, based on an employee's age. Several weeks of repetition of age-based comments.

The big new is that this was a first for the 5th Circuit. Courts have for a long time recognized claims of a hostile work environment based on an employee's race, sex, or religion. Appellate court cases involving a hostile work environment based on an employee's age are surprisingly rather rare. One such case is Crawford v. Medina Gen Hosp, 96 F3d 830 (6th Cir 1996), which the 6th Circuit followed.

(There also was evidence that Dediol was subjected to a religiously hostile working environment: he was forced to work on a day when he wanted to volunteer at a church event, and his manager engaged in "a pattern of small instances.")

(And there was evidence of constructive discharge, that "a reasonable party in his shoes would have felt compelled to resign." This was based to a large extent on evidence of a difficult and volatile relationship between Dediol and his manager, which escalated into a physical altercation in front of others.)



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$120,000 Kmart age bias settlement
March 30, 2010 by Ross Runkel at LawMemo

EEOC charged Kmart with age harassment, constructive discharge and retaliation against a 70-year-old pharmacist.

EEOC claimed that over the course of four years, a pharmacy manager openly professed on several occasions that the pharmacist was “too old,” “should just retire,” and was “greedy” for continuing to work at age 70.

EEOC also claimed that Kmart changed her schedule to encourage her to quit, and threatened legal action against the pharmacist using a pretext on an unrelated matter to retaliate against her for complaining to management.

The case settled for $120,000.

[Press release]




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EEOC: RFOA regs
February 22, 2010 by Ross Runkel at LawMemo

EEOC published a Notice of Proposed Rulemaking on Thursday addressing the meaning of “reasonable factors other than age” (RFOA) under the Age Discrimination in Employment Act.

The proposed rule explains that the RFOA defense applies only if the challenged practice is not based on age, and that a neutral practice that disproportionately affects older workers can be justified only by showing that the practice is objectively reasonable when viewed from the perspective of a reasonable employer under like circumstances.

The proposal sets forth non-exhaustive lists of factors relevant to determining whether a factor is “reasonable” and “other than age.”

Comments are due April 19.

[Federal Register]



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$175,000 age discrimination settlement
February 07, 2010 by Ross Runkel at LawMemo

EEOC sued Astea International, claiming it discharged a 47 year old vice president and replaced him with someone 15 years younger.

The parties entered a consent decree proving for payment of $175,000 and other relief.

EEOC Press release 02/02/2010:

Astea International Will Pay $175,000 to Settle EEOC Age Discrimination Lawsuit

Global Software Company Fired 47-Year-Old VP Because of Age, Federal Agency Said

PHILADELPHIA – The U.S. Equal Employment Opportunity Commission (EEOC) announced today that it has filed and resolved an age discrimination lawsuit against Horsham, Pa.-based Astea International, Inc. for $175,000 in monetary relief and significant equitable relief.

According to the EEOC’s lawsuit, Frank Fesnak satisfactorily performed his duties as vice president of strategic alliances but was fired because of his age, 47. The EEOC charged that after Fesnak was assigned to report to a different supervisor, the new supervisor made derogatory comments regarding older workers. Astea, a professional consulting services group, abruptly terminated Fesnak and hired someone 15 years younger to replace him, the EEOC said in its lawsuit, Civil Action No. 10-CV-286, filed in U.S. District Court for the Eastern District of Pennsylvania.

Such alleged conduct violates the Age Discrimination in Employment Act (ADEA). The EEOC filed suit after first attempting to reach a pre-litigation settlement.

In addition to the $175,000 in monetary relief to Fesnak, the two-year consent decree includes: injunctive relief prohibiting Astea from engaging in unlawful age discrimination; anti-discrimination training; and the posting of a notice about the settlement. Astea did not admit liability in the consent decree, which was approved by the court on Jan. 26.

“We are pleased that Astea worked with us so that we could file both the complaint and the consent decree resolving the lawsuit on the same day without the parties engaging in costly litigation,” said Acting Regional Attorney Debra Lawrence of the EEOC’s Philadelphia District Office, which oversees Pennsylvania, Delaware, West Virginia, Maryland, and parts of New Jersey and Ohio. “In addition to providing satisfactory monetary relief, the consent decree contains important equitable relief to prevent future workplace problems, including training of all managers and employees at the corporate headquarters.”

In Fiscal Year 2009, age discrimination charges reached 22,778, the second-highest level ever. In July 2009, the EEOC held a public hearing on age discrimination and barriers to the employment of older workers. Additional information about the hearing can be found on the EEOC’s web site at http://www.eeoc.gov/eeoc/meetings/7-15-09/index.cfm.

According to its web site, Astea International is a global provider of service management software solutions. Further information about the company is available on its web site, www.astea.com.

The EEOC enforces federal laws prohibiting employment discrimination. Further information about the EEOC is available on its web site at www.eeoc.gov.




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$40,000 age discrimination settlement
February 07, 2010 by Ross Runkel at LawMemo

A clothing store company will pay $40,050 to settle an age discrimination suit brought by the EEOC. 

EEOC claimed that the company subjected a co-manager to discriminatory terms and conditions of employment, including disparate discipline, and, ultimately, terminated her because of her age.


EEOCPress release 02/03/2010:

Charming Shoppes / Fashion Bug to Pay $40,000 to Settle EEOC Age Discrimination Suit

Federal Agency Charged Company Terminated Employee Because of Age

ATLANTA – Charming Shoppes, Inc., an Atlanta clothing store company, will pay $40,050 to settle an age discrimination lawsuit brought by the U.S. Equal Employment Opportunity Commission (EEOC), the Agency announced today.

In its lawsuit, filed on October 9, 2009, in U.S. District Court for the Northern District of Georgia, Rome Division (Case No.: 4:09-CV-00160-HLM-WEJ), the EEOC had charged that Charming Shoppes, doing business as Fashion Bug, subjected Angela Ray, a co-manager at the Rome, Ga., store, to discriminatory terms and conditions of employment, including disparate discipline and, ultimately, terminated her because of her age.

Charming Shoppes also owns Lane Bryant, Catherine’s, Crosstown Traders and Petite Sophisticate and operates 26 stores in the Atlanta area.

The consent decree settling the suit, in addition to the monetary relief, includes provisions for equal employment opportunity training, reporting, and posting of anti-discrimination notices. In the suit and consent decree, Charming Shoppes denied any liability or wrongdoing.

“We are pleased with the employer’s efforts to quickly resolve this dispute, while taking affirmative steps to remain in compliance with the law in the future,” said Robert Dawkins, regional attorney for the EEOC’s Atlanta office. “Going forward, we believe Charming Shoppes is sincerely committed to avoiding these types of problems.”

The EEOC enforces federal laws prohibiting employment discrimination. Further information about the EEOC is available on its web site at www.eeoc.gov.




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EEOC sues law firm claiming age discrimination
January 31, 2010 by Ross Runkel at LawMemo

EEOC sued Kelley Drye & Warren last week, claiming that attorneys who practiced law after turning 70 years of age received dramatically reduced compensation compared to similarly productive younger attorneys solely because of their age.

EEOC also claims the firm retaliated against one attorney for complaining and filing an EEOC charge.

[Complaint in EEOC v. Kelley Drye & Warren]

EEOC Press release:

1-28-10

EEOC Sues Law Firm Kelley Drye & Warren for Age Discrimination and Retaliation

New York-Based Firm Significantly Underpaid Attorneys After They Turned 70 Solely Based on Age, Federal Agency Charged

NEW YORK -- Kelley Drye & Warren, an international law firm with its primary office in New York City, violated federal age discrimination law through its compensation system, the U.S. Equal Employment Opportunity Commission (EEOC) charged in a lawsuit it filed today.

According to the EEOC’s suit, in Kelley Drye’s system, attorneys who practiced law after turning 70 years of age received dramatically reduced compensation compared to similarly productive younger attorneys solely because of their age. The EEOC further charged that Kelley Drye unlawfully retaliated against Eugene T. D'Ablemont, an attorney who has practiced law at the firm for over 40 years, by further reducing his compensation after he complained about this discriminatory policy and filed a charge with the EEOC.

“Law firms that single out older attorneys for adverse treatment simply because of their age run great risk of violating the federal prohibition on age discrimination,” said EEOC Acting Chairman Stuart J. Ishimaru. “This lawsuit should serve as a wake-up call for law firms to examine their own practices to ensure they comport with federal law.”

The EEOC’s lawsuit, Civil Action No. 10- CV-0655, filed in U.S. District Court for the Southern District of New York, said that Kelley Drye requires all partners to give up their ownership interest in the firm at the age of 70. If an attorney continues to work, his or her compensation consists of an annual "bonus" payment in an amount totally within the discretion of the firm's executive committee. Since D'Ablemont turned 70 in 2001, even though he routinely has obtained over $1 million in fees annually from his clients, his compensation has been substantially less than younger lawyers at the firm with similar productivity. Moreover, in 2008 and 2009, after D'Ablemont had complained internally about Kelley Drye's age-based compensation system, ultimately resulting in his filing of an age discrimination charge with the EEOC, the firm reduced his bonus payment by two-thirds even though his productivity remained the same.

This alleged conduct violates the Age Discrimination in Employment Act (ADEA), which prohibits age-based employment discrimination against those aged 40 and older, and which also bars employers from retaliating against those who complain about such unlawful practices. The EEOC filed suit only after attempting to reach a voluntary pre-litigation settlement.

“A law firm's compensation for its attorneys should be based on ability and productivity, not on age-based stereotypes about declining effectiveness,” said Elizabeth Grossman, regional attorney in the EEOC's New York office.

Spencer H. Lewis, Jr., director of the EEOC New York District Office, added, “More and more attorneys are effectively practicing law into their 70s and beyond. This is also seen by the fact that most current Justices on the U.S. Supreme Court are over 70 years old.”

In FY 2009, the EEOC received 22,778 age discrimination charge filings, the second highest level ever, accounting for 24% of its private sector caseload. EEOC’s age discrimination charge data are available on its web site at http://www.eeoc.gov/eeoc/statistics/enforcement/adea.cfm.

The EEOC is the government agency responsible for enforcing federal anti-discrimination laws in the workplace. Further information about EEOC is available at www.eeoc.gov.



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$70 million settles TV writers age case
January 25, 2010 by Ross Runkel at LawMemo

A long-running suit by Hollywood writers against 24 networks, production studios and talent agencies has been settled for $70,000,000.

The suit, involving about 165 plaintiffs, claimed systematic age discrimination by talent agents who aided and abetted networks and studios by refusing to represent and refer older writers for work at the studios.

[Article]



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$237,072 settles age class action
January 22, 2010 by Ross Runkel at LawMemo

EEOC claimed that the Mineola, NY fire district refused to let volunteer firefighters over age 60 accrue credit toward a “length of service award,” the equivalent of a retirement pension, because of their age. EEOC said this resulted in senior firefighters losing pension amounts after they turned 60.

The suit settled for $237,072 distributed to 25 firefighters.

[Press release]



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$4,500,000 distributed in age discrimination case
December 18, 2009 by Ross Runkel at LawMemo

A federal district court has approved distribution of $4,500,000 to 90 claimants in a disparate impact case brought by EEOC against Allstate Insurance Co.

EEOC claimed that a one-year hiring moratorium during a reorganization had a disproportionate impact on employees over the age of 40. More than 90% of the agents subjected to the moratorium were 40 years of age or older.

EEOC claimed this was a violation of the Age Discrimination in Employment Act (ADEA), which Allstate denied.

[Press release]



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$75,000 settles age case
December 18, 2009 by Ross Runkel at LawMemo

EEOC and City of North Richland Hills, Texas, agreed on a $75,000 settlement on EEOC's claim that the city subjected a former employee to age-based harassment which resulted in his constructive discharge. 

EEOC claimed the employee was ridiculed with age-based taunts that he was too old to keep up, made too much money, and was too old to do his job. The EEOC also alleged that after suffering the abusive behavior for several months, the employee reported the harassment to his supervisor and to the city's human resources department, yet the city failed to take corrective action and the harassment increased to the point that the employee was forced to resign.

[Press release]



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EEOC v. At&T class action for age discrimination
August 20, 2009 by Ross Runkel at LawMemo

Today EEOC filed a class action suit against AT&T, Inc. and a number of its subsidiaries alleging age discrimination.

The basic claim: AT&T discriminated against a class of retired AT&T workers by denying them the ability for reemployment solely because they retired under early retirement plans including the Voluntary Retirement Incentive Program (VRIP), the Enhanced Pension and Retirement Program (EPR) or other retirement plan.

Read the court complaint, 6 pages is all.

The EEOC press release:

NEW YORK – The U.S. Equal Employment Opportunity Commission (EEOC) has filed an age discrimination lawsuit against AT&T, Inc. and a number of its subsidiaries, the agency announced today. The EEOC charged that AT&T discriminated against a class of retired AT&T workers by denying them the ability for reemployment solely because they retired under early retirement plans including the Voluntary Retirement Incentive Program (VRIP), the Enhanced Pension and Retirement Program (EPR) or other retirement plan. The effect of this denial of reemployment results in a disproportionate number of older workers not having the same opportunity to apply for reemployment, in violation of the Age Discrimination in Employment Act (ADEA).

According to the EEOC’s lawsuit, Case No. 09 Civ 7323, filed in U.S. District Court for the Southern District of New York, John Yates, who filed the discrimination charge with the EEOC, and a class of other retired AT&T workers, are denied reemployment because they had participated in the VRIP, EPR or other retirement program. Yates and all other retirees who are age 40 or older are protected by law from discrimination because of their age. The result of AT&T’s policy is to exclude this class of older workers because of their age from being reemployed by AT&T regardless of their qualifications. This violation has been ongoing since at least October 1, 2006, the EEOC said.

“We’ve been taking a new and hard look at age discrimination recently, and we’re intent on enforcing the ADEA strategically and vigorously,” said EEOC Acting Chairman Stuart J. Ishimaru. “This particular case highlights the Commission’s commitment to combating age-based disparate impact discrimination.”

EEOC Trial Attorney Louis Graziano said, “Federal law prohibits employers from instituting policies that adversely affect workers because of their age. AT&T’s policy has that effect.”

EEOC New York District Director Spencer H. Lewis added, “All employees, regardless of their age, should be permitted to complete for jobs equally. That is the fundamental right that the ADEA grants to older workers. We hope this lawsuit sends a message to such employers that the EEOC will seek relief when it finds the law has been violated."

According to company information, Dallas-based AT&T is the largest telecommunications company in the world by revenue, with more than $124 billion in 2008.

In July of this year the EEOC held a public hearing on recent developments in age discrimination, including the effect on older workers of widespread layoffs, threats to employee benefits and controversial recent court decisions. The Commission also issued a technical assistance document on waivers of discrimination claims as part of severance agreements. Further information is available at http://www.eeoc.gov/press/7-15-09.html and http://www.eeoc.gov/policy/docs/qanda_severance-agreements.html.

The EEOC enforces federal laws prohibiting employment discrimination. Further information about the EEOC is available on its web site at www.eeoc.gov.



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7th - Employee unable to show age discrimination during RIF
July 29, 2009 by Ross Runkel at LawMemo

From today's Employment Law Memo:

Martino v. MCI Communications (7th Cir 07/28/2009)

Martino sued his former employer claiming he was selected for termination during a reduction in force because he was nearing his 56th birthday. The trial court granted summary judgment for the employer; the 7th Circuit affirmed.

Originally hired by MCI at age 54, Martino was discharged as part of a reduction in force that followed MCI's merger with Verizon. Martino did not argue that there was evidence of age discrimination as to the ultimate decisionmaker or as to the manager who submitted his name as a RIF candidate. His claim was that his immediate supervisor harbored age animus. The 7th Circuit analyzed the case three ways.

(1) Martino claimed he had direct evidence of bias because his supervisor had referred to him as "oldtimer." Using the "cat's paw" theory, the court found that Martino's supervisor did not have "singular influence" over the decisionmaker, and that the decisionmaker (plus an intermediate recommender) conducted an independent and bias-free analysis.

(2) Using the indirect method of proof, the court found that Martino failed to establish two elements. (a) He did not establish that he was meeting the employer's expectations in that he was not a team player, and he had an "obsolete skill set" that would be of declining value as the employer shifted its focus to a different type of service. (b) He could not establish that the employer treated younger workers better. Although the employer retained some employees who were younger than 40, Martino uniquely had lost the confidence of the core sales team and stood out as poorly equipped for the employer's new focus.

(3) Martino could not show that, but for his age, he would not have been terminated, as is required under Gross v. FBL Financial (US Supreme Court 2009). At best he could do no more than show that his age possibly solidified the employer's decision.



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WI - State law age discrimination claim was barred by "ministerial exception" (4-3)
July 24, 2009 by Ross Runkel at LawMemo

A first grade teacher at a Catholic school brought an age discrimination claim against Coulee Catholic Schools under the Wisconsin Fair Employment Act (WFEA). The trial court rejected the employer’s assertion that the employee fell within the "ministerial exception" under the 1st Amendment and its state counterpart. The appellate court below affirmed. The Supreme Court of Wisconsin reversed by a vote of 4 to 3. Coulee Catholic Schools v. Lab & Ind Review Commn (Wisconsin 07/21/2009)

The court concluded that

"both the Free Exercise Clause of the First Amendment of the United States Constitution and the Freedom of Conscience Clauses in Article I, Section 18 of the Wisconsin Constitution preclude employment discrimination claims under Sections 111.31 to 111.395 of the Wisconsin Fair Employment Act for employees whose positions are important and closely linked to the religious mission of a religious organization."

The court noted that "[t]he better way to view the ministerial exception is from what might be called the ‘functional’ approach." Under that approach, the key question is "whether a position is important to the spiritual and pastoral mission of the church." The court also noted that "[t]he primary concern here is the function of the employee, not only the enumerated tasks themselves."

The Dissenters said:

[O]ur court is reaching the anomalous conclusion that a first-grade lay schoolteacher at a Catholic school fits within the narrow "ecclesiastical"1 exception barring adjudication of her age discrimination suit against her employer. To reach that conclusion, the majority improvidently alters the primary duties test that Wisconsin courts and a significant majority of other jurisdictions have applied when confronted with the question of whether to apply the ecclesiastical exception. I disagree with the majority's conclusion that the Free Exercise Clause of the First Amendment to the United States Constitution and the freedom of conscience clauses in Article I, Section 18 of the Wisconsin Constitution preclude adjudication of this claim.


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SCOTUS - Age discrimination: Burden of proof never shifts
June 18, 2009 by Ross Runkel at LawMemo

Before today, it was quite common for courts to use Title VII's burden-shifting analysis when dealing with age discrimination (ADEA) cases.

Put that into the past. The US Supreme Court has spoken, voting 5 to 4. Gross v. FBL Financial Services (US Supreme Court 06/18/2009) [Full text] [Official Syllabus] [Briefs]

Take a discharge case as an example. In Title VII cases, the usual proof methods are that the employee first shows that there is an inference of unlawful discrimination, and then the employer has the burden of producing evidence that the discharge was for a lawful reason. Sometimes, in what are called "mixed motives" cases, the burden of proof can shift to the employer. (My explanation is hopelessly short and incomplete, I know.)

However, in an ADEA case, the rules are different because the statute is worded differently. Title VII was amended in 1991 to say an employee could win by showing that an improper consideration was "a motivating factor," but that amendment did not extend to the ADEA. The Court held that the mixed-motives proof method simply does not apply in ADEA cases.

In an ADEA case, the employee must prove that age was the "but-for" cause of the employer's action. The burden does not shift to the employer. Thus, the burden of persuasion is going to be the same in mixed-motives cases as in any other ADEA disparate treatment case.

This ruling came as a surprise because this was not the issue that was briefed and argued. The formal issue before the Court was whether an employee must present "direct" evidence in order to get a mixed motives jury instruction. But answering that question was unnecessary because the Court held that "such a jury instruction is never proper in an ADEA case."

My view:

  • This will be the biggest employment law case of 2009.

  • Surprised that the Court decided an issue that was not briefed and argued. 

  • Not surprised that five Justices gave such weight to Congress' failure in 1991 to re-write the ADEA while re-writing Title VII. 

  • Certain that Congress will amend the ADEA so as to overcome the effect of the Gross case.



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Supreme Court: Mixed motives jury instruction "is never proper in an ADEA case"
June 18, 2009 by Ross Runkel at LawMemo

The US Supreme Court decided today (5-4) that a mixed motives jury instruction "is never proper in an ADEA case."

Gross v. FBL Financial Services (US Supreme Court 06/18/2009)

Gross sued claiming that his demotion was in violation of the Age Discrimination in Employment Act (ADEA), and won a jury verdict. The 8th Circuit reversed on the ground that the jury had been improperly instructed under the standard established in Price Waterhouse v. Hopkins, 490 US 228 (1989). The US Supreme Court vacated the 8th Circuit decision.

The Court said:

"The parties have asked us to decide whether a plaintiff must 'present direct evidence of discrimination in order to obtain a mixed-motive instruction in a non-Title VII discrimination case.'. Before reaching this question, however, we must first determine whether the burden of persuasion ever shifts to the party defending an alleged mixed-motives discrimination claim brought under the ADEA. We hold that it does not."
"We hold that a plaintiff bringing a disparate-treatment claim pursuant to the ADEA must prove, by a preponderance of the evidence, that age was the 'but-for' cause of the challenged adverse employment action. The burden of persuasion does not shift to the employer to show that it would have taken the action regardless of age, even when a plaintiff has produced some evidence that age was one motivating factor in that decision. Accordingly, we vacate the judgment of the Court of Appeals and remand the case for further proceedings consistent with this opinion."

The DISSENT argued that it was "particularly inappropriate for the Court, on its own initiative, to adopt an interpretation of the causation requirement in the ADEA that differs from the established reading of Title VII. I disagree not only with the Court’s interpretation of the statute, but also with its decision to engage in unnecessary lawmaking. I would simply answer the question presented by the certiorari petition and hold that a plaintiff need not present direct evidence of age discrimination to obtain a mixed-motives instruction."



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Direct evidence needed for mixed motive analysis?
December 10, 2008 by Ross Runkel at LawMemo

The US Supreme Court will decide whether a plaintiff must present direct evidence of discrimination in order to obtain a mixed-motive instruction in a non-Title VII discrimination case.

The Court granted certiorari on December 5 in Gross v. FBL Financial Services, Inc. (Docket No. 08-441) [Details]

The Court is reviewing the judgment of the 8th Circuit in Gross v. FBL Financial Services, Inc. (8th Cir 05/14/2008)

Gross sued the employer, asserting an age discrimination (discriminatory demotion) claim under the Age Discrimination in Employment Act (ADEA). Gross prevailed after a jury trial. The 8th Circuit reversed.

In Price-Waterhouse v. Hopkins, 490 US 228 (1989), a plurality of the United States Supreme Court set forth the analysis applicable to "mixed motive" cases. Justice O'Connor's concurring opinion in that Title VII case is generally seen as the controlling opinion setting forth the governing rule of law. Under that analysis, in order to be entitled to a mixed-motive jury instruction, an employee must produce "direct evidence."

Subsequently, Title VII was amended by the Civil Rights Act of 1991 via the addition of 42 USC Section 2000e-2(m). Section 2000e -2(m) superseded Price-Waterhouse by making "motivating factor" (rather than "direct evidence") the touchstone for mixed-motive analysis for Title VII discrimination cases.

The 8th Circuit held that "Section 2000e-2(m) does not apply to claims arising under the ADEA." The court reasoned that "[b]y its terms, the new section applies only to employment practices in which 'race, color, religion, sex, or national origin' was a motivating factor." The 8th Circuit noted "[w]hen Congress amended Title VII by adding Section 2000e-2(m), it did not make a corresponding change to the ADEA, although it did address the ADEA elsewhere in the 1991 Act." Since the jury in Gross' case was instructed consistent with Section 2000e-2(m) rather than Price-Waterhouse, the 8th Circuit reversed.

Oral argument will be scheduled for sometime in 2009, with a decision expected to follow in the Spring.

My view: It makes no sense to require so-called “direct” evidence, because nobody really knows what that means, and the ADEA makes no mention of it. I think any type of evidence will do, whether or not it gets categorized as “direct evidence.”



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Mixed-motive under the ADEA
May 16, 2008 by Ross Runkel at LawMemo

Gross v. FBL Financial (8th Cir 05/14/2008) holds that in ADEA cases the 1989 decision in Price-Waterhouse v. Hopkins, 490 US 228, controls how the jury should be instructed regarding the employer's mixed-motive.

It is error to use the Title VII "motivating factor" test that was added to Title VII (but not added to the ADEA) by the Civil Rights Act of 1991: 42 USC Section 2000e-2(m).

Gross sued the employer, asserting an age discrimination (discriminatory demotion) claim under the Age Discrimination in Employment Act (ADEA). Gross prevailed after a jury trial, but the 8th Circuit reversed.

In Price-Waterhouse v. Hopkins, 490 US 228 (1989), a plurality of the United States Supreme Court set forth the analysis applicable to "mixed motive" cases. Justice O'Connor's concurring opinion in that Title VII case is generally seen as the controlling opinion setting forth the governing rule of law.

Under that analysis, in order to be entitled to a mixed-motive jury instruction, an employee must produce "direct evidence."

Subsequently, Title VII was amended by the Civil Rights Act of 1991 via the addition of 42 USC Section 2000e-2(m). Section 2000e -2(m) superseded Price-Waterhouse by making "motivating factor" (rather than "direct evidence") the touchstone for mixed-motive analysis for Title VII discrimination cases.

The 8th Circuit held that "Section 2000e-2(m) does not apply to claims arising under the ADEA." The court reasoned that "[b]y its terms, the new section applies only to employment practices in which 'race, color, religion, sex, or national origin' was a motivating factor." The court noted "[w]hen Congress amended Title VII by adding Section 2000e-2(m), it did not make a corresponding change to the ADEA, although it did address the ADEA elsewhere in the 1991 Act."

Because the jury in Gross' case was instructed consistent with Section 2000e-2(m) rather than Price-Waterhouse, the 8th Circuit reversed.



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25 words on Federal Express Corp v. Holowecki
February 27, 2008 by Ross Runkel at LawMemo

In Federal Express Corp v. Holowecki (US Supreme Court 02/27/2008) (7-2) the Supreme Court came to grips with a long-standing legal question: Whether an employee alleging discrimination gets the ball rolling (and stops the statute of limitations) by filing what the EEOC calls an "intake questionnaire." The answer is "Yes."

The Supreme Court decision in 25 words:

EEOC's "intake questionnaire" can serve as a "charge," because the statute doesn't define "charge" and EEOC regulations fill in the gaps in a reasonable way.

The Official Syllabus:

The Age Discrimination in Employment Act of 1967 (ADEA) requires that "[n]o civil action ... be commenced ... until 60 days after a charge alleging unlawful discrimination has been filed with the Equal Employment Opportunity Commission" (EEOC), 29 U. S. C. §626(d), but does not define the term "charge." After petitioner delivery service (FedEx) initiated programs tying its couriers' compensation and continued employment to certain performance benchmarks, respondent Kennedy (hereinafter respondent), a FedEx courier over age 40, filed with the EEOC, in December 2001, a Form 283 "Intake Questionnaire" and a detailed affidavit supporting her contention that the FedEx programs discriminated against older couriers in violation of the ADEA. In April 2002, respondent and others filed this ADEA suit claiming, inter alia, that the programs were veiled attempts to force out, harass, and discriminate against older couriers. FedEx moved to dismiss respondent's action, contending she had not filed the "charge" required by §626(d). Respondent countered that her Form 283 and affidavit constituted a valid charge, but the District Court disagreed and granted FedEx's motion. The Second Circuit reversed. 

Held: 

    1. In addition to the information required by the implementing regulations, i.e., an allegation of age discrimination and the name of the charged party, if a filing is to be deemed a "charge" under the ADEA it must be reasonably construed as a request for the agency to take remedial action to protect the employee's rights or otherwise settle a dispute between the employer and the employee. 

        (a) There is little dispute that the EEOC's regulations-so far as they go-are reasonable constructions of the statutory term "charge" and are therefore entitled to deference under Chevron U. S. A. Inc. v. Natural Resources Defense Council, Inc., 467 U. S. 837 . However, while the regulations give some content to the term charge, they fall short of a comprehensive definition. Thus, the issue is the guidance the regulations give. Title 29 CFR §1626.3 says: "charge shall mean a statement filed with the [EEOC] which alleges that the named prospective defendant has engaged in or is about to engage in acts in violation of the Act." Section 1626.8(a) identifies information a "charge should contain," including: the employee's and employer's names, addresses, and phone numbers; an allegation that the employee was the victim of age discrimination; the number of employees of the charged employer; and a statement indicating whether the charging party has initiated state proceedings. Section 1626.8(b), however, seems to qualify these requirements by stating that a charge is "sufficient" if it meets the requirements of §1626.6-i.e., if it is "in writing and ... name[s] the prospective respondent and ... generally allege[s] the discriminatory act(s)." That the meaning of charge remains unclear, even with the regulations, is evidenced by the differing positions of the parties and the Courts of Appeals on the matter.

        (b) Just as this Court defers to reasonable statutory interpretations, an agency is entitled to deference when it adopts a reasonable interpretation of its regulations, unless its position is " ' plainly erroneous or inconsistent with the regulation,' " Auer v. Robbins, 519 U. S. 452 . The Court accords such deference to the EEOC's position that its regulations identify certain requirements for a charge but do not provide an exhaustive definition. It follows that a document meeting §1626.6's requirements is not a charge in every instance. The language in §§1626.6 and 1626.8 cannot be viewed in isolation from the rest of the regulations. While the regulations' structure is less than clear, the relevant provisions are grouped under the title, "Procedures-Age Discrimination in Employment Act." A permissible reading is that the regulations identify the procedures for filing a charge but do not state the full contents of a charge.

        (c) That does not resolve this case because the regulations do not state what additional elements are required in a charge. The EEOC submits, in accordance with a position it has adopted in internal directives over the years, that the proper test is whether a filing, taken as a whole, should be construed as a request by the employee for the EEOC to take whatever action is necessary to vindicate her rights. 

        (d) The EEOC acted within its authority in formulating its request-to-act requirement. The agency's policy statements, embodied in its compliance manual and internal directives, interpret not only its regulations but also the statute itself. Assuming these interpretive statements are not entitled to full Chevron deference, they nevertheless are entitled to a "measure of respect" under the less deferential standard of Skidmore v. Swift & Co., 323 U. S. 134 , see Alaska Dept. of Environmental Conservation v. EPA, 540 U. S. 461 , whereby the Court considers whether the agency has consistently applied its position, e.g., United States v. Mead Corp., 533 U. S. 218 . Here, the relevant interpretive statement has been binding on EEOC staff for at least five years. True, the agency's implementation has been uneven; e.g., its field office did not treat respondent's filing as a charge, and, as a result, she filed suit before the EEOC could initiate conciliation with FedEx. Such undoubted deficiencies are not enough, however, to deprive an agency that processes over 175,000 inquiries a year of all judicial deference. Moreover, the charge must be defined in a way that allows the agency to fulfill its distinct statutory functions of enforcing antidiscrimination laws, see 29 U. S. C. §626(d), and disseminating information about those laws to the public, see, e.g., Civil Rights Act of 1964, §§705(i), 705(g)(3).

        (e) FedEx's view that because the EEOC must act "[u]pon receiving ... a charge," 29 U. S. C. §626(d), its failure to do so means the filing is not a charge, is rejected as too artificial a reading of the ADEA. The statute requires the aggrieved individual to file a charge before filing a lawsuit; it does not condition the individual's right to sue upon the agency taking any action. Cf. Edelman v. Lynchburg College, 535 U. S. 106 . Moreover, because the filing of a charge determines when the ADEA's time limits and procedural mechanisms commence, it would be illogical and impractical to make the definition of charge dependent upon a condition subsequent over which the parties have no control. Cf. Logan v. Zimmerman Brush Co., 455 U. S. 422 . Pp. 12-13.

    2. The agency's determination that respondent's December 2001 filing was a charge is a reasonable exercise of its authority to apply its own regulations and procedures in the course of the routine administration of the statute it enforces.

        (a) Respondent's completed Form 283 contained all the information outlined in 29 CFR §1626.8, and, although the form did not itself request agency action, the accompanying affidavit asked the EEOC to "force [FedEx] to end [its] age discrimination plan." FedEx contends unpersuasively that, in context, the latter statement is ambiguous because the affidavit also stated: "I have been ... assur[ed] by [the EEOC] that this Affidavit will be considered confidential ... and will not be disclosed ... unless it becomes necessary ... to produce the affidavit in a formal proceeding." This argument reads too much into the nondisclosure assurances. Respondent did not request the EEOC to avoid contacting FedEx, but stated only her understanding that the affidavit itself would be kept confidential and, even then, consented to disclosure of the affidavit in a "formal proceeding." Furthermore, respondent checked a box on the Form 283 giving consent for the EEOC to disclose her identity to FedEx. The fact that respondent filed a formal charge with the EEOC after she filed her District Court complaint is irrelevant because postfiling conduct does not nullify an earlier, proper charge.

        (b) Because the EEOC failed to treat respondent's filing as a charge in the first instance, both sides lost the benefits of the ADEA's informal dispute resolution process. The court that hears the merits can attempt to remedy this deficiency by staying the proceedings to allow an opportunity for conciliation and settlement. While that remedy is imperfect, it is unavoidable in this case. However, the ultimate responsibility for establishing a clearer, more consistent process lies with the EEOC, which should determine, in the first instance, what revisions to its forms and processes are necessary or appropriate to reduce the risk of future misunderstandings by those who seek its assistance. 

440 F. 3d 558, affirmed. 

    KENNEDY, J., delivered the opinion of the Court, in which ROBERTS, C. J., and STEVENS, SOUTER, GINSBURG, BREYER, and ALITO, JJ., joined. THOMAS, J., filed a dissenting opinion, in which SCALIA, J., joined.

 

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Gómez-Pérez v. Potter prediction
February 19, 2008 by Ross Runkel at LawMemo

Paul Secunda has read the US Supreme Court transcript from today's oral argument in Gómez-Pérez v. Potter [Details, briefs] and concludes that the employer will win 5:4. His comments appear at the Workplace Prof Blog and at SCOTUSblog.

The issue is whether federal employees can state a claim for retaliation under the Age Discrimination in Employment Act (ADEA).

Well, I've also read the transcript. Paul is correct that the employer will win, but I don't see the case being decided by a close vote. Anything closer than 7:2 will surprise me.

Why? The ADEA sets up a dual scheme for private employers and for federal employers. Those who work for private employers have an express statutory provision that forbids retaliation. Those who work for a federal employer do not. Under the most elementary rules of statutory interpretation, this means federal employees do not have a claim for retaliation. There's no way four Justices are going to strain the language of the statute to reach the result that Gómez-Pérez wants them to reach.



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Age discrimination, retirement plans, and the Supreme Court
January 09, 2008 by Ross Runkel at LawMemo

Today the US Supreme Court hear oral arguments in Kentucky Retirement Systems v. EEOC [Click here for briefs, link to transcript, etc.].

EEOC sued claiming that a disability-retirement-benefits plan for state and county employees violates the Age Discrimination in Employment Act (ADEA). The trial court granted summary judgment for defendants on the ground that EEOC did not establish a prima facie case; the 6th Circuit, en banc 10-4, reversed.

The KRS disability-retirement-benefits plan disqualifies employees who are still working from receiving disability-retirement benefits if they have already reached normal retirement-benefit age at the time they become disabled. The plan also calculates disability retirement benefits in such a way that an older employee who is eligible to receive disability benefits receives fewer benefits - in the form of lower monthly benefit payments - than a younger disabled employee receiving disability-retirement benefits who is similar to the older disabled employee in every relevant factor other than age.

The 6th Circuit held that (1) EEOC established a prima facie case because the plan is facially discriminatory on the basis of age and (2) when a plan is facially discriminatory a plaintiff does not need additional proof of discriminatory animus to establish a prima facie claim of disparate treatment.

The US Supreme Court granted certiorari to review the 6th Circuit's judgment.

If you want to see what Paul Secunda at Workplace Prof Blog gleaned from the transcript of the Supreme Court argument, go to Oral Argument Transcript Analysis of Kentucky Retirement Systems v. EEOC.

My view: Extremely difficult to predict the outcome, but three things make me tilt toward the EEOC's position:

  1. Kentucky is relying to some extent on an argument that their plan is not "arbitrary." OK, fine. The problem with that argument is that the word "arbitrary" does not appear in the portion of the statute that EEOC relies on, so it's not really relevant whether the plan is arbitrary or not. "Arbitrary" appears in the preamble only.
  2. The plan expressly uses age as a criterion. Where I come from, that makes the plan facially discriminatory on the basis of age. Any counterargument to that is really going to have to make mincemeat out of the English language.
  3. All EEOC is trying to do is establish a prima facie case. If EEOC wins on that one issue, Kentucky still has the opportunity to defend its plan based on defenses that the statute allows.




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Age discrimination disparate impact case heads to Supreme Court
December 22, 2007 by Ross Runkel at LawMemo

Will the US Supreme Court grant certiorari in Meacham v. Knolls Atomic Power Laboratory? [Case details] Probably, I think. Earlier this week the US Justice Department filed a brief arguing that certiorari should be granted.

The Meacham case presents the legal issue of whether it's the plaintiffs or the defendant that bears the burden of proof on an important aspect of a disparate impact age discrimination case: proving (or disproving) that the employer's decision "is based on reasonable factors other than age." That's the RFOA exception.

Knolls laid off employees during an involuntary reduction in force. Of the 31 employees laid off, 30 were over 40 years old. The workforce as a whole was 60% over 40.

Some of the laid off employees sued under the Age Discrimination in Employment Act (ADEA), using a disparate impact theory. A jury found in favor of the plaintiffs. The 2nd Circuit (by 2-1 vote) vacated the judgment of the district court and remanded the case with instructions to enter judgment for the employer. The 2nd Circuit majority held that it is the plaintiffs' burden to prove that the employer's justification is unreasonable. The dissenting judge would look at the RFOA defense as an affirmative defense as to which the employer would have the burden of persuasion.

The government's brief said:

The court of appeals held that plaintiffs raising a disparate-impact age discrimination claim bear the burden of proof with respect to the ADEA’s RFOA exception. That ruling is at odds with the text of the pertinent statutory provision, the decisions of other circuits, and agency regulations. In addition, the burden of proof on this issue is of threshold and recurring importance in ADEA disparate-impact cases. This Court’s review of the first question presented is therefore warranted.

The questions presented by the petition (filed by the losing plaintiffs):

The Age Discrimination in Employment Act (ADEA) prohibits employment practices that have an unjustified disparate impact on older workers, Smith v. City of Jackson, Miss., 544 U.S. 228 (2005), but also provides that it “shall not be unlawful for an employer . . . to take any action otherwise prohibited . . . where the differentiation is based on reasonable factors other than age.” 29 U.S.C. § 623(f)(1). The questions presented are:

1. Whether an employee alleging disparate impact under the ADEA bears the burden of persuasion on the “reasonable factors other than age” defense, as held by the Second Circuit in this case in conflict with the decisions of other circuits and a regulation of the Equal Employment Opportunity Commission.

2. Whether respondents’ practice of conferring broad discretionary authority upon individual managers to decide which employees to lay off during a reduction in force constituted a “reasonable factor other than age” as a matter of law.



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$27.5 million settles law firm age discrimination suit
October 07, 2007 by Ross Runkel at LawMemo

EEOC claimed Sidley Austin, a huge law firm (1,700 lawyers), demoted 32 partners to "counsel" in violation of the Age Discrimination in Employment Act (ADEA).

The law firm denied that age was a factor in its decisions. The firm also claimed that the partners were not "employees" and thus not covered by the ADEA.

For $27.5 the EEOC's law suit has ended. Sidley Austin admits no wrongdoing, but agreed to pay out the cash to the demoted ex-partners.

The firm also agreed not to require partners to retire at age 65, while denying that it had ever had such a policy.

The settlement leaves open the legal question of when, if ever, a "partner" in a huge and centrally-controlled partnership is really an "employee" for purposes of various anti-discrimination statutes such as the ADEA, ADA, and Title VII.

More details and comments from New York Law Journal.



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Supreme Court will decide benefit plan age discrimination case
September 25, 2007 by Ross Runkel at LawMemo

Kentucky Retirement Systems v. EEOC (certiorari granted 09/25/2007)
Details: http://www.lawmemo.com/supreme/Kentucky/

EEOC sued claiming that a disability-retirement-benefits plan for state and county employees violates the Age Discrimination in Employment Act (ADEA).

The trial court granted summary judgment for defendants on the ground that EEOC did not establish a prima facie case; the 6th Circuit, en banc 10-4, reversed.

The KRS disability-retirement-benefits plan disqualifies employees who are still working from receiving disability-retirement benefits if they have already reached normal retirement-benefit age at the time they become disabled. The plan also calculates disability retirement benefits in such a way that an older employee who is eligible to receive disability benefits receives fewer benefits - in the form of lower monthly benefit payments - than a younger disabled employee receiving disability-retirement benefits who is similar to the older disabled employee in every relevant factor other than age.

The 6th Circuit held that (1) EEOC established a prima facie case because the plan is facially discriminatory on the basis of age and (2) when a plan is facially discriminatory a plaintiff does not need additional proof of discriminatory animus to establish a prima facie claim of disparate treatment.

The US Supreme Court granted certiorari to review the 6th Circuit's judgment.



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Supreme Court will decide federal employer ADEA retaliation case
September 25, 2007 by Ross Runkel at LawMemo

Gómez-Pérez v. Potter (certiorari granted 09/25/2007)
Details: http://www.lawmemo.com/supreme/Gomez-Perez/

Gómez-Pérez sued claiming that her federal employer (the USPS) retaliated against her because she filed an equal employment opportunity complaint with her employer alleging discrimination on the basis of age.

The 1st Circuit held that the Age Discrimination in Employment Act (ADEA) does not provide a cause of action for retaliation by federal employees.

Applying ADEA Section 15 (29 USC Section 633a), the 1st Circuit reasoned that the statutory prohibition against "discrimination" does not include a prohibition against retaliation.

The US Supreme Court granted certiorari to review the 61st Circuit's judgment.



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"Me too" case at the Supreme Court
June 11, 2007 by Ross Runkel at LawMemo

Ellen Mendelsohn claimed Sprint fired her because of her age during a company-wide reduction in force. She lost a jury trial. Mendelsohn claims that the trial court improperly excluded testimony from other former Sprint employees that they experienced similar discrimination during the same reduction in force.

The 10th Circuit held that because this evidence was excluded, Mendelsohn did not have a full opportunity to present her case to the jury. Therefore, the 10th Circuit ordered a new trial.

The US Supreme Court granted certiorari on June 11, 2007 to review the 10th Circuit's judgment. Sprint/United Management Company v. Mendelsohn. [Details; certiorari briefs]

The Question Presented by the certiorari petition:

This case presents a recurring question of proof in employment discrimination cases: whether a district court must admit "me, too" evidence - testimony, by non-parties, alleging discrimination at the hands of persons who played no role in the adverse employment decision challenged by the plaintiff.

The Tenth Circuit panel majority held that a court commits reversible error by excluding "me, too" evidence. This decision conflicts with those of other circuits. Specifically, four circuits have held "me, too" evidence wholly irrelevant. Five circuits have that "me, too" evidence may be excluded under Federal Rule of Evidence 403. Granting certiorari will resolve the conflict between the circuit courts of appeals on this important question of law.

Oral arguments will be scheduled for October 2007 or later.

Paul Secunda at Workplace Prof Blog is predicting that Sprint will win this one.



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