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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.
7th - Employee unable to show age discrimination during RIF
July 29, 2009 by Ross Runkel at LawMemo
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.
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.
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:
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This will be the biggest employment law case of 2009.
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Surprised that the Court decided an issue that was not briefed and argued.
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Not surprised that five Justices gave such weight to Congress' failure in 1991 to re-write the ADEA while re-writing Title VII.
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Certain that Congress will amend the ADEA so as to overcome the effect of the Gross case.
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."
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.”
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.
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.
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.
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:
- 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.
- 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.
- 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.
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.
$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.
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.
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.
"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.
EEOC intake questionnaire at the Supreme Court
June 04, 2007 by Ross Runkel at LawMemo
Can an EEOC intake questionnaire be treated as a formal "charge"?
The US Supreme Court granted certiorari on June 4, 2007 in Federal Express Corporation v. Holowecki, which will answer that question. The case will be briefed and argued in October 2007 or later.
In order to file a suit under the Age Discrimination in Employment Act (ADEA), a plaintiff must first file a "charge" with the Equal Employment Opportunity Commission (EEOC).
The 2nd Circuit held that plaintiff Patricia Kennedy satisfied the requirement of filing a "charge."
What she filed was an EEOC Intake Questionnaire plus a four-page verified affidavit detailing her claims of age discrimination. The EEOC did not assign a case number, did not investigate or attempt to resolve the matter, and did not notify the employer.
The 2nd Circuit held that Kennedy's filing (1) contained the information required by the statute and by the EEOC's interpreting regulations, and (2) demonstrated Kennedy's intent to activate the EEOC's administrative process.
The formal Question Presented by the petition for certiorari:
Whether the Second Circuit erred in concluding, contrary to the law of several other circuits and implicating an issue this Court has examined but not yet decided, that an "intake questionnaire" submitted to the Equal Employment Opportunity Commission ("EEOC") may suffice for the charge of discrimination that must be submitted pursuant to the Age Discrimination in Employment Act, 29 U.S.C. § 621 et seq. ("ASEA"), even in the absence of evidence that the EEOC treated the form as a charge or the employee submitting the questionnaire reasonably believed it constituted a charge.
There is a significant split of authority among the federal circuit courts as to exactly what it means to file an EEOC "charge."
EEOC intake questionnaire at the Supreme Court
June 04, 2007 by Ross Runkel at LawMemo
Can an EEOC intake questionnaire be treated as a formal "charge"?
The US Supreme Court granted certiorari on June 4, 2007 in Federal Express Corporation v. Holowecki, which will answer that question. The case will be briefed and argued in October 2007 or later.
In order to file a suit under the Age Discrimination in Employment Act (ADEA), a plaintiff must first file a "charge" with the Equal Employment Opportunity Commission (EEOC).
The 2nd Circuit held that plaintiff Patricia Kennedy satisfied the requirement of filing a "charge."
What she filed was an EEOC Intake Questionnaire plus a four-page verified affidavit detailing her claims of age discrimination. The EEOC did not assign a case number, did not investigate or attempt to resolve the matter, and did not notify the employer.
The 2nd Circuit held that Kennedy's filing (1) contained the information required by the statute and by the EEOC's interpreting regulations, and (2) demonstrated Kennedy's intent to activate the EEOC's administrative process.
The formal Question Presented by the petition for certiorari:
Whether the Second Circuit erred in concluding, contrary to the law of several other circuits and implicating an issue this Court has examined but not yet decided, that an "intake questionnaire" submitted to the Equal Employment Opportunity Commission ("EEOC") may suffice for the charge of discrimination that must be submitted pursuant to the Age Discrimination in Employment Act, 29 U.S.C. § 621 et seq. ("ASEA"), even in the absence of evidence that the EEOC treated the form as a charge or the employee submitting the questionnaire reasonably believed it constituted a charge.
There is a significant split of authority among the federal circuit courts as to exactly what it means to file an EEOC "charge."
ADEA cert petition
May 10, 2007 by Ross Runkel at LawMemo
SCOTUSblog has this report:
Howe & Russell filed this cert. petition today in Meacham v. Knolls. Here is the questions presented page: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.
We'll be watching this to see whether the Supreme Court grants review of the 2nd Circuit's decision.
EEOC v. Sidley Austin production motion
January 25, 2007 by Ross Runkel at LawMemo
EEOC sued the Sidley Austin law firm back in 2005 claiming that the firm demoted a bunch of partners (which EEOC says are "employees") because of their age.
In the latest development, EEOC filed a motion to compel production of all complaints by clients against the demoted partners and all other partners during a four year period. [Motion to Compel Production]
Why?
It seems the law firm is claiming it demoted the partners because of complaints from clients. EEOC wants to see those complaints. EEOC also wants to see complaints against all other partners so there can be a match-up comparison to see whether the demoted partners were treated less favorably than others.
My view:
- Wall Street Journal Law Blog quotes a defense lawyer (not associated with the case) as saying EEOC did this to "harass" the law firm. Perhaps. However, it is normal litigation strategy for a plaintiff to want to see the evidence that supports the defense claim. It's also normal in a discrimination case to compare the facts relating to the plaintiffs to the facts relating to other similarly situated individuals. It's normal, common, and might be malpractice not to do it.
- What I do not understand is why the federal taxpayers are footing the bill for this litigation by the EEOC. The alleged discriminatees (demoted law firm partners) surely are not without funds to bring their own law suit. Compared to the average American's income, these folks have been pulling down huge amounts of income for decades. I say let them fund their own litigation. Let the EEOC focus on helping out the folks who really need help.
$1.12 million settlement in early retirement case
August 22, 2006 by Ross Runkel at LawMemo
The charge: That a school district reduced the amount of employees' early retirement incentive payments for each year as the employees grew older.
The EEOC sued and got a settelement of $1,120,430 for 57 former employees.
EEOC has brought a total of 12 age discrimination lawsuits against Minnesota school districts because of their discriminatory early retirement plans. All of the lawsuits have now settled for total monetary relief of over $2.6 million for more than 200 retired teachers and other employees.
Full details in EEOC press release: Stillwater School District To Pay $1.12 Million For Age Bias Against Class Of Retired Employees.
$63.8 million age discrimination verdict: in the top 10
January 16, 2006 by Ross Runkel at LawMemo
Any employment discrimination law suit is going to be expensive. Even if the employer wins, there will be attorney fees, lost productivity, anguish, publicity.
Once in a while we see some pretty large verdicts.
The Big Whopper for 2005: An age discrimination suit that brought a verdict of $63.8 million.
Lawyers Weekly USA included this case in its Top 10 for 2005: Private Jet Pilot Wins $64 Million For Age Discrimination.
I read about it earlier in a post at Jottings of an Employer's Lawyer: Even By California Standards -- $63.8 MDV Is a High Flyer.
Partners are "employees"? - EEOC v. Sidley Austin
December 21, 2005 by Ross Runkel at LawMemo
A U.S. District Judge will allow EEOC's suit against the Sidley Austin Brown & Wood law firm to go forward, saying the EEOC could obtain monetary relief for "partners" expelled or forced to retire on account of their age.
An EEOC press release dated December 20 says, in part:
The EEOC lawsuit is a "class" age discrimination case brought, first, with respect to 31 former Sidley & Austin partners who were involuntarily downgraded and expelled from the partnership in October 1999 on account of their age; and, second, with respect to other partners who were involuntarily retired from Sidley & Austin since 1978 on account of their age pursuant to a mandatory retirement policy. The Age Discrimination in Employment Act (ADEA) prohibits employers with 20 or more employees from making employment decisions, including decisions regarding the termination of employment, on the basis of age (over 40). The ADEA also prohibits such employers from utilizing policies or rules which require employees to retire when they reach a particular age (over 40).
EEOC's retiree health care regulation upheld
September 29, 2005 by Ross Runkel at LawMemo
In a dramatic reversal, a federal judge now upholds the EEOC's regulation that allows employers to reduce the level of benefits for retirees as soon as they become eligible for Medicare.
In March a judge in the Eastern District of Pennsylvania held that the EEOC's regulation could not be enforced because it conflicted with a decision from the 3rd Circuit. Then the US Supreme Court decided National Cable and Telecommunications Association v. Brand X Internet Services (06/27/2005) which re-explained [that's my word] the level of deference a court must give to an administrative agency's regulations.
So the judge reconsidered her previous decision in light of Brand X, and came out in favor of the EEOC.
The case: AARP v. EEOC (E.D. Pa. 09/27/2005).
My view: Nice going judge.
"Reverse" age discrimination unlawful in Minnesota
July 18, 2005 by Ross Runkel at LawMemo
Federal law does not prohibit employers from preferring older workers over younger ones. State law can, and Minnesota law does prohibit older worker preferences.
A collective bargaining agreement required 1 out of every 5 electrical workers in a unionized shop to be 50 years of age or over. The employer let go two over-50 employees as part of a reduction in force. The union filed a grievance, which went to arbitration.
The arbitration panel ruled that the employer violated the agreement by not maintaining the 1-to-5 ratio, and awarded lost wages to the two employees.
The 8th Circuit held (2-1) that the arbitration award could not be enforced because it violated public policy - a rare outcome. The public policy was found in the Minnesota Human Rights Act. That statute, says the court, "prohibits using a person's age as a basis for a decision if the person is over the age of majority." Ace Electrical Contractors v. IBEW (8th Cir 07/14/2005).
The dissent would have upheld the arbitration award under the usual highly deferential rules for reviewing such awards, noting that "the law of Minnesota simply does not provide the clarity necessary to invoke the public policy exception.
My view:
- A reminder that federal and state law can be quite different on important questions of employment discrimination law.
- This case is an unusual example of a court refusing to uphold an arbitration award, on the ground that the award violated public policy.
Refusing to Retire: What Can Be Done
June 06, 2005 by Ross Runkel at LawMemo
Judge Richard Posner, who would prefer to repeal the Age Discrimination in Employment Act (ADEA), is proposing that old folks take a test. You have to read the whole thing on The Becker-Posner Blog [here], but here's an extract:
I wish to make a suggestion that would achieve the principal benefits of mandatory retirement without the principal costs. It is simply this: beginning at age 70, require every life-tenured professor and every life-tenured judge to take a test of mental acuity every five years. (I use these simply as examples of "light" jobs from which the occupant is unlikely to be forced to retire by the demands that the job places on him.) The test results would be available to the members of the professor's department or the judge's court but to no others. The results would not be a basis for a determination of incapacity; they would not even be admissible in a competence hearing. The expectation rather is that a poor test result would persuade the individual, perhaps by persuading his colleagues who would in turn persuade him, or persuade members of his family to persuade him, to retire voluntarily.
My view: I'd be more interested if Judge Posner would give a better explanation of why the test should not be given to all judges and profs.
Legalese torpedoes waiver of ADEA claims
May 03, 2005 by Ross Runkel at LawMemo
When IBM terminated folks in a RIF, they asked Dale Thomforde to sign a form called "General Release and Covenant Not to Sue." Although the form was drafted as a general release of all claims, Thomforde noticed some language in the form about suing IBM under the ADEA. He asked his supervisor if that language would allow him to sue IBM if the case was limited to the ADEA. The supervisor asked the legal department and then told Thomforde that the company's attorney was "not comfortable providing an interpretation for you and suggested you consult with your own attorney."
IBM's drafters set the form up as both a release of all claims and a covenant not to sue. They created an exception to the covenant (but not to the release) for ADEA suits. Why? To allow a suit challenging the validity of the waiver, but not to allow suits on the merits of the ADEA.
The Older Workers Benefits Protection Act (OWBPA) requires waivers of ADEA rights to be "written in a manner calculated to be understood by such individual, or by the average individual eligible to participate."
In Thomforde v. IBM (8th Cir 05/03/2005) the 3rd Circuit said the difference between a release and a covenant not to sue "may not be readily apparent to a lay reader." (Chuckle. A lot of lawyers are equally clueless. That's no criticism of lawyers, just something IBM might have thought of when they were drafting.) "Once IBM chose to use the legal terms of art ..., IBM had a duty to carefully explain the provisions." The form also used the terms release and covenant in a way that suggested they were interchangeable.
So, combining the "lack of clarity" in the form plus IBM's not telling Thomforde what it meant by the language - presto - not "written in a manner calculated to be understood." The release did not satisfy the OWBPA requirements, so it was not a bar to an ADEA suit on the merits.
My view: I must confess; when I first read the document I was not sure what it was intending to say about ADEA claims, and it appeared to be internally inconsistent. So I was not surprised by the court's decision.
A case involving a similar agreement is pending in the 9th Circuit. Syverson v. IBM (ND Calif 05/04/2004), appeal docketed, No. 04-16449 (9th Cir 07/26/2004). Knowing the 9th, I expect the same result.
ADEA allows disparate impact claims - sort of
March 30, 2005 by Ross Runkel at LawMemo
The US Supreme Court has endorsed using disparate impact theory in ADEA cases, but now we have to go back and relearn all the pre-1991 cases. Smith v. City of Jackson (US Supreme Court 03/30/2005).
Older cops sued the City claiming that a new pay plan gave them lower raises than younger cops got. Reason? The City granted proportionately more money to officers with less than five years' service in an attempt to bring starting salaries up to the regional average. The 5th Circuit said the plaintiffs must lose because the ADEA categorically disallows disparate impact claims. The US Supreme Court affirmed the judgment for the City on totally different grounds: the ADEA does allow disparate impact claims, but the plaintiffs lost on the merits.
Disparate impact theory got its wings in Griggs v. Duke Power, 401 US 424 (1971), a Title VII case. Those wings got clipped in Wards Cove v. Atonio, 490 US 642 (1989). Wards Cove says that plaintiffs are "responsible for isolating and identifying the specific employment practices that are allegedly responsible for any observed statistical disparities." Congress then adopted the Civil Rights Act of 1991 which codified disparate impact theory and made things a bit easier for plaintiffs - at least in Title VII cases. But Congress never amended the ADEA the way it amended Title VII.
The ADEA and Title VII are identical in one respect.
ADEA Section 4(a)(2) is the same as Title VII Section 703(a)(2) except for substituting "age" for "race, color, religion, sex, or national origin." From that similarity in statutory text the Court concluded that the ADEA does permit employees to use the disparate impact theory.
But there are two huge differences between Title VII and the ADEA.
Unlike Title VII, the ADEA significantly narrows its coverage via the "RFOA" provision which permits any "otherwise prohibited" action "where the differentiation is based on reasonable factors other than age."
Applying the RFOA provision, the Court said "the disparate impact is attributable to the City's decision to give raises based on seniority and position. Reliance on seniority and rank is unquestionably reasonable given the City's goal of raising employees' salaries to match those in surrounding communities." Thus, the City's decision was based on a "reasonable factor other than age." There may have been other reasonable ways, including ways that did not have a disparate impact on older workers, but unlike the business necessity test, "the reasonableness inquiry includes no such requirement."
Law teachers will be pleased to learn that pre-1991 cases are now relevant to ADEA disparate impact analysis. Why? The 1991 Civil Rights Act overruled those cases for Title VII litigation, but not as they relate to the ADEA.
For ADEA cases, the Court will apply its pre-1991 interpretation of Title VII's identical language, most notably the interpretation in Wards Cove v. Atonio, 490 US 642 (1989). Wards Cove says that plaintiffs are "responsible for isolating and identifying the specific employment practices that are allegedly responsible for any observed statistical disparities," and the employees in this case have failed to do so. They did "little more than point out that the pay plan at issue is relatively less generous to older workers than to younger workers. They have not identified any specific test, requirement, or practice within the pay plan that has an adverse impact on older workers."
My view: (1) Employees can use disparate impact theory, but must sharpen their analysis and proof to fit the Court's pre-1991 cases interpreting Title VII. (2) Employers will easily win many cases under the RFOA provision because it only needs to be "reasonable" rather than a matter of "business necessity." Almost by definition, distinctions based on length of service or on rank will be reasonable.
Does disparate impact theory apply in age discrimination cases?
February 01, 2005 by Ross Runkel at LawMemo
In Smith v. Jackson, Mississippi the US Supreme Court will decide whether the disparate impact theory of proof can be applied in a case arising under the Age Discrimination in Employment Act (ADEA).
Plaintiffs were City police officers and dispatchers over the age of 40 who claimed that the City's performance pay plan granted substantially larger pay increases to employees under age 40. Under the pay plan, employees with five or fewer years of tenure received proportionately greater raises when compared to their former pay than those with more than five years of tenure. Plaintiffs offered statistical proof that average pay increases differed by age and older employees received smaller raises than younger employees. The trial court held that the disparate impact theory could not be used in an ADEA case; the 5th Circuit affirmed [Full text pdf]. The US Supreme Court is reviewing the 5th Circuit decision [Briefs], and heard oral arguments [Transcript pdf] on November 3, 2004.
Circuit courts are split on this issue. Those allowing use of the disparate impact theory are the 2nd, 8th, and 9th. Those not allowing the disparate impact theory are the 1st, 5th, 7th, 10th, and 11th.
It all started with Griggs v. Duke Power, 401 US 424 (1971). The employer required a high school diploma for entry into certain jobs. This requirement disqualified Blacks at a much higher rate than Whites. The US Supreme Court held that once the plaintiffs proved this "disparate impact," then the burden shifted to the employer to justify the practice by showing job relatedness or business necessity.
Griggs was a Title VII case. Smith is an ADEA case. The statutes are similar in one major respect: the primary prohibitory language is virtually identical. Of course, the plaintiffs latch onto that, plus an EEOC regulation that recognizes disparate impact.
On the other hand, the ADEA contains a clause that is similar to the Equal Pay Act (EPA). The ADEA has a specific exception for "where the differentiation is based on reasonable factors other than age" (RFOA), similar to the EPA's exception for "any factor other than sex." The Supreme Court has said there can be no disparate impact claims brought under the EPA, and that was in large part because of the "any factor other than sex" language. This favors the employer's position, and is the backbone of many lower court decisions.
An interesting twist is whether the Older Workers Benefit Protection Act (OWBPA) should be read as making the RFOA an affirmative defense rather than a redefinition of liability. NELA makes a great argument along this line in its amicus brief [brief pdf].
Finally, there is the fact that the Civil Rights Act of 1991 amended Title VII to make clear that disparate impact claims could be brought under Title VII, but made no such amendment to the ADEA. I think that will be irrelevant because the Court should not interpret Congress' non-action as evidence of Congressional intent.
Does disparate impact theory apply in age discrimination cases?
February 01, 2005 by Ross Runkel at LawMemo
In Smith v. Jackson, Mississippi the US Supreme Court will decide whether the disparate impact theory of proof can be applied in a case arising under the Age Discrimination in Employment Act (ADEA).
Plaintiffs were City police officers and dispatchers over the age of 40 who claimed that the City's performance pay plan granted substantially larger pay increases to employees under age 40. Under the pay plan, employees with five or fewer years of tenure received proportionately greater raises when compared to their former pay than those with more than five years of tenure. Plaintiffs offered statistical proof that average pay increases differed by age and older employees received smaller raises than younger employees. The trial court held that the disparate impact theory could not be used in an ADEA case; the 5th Circuit affirmed [Full text pdf]. The US Supreme Court is reviewing the 5th Circuit decision [Briefs], and heard oral arguments [Transcript pdf] on November 3, 2004.
Circuit courts are split on this issue. Those allowing use of the disparate impact theory are the 2nd, 8th, and 9th. Those not allowing the disparate impact theory are the 1st, 5th, 7th, 10th, and 11th.
It all started with Griggs v. Duke Power, 401 US 424 (1971). The employer required a high school diploma for entry into certain jobs. This requirement disqualified Blacks at a much higher rate than Whites. The US Supreme Court held that once the plaintiffs proved this "disparate impact," then the burden shifted to the employer to justify the practice by showing job relatedness or business necessity.
Griggs was a Title VII case. Smith is an ADEA case. The statutes are similar in one major respect: the primary prohibitory language is virtually identical. Of course, the plaintiffs latch onto that, plus an EEOC regulation that recognizes disparate impact.
On the other hand, the ADEA contains a clause that is similar to the Equal Pay Act (EPA). The ADEA has a specific exception for "where the differentiation is based on reasonable factors other than age" (RFOA), similar to the EPA's exception for "any factor other than sex." The Supreme Court has said there can be no disparate impact claims brought under the EPA, and that was in large part because of the "any factor other than sex" language. This favors the employer's position, and is the backbone of many lower court decisions.
An interesting twist is whether the Older Workers Benefit Protection Act (OWBPA) should be read as making the RFOA an affirmative defense rather than a redefinition of liability. NELA makes a great argument along this line in its amicus brief [brief pdf].
Finally, there is the fact that the Civil Rights Act of 1991 amended Title VII to make clear that disparate impact claims could be brought under Title VII, but made no such amendment to the ADEA. I think that will be irrelevant because the Court should not interpret Congress' non-action as evidence of Congressional intent.
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