Monday, June 29, 2009

Ricci v. New Haven: Supreme Court Puts the Rabbit Back in the Hat

The U.S. Supreme Court, in one of its final, eagerly awaited decisions of the term, issued its Opinion in Ricci v. New Haven today. The Court was faced with an in-your-face set of facts which can only lead to judicial gymnastics. The City of New Haven administered an examination for promotions among its firefighters, as required by a collective bargaining agreement, and test scores, if certified, would have resulted in all whites except for one Hispanic being promoted. Although a few black test-takers did qualify for promotion, because of the paucity of openings, none would have been promoted.

Apprehensive about being sued for race discrimination on the theory of ‘adverse impact,’ the City of New Haven refused to certify the test results, and the successful candidates then sued alleging discrimination under a theory of ‘disparate treatment.’ Thus, the decision offered a high noon showdown for ‘disparate impact’ versus ‘disparate treatment’ claims. (Parenthetically, the case was touted as a ‘test’ of the jurisprudence of Obama nominee Sonia Sotomayor to the high court, however this is more sizzle than steak. The second circuit decision below was essentially a one paragraph affirmance of the district court’s decision, and offers precious little genuine insight into the nominee’s thinking on the matter.)

The High Court appeared to reconcile the struggle between disparate treatment and disparate impact by instructing employers to avoid disparate treatment first, and recognize that if doing so may create a disparate impact, it may only face liability where there is a “strong basis in evidence of disparate-impact liability.”

Which leads inexorably to the question: what is a "strong basis in evidence of disparate-impact liability?”

The Court invokes the decision of Richmond v. J. A. Croson Co., another disparate impact case, which resulted in a sharply divided plurality opinion consisting of …well, rather than my trying to explain, let me quote from the syllabus:

O'CONNOR, J., announced the judgment of the Court and delivered the opinion of the Court with respect to Parts I, III-B, and IV, in which REHNQUIST, C. J., and WHITE, STEVENS, and KENNEDY, JJ., joined, an opinion with respect to Part II, in which REHNQUIST, C. J., and WHITE, J., joined, and an opinion with respect to Parts III-A and V, in which REHNQUIST, C. J., and WHITE and KENNEDY, JJ., joined. STEVENS, J., post, p. 511, and KENNEDY, J., post, p. 518, filed opinions concurring in part and concurring in the judgment. SCALIA, J., filed an opinion concurring in the judgment, post, p. 520. MARSHALL, J., filed a dissenting opinion, in which BRENNAN and BLACKMUN, JJ., joined, post, p. 528. BLACKMUN, J., filed a dissenting opinion, in which BRENNAN, J., joined, post, p. 561.

Justice Blackmun’s dissent in Richmond summarized the various approaches of each opinion in Richmond, and points to the ‘strong basis’ analysis introduced in Wygant v. Jackson Bd. of Education. Wygant itself was itself a plurality opinion in which Justice Powell, speaking for four justices simply wrote, “[T]he trial court must make a factual determination that the employer had a strong basis in evidence for its conclusion that remedial action was necessary.”

So what is a strong basis? Is it like the Supreme Court’s take on pornography, “I don’t know what it is but I’ll know it when I see it?” Have they really solved any problem here? Are employers’ consciences going to be eased by this decision now that the conflict has been resolved once and for all?

Doubtful. I would say the forecast is cloudy with a chance of lots more lawsuits. Justice Ginsburg’s fierce dissent, joined in by Breyer, Souter and Stevens, wryly observes, “The Court’s order and opinion, I anticipate, will not have staying power.” More importantly, this highly fact-specific case (the more salient facts being a function of which opinion you read) offers precious little to resolve any issues other than the very case before the Court.

Thursday, June 18, 2009

Adieu ADEA - Supreme Court's 'but for' requirement will all but kill many age bias claims.

The United State Congress in passing Title VII of the Civil Rights Act (finally) acknowledged that the effects of employment discrimination can be subtle, long-lasting, and devastating, and that legislative action was appropriate to level the playing field.

The framework for analyzing employment discrimination claims has long been established by the case of McDonnell-Douglas v. Green which created a burden-shifting analysis to facilitate the handling of claims by the fact-finders, whether judges or juries. That framework creates a 'tennis match-like' approach to claims.

The employee gets first serve, and must prove a prima facie case, that is, he or she is in a protected classification (i.e. race, sex, national origin, etc.), that he or she suffered an adverse employment action (i.e. fired, demoted, not premoted, etc.) and that others not in that protected classification were not so treated (although some cases have held that this last requirement is not part of the prima facie case.) The burden for stating a prima facie case is supposed to be low so as to facilitate enabling the employee to proceed.

Once the employee states the prima facie case, the ball is effectively 'in the court' and the employer gets to return it by proving that there was a 'legitimate non-discriminatory reason' for the action taken against the employee. Once the employer hits the ball back, the burden shifts back to the employee to show that the stated reason was not the real reason, and that the primary motivating factor was discriminatory. The employee gets to hit it back one more time with a forehand shot (i.e. direct evidence of discrimination, which is very rare, such as a supervisor calling the employee 'boy' in Ash v. Tyson Foods), or a backhand (i.e. circumstantial evidence that the employer's stated reason is pretext, that is evidence subjecting the employer's rationale to unbelievability as in Reeves v. Sanderson Plumbing.)

If the employee hits the ball back, and the jury believes the employee, the employer generally loses. That's what happened in an age discrimination case in which an employee proved to a jury that his demotion and the sidelining of his career after many years with an employer was motivated in significant part by his age. The employee won a significant verdict which was ultimately appealed and to which the U.S. Supreme Court granted review.

But now all that's changed for age discrimination cases. The Supreme Court today in Gross v. Financial Services said that the Age Discrimination in Employment Act ("ADEA") claims were never meant to be subject to the McDonnell-Douglas analysis, and that the only way employees can prove discrimination is through proof that "but for the age of the employee, the adverse employment action would not have been taken." Basically, the employee gets one shot to prove that age was the determining, 'but for' factor in the action taken against them. Prove that you win, otherwise you lose.

This is massively wrongheaded and ignores decades of age discrimination jurisprudence. It renders 'mixed motive age discrimination cases' dead on arrival. It screams out for immediate Congressional action to patch up the ADEA so that it really protects older employees, the way Congress patched the Americans with Disabilities Act ("ADA") recently to really protect the disabled, and Title VII to really protect against gender-based discrimination in pay. However, and almost as importantly, the case stands as a monument to the proposition that activist judges don't always sit on the left side of the court.

As Justice Stevens, a Nixon appointee, by the way, said in his dissent in Gross:
I disagree not only with the Court’s interpretation of the statute, but also with its decision to engage in unnecessary lawmaking. (Emphasis added.)
As the debate over Judge Sotomayor gets underway, let us keep in mind that who is the activist judge is largely a function of whose ox is being gored.

And for those employers getting ready to discharge workers who are over the age of 40, fire at will. In this economy, your 'mixed motive' defense to a charge of discrimination is going to be virtually bullet-proof until Congress does act.

P.S. One fellow employment lawyer for whom I have a great deal of respect suggests that my sentiments regarding McDonnell Douglas are misplaced. I have now reread the opinion at least twice. I must respectfully disagree with him. The majority in Gross specifically states "This Court has never held that this burden-shifting framework applies to ADA claims. And, we decline to do so now." This is reiterated in the second footnote of the opinion. That statement, coupled with the court's completely unnecessary holding that the ADEA does not authorize a mixed-motive age discrimination claim, leaves me feeling even more grim about the decision than I did when I first wrote this post.

P.P.S. Within 24 hours of the decision Senator Leahy, Chairman of the Senate Judiciary Committee decried the decision, and both the AARP and the National Employment Lawyers Association have announced initiatives to seek Congressional action overruling the decision. Once again, students of law and politics should be able to watch how our system of government works in updating the law.

Monday, June 15, 2009

Why I Won't Take Your Case

"Because you're an idiot," is probably a completely unacceptable reason for refusing to accept representation of a prospective client (even if it is the real reason.) For more than a decade of solo practice, and nearly thirty years of private practice altogether, I have noticed a few patterns, however, that I believe might just be worth sharing, especially for anyone in the human resources or employment law industry.

Here are the principal reasons I find people find themselves unemployed, regardless of the state of the economy.

1. Absenteeism: I wish I had a dollar for every prospective client who missed three or four days during their first weeks of employment, or during their probationary period, who protested, "but I had a doctor's note!" Doctors notes are for school, not the real world. As Woody Allen said, "80% of success is showing up." The only exception is where an employee has been working somewhere for more than a year, for more than 1250 hours in the year before, where the employer has more than fifty employees within a 75 mile radius, and where the 'absence' is attributable to a 'serious health condition' of the employee or an immediate family member, or due to childbirth or adoption. That is to say, if you don't qualify for FMLA, you better show up or you better get ready to file for unemployment.

2. Arguments with supervisors: We can include in this category "but he was wrong and I was right," or "I told them so," or any of a dozen other expressions of exasperation with mediocre management one level up from the fired prospective employee. It is said "if you shoot at the King, you better not miss." Too many people think that workplaces are staffed by referees in striped shirts that will throw a flag and assess a ten yard penalty when a supervisor does something that is unfair. Unfair? Unfair?? Are you kidding me? Who said life was fair?

I used to work for a lawyer who would tell clients, "You find me a book that says life is fair and I'll buy you two copies." No, I didn't understand what he meant either, but the bottom line is that lawyers cannot address situations that are unFAIR, only UNLAWFUL. A similar situation applies to where employees in highly stratified organizational structures go 'out of bounds' to tattle on supervisors. Going out of bounds is a good way to get a head start to the unemployment line.

3. Arguments with coworkers: These usually start with things like "but she started it...." I don't know why people don't remember those moments in elementary school when they stood up in the back of the class to report misbehaving Johnny only to find that they were the ones staying after class to clean the blackboards while Johnny was out at recess. This is a corollary of 'life is not fair," of course, but the bottom line is that where two coworkers argue, fight, or even (and I've seen this too) 'take it outside,' somebody is going to get fired. Ideally, both employees.

4. Discrimination: The law does not bar discrimination. You discriminate every day when you choose what clothes you are going to wear. You discriminate every day when you decide what to eat for breakfast. If you go into a Baskin & Robbins and buy a single scoop, you've just discriminated against dozens of other flavors. If you get two scoops, you're still discriminating. What is unlawful is discrimination based upon protected classifications: age (over 40); sex; race; national origin; disability (record, perceived or actual); and in some jurisdictions family status and gender affinity. But if the boss likes that guy down the hall whom you can't stand better than you then it's tough noogies, and you need to read Dale Carnegie or figure some other way out to deal with the situation. Yeah, it's discrimination, but it's not unlawful.

Don't get me wrong; there are legitimate whistleblowers, there is unlawful discrimination, there is retaliation on an ongoing basis, and there are employers who practice unenlightened human resources management (thankfully, or I wouldn't have any clients) . But there are a few folks out there, not too many thankfully, who simply don't get it. The lights are on but nobody's home. For them we can only hope for enlightenment before they try to hire me.