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.

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.

Women Bullying Other Women

The New York Times reported this past Sunday that while men are 'equal opportunity' bullies, women are more than twice as likely to bully other women in the workplace. The results of a Zogby study jointly with the Workplace Bullying Institute are also discussed on the WBI website. More than a third of employees in the workplace reported victimization by bullies; 57% of those victims are women, and bullying is four times more prevalent than illegal harassment.

The study is disturbing enough. Most of us have been dealing with bullies of one sort or another since we were in elementary school; we recognize that it is a fact of life that bullies exist in all walks of life, in the online world and on your local interstate highway. But one of the more disturbing aspects is how women seem to target other women. Surely the stress and strain of having to be better than their male counterparts just to be treated equally creates an environment where women may behave in a more organizationally aggressive manner.

The New York Times article suggests that woman-on-woman bullying may be more of a reaction to a discomfort level, rather than learned or hard-wired behavior. Women have had to compete for attention and stature, and are more likely to take on their own, since women are typically less confrontational.

I find myself frustrated by what this phenomenon may mean. I believe that the 'business model' is the best argument for diversity (a diverse workplace accomplishes the job better than a non-diverse one); but sometimes the solution can create other problems --- the theory of unintended consequences. But I also currently have at least two cases in my law practice which involve some measure of woman-on-woman bullying. I have handled countless more cases which have involved bullying of some kind which may have even been 'mis-classified' as unlawful discrimination.

Until workplaces realize the incredible cost by way of reduced productivity and increased liability that bullying generates, we are likely to see more studies, and more articles like this.

I would love to hear my readers thoughts and experiences on workplace bullying. Is there a way out?

UPDATE: The American Lawyer just published a piece about 'Sisterhood in the Legal Profession and also observed that women attorneys encounter bullying by their women supervisors. "[W]omen -- particularly their immediate supervisors -- can be their worst tormentors," the writer noted.

What Does a 60-seat Democratic Senate Majority Really Mean

Earlier today it was reported that Senator Arlen Specter (R-PA) had announced his intention to run for the Democratic primary in 2010 to retain his seat. The result is that the Democrats may have a 60-seat majority in the United States Senate, and one that is filibuster proof.

How significant would this change be from an employment law standpoint?

The Obama administration has several priorities in the labor and employment area. Union organization is just one of several punch list items. The administration and Congress have already addresses some aspects of wage inequality (see my earlier post on the Lily Ledbetter Fair Pay Act), and it appears fairly certain that some form of legislation addressing secret balloting for unions will be enacted this term.

But consider, also, the context. For nearly a decade there had been precious little action in Congress on labor and employment priority issues. In that time, several Supreme Court decisions had whittled away several legislative initiatives, including Title VII and the ADA, and the Bush Administration tied the hands of the Department of Labor from all but the most egregious enforcement activities. The Solicitor General of the Department of Labor under President Bush had informally commented that actions against employers of less than 10,000 weren't likely under Bush.

A lot has changed in the workplace during these ten years of stagnation. Some change is not only appropriate, but overdue. As the baby boomers age, issues involving caregiving responsibilities become more front and center, necessitating a fresh look at family leave legislation and anti-discrimination laws. The workforce is changing dramatically, and a human resources professional from the 80's might not recognize the workplace of 2010 and beyond.

So while Senator Specter's change of party may make actually effectuating legislative initiatives easier in the Congress, it doesn't mean that these initatives aren't appropriate, or even overdue.

Alternatives to Card Check: What does your sausage look like?

While the Obama Administration has made 'Card Check' legislation a priority, the Congress appears to have other ideas.

Legislators have started to propose alternative approaches to the Employee Free Choice Act (EFCA; H.R.1409, S. 560) which are more likely to satisfy constituents on both the labor and management sides of the issue.

The National Labor Relations Modernization Act (H.R. 1355), introduced by Delaware County Congressman Joe Sestak (D-PA), would apply only to employers of 20 or more. It establishes a 120 day period (versus 90 under EFCA) within which the employer and employee can attempt to bargain collectively, after which the parties are referred to mediation or arbitration.

The NLRMA has other provisions which expand the rights of organizing employees, increase civil penalties for violations, and requires employers to outline for organizing employees the activities in which they intend to engage to oppose any unionizing campaign. Some of these may actually be more onerous on employers than the EFCA, but the bill does not abolish the secret ballot requirement, and therefore avoids the most controversial provision of EFCA.

Watching legislation pass is comparable to watching sausage being made; but it is clear that one way or another, this sausage is going to be made. It will be interesting to see how the final legislation that lands on the President’s desk will compare with the original EFCA language.

I Have a Feeling We're Not in Texas Anymore

According to the website DisabilityInfo.gov the Department of Justice has filed a lawsuit against JPI Construction L.P. and six JPI-affiliated companies in U.S. District Court in Dallas for failing to provide accessible features required by the Fair Housing Act and the Americans with Disabilities Act at multi-family housing developments in Texas and other states.

The defendant has allegedly built more than 200 apartment, condominium and other housing complexes in 26 states as well as the District of Columbia. According to the DOJ's press release, the suit seeks a court order requiring the defendants to modify the complexes to bring them into compliance with federal disability access laws. The suit also seeks monetary damages and a civil penalty.

It is well known that the Obama administration is going to make enforcement of civil rights, accessibility and employment laws a top priority, and signs of this have already appeared.

Most noteworthy, however, is that one of the first such strikes is in the heart of the very state where the former occupant of the Oval Office once ruled.

This announcement, especially when juxtaposed with the White House's recent announcement it intends to review Bush's 'signing statements,' makes it pretty clear that we're not in Texas anymore, Toto.

Stimulus Package includes substantial COBRA changes to benefit the recently unemployed

The Stimulus Package just signed into law by President Obama (a/k/a “The American Recovery and Reinvestment Act of 2009” (ARRA) contains significant changes to the COBRA laws designed to provide temporary relief for those affected by the economic downturn. These changes are effective with the March 1, 2009 health insurance policy period.

Employers already subject to COBRA (i.e., more than twenty employees) must subsidize 65% of an eligible individual’s COBRA premiums for as many as nine months. Persons who are eligible for this assistance (“assistance eligible individuals”) are employees who have been involuntarily terminated for other than gross misconduct between September 1, 2008, and December 31, 2009.
and their qualified beneficiaries.

The employer subsidy becomes taxable to the AEI whose adjusted gross income exceeds $125,000 for individuals and $250,000 for married filing jointly and is waivable by 'high income individuals' with adjusted gross income of $145,000 filing individually or $290,000 filing jointly.

Employers paying the benefit will receive a dollar-for-dollar tax credit against payroll taxes in the year in which the subsidy is paid. The subsidy is retroactive, and therefore, employers who are subject to these amendments will have to re-notice AEI’s, even if they have already made their COBRA elections since employment termination.

Employers are permitted but not required to offer lower-cost benefit coverage to AEI’s within ninety days of the COBRA notice date, and allow such individuals to switch to such benefits to reduce costs.

For further information, see here and the entire text of ARRA is available here.