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Posts Tagged ‘age discrimination’

JetBlue Loses Appeal On Hostile Work Ennvironment Age Discrimination And Retaliation Claims

Wednesday, March 10th, 2010

Complaints To Supervisor/Harasser Are Sufficient To Overcome Affirmative Defense On Hostile Environment Claim

There’s lots of meaty reading in the Second Circuit case of Gorzynski v JetBlue Airways Corporation decided this month. The 31 page opinion hits multiple issues including sexual harassment, age discrimination, race discrimination, and retaliation.

The Federal District Court threw out the case on summary judgment. The Second Circuit Court of Appeals reversed and this is why.

Facts Of The Case

It’s a long story, but here’s the gist of it.

JetBlue hired Diane Gorzynski as a customer service agent in January 2000 for its operation at Buffalo International Airport. She was 54 years old at the time. In May 2000 she was promoted to the position of Customer Service Supervisor and stayed in that position until she was fired on July 5, 2002.

The customer service supervisors were managed by James Celeste, the General Manager. William Thro, a regional manager, was responsible for overseeing the General Managers of several JetBlue stations.

During her employment, Gorzynski experienced age and gender discrimination including sexual harassment. She also observed discrimination of other employees. The main culprit was her supervisor, James Celeste.

Gorzynski complained to Celeste on numerous occasions about the discrimination and harassment she experienced and about the discrimination and harassment of her co-employees.

She was retaliated against and fired, she believed, because of her complaints.

The Lawsuit

Gorzynski filed a lawsuit claiming that JetBlue:

* discriminated against her because of gender in violation of Title VII of the Civil Rights Act of 1964

* discriminated against her because of age in violation of the Age Discrimination in Employment Act

* retaliated against her for complaints to her supervisors about age and gender discrimination and race discrimination of co-employees in violation of Title VII and the ADEA

She also claimed numerous violations on the New York Human Rights Law.

The federal District Court granted JetBlue’s Motion for Summary Judgment of all claims. Gorzynski filed an appeal.

The Second Circuit Reverses

The Faragher/Ellerth Defense

One of the most important and interesting parts of the decision is its holding regarding JetBlue’s affirmative defense on which the District Court hung its hat to throw out Gorzynski’s sexual harassment claim – and it’s a holding which can effect lots of people.

In order to establish a hostile environment sexual harassment claim, a plaintiff must produce enough evidence to show that the workplace was:

* permeated with discriminatory intimidation, ridicule, and insult that is

* sufficiently severe or pervasive to alter the conditions of the victim’s employment and

* create an abusive working environment

In analyzing a hostile environment claim, the court is required to “look at the record as a whole and assess the totality of the circumstances.”

In this case, Gorzynski presented evidence that Celeste:

* grabbed Gorzynsi and other women around the waist

* tickled them

* stared at them as if” he was mentally undressing them”

* made numerous sexual comments including remarks about wanting to suck on or massage their breasts.

The District Court did not consider this evidence. Instead, it found that JetBlue was entitled to win as a matter of law because of its “affirmative offense” under the Supreme Court Faragher and Ellerth decisions.

The employer is entitled to raise the defense in certain sexual harassment scenarios involving supervisors and co-workers if it can show that:

* it exercised reasonable care to prevent and promptly correct any harassing behavior and

* the plaintiff unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to avoid the harm

With respect to the first element, JetBlue presented evidence of its sexual harassment policy (contained in its employee handbook) which stated that: “any crewmember who believes that he or she is the victim of any type of discriminatory conduct, including sexual harassment, should bring that conduct to the immediate attention of his or her supervisor, the People Department or any member of management.”

JetBlue argued that Gorxynski was not entitled to proceed on her sexual harassment claim because she failed to take advantage of the policy in the handbook when she:

* only complained to her supervisor — the harasser

* did not complain to other members of management.

The District Court agreed with JetBlue and granted judgment in its favor on Gorzyynski’s sexual harassment claim.

The Second Circuit rejected the District Court’s conclusion and reversed. It stated:

We reject such a brittle reading of the Faragher/Ellerth defense. We do not believe that the Supreme Court, when it fashioned this affirmative defense, intended that victims of sexual harassment, in order to preserve their rights, must go from manager to manager until they find someone who will address their complaints.

Considering the courage it takes to complain about what are often humiliating events and the understandable fear of retaliation that exists in many sexual harassment situations, we decline to read the rule so rigidly.

Accordingly, we hold that an employer is not, as a matter of law, entitled to the Faragher/Ellerth affirmative defense simply because an employer’s sexual harassment policy provides that the plaintiff could have complained to other persons as well as the alleged harasser.

Instead, we conclude that the facts and circumstances of each case must be examined to determine whether, by not pursuing other avenues provided in the employer’s sexual harassment policy, the plaintiff unreasonably failed to take advantage of the employer’s preventative measures.

In this case, the Court noted that:

* the other manager Gorzynski could have complained to was Thro — the regional manager

* the evidence showed that Thro was not receptive to receiving complaints from employees

* the evidence also showed that Thro was intimidating

* Thro retaliated against those who made complaints

Therefore, the Second Circuit held — in reinstating the sexual harassment claim — the question of whether or not Gorzynski unreasonably failed to take advantage of the options provided in the sexual harassment policy was a jury question.

Remaining Issues Of Fact For The Jury

Age Discrimination

Gorzyski established a prima facie case of age discrimination:

* she was over 40

* she was qualified for her position

* she was fired

* she was replaced by a woman in her 40’s

JetBlue countered this inference of age discrimination with its “legitimate business reason”: it fired Gorzynski because of her “management style,” “unprofessional conduct and poor interpersonal skills” and the “hostile work environment she created.”

The District Court found that Gorzynski did not present any evidence that JetBlue’s reasons were false or pretextual – and threw out her age discrimination claim.

The Second Circuit disagreed. Some of the evidence it noted was:

* the negative evaluation Gorzynski received from Celeste — a 2 out of 5 — was conducted after he had supervised her for only one week

* a contemporary, anonymous crewmember gave her a 4 out of 5

* at the same time Celeste gave Crowly, a 30 year old customer service rep. a 4 out of 5 even though Crowly had been written up and counseled on numerous occasions –Celeste then promoted him

* JetBlue’s investigation regarding an incident which immediately preceded Gorzynski’s discharge was “questionable at best”

* Celeste told Gorzynski she reminded him of his 80 year old aunt

* younger employees were not disciplined for violating numerous policies including smoking and sleeping on the job

The Court stated:

Given the cumulative weight of this evidence, we believe that a reasonable jury could find not only that the explanations given by JetBlue for Gorzynski’s termination were pretextual, but also that, together with Celeste’s passing comment about his aunt, it was her age that was the ‘but for’ cause of Gorzynski’s termination.

Accordingly, we vacate the District Court’s dismissal of Gorzynski’s age discrimination claims.

(the case also has a very interesting discussion of “age plus” discrimination in connection with her claim that Celeste discriminated against older women)

Retaliation

The District Court also dismissed Gorzynski’s claim that she was discharged in retaliation for complaining about race, gender and age discrimination.

In order to establish a retaliation claim, the plaintiff must show

1. that she participated in a protected activity
2. suffered an adverse employment action
3. a causal connection between her engaging in the protected activity and the adverse employment action

The Second Circuit reversed the District Court’s holding on the retaliation claims noting in part:

* five months – the time between Gorzynski expressed concern about a co-workers race discrimination and her discharge – was “not too long to find a causal relationship.”

* a complaint about a sexual harassment incident two months before her discharge sufficiently alleged a causal connection between her protected complaint about sex discrimination and her termination

* Gorzynski’s statements in her affidavit that there was unequal enforcement of the rules at the Buffalo station with respect to older employees versus younger employees should have been considered by the Court

In sum, the Court said

JetBlue has articulated a legitimate nondiscriminatory reason for Gorzynski’s termination, and Gorzynski has produced evidence that casts significant doubt on that rationale, leaving a triable issue as to whether JetBlue retaliated against her for complaining about prohibited discrimination.

Lessons To Be Learned

The decision is filled with points of law that are very helpful to employees who have filed employment discrimination claims. It gives numerous examples of what may be considered evidence of disparate treatment, pretext, and retaliation.

It also has a very interesting discussion of gender/age “plus” discrimination, where a subset of women are being discriminated against in the workplace, ie., older women, or black women, but not all women — which in reality is quite common.

Most noteworthy is the discussion of the Faragher/Ellerth defense. While it is critical for those who have been sexually harassed to complain to someone in management, the opinion makes it clear that victims of sexual harassment will not lose their rights because they did not complain to each person designated in a company’s sexual harassment policy.

Complaints to the supervisor/harasser are sufficient. That particular point of law will be a huge help to many victims.

Images: www.bajanfuhlife.com/news/news

*This article was originally published in Employee Rights Post on February 28, 2009. Reprinted with permission from the author.

About the Author: Ellen Simon is recognized as one of the first and foremost employment and civil rights attorneys in the United States, Ellen Simon has been lauded for her work on landmark cases that established employment law in both state and federal court. A sought-after legal analyst and expert, she discusses high-profile civil cases, employment discrimination and woman’s issues. Her blog, Employee Rights Post www.employeerightspost.com/ has dedicated readers who turn to Ellen for her advice and opinion. Learn more about Ellen Simon at www.ellensimon.net/.

Congress Introduces Age Discrimination Bill To Fix Supreme Court's Gross Decision

Thursday, October 22nd, 2009

Age Discrimination Legislation Will Overturn Gross Decision

Last June, the Supreme Court issued the awful and controversial age discrimination opinion in the Gross v. FBL Financial Services case.

I wrote about the case at that time and predicted that it was just a matter of time until Congress fixed it with a bill that would overrule the decision and set the record straight on the fair standard of proof for age discrimination plaintiffs.

Last Tuesday, the Senate and House introduced legislation designed to do just that.

The bill — introduced as H.R. 3721 — and called the Protecting Older Workers Against Discrimation Act, will put age discrimination plaintiffs back where they were before the Gross decision.

The bill will apply to all cases pending on or after June 17, 2009,  the day before the Gross decision.

Senator Patrick Leahy, one of the authors of the bill had this to say (as reported in the New York Times):

What our bill does is restore the intent of Congress, an intent that I believe the Supreme Court negligently ignored.

In Gross, the Court held that the Plaintiff, Jack Gross, was required to prove that age was the “but for” reason he was demoted from his job.

In other words, the plaintiff would have to prove that “but for” his age, he would not have been demoted (fired, hired, etc.).

Most interpret this as a new and more stringent requirement that age be the sole reason for the adverse employment action (though the case has conflicting language on that issue).

What’s fundamentally flawed about the Court’s interpretation of the federal age discrimination statute (ADEA) is that it’s not consistent with all  of the other comparable civil rights statutes.

Simply stated, it makes no sense for an age discrimination plaintiff to be treated differently, and more harshly, than a plaintiff in a race or gender discrimination case. The method of proof and standard of proof has been, and ought to be, the same.

In other discrimination cases a plaintiff must prove that the alleged discrimination was “a motivating factor,” not the sole reason, for the challenged adverse employment decision.

This bill establishes that age discrimination cases are to be interpreted by the same “motivating factor” standard of proof.

The bill also explicitly recognizes the difficulty of proving discrimination cases and makes clear that victims of any kind of prohibited discrimination can prove their cases with direct or circumstantial evidence.

According to Senator Tom Harkin, one of the co-sponsors of the bill — as reported in Workforce Management:

The Court invented a new standard that makes it prohibitively difficult for a victim to prove age discrimination

This extraordinarily high burden radically undermines older workers’ ability to hold employers accountable.

It’s no secret that workers over 55 have been hit hard by the recession. According to the EEOC, 25,000 age discrimination cases were filed last year, a 30%increase from 2000.

The last thing these folks need is a more difficult standard of proof when age discrimination is at play.

Fortunately, Congress has the final say on what its legislation means and how it should be interpreted. That’s why it gets to say that all discrimination plaintiffs should be treated consistently by the courts.

Let’s hope that this important Congressional fix gets passed soon.

image:blog.prospect.org images1.wikia.nocookie.net

This article originally appeared in Employee Rights Post on October 15, 2009. Reprinted with permission from the author.

About the Author: Ellen Simon is recognized as one of the first and foremost employment and civil rights lawyers in the United States. With more than $50* million in verdicts and settlements and over 30 years of experience, Ellen has been listed in Best Lawyers in America and in the National Law Journal as one of the nation’s leading litigators. She has been lauded for her work on landmark cases that established employment law in both state and federal court. Ellen also possesses a wealth of knowledge as a legal analyst discussing high-profile civil cases, employment discrimination and women’s issues. Ms. Simon has been quoted often in local and national news media and is a regular guest on television and radio, including appearances on Court TV. She is the author of the Employee Rights Post, a legal blog devoted to employee and civil rights.

*prior results do not guarantee a similar outcome

Eighth Circuit Sets Record Straight On Age Discrimination

Wednesday, September 30th, 2009

Age Discrimination Plaintiff Gets Great Decision From Court of Appeals

It looks like a typical age discrimination scenario. A supervisor makes hostile remarks about older employees and expresses a preference for younger ones. An older employee with an excellent record gets fired for trumped-up reasons and a younger employee is hired to replace her.

What seems like an obvious case of age discrimination was not so obvious to the Federal District Court in the Western District of Missouri when it threw out the case of Baker v. Silver Oak Senior Living Mgt. Co. on summary judgment.

Fortunately, the Eighth District Court of Appeals reversed this month in an important opinion about the proper interpretation of evidence in an age discrimination case. 

What Happened In The Case

Kathy Baker worked as the director of assisted living at a center operated by Silver Oak since 2003. Her 2004 review was excellent in every category.

A few months later, Carolyn Thomas was hired as Baker’s new supervisor. After taking over, Thomas told Baker that:

  • Silver Oak needed people that were “young and vivacious, not slow and old”
  • Baker “needed to get rid of the dead wood”
  • Employees who had been fired were “slow and old”

She also told Baker that:

  • She dressed like an old lady
  • Everyone had to “keep up with” two supervisors who were in their thirties

The CEO, Eric Lindsey, made similar remarks at meetings attended by Baker.

Thomas also admitted that she teased Baker about walking slowly and having poor hearing. She also repeatedly asked Baker to fire and discipline older employees.

When Baker told Thomas that  “you can’t get rid of employees just because they’re old,” Thomas responded that:

  • “firing older employees would allow Silver Oak to hire younger employees for less money'”
  • “younger employees would be better workers, have more energy, be more enthusiastic, and stimulate the residents”

After refusing Thomas’ demands to get rid of the older employees, Baker was disciplined and placed on indefinite probation.

The reason given was that Baker allegedly failed to get proper approval before admitting a special-needs resident and dismissed an employee without having an administrator present.

Baker claimed that that these allegations were false.

Following those events, Thomas gave Baker a negative performance evaluation and asked Baker whether she was going to quit. She said no.

A couple of months later, Baker went on an approved medical leave. She was called in at some point during her leave, told that she had been temporarily replaced and that she was being transferred to another city.

She was again asked if she wanted to quit and again she said no.

Shortly after that she was fired. The reason given was that she did not call in each day during her medical leave. Baker was 53 years old at the time.

Angela Thomas, age 30, temporarily took over Baker’s duties until a new director — 22 year old Starr McGinnes —  was hired to replace Baker a couple of months later.

The Lawsuit

Baker filed a lawsuit claiming age discrimination and retaliation under the Age Discrimination in Employment Act and under the Missouri Human Rights Act.

While it may seem hard to believe in the face of this record, the federal district court threw out the case and granted judgment in favor of Silver Oak on all claims stating that Baker:

  • failed to present any direct evidence that age was a motivating factor in her termination (a misinterpretation of the Gross decision)
  • offered no evidence that Silver Oak’s stated reasons for firing her were a pretext for age discrimination
  • did not engage in any protected activity which would support a retaliation claim

The Court Of Appeals Reverses

Baker appealed the incomprehensible ruling of the district court. The Eighth Circuit Court of Appeals reversed on all counts and gave Baker her day in court.

Here’s the gist of what the Court had to say.

Evidence of Age Bias

Statements by Lindsey (CEO) and Thomas (supervisor) — who participated in the decision to fire Baker — were evidence of a preference for younger workers over those protected by the ADEA.

As stated by the Court:

Lindsey’s statement to his management team that Silver Oak was ‘missing the boat by not hiring younger, vibrant people,’ and that employees ‘should start looking over applications better and try to consider hiring younger people’ is evidence that a reasonable jury could take to reflect a discriminatory attitude by one who participated in Baker’s termination.

Other evidence that the Court considered to support Baker’s age discrimination claim included:

  • Thomas’ criticism of Baker for dressing like an old lady
  • Thomas’ comments about keeping up with younger employees
  • Baker’s refusal of Thomas’ directions to discipline older workers
Evidence of Pretext

The Court also found that Baker presented plenty evidence of pretext — meaning that the reasons given for the discharge were not believable. Evidence of pretext can give rise to an inference of age discrimination and can be proved circumstantially.  “Direct evidence” is not essential.

In this case, that evidence of pretext included:

  • Baker’s explanation for why the probation was not warranted
  • Silver Oaks’ failure to follow its normal progressive discipline policy
  • Shifting explanations for why Baker was terminated:

As the Court stated:

Not every supplement to an employer’s initial statement of the reasons gives rise to an inference of pretext, but substantial variations raise suspicion.

[The evidence of pretext] is combined with evidence from which a jury could find that the management of Silver Oak harbored a discriminatory attitude toward older employees and desired to displace them in favor of a younger workforce.

Viewing all of the evidence together, we conclude that Baker has presented a submissible case of age discrimination under the ADEA.

Retaliation Claim Survives

Baker claimed that she was retaliated against because she opposed Silver Oak’s conduct which she believed to be unlawful age discrimination.

Baker filed an affidavit in which she stated that she repeatedly told Thomas:

  • That terminating older employees was wrong
  • You can’t get rid of employees just because they’re old

It’s a technical argument but in sum, the district court ignored the evidence because it was presented in an affidavit and not in Baker’s deposition or other court pleadings.

The Eighth Circuit held that the district court made an error in striking Baker’s affidavit and allowed Baker’s retaliation claim to proceed.

What’s Important About This Case

Everything but here’s the big three:

1.The case gives excellent illustrations about the kind of evidence from which a jury may infer age discrimination — including hostility towards older workers and/or a preference for younger ones.

2. On the subject of pretext the Court makes note of a failure to follow normal progressive discipline policies, and shifting explanations for the discharge.

This kind of evidence is quite common in discrimination cases, and it’s very helpful for employees to have a Circuit Court of Appeals affirm it as proof of pretext.

3. While it’s a technical point, mostly for the lawyers, it’s extremely helpful that the lower court was reversed because it struck Baker’s affidavit.

Clients don’t always remember everything important about their case when interrogated in a lengthy deposition. Many times salient points are not ever asked.

Consequently, adding important evidence to the record by way of a sworn affidavit is often necessary to fill in the evidentiary gaps. The Eighth Circuit recognized this necessary practice and affirmed its propriety.

It’s really good news for plaintiffs in discrimination cases and their lawyers.

All in all, it’s just a great case for employees who are unfortunate victims of age discrimination. It should also be instructive to employers as to what illegal age discrimination can look like in front of a jury.

About the Author: Ellen Simon is recognized as one of the foremost employment and civil rights lawyers in the United States. She has been listed in the National Law Journal as one of the nation’s leading litigators. Ms. Simon has been quoted often in local and national news media and is a regular guest on television and radio, including appearances on Court TV. Ellen has been listed as one of The Best Lawyers in America for her landmark work representing individuals in precedent-setting cases. She also received regional and national attention for winning a record $30.7 million verdict in an age-discrimination case; the largest of its kind in U.S. history. Ellen has served as an adjunct professor of employment law and is an experienced and popular orator. Ellen is Past-Chair of the Employment Rights Section of the Association of Trial Lawyers of America and is honored to be a fellow of the International Society of Barristers and American Board of Trial Advocates. In additional to work as a legal analyst, she currently acts as co-counsel on individual employment cases, is available as an expert witness on employment matters and offers consulting services on sound employment practices, discrimination awareness and prevention, complaint investigation and resolution, and litigation management. Ms. Simon is the owner of the Simon Law Firm, L.P.A., and Of Counsel to McCarthy, Lebit, Crystal & Liffman, a Cleveland, Ohio based law firm. She is also the author of the legal blog, the Employee Rights Post, and her website is www.ellensimon.net. Ellen has two children and lives with her husband in Sedona, Arizona.

This post originally appeared in Employee Rights Post on September 28, 2009. Re-printed with permission by the author.

image:therawfeed.com

Just Because It's a Layoff, Doesn't Mean You're Out of Options

Thursday, July 2nd, 2009

In this down economy, many employers are undergoing layoffs of workers. Certainly, it can be harder to prove that your termination was discriminatory or retaliatory when many others are suffering the same fate as you are. But ask yourself this: was the layoff legitimately based upon financial reasons, and if so, why were you chosen?

As the California Supreme Court has explained, “Invocation of a right to downsize does not resolve whether the employer had a discriminatory motive for cutting back its work force, or engaged in intentional discrimination when deciding which individual workers to retain and release.” Guz v. Bechtel National, Inc., 24 Cal.4th 317, 358, 100 Cal.Rptr.2d 352 (2000). See also, e.g., Miller v. Fairchild Industries, Inc., 885 F.2d 498, 506 (9th Cir. 1989) (jury could find retaliation in layoff which employer claimed was based on decline in workload, where employee provided contrary testimony and where other employees were not similarly laid off); Cones v. Shalala, 199 F.3d 512, 519-520 (D.C.Cir. 2000) (holding that a jury could have concluded that the agency’s explanation for not promoting the African-American plaintiff, downsizing, was inconsistent with its decision to promote three white co-workers, and hence a pretext for discrimination); Cichewicz v. UNOVA Indus. Automotive Systems, Inc., 92 Fed.Appx. 215, at **5 (6th Cir. 2004) (downsizing explanation insufficient to warrant summary judgment where there was evidence of pretext). If you were chosen for layoff over someone not of your protected classification who was less qualified, then you may still have a viable claim regarding your termination.

In a case in which I argued this last month against a summary judgment and summary adjudication motion, the employer – a relatively small company – laid off five workers, including my client, who was 50 at the time. My client was the only worker of his classification laid off, and a number were retained – including some who were similar in age to my client, and some who were ten or more years younger. I was able to distinguish my client from several workers of similar ages because they worked in different regions (geographically) than he did. Yet, the company was at first unable to present a legitimate, non-discriminatory reason for retaining the younger workers instead of my client. When the company did present reasons other than age, they were only vague and non-specific ones (e.g., management felt that my client would be “less missed”), which (to the extent they meant anything at all) my client could readily refute.

Moreover, there were numerous instances in which a key decision-maker in the layoff had told my client that he felt the company needed to “get younger,” and that older workers cost the company more in benefits and wages, among other statements. This evidence suggests that the company’s weak reasons stated for choosing my client for layoff were just a pretext (or phony reason to cover up) for age discrimination. “With direct evidence of pretext, a triable issue as to the actual motivation of the employer is created even if the evidence is not substantial. The plaintiff is required to produce very little direct evidence of the employer’s discriminatory intent to move past summary judgment.” Morgan v. Regents of University of Cal. (2000) 88 Cal.App.4th 52, 68, 105 Cal.Rptr.2d 652 (citing Chuang v. University of California Davis, Bd. of Trustees (9th Cir. 2000) 225 F.3d 1115, 1127.

Based on the evidence I presented, Bryan Schwartz Law (http://www.bryanschwartzlaw.com/) and my co-counsel learned that the Court intends to deny the company’s effort to defeat the age discrimination claim arising from the layoff, allowing my client to proceed to trial to overturn his termination.

If you are notified of a layoff, think twice before assuming that you are out of options.

Disclaimer: Nothing in this posting is intended in any way to form an attorney-client relationship or any other contract. It is designed solely to provide general information about one area of the practice at Bryan Schwartz Law. Be mindful of any deadlines you have approaching that relate to your legal situation, and make sure that you meet them. Bryan Schwartz Law does not assume any responsibility for advice given regarding any aspect of your case until you have a signed legal services agreement engaging the firm’s representation.

About the Author: Bryan Schwartz is an Oakland, CA-based attorney specializing in civil rights, employment law. Call today – (510) 444-9300 – or send an email: [email protected]

This article originally appeared in Bryan Schwartz Law on March 31, 2009. Re-printed with permission by the author.

New Supreme Court Age Discrimination Decision Will Be Gone in a Flash

Friday, June 26th, 2009

Did the Supreme Court Discriminate Against Victims of Age Discrimination?

The only good thing to say about the new age discrimination case of Gross v. FBL Financial Services, Inc. is that it will be gone in a flash. 

There are so many things wrong with it that it’s hard to know where to begin, and because I really do believe that it will be legislatively overruled in the very near future, I don’t want to beat it to death.

Let me say this. For those immersed in discrimination law, the opinion and the dissenting opinions are a must read.

For the rest of the country, I believe that the decision will have little impact and there are several reasons why that’s so.

Case Background

The question before the Supreme Court was whether a plaintiff must present direct evidence of age discrimination in order to obtain a mixed motive instruction in a suit brought under the Age Discrimination in Employment Act.

It’s a pretty dry academic issue with little to no practical effect in the real world of age discrimination litigation. 

For those interested in the background of the issues presented in the case, you can take a look at the article I wrote on the case when it was argued in March.

What The Court Did In The Gross Case

Instead of deciding the issue before it, the Court did two really strange things in this case:

  1. It decided an entirely different issue than the question accepted for review — one that was not properly presented or briefed.
  2. The issue it chose to rule on manifested a complete disregard for Supreme Court precedent and Congressional intent.

Here’s an attempt at an explanation.

Title VII of the Civil Rights Act of 1964 says that a person can’t be discriminated against  in his/her employment “because of ” his/her race, color, sex, religion or national origin.

The Age Discrimination in Employment Act (“ADEA”) was passed in 1967.  Like Title VII, the ADEA prohibits discrimination in employment  “because of ” age.

The Supreme Court has interpreted the “because of” language and so has Congress. 

The issue first came up for interpretation before the Supreme Court in the Price Waterhouse case in 1989.  In that case, Justice Kennedy pushed for a “but for” standard which meant that the plaintiff in a Title VII case would have to prove that “but for” his race (sex, national origin, religion, etc.) he would not have been terminated (demoted, transferred, etc.).

The Price Waterhouse decision rejected the “but for” standard and held that the plaintiff in a Title VII employment discrimination case bears the burden of  proving that membership in the protected class was a “motivating factor in the employment decision” in order to prove that he or she was discriminated against because of it.

Congress ratified the “motivating factor” interpretation when it passed the Civil Rights Act of 1991.The precise language of the statute is as follows:

An unlawful employment practice is established when the complaining party demonstrates that race, color religion, sex, or national origin was a motivating factor for any employment practice, even though other factors also motivated the practice.

What happened in the Gross case last week is that the majority resurrected thebut forstandard and held that:

To establish a disparate treatment claim under the plain language of  the ADEA, the plaintiff must prove that age was the “but-for”cause of the employer’s adverse decision.

It’s important to point out that Title VII and the ADEA have previously been interpreted uniformly by courts throughout this country including the Supreme Court.

After all discrimination is discrimination, and it make no sense to use different methods, burdens, or standards of proof for age discrimination cases than sex or race discrimination cases, and it’s not been done before.

Why The Decision Makes No Sense

For all of the reasons why the majority opinion written by Justice Thomas (joined by guess who) is in my opinion, just  plainly wrong (there are other words I would love to use but I am constrained to be respectful) I recommend that you take a look at  Justice Stevens scathing dissent. Here’s a glimmer:

The Court is unconcerned that the question it chooses to answer has not been briefed by the parties or interested amici curiae.  It’s failure to consider the views of the United States, which represents the agency charged with administering the ADEA, is especially irresponsible.

Unfortunately, the majority’s inattention to prudential Court practices is matched by its utter disregard our our precedent and the Congress’ intent.

Not only did the Court reject the but-for standard in [Price Waterhouse], but so too did Congress when it amended Title VII in 1991. Given this unambiguous history, it is 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.

The Court’s endorsement of a different construction of the same critical language in the ADEA and Title VII is both unwise and inconsistent with settled law. 

I disagree not only with the Court’s interpretation of the statute, but also with its decision to engage in unnecessary lawmaking. 

(Justice Souter agreed with Justice Stevens and also wrote a separate dissent. He raised additional problems with the “but for” language — not the least of which is that it’s a tort concept of causation that has no place in the actual context of a discrimination case and its proof.)

What’s Coming

The talk has already started about a Congressional bill which will overturn the decision. As reported in the Washington Times on Friday:

 Democratic lawmakers seized on Justice Stevens’ dissent as constitutional lawyers predicted Congress would make a law to lower the courts new bar for age discrimination cases. 

‘It is even more troubling that these five justices decided to go further than the question presented to the court,’ said Senate Judiciary Committee Chairman Patrick J. Leahy, Vermont Democrat.

“This overreaching by a narrow majority of the court will have a detrimental effect on all Americans and their families. In these difficult economic times, American workers need to be protected from discrimination.”

Mr. Leahy said Thursday’s decision reminded him of the court’s “wrong-headed ruling in Ledbetter,” a reference to Lily Ledbetter, whose pursuit of equal pay to her male counterparts at Goodyear Tire & Rubber Co. was thrown out in 2007 because she filed the lawsuit after the expiry of a 180-day statute of limitations.

What’s the Practical Effect of the Decision?
  • As far as the loss of getting a mixed motive instruction in an age discrimination case, most plaintiff’s lawyers don’t care. It’s too confusing to the jury. So until it’s fixed legislatively, it really doesn’t matter.
  • Most experienced employment lawyers know that the “but for” language will have little effect on a jury.
  • Age discrimination plaintiffs will still have the opportunity, through the use of direct and circumstantial evidence, to prove that they were discriminated against because of their age — and this decision does not change that fact.

While some interpret the decision to  require proof that age was the sole reason for the discharge, I don’t think that’s clear at all from the language of the decision.

The majority opinion relies on a previous Supreme Court case, Hazen Paper Co. v. Biggens, and the language in it that says that “an age discrimination plaintiff can win if it proves that the discrimination played a (not the) role in the employer’s decision making process and had a (not the) determinative influence on the outcome.”

Plaintiffs in age discrimination cases can and will rely on that language to rebut the contention that a higher bar has been set. Justice Thomas also writes in a footnote that  the decision sets no “heightened evidentiary requirement for ADEA plaintiffs ” — so why not take him at his word.

In sum, I think it’s all academic and that the opinion will have little effect on the litigation or trial of age discrimination cases in the future. It will, however, make for a whole pile of briefing on what will shortly become a moot point.

The Bottom Line

The bottom line is that Congress has certainly never said that it should be harder to prove age discrimination than any other kind of prohibited discrimination and never intended that result.

It’s fundamentally unsound and intellectually dishonest to interpret the same words differently because one discrimination statute refers to race and sex and another refers to age. What’s more, it’s just totally confusing.

That’s why the Gross decision will, in my opinion, be gone in a flash.

About the Author: Ellen Simon is recognized as one of the foremost employment and civil rights lawyers in the United States. Ms. Simon is the owner of the Simon Law Firm, L.P.A., and Of Counsel to McCarthy, Lebit, Crystal & Liffman, a Cleveland, Ohio based law firm. She is also the author of the legal blog, the Employee Rights Post. Her website is www.ellensimon.net.

This article originally appeared in Employee Rights Post on June 22, 2009. Re-printed with permission by the author.

Images:  www.roadtransport.com and farm1.static.flickr.com

Are Fox and American Idol Guilty of Age Discrimination?

Tuesday, April 21st, 2009

It would have been hard to miss the heartwarming story last week about Susan Boyle’s performance on the British version of American Idol called Britain’s Got Talent. The New York Times and CBS News have extensively covered it as have most of the other media outlets.

The episode, according to the Times, has provoked a debate about the “not so young and not so beautiful” that has many people talking.

Here’s how one blogger, Letty Cottin Pogrebin, described  what happened on the show in her excellent piece in The Huffington Post:

Once on stage, her interrogator, Simon Cowell, asks about her dream. To be a professional singer, she says, and as successful as Elaine Page — a statement that elicits great hilarity and hyperactive camera close-ups of the judges’ bemused disbelief and the snickering, eye-rolling audience.  . . .

Cheerful and unperturbed, the contestant blithely announces that she is going to sing, “I Dreamed a Dream” from Les Miserables.

“How old are you, Susan?” asks Simon, in a tone more appropriate to an interview with a toddler.

“Forty-seven,” she says. The audience cracks up. Pixels of ridicule fill the screen, incredulity, patronizing sneers, smirks, whispers you can almost hear: Look at her, will you! Frumpy from the Fifties, got a double chin, a silly Scottish accent, hails from some tiny hamlet, can’t remember the word “villages,” and to top it off, Omigod, she’s old! Either she’s a ringer and we’re in for some weird parody of Dame Edna or we’re about to see this dowdy dame make a fool of herself on the hottest show on British telly.

Finally, Susan Boyle steps into the spotlight and opens her mouth, and before she’s sung three glorious, crystal clear notes, the audience is cheering, the judges’ jaws have dropped, and I’m choking back tears.

It is truly a great story and if you have not seen the video, I strongly suggest that you join the thirty million people who have. It will surely bring a tear to your eye.

But here’s what struck me when I first saw the story: How come she gets to try out  and she’s 47? Not so in the U.S.A.

While most people may not have given it much thought, it’s pretty obvious that all of the singers on American Idol seem quite young  Well they are, and it’s no coincidence

My husband  is a pretty good singer (for sure I have a bit of a bias) and we have a good time at karaoke clubs.  My son is an agent in the entertainment business.  I  mentioned to my son that I thought it would be fun if my husband tried out for American Idol — not that he would win of course, but that it would be fun to go to a tryout. After he stopped laughing he said:

He can’t try out

Why not?  I said.

Because he’s not under 30.

Yes, that’s right.  In order  to try out for American Idol you have to be under thirty years of age.  I checked the rules and here’s what I found:

You have to be a legal U.S Citizen or a permanent U.S resident. You also have to be between the ages of 16 and 29. Make sure to bring 2 forms of I.D with you, at least one form must be a photo I.D. If you are under 18 you need to have a parent or legal guardian with you.

So is it age discrimination? It’s not a real simple answer.

The Age Discrimination in Employment Act of 1967 (ADEA) protects individuals who are 40 years of age or older from employment discrimination based on age. The ADEA applies to:

  • all employees and job applicants.
  • all terms and  conditions of employment including: hiring, firing, promotion, layoff, compensation, benefits, job assignments, and training.

It is crystal clear that an employer can not lawfully have a rule which prohibits it from employing anyone over the age of 30.

There are times when employers can lawfully use age in making employment decisions.  For example,commercial airline pilots are required to retire at a certain age. It’s simply not safe to have 80 year old pilots flying commercial jet planes with hundreds of  lives at risk.

For that logical reason, the Age Discrimination in Employment Act permits exceptions for:

a bona fide occupational qualification reasonably necessary to the normal operation of the par­ticu­lar business

That provision, commonly called the “BFOQ” exception, allows airlines as well as other industries (where safety, for example, may be an issue) to require retirement at a designated age.

But singing?  What could possibly be the bona fide occupational justification for statinging that an excellent singer has to be under 30?  Paul McCartney and Barbara Streisand still sound just fine. In fact, it seems to me that many singers get better with age.

The problem with this scenario is that the Age Discrimination in Employment Act prohibits age discrimination in employment and folks on American Idol are not applying for jobs, so the the act arguably does not apply.

I am not, however, completely convinced that’s the end of the story and this is why.

American Idol is broadcast by Fox. Fox Broadcasting Company is a network that is heavily regulated by the federal government.

In fact , Fox is licensed by the Federal Communications Commission to do business and is subject to the Cable Television Consumer Protection and Competition Act of 1992 as well as a host of other federal laws.Television networks have all sorts of civil rights compliance requirements and regulations which prohibit discrimination.

While I understand that this is not a case of discrimination in employment, it certainly seems to me that it may be a case of discrimination in the award of a contract.

This is my argument:

  • when you win American Idol you get a recording contract
  • the contract is offered on to those under 30
  • Fox Broadcasting, through American Idol, is committing age discrimination in the award of contracts by not allowing those over 30 to compete.

I am not entirely sure whether the argument is constitutionally sound, but I am not convinced that it’s not.

As a constitutional matter, if a governmental entity awarded contracts to whites only,  we would no doubt be outraged. The government would have the impossible burden of showing that it had a “compelling governmental purpose” for doing so and the alleged justification would be given “strict scrutiny”. In other words, we would have little trouble proving that the contract is unconstitutional and illegal.

But even at the lower level of constitutional scrutiny used in cases of gender or age discrimination, how could  a contract awarded only to singers under the age of 30 be “rationally related to any legitimate governmental purpose” ? ( if Fox is considered to be taking governmental action because of it’s federal license or because it is heavily regulated by the federal government a constitutional analysis could kick in)

Yes, it’s all quite complicated.  Constitutional law is not easy. But it’s not hard to ask this question: If American Idol only permitted white individuals to audition, or permitted only men to try out, how would we feel about it and what would we do?

Putting all of the legal complexities aside, from one Simon to another, I feel compelled to ask: why can’t the show let everyone try out  to be the next American Idol?

Equal opportunity in England, but not the United States, just doesn’t seem right.

image: weblogs.newsday.com

Crossposted from Ellen Simon’s blog Employee Rights Post.

About the Author: Ellen Simon is recognized as one of the foremost employment and civil rights lawyers in the United States. Ms. Simon is the owner of the Simon Law Firm, L.P.A., and Of Counsel to McCarthy, Lebit, Crystal & Liffman, a Cleveland, Ohio based law firm. She is also the author of the legal blog, the Employee Rights Post. Her website is www.ellensimon.net.

Supreme Court Hears "Mixed-Motive" Age Discrimination Case

Thursday, April 2nd, 2009

Good luck to anyone who is trying to figure out what is going on with the Gross v. FBL Financial Services case argued in the Supreme Court yesterday. I have been doing this work for three decades and I think it’s almost impossible.

The questions presented are:

  1. In a “mixed-motive” age discrimination case — where both legitimate and illegitimate reasons motivated the employment decision, should the employer be permitted to avoid liability if proves that it would have taken the same action anyway?
  2. What kind of evidence needs to be presented — direct or circumstantial — to prove a “mixed-motive” case?
  3. Does the discriminatory reason need to be a “substantial reason” or “a motivating reason” for the employee to prevail?
  4. Which party bears the burden of proof?

The answers turns on whether the Supreme Court will apply the older mixed motive analysis under Price Waterhouse v. Hopkins or the newer standard under the Civil Rights Act of 1991. (“CRA”); or (less likely) whether the Court will overrule Price Waterhouse as requested by the employer-respondent.

In the 1989 Price Waterhouse decision, the plaintiff Ann Hopkins presented direct evidence (as opposed to circumstantial evidence) that she was discriminated against when she was denied a promotion to partnership. The defendant basically said that even though it  may have discriminated,  it would have reached the same result anyway in denying Ms. Hopkins her promotion.

In it’s fractured decision,  the Supreme Court came up with a new way of proving discrimination in what it called a “mixed-motive” case.  Simply said, this new method of proof set forth a complicated and confusing burden shifting framework.

After the Price Waterhouse decision, courts began allowing employers who used illegal factors in employment decisions to avoid liability by merely showing that they would have made the same decision anyway even without considering the unlawful factor.

In other words, the unintended consequence of the decision was that employers were getting off the hook in the face of direct evidence of discrimination.

As a result, Congress overturned that portion of Price Waterhouse when it enacted the Civil Rights Act of 1991.  In so doing, it specifically lowered the standards for employees in “mixed-motive” cases.  Theoretically, the CRA  makes it easier for employees to win these cases.  Under the Act:

  • the employer is not absolved of liability in “mixed-motive cases” even if it proves it would have made the same decision anyway, but damages to the employee are restricted.
  • in  order to take advantage of the mixed-motive theory and shift the burden to the defendant, the plaintiff must “demonstrate” that race, color, religion, sex, or national origin was a motivating factor for any employment practice, even though other factors also motivated the practice

The legislation was silent as to what type of evidence (direct, circumstantial, clear and convincing, etc.) the plaintiff needed to successfully prove the illegal motivation.

The issue of what kind of evidence was required was decided by the Supreme Court inDesert Palace, Inc. v.Costa in 2003. According to that decision, Congress intended the term “demonstrate” to mean that an employee could prove his or her case bydirect or circumstantial evidence. As the Court stated:

Title VII’s silence with respect to the type of evidence required in mixed-motive cases . . . suggests that we should not depart from the “[c]onventional rul[e] of civil litigation [that] generally appl[ies] in Title VII cases.” … That rule requires a plaintiff to prove his case “by a preponderance of the evidence,” . . . by using “direct or circumstantial evidence,” Postal Service Bd. of Governors v. Aikens,460 U.S. 711, 714, n. 3 (1983).

You would think that would settle it but there’s always a wrinkle, and the wrinkle for Mr. Gross is that  the CRA applies to Title VII and does not specifically mention the Age Discrimination in Employment Act . As a result, according to FBL Financial, neither the CRA nor the Desert Palace decision apply to Gross’ case.

Paul Secunda from the Marquette University Law School Faculty Blog points out that conservative justices like Scalia, Thomas, Roberts and Alito may jump on this argument.

One argument, likely to be favored by conservative justices like Scalia, Thomas, Roberts, and Alito, is a textualist approach arguing that Congress knew what it was doing, could have expressly included the ADEA in the CRA of 1991, but chose not to for whatever reason. If we are unhappy with the current state of affairs, the argument continues, the proper approach is to allow Congress to amend the CRA of 1991 to include ADEA claims.

The flip side is that disparate treatment claims under the Age Discrimination in Employment Act (which is what this is) are always interpreted identically to claims brought under Title VII (which prohibits discrimination because of race, color, religion, sex, or national origin) on issues like the ones before the Court.

Gross’ argument is that there would be no reason not to interpret the ADEA  consistently with Title VII and no reason not to do so in this case.  That is in fact what many courts have done. (ie the Sixth Circuit Court of Appeals in Blair v. Henry Filters)

If anyone wants more, better, or different analysis of  the Gross case,  there are lots good pieces on it (SCOTUSBLOG, Ross Runkel’s Law Memo are two)

Whatever the outcome, as a practical matter I don’t think it will change the way employees and their lawyers go about proving age discrimination cases:

  • Plaintiffs are going to present all the evidence they have whether it’s direct or circumstantial, or both.
  • Most of us who represent employees have never seen the benefit of getting a “mixed motive” instruction even when we have direct evidence of discrimination because it’s too confusing to the jury.
  • It’s just a much easier and better standard for employees in discrimination cases to have to prove by a preponderance of the evidence, whether direct or circumstantial, that age, race, sex, religion, national origin, or disability was a motivating factor in the adverse employment decision.

For sure, the decision will be interesting to Supreme Court observers to see how the justices line up on this one.  Other than that, it’s not very interesting at all, but since it’s not often that an age discrimination cases hit the Supreme Court, it’s got to be talked about even though I am the first to admit –it’s mostly academic.

Image: www.visitingdc.com

Crossposted from Ellen Simon’s blog Employee Rights Post.

About the Author: Ellen Simon is recognized as one of the foremost employment and civil rights lawyers in the United States. Ms. Simon is the owner of the Simon Law Firm, L.P.A., and Of Counsel to McCarthy, Lebit, Crystal & Liffman, a Cleveland, Ohio based law firm. She is also the author of the legal blog, the Employee Rights Post. Her website is www.ellensimon.net.


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