Supreme Court Age Discrimination Decision in "Mixed-Motive" Cases Invites Legislative Reversal

Posted on June 19, 2009 by Michael Moore

The United States Supreme Court decision in Gross v. FBL Financial Services, Inc. creates a rift between the treatment of so called "mixed-motive" cases under the ADEA and Title VII. Under Title VII, an employee may allege that he suffered an adverse employment action because of both permissible and impermissible considerations—i.e., a “mixed-motives” case. If a Title VII plaintiff shows that discrimination was a “motivating” or a “ substantial” factor in the employer’s action, the burden of persuasion shifts to the employer to show that it would have taken the same action regardless of that impermissible consideration.

The Supreme Court declined to apply the mixed-motive burden shifting to ADEA cases holding that a plaintiff bringing an ADEA disparate-treatment claim 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.

Congress amended Title VII to explicitly authorize discrimination claims where an improper consideration was “a motivating factor” for the adverse action, see 42 U. S. C. §§2000e–2(m) and 2000e–5(g)(2)(B),while leaving the ADEA language unchanged. The Supreme Court viewed this omission as a congressional policy statement and declined to recognize the so called "mixed motive" analysis in ADEA claims. However the Courts' opinion invites Congress to fix the discrepancy by legislatively negating the Court's decision much like it did in with both the ADA Amendments Act and the Ledbetter Fair Pay Act:

Unlike Title VII, the ADEA’s text does not provide that a plaintiff may establish discrimination by showing that age was simply a motivating factor. Moreover, Congress neglected to add such a provision to the ADEA when it amended Title VII to add §§2000e–2(m) and 2000e–5(g)(2)(B), even though it contemporaneously amended the ADEA in several ways, see Civil Rights Act of 1991, §115, 105 Stat. 1079; id., §302, at 1088.

Expect Congress to harmonize the treatment of Title VII and ADEA claims so that the mixed motive analysis applies to both. Congress should really fix the differentiation between age discrimination cases and other discrimination claims. For some reason unknown to me, Congress placed protections from age discrimination in the Fair Labor Standards Act (governing topics like minimum wage and overtime) rather than just adding "age" to the list of Title VII's protected classifications. As a result, federal age discrimination claims have different rights, procedures, and damages.

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President Obama selects Sonia Sotomayor as Supreme Court Nominee

Posted on May 26, 2009 by Michael Moore

Judge Sotomayor's resume is summarized by CNN and her most notable opinions are compiled by the New York Times. Judge Sotomayor's most significant employment-related decision came in Ricci v. DeStefano which is now before the United States Supreme Court. Ricci  is a discrimination case brought by white firefighters after the city threw out results of a promotion exam because too few minorities scored high enough.   The appellate court allowed the city to disregard the test results that had a disparate impact on minorities analyzing the role of Uniform Employee Selection Guidelines on employer testing procedures and results. The case has important implications for any employer that uses testing as part of its employment and promotion practices. The Connecticut Employment Law Blog has followed the case since it was initially decided.

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Title VII's Antiretaliation Protections can extend to an Employee's Involvement as a Witness in an Employer's Internal Investigation

Posted on January 26, 2009 by Michael Moore

In its decision in Crawford v. Metropolitan Government of Nashville and Davidson City, the United States Supreme Court considered the scope of Title VII protections from retaliation for employees who act as witnesses in an employer's internal investigation into harassment. The Court held that an employee's involvement in the employer's internal investigation constituted opposition to unlawful employment practices when she responded to her employer's questions in a manner disapproving of accused harasser's sexually obnoxious behavior toward her. The Court's decision unfortunately does not create a bright line standard for employers defining the scope of an employee's involvement in an internal investigation which can trigger protections from retaliation. Employers should tread very carefully in this area.

Under the facts of the case, Metropolitan began an investigation into rumors of sexual harassment by its employee relations director. Crawford was asked in an interview if she observed any "inappropriate behavior" to which she recounted several incidents of sexually harassing behavior directed at her by the employee relations director. Subsequently, Metropolitan took no action against the director, but fired Crawford for embezzlement. Crawford filed a discrimination complaint claiming retaliation for her comments in the investigation.

The lower courts dismissed her retaliation claim holding that Title VII's retaliation protections “‘demand active, consistent “opposing” activities to warrant . . . protection against retaliation,’”. Crawford was not protected since she did “not claim to have instigated or initiated any complaint prior to her participation in the investigation, nor did she take any further action following the investigation and prior to her firing.”

The U.S. Supreme Court reversed holding that the antiretaliation provision’s protection extends to an employee who speaks out about discrimination not on her own initiative, but in answering questions during an employer’s internal investigation. Crawford’s statement was covered by the opposition clause, as an ostensibly disapproving account of alleged harasser's sexually obnoxious behavior toward her.   The court reasoned that a person can “oppose” by responding to someone else’s questions just as surely as by provoking the discussion. Nothing in the statute requires a "freakish rule" protecting an employee who reports discrimination on her own initiative but not one who reports the same discrimination in the same words when asked a question.

The Court also noted that employers have a strong inducement to ferret out and put a stop to discriminatory activity in their operations because “[a]n employer . . .is subject to vicarious liability to a victimized employee for an actionable hostile environment created by a supervisor with . . . authority over the employee.” The Court criticized the Circuit’s rule on the basis that it could undermine Title VII's retaliation protections because, if an employee reporting discrimination in answer to an employer’s questions could be penalized with no remedy, prudent employees would have a good reason to keep quiet about Title VII offenses.

Disappointingly, the Court chose not to further illuminate the scope of retaliation protections.
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