Washington D.C. Employment Law Update : Washington D.C. Employment Lawyer & Attorney : Littler Mendelson Law Firm : Virginia, Tyson's Corner

At the hearing, some witnesses, including Gail E. Aldrich, Member of the AARP Board of Directors, testified (pdf) that they believed the Gross decision was wrongly decided, and that the Court misinterpreted what Congress intended when it enacted the ADEA. Eric Dreiband, Former General Counsel of the U.S. Equal Employment Opportunity Commission (EEOC), however, stated that he did not believe that the POWADA would benefit the public interest. Specifically, Dreiband testified (pdf) that “the bill as proposed will enable age discrimination and other victims to prove a violation if an impermissible factor was a motivating factor for the practice complained of, even if other factors also motivated that practice,” but also will restore the “same action” defense, in which age discrimination defendants could prevail, even when they improperly considered a person’s age, if they demonstrated that they would have made the same decision or taken the same action for additional reasons unrelated to age. Such a result, according to the witness, “may render the ‘motivating factor’ standard nearly irrelevant,” and “would deprive discrimination victims of any meaningful remedy in ‘same action’ cases.” Dreiband also contended the bill is “overly broad, vague, and ambiguous.” He claimed the legislation:

purports to apply to 'any Federal law forbidding employment discrimination,' and several other laws, but the bill does not identify which laws the bill will amend. As a result, discrimination victims, unions, employers, and others will unnecessarily spend years or decades, and untold amounts of money, fighting in court over whether the bill changes particular laws. This will have no positive consequences for anyone.

A complete list of witnesses and transcripts of their testimony can be found here.

The petitioner in this case, Jack Gross, filed a claim in district court against his employer, FBL Financial Group, Inc. (FBL), alleging that he was demoted on account of his age in violation of the ADEA. At trial, the judge instructed the jury that it must find in the plaintiff’s favor if he proved, by a preponderance of the evidence, that age was a motivating factor in the employer’s decision. Age would be considered a “motivating factor” if it “played a part or role” in the employer’s decision. The jury was further instructed that the employer bore the burden of proving that it would have demoted Gross regardless of his age. In essence, the judge instructed the jury under the “mixed-motive” discrimination standard established by Price Waterhouse v. Hopkins, 490 U.S. 228 (1989), a Title VII sex discrimination case in which the plaintiff alleged that both permissible and impermissible considerations played a part in her failure to make partner. In such a mixed motive situation, the Court reasoned, if a plaintiff can show that unlawful discrimination plays a motivating or substantial factor in the employment decision at issue, the burden of persuasion shifts to the employer to prove that it would have made the same adverse decision regardless of the discriminatory factor. The jury in Gross’s case found in his favor. On appeal, the Eighth Circuit reversed and remanded, finding that the jury had been improperly instructed. Because Gross did not present direct evidence of discrimination, the Court of Appeals held that the lower court erred in requiring the burden of persuasion to shift to the employer to prove that it would have made the same decision regardless of age.

The Supreme Court vacated the Eighth Circuit’s decision, holding that an employer does not need to show that it would have acted regardless of age, even if the plaintiff has provided direct evidence that age was a motivating factor. The Court reasoned that “[u]nlike Title VII, the ADEA’s text does not provide that a plaintiff may establish discrimination by showing that age was simply a motivating factor.” The Court placed great emphasis on the fact that when Congress amended Title VII to explicitly authorize discrimination claims in mixed motive scenarios, it did not similarly amend the ADEA, even though it made other contemporaneous changes to this law. According to the Court, “[w]hen Congress amends one statutory provision but not another, it is presumed to have acted intentionally.”

Additionally, the Court relied on the precise language contained in the ADEA that: “[i]t shall be unlawful for an employer . . . to fail or refuse to hire or to discharge any individual or otherwise discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment because of such an individual’s age.” (emphasis added). Lifting the definition of “because of” from the dictionary, Justice Thomas reasoned that in the ADEA’s context, this phrase means the reason the employer decided to act. Thus, to succeed with an ADEA claim, the employee must show that age was the “but for” cause of the employer’s adverse decision, and nothing in the Act indicates that Congress intended any exception to this burden of proof.

A relief to employers, this case should make it substantially more difficult for many employees to succeed in their age discrimination claims. Unlike the burden-shifting scheme in Title VII mixed motive cases, the burden of proving that age was the decisive factor in the employer’s decision remains with the plaintiff. Time will tell if the current Congress will move to amend the ADEA to counter the results of this decision, as it has with other recent Supreme Court decisions favorable to employers such as the Lilly Ledbetter decision.

Chief Justice Roberts, along with Justices Scalia, Kennedy, and Alito, joined in this opinion. Justice Stevens filed a dissenting opinion, in which Justices Souter, Ginsburg, and Breyer joined. Justice Breyer also filed a dissenting opinion in which Justices Souter and Ginsburg joined.
 

The EEOC will also move forward with regulations regarding the equal employment provisions of the Americans With Disabilities Act Amendments Act (ADAAA).  The ADAAA, enacted in 2008, expanded the definition of “disability” under the Americans with Disabilities Act (ADA) in light of a number of Supreme Court decisions. In December 2008, the EEOC commissioners deadlocked along party lines on whether to approve former Chair Naomi Earp’s proposed regulations.  According to the EEOC’s agenda, a notice of proposed rulemaking will be issued by August of this year.

The Age Discrimination in Employment Act (ADEA) will be subject to two rules as a result of the Supreme Court’s decisions in Smith v. City of Jackson and Meacham v. Atomic Knolls Laboratory. In Smith, the Court held that an employer could defend against a disparate impact claim under the ADEA by showing that its alleged adverse employment decision was due to reasonable factors other than age. In Meacham, the Court ruled that employers bear the burden of providing this defense. The proposed regulations, therefore, address this disparate impact burden of proof under the ADEA.  Final regulations on this issue are expected by March of 2010.  In addition, the EEOC intends to publish a notice of proposed rulemaking to amend its current regulations on what constitutes “reasonable factors other than age” by August of this year.

In a more procedural vein, the EEOC intends to issue a notice of proposed rulemaking by the end of next month to make changes and corrections to the federal sector equal employment opportunity complaint process. The agency also plans to revise its race and ethnicity data collection method to make employee self-identification the preferred method for collecting such data to conform with current reporting instructions for the EEO-1 Report.

The case arose when night watchmen at a commercial office building alleged that their reassignment violated their collective bargaining agreement (CBA), and was also the result of unlawful age discrimination. After an arbitrator dismissed their contract claims, the employees filed their ADEA claims in federal district court. The employer moved to dismiss the charges or, in the alternative, to compel arbitration under the CBA. The district court denied the employer’s motion to compel arbitration, finding that it was constrained to follow the Second Circuit’s decision in Rogers’ v. New York University, in which the appellate court held that union-negotiated collective bargaining agreements waiving an employee’s right to bring a statutory claim in court are unenforceable. On appeal, the Second Circuit affirmed.

The Supreme Court reversed and remanded this decision in a 5-4 vote. The Court found that an examination of both the ADEA and the National Labor Relations Act (NLRA) yielded a “straightforward answer” to the question posed. The union and the employer had freely negotiated a CBA that provided that employment-related discrimination claims, including ADEA claims, would be subject to mandatory arbitration. That provision was a subject of bargaining under the NLRA and entitled to court deference unless the ADEA removed this type of claim from the NLRA’s broad sweep. Based on its own precedent, the Court found that the ADEA did not preclude arbitration of claims brought under the statute. Accordingly, the Court held that “a collective bargaining agreement that clearly and unmistakably requires union members to arbitrate ADEA claims is enforceable as a matter of federal law.”

For more information on this decision, see Littler's ASAP:  The Supreme Court Opens the Door to Mandatory Arbitration of Discrimination Claims for Union Members by:  Gavin S. Appleby, Hans Tor Christensen and Jennifer L. Mora.