Nolo’s Employment Law Blog

Yesterday, the Supreme Court issued one of the most anticipated decisions of this term, Ricci v. DeStefano. Ricci is a reverse discrimination case, in which 18 firefighters (17 white and one Hispanic) sued the city of New Haven for refusing to certify test results that would have put them in line for promotion. New Haven didn't certify the test results because white applicants scored so much higher than African American and Hispanic applicants that the city feared it would be sued for race discrimination by nonwhite candidates if it relied on those results. The Court's decision left the city (and by extension, all other employers) precisely midway between a rock and a hard place. And the opinions the court issued in the case reveal markedly different views on the purpose of laws prohibiting discrimination.

Here are the basic facts (the combined opinions run to 93 pages, so I'll try to cut to the chase): The city of New Haven gave oral and written tests to candidates for promotion to the positions of lieutenant and captain. The results were combined, weighted (the written test was worth 60% of an applicant's score and the oral test made up the remaining 40%), and used to rank candidates who passed the test. When a position was available, it had to be given to one of the top three candidates on the list. White candidates passed at a significantly higher rate (and with higher scores) than African American and Hispanic candidates, resulting in promotion lists that looked like this: All ten of the candidates who would have been considered for a promotion to available lieutenant positions were white, as were seven of the nine candidates for available captain positions.

Upon seeing these results, the city determined it had a potential problem: Nonwhite candidates might sue based on a disparate impact theory, claiming that although the test was facially neutral, it had the effect of discriminating based on race. After holding a series of hearings, the city ultimately didn't certify the test results. A group of firefighters who did well on the test sued, claiming that the city's refusal to rely on the test results was discriminatory.

The five-Justice majority ruled against the city and in favor of the mostly white test takers. Justice Kennedy, writing for the majority, found that the city's decision not to certify the test scores was itself based on race (the marked racial disparity in the test results, that is) and was therefore discriminatory. The majority also found that the city's fear of a disparate impact lawsuit if it certified the test results was not an adequate defense unless the city had a "strong basis in evidence" to believe the results were discriminatory.

This "strong basis" standard is new to Title VII cases, and has led to much commentary that asserts that the Court changed the rules in discrimination cases. The Court also left employers in a deep bind: Rely on test results that create a racial disparity and risk a disparate impact lawsuit; disregard those test results and risk a disparate treatment lawsuit. In this very case, African American firefighters have said they will sue for disparate impact if the city does as the Court says it must and certifies the test results.

Here are a few of my takeaways from this case:

Anyone still think we're "post-racial"? Reverse discrimination cases highlight a profound split in the way race -- and civil rights laws -- are viewed in this country. Those laws were passed to remedy particular types of discrimination, against groups that have been historically disadvantaged. As Justice Ginsberg's dissent pointed out, there is a long history of racial discrimination against African Americans and Hispanics in the field of firefighting, New Haven has been part of that unfortunate history, and this is part of the reason why Title VII was extended to cover municipal governments. Reverse discrimination allegations don't speak to this legacy: Instead, they claim that any consideration of race is wrong, period, as the majority opinion did in this case. No matter which side of this debate you come down on, it's clear that we have not come to any kind of consensus about what role -- if any -- race should play in our decision making.

Will this be on the test? One of the basic facts underlying this case is the continuing, seemingly intransigent racial disparity in written test scores. As some of those who testified before the city in this case pointed out, statistics still show that whites tend to score better on standardized written tests than African Americans and Hispanics, and we still don't really know why. In this case, New Haven clearly tried to come up with a test that wouldn't produce this result, and failed. So why are written tests still so common in so many fields? Is a written test really the best way to determine who will be the best lawyer, student, driver, firefighting supervisor? It's a question employers should certainly consider, especially now that the Supreme Court has said that there might be a lawsuit with your name on it whether or not you rely on the results of a test that reveals a racial disparity.

Just days before this weekend's gay pride celebrations, Representative Barney Frank introduced the Employment Nondiscrimination Act (ENDA) in the House of Representatives. ENDA would outlaw employment discrimination on the basis of sexual orientation or gender identity.

The gender identity part didn't make it into the bill last time around, much to the consternation of many LGBT activists. This year's model is referred to as "inclusive" because it includes gender identity protection. (Prohibiting discrimination based on gender identity, defined as a person's gender-related appearance, mannerisms, characteristics, or identity, with or without regard to the person's designated sex at birth, would protect transgendered employees and employees who don't conform to the stereotypes associated with their gender.)

The bill -- H.R. 2981 -- has a number of similarities to existing laws that prohibit discrimination. (You can find it at the Library of Congress's THOMAS website; search for the bill number.) It would apply to private employers with at least 15 employees (like Title VII and the ADA), prohibit discrimination in every aspect of employment, prohibit retaliation, and use the same enforcement mechanisms and procedures as Title VII. However, there are some key differences:

• Disparate impact claims may not be brought under ENDA. Only intentional discrimination is prohibited. 
• In case you didn't hear it the first time, the bill explicitly doesn't prohibit employers from enforcing rules or policies that do not intentionally violate the law, as long as those rules or policies are enforced consistently. In other words, really no disparate impact claims.
• Employers may enforce their usual dress and grooming codes during work hours, as long as they allow employees who have already undergone gender transition, or are transitioning while employed, to conform to the standards of the gender to which the employee is transitioning.
• Employers don't have to create new or additional facilities (restrooms, changing rooms, and so on) to comply with the bill. However, employers must allow the employee reasonable access to facilities that are "not inconsistent" with the employee's gender identity, as established when the employee was hired or when the employee notifies the employer of a gender transition.
• The military and religious organizations won't have to comply with the law.
• The bill doesn't require employers to offer the same benefits to unmarried couples as to married couples -- and, for purposes of the bill, "married" is defined as in the Defense of Marriage Act (DOMA), as between a man and a woman. So married same-sex couples might not be married under this provision.  

ENDA has been kicking around Congress for more than a decade, but the possibility of passage looks brighter this year, given the political makeup of the House and Senate and the support of President Obama (whose administration is currently drafting rules to protect federal transgendered employees from discrimination).  

Yesterday, the Supreme Court issued what's likely to be a controversial decision in an age discrimination case. The plaintiff, Jack Gross, sued his employer, FBL Financial Services, claiming that he had been demoted because of his age. (A younger employee, whom Gross had trained, was assigned many of his former responsibilities.) A federal jury found in favor of Gross, and awarded him almost $47,000.

FBL appealed, claiming that the judge gave incorrect jury instructions. The argument boils down to who has to prove what in an age discrimination case. In other types of discrimination cases (those brought under Title VII), if the plaintiff can show that the forbidden characteristic played a role in the decision being challenged, the burden of proof shifts to the employer, which must show that it would have made the same decision regardless. These are referred to as "mixed motives" cases. The shifting burden gives the employer an affirmative defense: Even though the statute was violated because an illegal factor was considered, the employer can argue, in essence, "no harm, no foul," by showing that the bias ultimately didn't dictate the outcome. 

In yesterday's decision, the Court said this framework doesn't apply to age discrimination cases. The plaintiff has the burden to prove that age was the "but-for" cause of the decision -- that is, that the decision wouldn't have been made if not for the age discrimination. The burden of proof never shifts to the employer. If mixed motives are at work (for example, biased comments by decision-makers and poor performance reviews), it's up to the plaintiff to show that bias made the difference.

Here are a couple of things I found interesting about the case:

• Role reversals. Justice Thomas, thought to be a member of the "judicial restraint" wing of the Court, wrote the majority opinion. As Justice Stephens' dissent points out, that opinion asked a question the parties hadn't asked the Court to answer. Clearly enjoying the opportunity, Stephens accuses the majority of "unnecessary lawmaking," "utter disregard of our precedent and Congress' intent," and "inattention to prudential Court practices," all charges more typically levelled against Stephens and his fellow dissenters.
• Congressional intent. The mixed motive framework that applies to Title VII cases was ratified by Congress in the 1991 Civil Rights Act. The crucial bit of language in the ADEA that the Court analyzed in this case is identical to language in Title VII. Stephens argued that this means Congress expects the Court to apply the mixed motive burdens in ADEA cases; Thomas argued that if Congress wanted that, it should have said so explicitly. I have a feeling Stephens will be proven right here; Congress hasn't been shy about overturning the Court on employment issues (see the Lilly Ledbetter Fair Pay Act, for example).
  

Last year, the EEOC accepted more than 6,000 charges from employees alleging pregnancy discrimination. It's hard to believe, but there was a time -- just 30 years ago -- when it was considered perfectly fine for employers to treat pregnant women differently (read: worse) than everyone else. Despite the passage of Title VII in 1964, many employers continued policies that, for example, required women to stop working at a particular point in their pregnancy or provided paid time off for every conceivable reason except pregnancy and childbirth.

In a notorious 1976 case called General Electric Co. v. Gilbert, the Supreme Court upheld practices like these, finding that pregnancy discrimination was not gender discrimination because, even though only women can get pregnant, not all women do. In the Court's language, distinctions based on pregnancy don't divide the world into women and men, but into pregnant women and "nonpregnant persons." Because women are on both sides of the dividing line, the result can't be discriminatory.

Long hailed as an example of overly legalistic reasoning that misses the point -- and a reason why the Court needed at least one female member -- the Gilbert decision was quickly overturned by Congress in the Pregnancy Discrimination Act (PDA), which stated that pregnancy discrimination is a form of gender discrimination. This was too late to help many of the women who had been penalized at work in various ways for getting pregnant.  

At AT&T, for example, time women took off for pregnancy and childbirth was not fully counted as hours of service, used as the basis for calculating pensions and other benefits. While employees who took disability leave for other reasons received full credit for the entire period of their leave, employees who took pregnancy leave received a maximum credit of 30 days, later raised to six weeks. AT&T changed its policy once the PDA passed, but the women who had already been subjected to these policies continued to have their pensions calculated based on service to the company, which excluded some of their pregnancy leave.

The Supreme Court recently decided the pregnancy discrimination claims of a group of these women, in AT&T v. Hulteen. The Court found that it was legal for AT&T to continue calculating pensions on the basis of these pre-PDA policies. Even though these women continue to receive pension payments based on a discriminatory practice, the Court found in favor of AT&T, primarily because the practice was legal -- as evidenced by the Gilbert decision -- when it was in place, and the PDA was not retroactive. Justice Ginsberg dissented, arguing that AT&T's system continues the discriminatory effects of its former policy. Because the women are suffering discrimination today, in their pension checks, there is no issue of retroactivity.   

Interestingly, the AT&T decision was written by Justice Souter, whose impending retirement has led to much speculation over who -- and more generally, a person of which gender -- will be nominated to replace him. Put dissenting Justice Ginsberg in the camp of those who are hoping for another female Justice: In a recent interview with USA Today, Justice Ginsberg said that in the oral arguments in the AT&T case, some of her male colleagues revealed "a certain lack of understanding" about gender bias in the workplace. In the same interview, she called for some female company on the Court, saying "Women belong in all places where decisions are being made."    

A very interesting article in the New York Times this weekend addressed the common -- but not often discussed -- problem of women, particularly those in management positions, bullying other women. (It's called "Backlash: Women Bullying Women at Work," by Mickey Meece.) A survey cited in the article says that 40% of workplace bullies are women. And women are much more likely to bully other women; men who misbehave apparently tend to be equal opportunity bullies.

I'm sad to say that these facts don't surprise me. I've been lucky enough to have some wonderful managers of both genders in my career, but I've also seen -- and heard about -- really atrocious behavior by women, particularly towards female subordinates, and particularly towards the lowest on the office totem pole: secretaries, receptionists, and so on. In the schoolyard, bullying connotes someone who has more power picking on someone who has less -- often, the bigger kids picking on the smaller, or the popular kids picking on those who are less so. The female workplace bullying I've witnessed has taken a similar form: Someone with much more power, a much higher salary, and more privilege picking on someone with no power, living paycheck to paycheck, and stuck in that job.

The article points out a few possible reasons for female bullying. Some women have had to work very hard to climb the corporate ladder, and may have come to rely on more aggressive, competitive behavior. Perhaps women are being held to gender-based stereotypes (that they should be nurturing and sensitive rather than assertive). I would add a couple of others I've heard: Women who've had to be tough to get ahead want other women to toughen up, too, and to realize that they have to do their best in order to succeed. Some women also see bullying as a gender equality issue, raising arguments like, "No one would ever question a man who treated his secretary the way I treat mine."

Arguments like these ring fairly hollow to me. Gender discrimination and gender stereotyping certainly exist, and male and female managers are often held to different standards. But that's no reason to mistreat subordinates. The real gender equality issue here has to do with the victims of workplace bullying, not the perpetrators. Companies in which managers -- of either gender -- disproportionately focus their abuse on female employees are vulnerable to charges of sex-based harassment or sex discrimination. It doesn't matter if the manager is trying to toughen up female subordinates, defying gender-based stereotypes, or just being a jerk.

President Obama recently announced that he will send 4,000 additional troops to Afghanistan, on top of the deployment of 17,000 troops announced last month. Many of those deployed will be members of the National Guard and Reserve, most of whom must leave civilian jobs to serve in the military. According to Employer Support for the Guard and Reserve, members of the Guard and Reserve make up almost half of our country's total military force. As of last week, figures released by the Department of Defense showed that more than 700,000 members of the Guard and Reserve have been activated since 9/11.

When these service members return from duty and go back to their civilian jobs, they have fairly extensive employment rights. The Uniformed Services Employment and Reemployment Rights Act (USERRA) gives returning members of the Guard and Reserve the right to be restored to the position they would have held if they hadn't served -- that is, their former position, plus any additional seniority, promotions, raises, and so on they would have received had they been continuously employed. The most significant protection USERRA provides kicks in after reinstatement: Employees who return from military service are no longer at-will employees for up to one year. They may be fired only for just cause. 

A recent case from Connecticut shows just how costly it can be for employers to disregard USERRA. Michael Serricchio was called to active duty in the Air Force after 9/11. He left his job as a financial adviser at Prudential Securities; when he returned two years later, the company had been acquired by Wachovia and Serricchio was offered a position with a much lower rate of compensation than his previous job. A jury found that Wachovia had violated USERRA by failing to restore Serricchio to his previous position.

That left it to the Court to put a dollar amount on Serricchio's damages. The figure the court came up with was $778,906, plus interest, plus attorney fees and costs. And that's not all: The court also found that Serricchio was entitled to reinstatement, with a monthly salary of $12,300 for the first nine months, after which he will be entitled to the same amount as a draw against commissions for a few months, after which he will have to generate his own income from his client accounts. (You can find the opinion on damages, as well as an earlier opinion from March 2008 summarizing the issues in the case, here; use the caption search for "Serricchio.")

Recently enacted provisions of the Family and Medical Leave Act (FMLA) also provide some protections related to military service -- not directly to those who serve, but to their family members. The new provisions allow family members of Guard and Reserve members who are called to active duty to use FMLA leave to handle "qualifying exigencies," including arranging child care, helping the military member with legal matters such as making a will, or attending counseling sessions. The FMLA also now allows family members to take up to 26 weeks of leave to care for a family member who is seriously injured or becomes seriously ill while on active military duty. (These family military leave provisions are summarized here.) As more troops are deployed, we'll see how these new rights are interpreted and enforced by the courts.

In the employment law field, the Roberts Supreme Court has been something of a surprise. Although commentators have pointed out that the Court is markedly pro-business, that doesn't hold true for cases involving workplace retaliation. The Court has agreed to hear a handful of these cases in the last few years, and has consistently ruled in favor of the employee.

The latest example is Crawford v. Metropolitan Government of Nashville and Davidson County, Tennessee. Vicky Crawford, an employee of the Metro School District, was interviewed during an investigation into allegations of sexual harassment by Gene Hughes, the District's employee relations director. In response to questions from a District human resources officer, Crawford described several incidents in which Hughes had acted inappropriately, including grabbing her head and pulling it toward his crotch. Two other witnesses also described inappropriate behavior by Hughes. When the investigation was complete, the District took no action against Hughes, but fired Crawford and the other two witnesses.

Crawford sued the District for illegal retaliation in violation of Title VII. The District Court and Court of Appeals both ruled against Crawford, finding that she wasn't protected from retaliation because she had not instigated or initiated the original complaint. The courts determined that the "opposition" clause of Title VII's anti-retaliation provision, which protects those who oppose illegal discrimination, extends only to those who make a complaint themselves, not those who participate in an internal investigation of a complaint. 

In a unanimous opinion, the Supreme Court rejected this reasoning as creating a "freakish rule" that would protect someone who reports harassment on her own initiative, but not someone who reports harassment in response to a question from her boss. The Court found that Crawford's statements to the investigator were sufficient to show that she was opposed to Hughes's behavior, and that she was therefore protected from retaliation.

As the Court pointed out, firing employees for participating in an internal investigation will result in fewer internal complaints and fewer witnesses coming forward. This means employers won't have an opportunity to resolve harassment and discrimination problems internally, but will instead have to deal with them in the courtroom. And, once employers get to that courtroom, they will have deprived themselves of an important defense: Employers that take reasonable steps to prevent and correct harassment -- including having an effective process for taking and investigating complaints -- can avoid liability for certain types of harassment. Clearly, this defense won't be available to an employer that fires employees for participating in its own investigation.

Today, President Obama signed the Lilly Ledbetter Fair Pay Act, a bill that contravenes a 2007 Supreme Court decision limiting when an employee can sue an employer for discrimination. The case, discussed in previous posts, involved Lilly Ledbetter, a long-time employee of Goodyear Tire, who discovered she'd been paid less than male counterparts for many years. When she discovered the pay disparity, Ledbetter sued.

However, the Supreme Court found that Ledbetter hadn't filed her claim in time. According to the Court, under federal law Ledbetter had 180 days to do so, and because the alleged discriminatory acts that had resulted in lower pay had happened years earlier, she'd missed her deadline. Ledbetter argued that each paycheck she received was a "continuing violation," as she was regularly paid less than male counterparts (without her knowledge).

This new legislation essentially takes Ledbetter's position that each paycheck that perpetuates a discriminatory decision acts as a continuing violation that allows the employee to sue within 180 days of receiving the check.

President Obama's decision to make this the first piece of legislation he signed may mean we can expect this administration to be actively involved in regulating workplace issues. Stay tuned.

Alayna Schroeder

The U.S. Supreme Court has denied a request by global shipping giant FedEx to review a $100,000 punitive damages award against it for failing to provide a reasonable accommodation to a deaf package handler. Ronald Lockhart worked for FedEx at the company's Baltimore Ramp at the Baltimore-Washington International Airport. Lockhart repeatedly asked his supervisor for a sign language interpreter or written notes from daily, weekly, and monthly meetings and training sessions. Despite these repeated requests, for the first two years of his employment FedEx made no attempts to accommodate Lockhart. After Lockhart complained to the EEOC, FedEx did provide some accommodations, but sporadically. (For instance, a translator was present at some meetings but not others.)

In contesting the jury's finding of a punitive damages award, FedEx claimed that its adoption of an ADA compliance policy, as well as its internal grievance policy for handling employee complaints, established it had acted in good faith to comply with the ADA. But the court recognized, "an employer maintaining such a compliance policy must also take affirmative steps to ensure its implementation." Equal Employment Opportunity Commission v. Federal Express, 513 F.3d 360, 374 (4^th Cir. 2008) (PDF file). There was evidence to support the jury's finding that FedEx had failed in this regard, including evidence that at least 3 higher-ups, in addition to Lockhart's supervisor, knew of his request for accommodation.

The Supreme Court's decision not to hear the case means employers who fail to provide reasonable accommodations when requested may be subject to punitive damage awards. The existence of a policy, on its own, won't be adequate evidence of an employer's good faith. Policies must be implemented if they are to offer protection.

Last week, the House approved the Senate's version of the ADA Amendments Act of 2008 (known as the "ADAAA"). The ADAAA now awaits the President, who has said he will sign it (just as his father signed the original ADA). Once signed, the amendments will take effect on January 1, 2009.

The ADAAA is the product of a broad coalition of business and civil rights groups that came together to undo several Supreme Court decisions that have limited the protections of the ADA. A primary concern of the law's drafters was to clearly express Congressional intent that the term "disability" should be construed in favor of broad coverage. To accomplish this, the ADAAA includes these provisions:

• Major life activities include major bodily functions, such as the proper functioning of the immune system, cell growth, brain, and respiratory system. This language should preclude courts from finding that certain serious diseases, such as cancer, are not disabilities because they don't yet substantially limit a major life activity.
• Impairments that are episodic or in remission are disabilities if they would substantially limit a major life activity when active. This should also negate the tendency of some courts to find that some significant, even life-threatening diseases are not disabilities. 
• A transitory impairment -- which does not qualify as a disability and is not covered by the ADA -- is defined as one that lasts for six months or less. These types of impairments have always been excluded, but were not clearly defined.
• Mitigating measures -- such as medication, prosthetics, and other devices or aids used to ameliorate the effects of an impairment -- may not be considered when determining whether a person has a disability. The Supreme Court had held that these measures must be considered when determining whether a person suffers a substantial limitation to a major life activity, which resulted in many people with serious conditions being excluded from coverage.
• The corrective power of ordinary glasses and contact lenses may be considered in deciding whether a person has a disability. However, employers may not use a test or qualification standard based on an applicant's uncorrected vision unless it's job-related and consistent with business necessity.
• A person who is regarded as having a disability need not show that his or her employer believed that the impairment (whether actual or perceived) substantially limited a major life activity. The "regarded as" category of disability was intended to protect employees from stereotypes or unfounded assumptions about disabilities and impairments, but it wasn't entirely clear previously what the employer had to mistakenly believe. Also, the ADAAA makes clear that an employee who claims that he or she was regarded as having a disability is not entitled to a reasonable accommodation: no actual disability, no accommodation.

Experts agree that the ADAAA will result in more court rulings for employees (thus far, employees in ADA cases have fared pretty poorly in litigation). More employees will be found to have disabilities, and to therefore be entitled to reasonable accommodations and protection from discrimination.