San Antonio Employment Discrimination Lawyer & Attorney : McKinney Law Firm : Sexual Harassment, Wrongful Termination : Texas

While the full impact of the decision may take some time for the courts and employment attorneys to workout, it is now clear that adverse impact is a viable theory under the ADEA. Here's the full text of the case: Smith v. City of Jackson. And here is a link to the Washington Post article regarding the case.

Justice Stevens delivered the opinion of the Court with respect to Parts I, II, and IV, concluding: 1. The ADEA authorizes recovery in disparate-impact cases comparable to Griggs. Except for the substitution of "age" for "race, color, religion, sex, or national origin," the language of ADEA §4(a)(2) and Title VII §703(a)(2) is identical. Unlike Title VII, however, ADEA §4(f)(1) significantly narrows its coverage by permitting any "otherwise prohibited" action "where the differentiation is based on reasonable factors other than age" (hereinafter RFOA provision). Pp. 2-4. 2. Petitioners have not set forth a valid disparate-impact claim. Two textual differences between the ADEA and Title VII make clear that the disparate-impact theory's scope is narrower under the ADEA than under Title VII. One is the RFOA provision. The other is the amendment to Title VII in the Civil Right Act of 1991, which modified this Court's Wards Cove Packing Co. v. Atonio, 490 U. S. 642, holding that narrowly construed the scope of liability on a disparate-impact theory. Because the relevant 1991 amendments expanded Title VII's coverage but did not amend the ADEA or speak to age discrimination, Wards Cove's pre-1991 interpretation of Title VII's identical language remains applicable to the ADEA. Congress' decision to limit the ADEA's coverage by including the RFOA provision is consistent with the fact that age, unlike Title VII's protected classifications, not uncommonly has relevance to an individual's capacity to engage in certain types of employment. Here, petitioners have done little more than point out that the pay plan is relatively less generous to older workers than to younger ones. They have not, as required by Wards Cove, identified any specific test, requirement, or practice within the pay plan that has an adverse impact on older workers. Further, the record makes clear that the City's plan was based on reasonable factors other than age. The City's explanation for the differential between older and younger workers was its perceived need to make junior officers' salaries competitive with comparable positions in the market. Thus, the disparate impact was attributable to the City's decision to give raises based on seniority and position. Reliance on these factors is unquestionably reasonable given the City's goal. Pp. 11-14. Justice Stevens, joined by Justice Souter, Justice Ginsburg, and Justice Breyer, concluded in Part III that the ADEA's text, the RFOA provision, and Equal Employment Opportunity Commission (EEOC) regulations all support the conclusion that a disparate-impact theory is cognizable under the ADEA. Pp. 4-11. Justice Scalia concluded that the reasoning in Part III of Justice Stevens' opinion is a basis for deferring, pursuant to Chevron U. S. A. Inc. v. Natural Resources Defense Council, Inc., 467 U. S. 837, to the EEOC's reasonable view that the ADEA authorizes disparate-impact claims. Pp. 1-5. Justice O'Connor, joined by Justice Kennedy and Justice Thomas, concluded that the judgment should be affirmed on the ground that disparate impact claims are not cognizable under the ADEA. Pp. 1-22.

And yes you read that correctly, Justice O'Conner wrote the dissent while Scalia joined the majority on the grounds of "deference to the EEOC's reasonable view." Hmmmm...

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Mike Fox over at the Employer's Lawyer Blog has a link to another in an interesting line of cases that he has been following in the Sixth Circuit. This new line of cases has upheld jury verdicts for plaintiffs alleging gender discrimination based on sexual stereotyping. The most recent case is Barnes v. City of Cincinnati (6th Cir. 3/22/05).

The Barnes decision affirms a jury verdict where the plaintiff was awarded $320,511 (plus over $500,000 in attorneys fees.)Fox notes that in addition to removing any doubt that gender stereotyping is a viable cause of action under Title VII, at least in the 6th Circuit, the Court also approved the following mixed motive jury instruction:"Your verdict will be for plaintiff if you find that plaintiff demonstrated by a preponderance of the evidence that plaintiff's failure to conform to sex stereotypes was a motivating factor in defendant's decision to demote plaintiff, even if other factors . . . also motivated defendant's decision. However, if you find that defendant's treatment of plaintiff was motivated by both plaintiff's failure to conform to sex stereotypes and lawful reasons, you must decide whether plaintiff is entitled to damages. Plaintiff is entitled to damages unless defendant proves by a preponderance of the evidence that defendant would have demoted plaintiff even if plaintiff's failure to conform to sex stereotypes had played no role in the decision. Remember that plaintiff is not obligated to show that defendant's legitimate reasons played no role in the decision to demote plaintiff, nor does plaintiff need to show that the prohibited factor was the sole or principal reason or the true reason."Ouch! If I am representing a defendant, this is not the instruction I want the judge to give to the jury. However, with the exception of the "sex stereotypes" issue (that has yet to migrate out of the Sixth Circuit) this instruction certainly is a correct statement of the law. So far these cases have been limited to fringe fact patterns involving transsexual policemen, etc. However, it isn't hard to see how the same theory could be used with employers that maintain a, shall we say, overly macho work environment and have trouble dealing with male employees considered to be too effeminate or female employees that are too "butch".

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The government's recent attempt to reduce overtime lawsuits has thrown the doors wide open for still more litigation, according to labor attorneys across the country who argue that the 7-month-old federal overtime laws are roiling the workplace. Here is the story from the National Law Journal

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I have long believed that one way to avoid employee problems (and therefore employee claims) is to give serious attention to the fact that Americans simply work too hard. Study after study and article after article has pointed to the overstressed and overworked condition of American workers. Here is the latest story I've come across. This one, from the Mercury News notes yet another study by the non-profit Families and Work Institute. The study points out the irony that the very factors giving companies a competitive edge and healthy bottom line -- technology, multitasking and globalization -- may be undermining their workers' physical and emotional well-being. As the boundaries between office hours and off hours continue to blur, one in three American employees report being chronically overworked, according to the survey. Slightly more workers forfeit some of their paid vacation time -- and two in five work while on vacation -- in part because they can't escape their demanding jobs.

Here is where the data becomes something employers should pay attention to: 39 percent of intensely overworked employees say they are angry at their employers for expecting so much of them, vs. only 1 percent of employees who have low levels of overwork. And 34 percent of extremely overworked employees often resent their co-workers who don't work as hard, compared with 12 percent of employees at low levels of overwork. And angry employees are plaintiffs in the making.

So if you are an employee -- take your vacation. If you are an employer -- let them. And then...take one yourself.

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Corporate America could find it a whole lot easier to fight off employment class actions if Wal-Mart Stores Inc. prevails in a sex discrimination case to be heard soon by the U.S. Ninth Circuit Court of Appeals. Indeed, a Wal-Mart victory could tilt the playing field for virtually all of these kinds of suits, which have plagued Boeing, Coca-Cola, and dozens of other large employers over the years. Wal-Mart's ambitious legal strategy strikes at the heart of what it means to file a class action. The company maintains that its constitutional rights would be violated if the court allows a suit to go forward involving up to 1.5 million of the retailing giant's current and former female employees. Because such a case would deprive the company of its rights to defend itself against each woman's claim, it argues, the courts should allow suits only on a store-by-store basis. If the Ninth Circuit agrees and strikes down the multistate action certified by a lower court, it would likely kill the largest employment class action in U.S. history. More broadly, it would open wide the door for all large companies to make similar arguments. A victory for Wal-Mart might mean that plaintiffs can't bring nationwide class actions anymore and that they might have to do them locally or regionally. Here is a link to the story.

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As you may have noticed. Our blog host server zapped us out of existence last week. We are doing our best to get back up and running as soon as possible.

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OK, here's one you don't see every day...even if you are an employment lawyer. A suit filed in (you knew this was coming) California alleges sexual harassment by an ape. Well, sort of. Specifically, the suit alleges that the director of the nonprofit Gorilla Foundation, Francine "Penny"Patterson -- who rose to fame by teaching sign language to Koko the gorilla -- told two female caretakers that the gorilla wanted them to show her their breasts. "If plaintiffs did not indulge Koko's nipple fetish," the suit continues, Patterson told them "their employment with [the] Gorilla Foundation would suffer." I'm laughing too hard to type anymore so here's the link to the story.

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