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

According to a recent article in the Wall Street Journal, our brains seem to be wired for optimism. That is, unless you are a lawyer. Robert Lee Hotz writes that two research teams exploring the anatomy of expectations offer a new perspective on the power of a positive outlook. For the first time, scientists at New York University have mapped the upbeat brain -- finding in a cluster of neurons the size of a martini olive the seed of a sunny outlook on life. At its core, the brain is built for optimism, their work suggests. Except in lawyers.

Surveying law students at the University of Virginia, he found that pessimists got better grades, were more likely to make law review and, upon graduation, received better job offers. There was no scientific reason. "In law," he said, "pessimism is considered prudence."

You can read the article here.

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Both the Developments in EEO Law Blog and Jottings of an Employer's Lawyer had coverage last week of a recent Fifth Circuit decision finally putting a steak through the heart of the tired old "sole cause" standard of causation in cases under the ADA and the Rehabilitation Act. The case is Pinkerton v. Paige and in holding that the standard is the same in both cases, the court stated:

"[u]nder a plain reading of the statute, and in accord with the position of other circuits, we conclude that the "sole causation" standard is not the appropriate standard for ADA claims. We hold that under a straightforward reading of the statute, the "motivating factor" test should be applied to ADA claims."

While the court's ultimate opinion is not surprising, it is nice to have it set forth in black and white. As the case itself illustrated, trial judges were still forcing litigants to go to trial with what was clearly the wrong standard and defense lawyers felt the need to argue it in every case as long as there was any question at all remaining in the circuit's jurisprudence.

Technorati Tags:ADA

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"The age discrimination case that was argued before the Supreme Court on Tuesday turned on a hyper-technical issue that only an employment lawyer could love." - New York Times

Lot's of great coverage out on the web regarding the oral argument conducted this week at the Supreme Court in Federal Express Corporation v. Holowecki. This case presents the question of what may constitute a "charge" of discrimination that a potential plaintiff must submit to the Equal Employment Opportunity Commission (EEOC) under the Age Discrimination in Employment Act (ADEA) before bringing a private lawsuit.

Sounds simple right? A Charge is a Charge, Right? Well yes and no.

The problems lies in the fact that the statute does not mandate a particular form for a Charge and in the fact that is not an uncommon occurrence for the EEOC to accept intake documents from a charging party and then lose them or, for whatever reason, fail or refuse to issue a formal Charge document in the case. It is so common in fact that I doubt you could find an employment law attorney that has not dealt with this issue. So the question is who should bear the burden of the government's failure to properly process a party's Charge.

Here is what went on in this case: Patricia Kennedy was a courier for petitioner Federal Express (Fed Ex). On December 3, 2001, Kennedy filed an EEOC Form 283 Intake Questionnaire and accompanying affidavit alleging that Fed Ex had instituted a number of policies and practices that discriminated based on age. She did not file an EEOC Form 5 Charge of Discrimination at this point. The EEOC did not assign a charge number to Kennedy's submission, it did not inform Fed Ex that it had received Kennedy's Form 283, and it made no attempt at informal conciliation. On April 30, 2002, Kennedy filed a class-action ADEA suit on behalf of herself and others similarly situated. Exactly one month later, she submitted a Form 5 Charge of Discrimination to the EEOC.

The district court granted Fed Ex's motion to dismiss the suit on the ground that the December 2001 submission did not constitute a "charge" under the ADEA. The Second Circuit, however, reversed. It held that the standard for what constitutes a charge is twofold. First, the court held that a charge must comport with the EEOC regulations, which state that a charge is sufficient when the person making the charge names the employer and generally describes the discriminatory acts. Second, the court held that the EEOC filing must manifest the employee's intent to file a charge as viewed through the lens of a reasonable person. The Second Circuit found that Kennedy's December 3 submission clearly had all of the required information and indicated her intention to "activate the . . . machinery" of the EEOC. Her filing therefore met the requirements of the ADEA, and the Second Circuit permitted her suit to go forward. FedEx appealed and the Supreme Court accepted the case.

My reading of the Court's oral argument transcript indicates to me that FedEx is most likely going to take it on the chin in this one. The company's argument that a Charge is not a Charge until the respondent company receives notice of it appeared to fall flat with the Court. Even Justice Scalia (no known as a rabid anti-corporate jurist) made it clear that he wasn't accepting FedEx's argument, analogizing Fed Ex's position to the Rules of Civil Procedure. "My goodness," he said, "It's like saying there's not a complaint until an answer is filed."

Regardless of how this case turns out it really illuminated ongoing issues at the EEOC. In fact, it has stirred a conversation in some circles of the employment bar about whether we should at least start discussing whether the EEOC is still a viable entity. Honestly, I could find lawyers on both sides of the bar that would vote to abolish it and simply allow employees to go straight to Court with their claims, just like is done with every other type of claim. Just something to consider I guess.

Here are some background links:

FedEx's Petition for Writ of Certiorari

Petitioner's Brief on the Merits

Respodents' Brief on the Merits

Petitioner's Reply Brief

Law.com: Supreme Court Argument Report

The Washington Post: Justices Scold EEOC for Lapses in Age Discrimination Lawsuit

NY Times: Job Bias Case Turns on Filing Right Forms

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