Supreme Court: Fear of Race Discrimination Lawsuit Cannot Justify Reverse or Other Intentional Race Discrimination if Employer Has Valid Defenses.

In a highly anticipated decision, a 5-4 Supreme Court today reversed a summary judgment decision previously approved by the Supreme Court nominee Sonia Sotomayor. Ricci v. DeStafano, No. 07-1428. The lower courts had upheld the City of New Haven, Connecticut in failing to certify the results of a civil service promotional examination for firefighters on the grounds that the City was concerned that it would be sued for disparate impact race discrimination if it promoted any firefighters based on the test because mostly white and Hispanic firefighters passed the exam and only 9 of the 27 African-American firefighters passed. Because the City’s decision was based entirely on the race of the successful and unsuccessful test takers, it necessarily implicated the intentional discrimination provisions of Title VII of the Civil Right Act. The Court held that “race-based action like the City’s in this case is impermissible under Title VII unless the employer can demonstrate a strong basis in evidence that, had it not taken the action, it would have been liable under the disparate-impact statute.” The employer cannot justify its actions based solely on the fact that the potential plaintiffs can prove only a prima facie case of discrimination; rather, the employer must also consider its potential defenses before making a race-conscious decision. Because that “strong evidence” was lacking in this case, the Court not only reversed summary judgment for the City it directed that the plaintiffs were entitled to summary judgment on liability.

The Background

According to the Court’s decision, the City Charter required the City to promote firefighters into officer positions based on how they ranked on promotional examinations. The examination consisted of both written and oral portions and required a certain amount of prior job experience and education. The experienced consulting firm hired to design the test analyzed the jobs at issue by interviewing, questioning and observing the incumbent officers.

At every stage of the job analyses, IOS, by deliberate choice, oversampled minority firefighters to ensure that the results—which IOS would use to develop the examinations—would not unintentionally favor white candidates. . . .

For each test, IOS compiled a list of training manuals, Department procedures, and other materials to use as sources for the test questions. IOS presented the proposed sources to the New Haven fire chief and assistant fire chief for their approval. Then, using the approved sources, IOS drafted a multiple-choice test for each position. [Each test consisted of 100 questions and] was written below a 10th grade reading level. After IOS prepared the tests, the City opened a 3-month study period. It gave candidates a list that identified the source material for the questions, including the specific chapters from which the questions were taken.

IOS developed the oral examinations as well. These concentrated on job skills and abilities. Using the job analysis information, IOS wrote hypothetical situations to test incident-command skills, firefighting tactics, interpersonal skills, leadership, and management ability, among other things. Candidates would be presented with these hypotheticals and asked to respond before a panel of three assessors.

All of the assessors were from outside Connecticut and received special training. “Sixty-six percent of the panelists were minorities, and each of the nine three-member assessment panels contained two minority members” (i.e., one white, one Hispanic and one black).

Following the November 2003 examinations, 34 out of the 77 (or 44%) of the candidates passed the lieutenant examination: 25 out of 43 [58%] whites, 6 out of 19 [ 31.5%] blacks, and 3 out of 15 [20%] Hispanics. Because there were 8 vacancies at the time of the examination, the top ten scores were eligible for immediate promotion. All of them were white.

As for the captain exam, 22 of the 41 (or 54%) of the candidates passed: 16 out of 25 whites (64%), 3 out of 8 blacks (37.5%), and 3 out of 8 Hispanics (37.5%). Because there were seven captain vacancies at the time of the examination, 9 candidates were eligible to be considered for an immediate promotion to captain—7 whites and 2 Hispanics.

Although the City had a contractual right to a technical report from the consultant analyzing the test results, instead the City immediately objected to the facial racial disparity in the results. The City told the Civil Service Board that the test results had a disparate impact. Some firefighters – without knowing how they scored – advocated certifying the test results because they had spent a lot of money buying studying materials and a lot of time studying and a new test would take years to develop and administer. Others objected on the grounds that the study materials were too long and expensive. Some suggested that a validation study be conducted.

The Board ultimately requested the consultant to explain how the test had been developed and conducted and also requested an outside panel of experts to review the situation. One of those experts was a competitor of the consultant and he opined that the test results were not surprising, criticized the lack of local input into the test questions and suggested the use of an assessment center which required the candidates to demonstrate their knowledge instead of merely answering questions on a test or in an interview. Another witness – who was black – from the Department of Homeland Security said that the test reviewed relevant and job related information. He suggested that the disparity was somewhat related to the fact that more white candidates took the exam than black candidates. The final “expert” was a college professor who know nothing about firefighting, but who opined that “regardless of what kind of written test we give in this country . . . we can just about predict how many people will pass who are members of under-represented groups. And your data are not that inconsistent with what predictions would say were the case.” Although the results may have been influenced by the fact that the job analysis surveys were initially completed mostly by white firefighters, “no matter what test the City had administered, it would have revealed “a disparity between blacks and whites, Hispanics and whites,” particularly on a written test.” The Board deadlocked on whether to certify the test results, which meant that the results were not certified.

The Litigation

The plaintiffs – 17 white firefighters and 1 Hispanic firefighter – filed suit under §§ 1983 and 1985 and under Title VII against the City and other defendants. The District Court granted summary judgment to the defendants and it was affirmed on appeal. The Second Circuit then considered whether to reconsider the decision en banc, but voted 7-6 against reconsideration.

The issue as framed by the Supreme Court:

The City’s actions would violate the disparate-treatment prohibition of Title VII absent some valid defense. All the evidence demonstrates that the City chose not to certify the examination results because of the statistical disparity based on race—i.e., how minority candidates had performed when compared to white candidates. As the District Court put it, the City rejected the test results because “too many whites and not enough minorities would be promoted were the lists to be certified . . . Without some other justification, this express, race-based decisionmaking violates Title VII’s command that employers cannot take adverse employment actions because of an individual’s race.

While the lower courts found that intentional discrimination could be excused in order to potentially avoid disparate impact liability under Title VII, the Court did not think that this was necessarily so. The plaintiffs argued that it should never be a defense to intentional racial discrimination that the employer was attempting to avoid unintentional discrimination. The defense argued that good faith efforts to avoid unintentional disparate impact should excuse intentional race discrimination. The court found both parties’ arguments to be simplistic and unrealistic. It rejected racial quotas or employer practices seeking a preferred racial balance. It also refused to prefer the disparate treatment provisions of Title VII over the disparate impact provisions.

If an employer cannot rescore a test based on the candidates’ race, §2000e–2(l), then it follows a fortiori that it may not take the greater step of discarding the test altogether to achieve a more desirable racial distribution of promotion-eligible candidates—absent a strong basis in evidence that the test was deficient and that discarding the results is necessary to avoid violating the disparate impact provision. Restricting an employer’s ability to discard test results (and thereby discriminate against qualified candidates on the basis of their race) also is in keeping with Title VII’s express protection of bona fide promotional examinations.
. . .
We consider, therefore, whether the purpose to avoid disparate-impact liability excuses what otherwise would be prohibited disparate-treatment discrimination. Our task is to provide guidance to employers and courts for situations when these two prohibitions could be in conflict absent a rule to reconcile them. In providing this guidance our decision must be consistent with the important purpose of Title VII—that the workplace be an environment free of discrimination, where race is not a barrier to opportunity.

In reaching a compromise, the Court considered decisions in other areas where it had permitted intentional discrimination. “The Court has held that certain government actions to remedy past racial discrimination—actions that are themselves based on race—are constitutional only where there is a “‘strong basis in evidence’” that the remedial actions were necessary.”

Applying the strong-basis-in-evidence standard to Title VII gives effect to both the disparate-treatment and disparate-impact provisions, allowing violations of one in the name of compliance with the other only in certain, narrow circumstances. The standard leaves ample room for employers’ voluntary compliance efforts, which are essential to the statutory scheme and to Congress’s efforts to eradicate workplace discrimination. . . . And the standard appropriately constrains employers’ discretion in making race-based decisions: It limits that discretion to cases in which there is a strong basis in evidence of disparate-impact liability, but it is not so restrictive that it allows employers to act only when there is a provable, actual violation.

In this case, the City defended its actions on the grounds that the test results had a disparate impact on a racial class (i.e., a neutral practice has a statistically disproportionate affect on a particular group). However, the Court pointed out that the disparate statistics constituted only a prima facie case and that the employer could have defended the results by showing that the test was job related and consistent with business necessity. At that point, the plaintiffs would have had to show that “the employer refuses to adopt an available alternative employment practice that has less disparate impact and serves the employer’s legitimate needs.” In this case, there was no dispute that the group opposing the test results could have met a prima facie case and there was overwhelming evidence that the City could have met its burden of showing the job-related/business necessity defense. There was, however, a question about whether a reasonable alternative existed. The Court rejected challenges that weighing the written and oral portions of the exam differently might have produced different results or that utilizing an assessment center would have been available to the City at the time or produced a different result.

The problem for respondents is that a prima facie case of disparate-impact liability—essentially, a threshold showing of a significant statistical disparity, . . . and nothing more—is far from a strong basis in evidence that the City would have been liable under Title VII had it certified the results. That is because the City could be liable for disparate-impact discrimination only if the examinations were not job related and consistent with business necessity, or if there existed an equally valid, less-discriminatory alternative that served the City’s needs but that the City refused to adopt. §2000e–2(k)(1)(A), (C). We conclude there is no strong basis in evidence to establish that the test was deficient in either of these respects.
. . .
On the record before us, there is no genuine dispute that the City lacked a strong basis in evidence to believe it would face disparate-impact liability if it certified the examination results. In other words, there is no evidence —let alone the required strong basis in evidence—that the tests were flawed because they were not job-related or because other, equally valid and less discriminatory tests were available to the City. Fear of litigation alone cannot justify an employer’s reliance on race to the detriment of individuals who passed the examinations and qualified for promotions. The City’s discarding the test results was impermissible under Title VII, and summary judgment is appropriate for petitioners on their disparate-treatment claim.

The Court did not address the plaintiffs’ Equal Protection arguments and did

not hold that meeting the strong-basis-in-evidence standard would satisfy the Equal Protection Clause in a future case. . . . Nor do we question an employer’s affirmative efforts to ensure that all groups have a fair opportunity to apply for promotions and to participate in the process by which promotions will be made. But once that process has been established and employers have made clear their selection criteria, they may not then invalidate the test results, thus upsetting an employee’s legitimate expectation not to be judged on the basis of race. Doing so, absent a strong basis in evidence of an impermissible disparate impact, amounts to the sort of racial preference

While employers may consider how to make its employment testing and processes more fair, “under Title VII, before an employer can engage in intentional discrimination for the asserted purpose of avoiding or remedying an unintentional disparate impact, the employer must have a strong basis in evidence to believe it will be subject to disparate-impact liability if it fails to take the race-conscious, discriminatory action.”

Insomniacs can read the full decision at http://http://Ricci.

NOTICE: This summary is designed merely to inform and alert you of recent legal developments. It does not constitute legal advice and does not apply to any particular situation because different facts could lead to different results. Information here can change or be amended without notice. Readers should not act upon this information without legal advice. If you have any questions about anything you have read, you should consult with or retain an employment attorney.

Supreme Court: ADEA Does Not Allow Mixed Motive Theory; Plaintiff Must Prove Age Was “But For” Reason for Adverse Action.

This morning, a 5-4 Supreme Court ruled that the Age Discrimination in Employment Act (ADEA) is different from Title VII in another important respect: While Title VII permits a plaintiff to prove that illegal discrimination was a motivating factor (albeit not the sole factor) in his or her adverse employment action, ADEA requires the plaintiff to prove that s/he would not have suffered the adverse action “but for” his or her age. Gross v. FBL Financial Services, Inc., No. 08-441 (6/18/09).

In Gross, the plaintiff alleged that he was demoted primarily because of his age, although he admitted that his age was not the only factor. This is often known as a mixed-motive case and is a theory that was established in the plurality opinion of the Price-Waterhouse v. Hopkins case. The trial court instructed the jury that it must rule for the employee if he proved that “his age was a motivating factor in the demotion decision,” and “that age was a motivating factor if it played a part in the demotion.” The trial court also instructed the jury to return a verdict for the employer “if it proved that it would have demoted Gross regardless of age.” In other words, the employer bore the burden of proving that age was not the primary motivating factor even if it was a small factor. The jury returned a verdict for Gross, awarding him$46,945 in lost compensation. The employer appealed and the Court of Appeals reversed.

Justice Thomas began his opinion by noting that ‘[t]he question presented by the [employee] in this case is whether a plaintiff must present direct evidence of age discrimination [as opposed to circumstantial evidence] in order to obtain a mixed-motives jury instruction in a suit brought under the” ADEA. However, the Court never needed to reach that question because it held that “such a jury instruction is never proper in an ADEA case.”

“

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 . . . We cannot ignore Congress’ decision to amend Title VII’s relevant provisions but not make similar changes to the ADEA. When Congress amends one statutory provision but not another, it is presumed to have acted intentionally.”

“The ADEA provides, in relevant part, 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 individual’s age.’ 29 U. S. C. §623(a)(1) (emphasis added). . . . To establish a disparate treatment claim under the plain language of the ADEA, therefore, a plaintiff must prove that age was the “but-for” cause of the employer’s adverse decision.”

“[Nothing in the statute’s text indicates that Congress has carved out an exception to that rule for a subset of ADEA cases. Where the statutory text is ‘silent on the allocation of the burden of persuasion,’ we “begin with the ordinary default rule that plaintiffs bear the risk of failing to prove their claims.”

Moreover, “the burden of persuasion necessary to establish employer liability is the same in alleged mixed-motives cases as in any other ADEA disparate-treatment action. A plaintiff must prove by a preponderance of the evidence (which may be direct or circumstantial), that age was the “but-for” cause of the challenged employer decision.”

Insomniacs can read the full decision at http://www.supremecourtus.gov/opinions/08pdf/08-441.pdf.

NOTICE: This summary is designed merely to inform and alert you of recent legal developments. It does not constitute legal advice and does not apply to any particular situation because different facts could lead to different results. Information here can change or be amended without notice. Readers should not act upon this information without legal advice. If you have any questions about anything you have read, you should consult with or retain an employment attorney.

Franklin County Appeals Court: Doesn’t Pay to Be Too Clever By Half

Last week, the Franklin County Court of Appeals ruled in favor of the defendant employer and ordered the rescission of a severance agreement where a typographical error in the agreement provided the employee with twelve extra months of severance pay which the employer had not intended to provide. Faivre v. DEX Corp. Northeast, 2009-Ohio-2660 (6/9/09). The employee admittedly had been told that the employer was only offering him three months of severance and he indicated that he would need to have at least twelve months. When he reviewed the agreement in detail after returning home, he realized that the offered severance agreement (which had been drafted by the employer and had already been signed by the employer’s Senior Vice President of Human Resources) promised to pay him severance through 2007 instead of three months later in 2006. Rather than clarifying the issue with the employer, he instead signed and returned the agreement. Quickly realizing its error, the employer immediately asked him to sign a revised page and said that if he did not agree to reform the agreement, it would consider the agreement to be rescinded due to mistake.

Instead, the employee filed suit against the employer for breach of contract. The trial court ruled in favor of the employer, but ordered a reformation of the contract to provide for the three months of severance pay initially offered by the employer. Both sides appealed. On appeal the court of appeals agreed that the parole evidence rule – which typically would bar extrinsic or outside evidence to contradict the clear terms of a contract – did not bar evidence of mistake. In this case, the employer made a mistake and the employee was admittedly aware of the mistake.

The court also agreed that the trial court had authority to reform the contract. However, the court found that was not a proper remedy because there had never been a mutual agreement on the amount of severance. The employer offered three months and the employee wanted twelve. Because there had never been a “meeting of the minds,” there could be no contract to resurrect by reformation.

The court agreed to rescind the contract altogether (meaning the employee would receive no severance). This was pursuant to a Restatement provision:

Where a mistake of one party at the time a contract was made as to a basic assumption on which he made the contract has a material effect on the agreed exchange of performances that is adverse to him, the contract is voidable
by him if he does not bear the risk of the mistake . . .

Thus, unless the mistaken party bears the risk of a mistake, a court may rescind a contract if: (1) one party made a mistake at the time the parties executed the contract, (2) the mistake had a material effect on the agreed exchange of performances that was adverse to the mistaken party, and (3) the other party had reason to know of the mistake.

The court rejected the employee’s argument that the employer had assumed the risk of mistake when it unilaterally prepared and presented the agreement. First, the employee knew about the mistake because the agreement’s terms did not match what he had been told in his exit interview. Finally, the court refused to put the risk on the employer even though it negligently drafted the agreement: “Pursuant to Section 154 of the Second Restatement of Contracts:

A party bears the risk of a mistake when

(a) the risk is allocated to him by agreement of the
parties, or
(b) he is aware, at the time the contract is made, that
he has only limited knowledge with respect to the facts to
which the mistake relates but treats his limited knowledge as
sufficient, or
(c) the risk is allocated to him by the court on the
ground that it is reasonable in the circumstances to do so.

. . .

Subsection (c) is a "catchall provision" that permits a court to allocate the
risk of a mistake to the mistaken party if, under the totality of the circumstances, it would be more equitable or reasonable to do so. . . . " '[A] party's negligence is immaterial where the mistake is in the expression of the contract and the other party knew of the mistake and took advantage of it.' "

. . .

As we concluded above, [the employee] had reason to know that the severance agreement contained a typographical error. Instead of seeking clarification regarding the length of the severance period, [the employee] attempted to take advantage of [the employer’s] error. Therefore, equity and reasonableness do not require us to place the risk of the mistake on [the employer] due to its negligence.

Insomniacs can read the full decision at http://www.sconet.state.oh.us/rod/docs/pdf/10/2009/2009-ohio-2660.pdf

NOTICE: This summary is designed merely to inform and alert you of recent legal developments. It does not constitute legal advice and does not apply to any particular situation because different facts could lead to different results. Information here can change or be amended without notice. Readers should not act upon this information without legal advice. If you have any questions about anything you have read, you should consult with or retain an employment attorney.

EEOC Announces Consent Decree Settling Sex Discrimination and Retaliation Suit With Two West Virginia Employers and Obtaining $115K for Three Women.

Yesterday, the EEOC announced that it had reached a $115,000 settlement in a sex discrimination lawsuit it had filed against West Virginia employers, Brooks Run Mining Company and staffing firm Neal & Associations, in federal court (Case No. 5:08-CV-0071). In its lawsuit, the EEOC had alleged that the defendant employers violated Title VII when female “security guards as a class were discriminated against because of their sex. The EEOC asserted that once the women complained about sexual harassment, they were prevented – either by layoffs or transfers – from working at the Brooks Run Cucumber mine site, although security jobs were available to men.”

According to the EEOC, “the three-year consent decree settling the suit provides for a monetary settlement to three women” who were “former security guards at the Cucumber mine site. In addition to monetary relief, the decree provides for significant remedial relief, including promoting supervisor accountability. The settlement also requires yearly training for all management staff on employee rights and employer obligations under federal and state anti-discrimination laws, with an emphasis on sex discrimination.”

Insomniacs can read the full press release at http://www.eeoc.gov/press/6-11-09a.html.

NOTICE: This summary is designed merely to inform and alert you of recent legal developments. It does not constitute legal advice and does not apply to any particular situation because different facts could lead to different results. Information here can change or be amended without notice. Readers should not act upon this information without legal advice. If you have any questions about anything you have read, you should consult with or retain an employment attorney.

Ohio Department of Insurance Explains How Ohio’s Newly-Amended Mini-COBRA Coordinates with Federal Stimulus Act.

Last week, the Ohio Department of Insurance issued guidelines about how employees of small employers (i.e., 20 or fewer employees) who are involuntarily terminated may qualify for continued health insurance that is 65% subsidized by the federal government. Governor Strickland signed legislation which amended Ohio’s mini-COBRA (at Ohio Revised Code §3923.38 and §1751.53) and will affect health insurance policies issued or renewed for small employers after April 1, 2009. Among other changes, the statute extends the continuation period from six months to one year. The Department of Insurance also includes model notices on its website which all small employers and non-ERISA self-insured employers must use to notify laid off and other involuntarily terminated employees of their rights under the American Recovery and Reinvestment Act (“ARRA”) to continue their health insurance with 65% of the cost subsidized by the federal government. Insurers are also required to notify employees receiving continuation coverage since February 17 of their ARRA rights.

Unlike the subsidized COBRA continuation under the ARRA, under Ohio’s mini-COBRA, small employers are not required to front 65% of the insurance premium; rather, the insurance company will handle the former employee’s continuation payments and also receive the tax credits. Also unlike the federal ARRA, employees of small Ohio employers do not get a free “do-over” or extended eligibility period if they failed to elect continuation coverage within the deadlines right after they were terminated.

Insomniacs may read the full Department of Insurance revised guidelines at http://www.ohioinsurance.gov/ConsumServ/COBRAStimulusSmallEmployers.pdf. The DOI’s model form can be accessed at http://www.ohioinsurance.gov/ConsumServ/COBRAContinuationCoverageElectionNotice.doc. Other information about ARRA and Ohio’s mini-COBRA law are available at http://www.ohioinsurance.gov/ConsumServ/COBRA.htm.

NOTICE: This summary is designed merely to inform and alert you of recent legal developments. It does not constitute legal advice and does not apply to any particular situation because different facts could lead to different results. Information here can change or be amended without notice. Readers should not act upon this information without legal advice. If you have any questions about anything you have read, you should consult with or retain an employment attorney.

Ohio Supreme Court: Ohio Legislature Can Prohibit Local City Residency Requirement for Own Employees.

This morning a divided Ohio Supreme Court ruled that the Ohio General Assembly can prohibit political subdivisions and municipalities – including those organized under home rule charters – from requiring city employees to reside within city limits. Lima v. State, 2009-Ohio-2597. In that case, the challenged state statute -- Ohio Revised Code § 9.481(B)(1) -- states that “no political subdivision shall require any of its employees, as a condition of employment, to reside in any specific area of the state.” The cities of Lima and Akron challenged the constitutionality of the statute, which conflicted with local ordinances. However, the Court’s majority upheld the constitutionality of the statute: “R.C. 9.481 was enacted pursuant to Section 34 and that it prevails over conflicting local laws, because no other provision of the Constitution can ‘limit or impair’ laws enacted pursuant to Section 34.”

Insomniacs can read the Court’s full opinion at http://www.sconet.state.oh.us/rod/docs/pdf/0/2009/2009-ohio-2597.pdf.

NOTICE: This summary is designed merely to inform and alert you of recent legal developments. It does not constitute legal advice and does not apply to any particular situation because different facts could lead to different results. Information here can change or be amended without notice. Readers should not act upon this information without legal advice. If you have any questions about anything you have read, you should consult with or retain an employment attorney.

Sixth Circuit: Title VII Does NOT Protect Family and Friends of Charging Parties

This morning, a divided en banc Sixth Circuit reversed a prior panel decision rendered on March 31, 2008 in Thompson v. North American Stainless, LP, and held that Title VII only protects from retaliation individuals who have engaged in protected conduct (i.e., filed a Charge of Discrimination, opposed discrimination or participated in an investigation, etc.) and does NOT protect the family members and friends of individuals who have engaged in protected conduct. (The earlier decision was summarized here on April 10, 2008 at Sixth Circuit: Title VII Protects Family and Friends of Employees who File EEOC Charge).

As previously explained, the employer was alleged to have fired the plaintiff just three weeks after his fiance filed a Charge of Discrimination with the EEOC against the employer. He did not allege that he personally had engaged in any protected conduct, but rather, that his termination was in retaliation for the protected conduct of his fiance. In turn, the employer asserted that he was terminated because of his job performance.

The Court examined the anti-retaliation language in Title VII:

It shall be an unlawful employment practice for an employer to discriminate against any of his employees or applicants for employment . . . because he has opposed any practice made an unlawful employment practice by this subchapter, or because he has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this subchapter.

There was nothing in this language about protecting individuals who did not engage in any protected activity under the Act. The majority found the language clear and unambiguous and elected to defer to Congressional intent to not enlarge the protected class of individuals under the statute.

In essence, plaintiff and the EEOC request that we become the first circuit court to hold that Title VII creates a cause of action for third-party retaliation on behalf of friends and family members who have not engaged in protected activity. However, we decline the invitation to rewrite the law.

. . .

In sum, no circuit court of appeals has held that Title VII creates a claim for third-party retaliation in circumstances where the plaintiff has not engaged personally in any protected activity. Although plaintiff and the EEOC argue that the language of § 704(a) is ambiguous and that enforcement of the statutory text will lead to absurd results, we disagree, as do the Third, Fifth, and Eighth Circuits, which have soundly rejected such a cause of action.

However, the court recognized the tension with the policy argument endorsed by the Supreme Court in Burlington Northern & Santa Fe Ry. Co. v. White, 548 U.S. 53 (2006), when it stated:

We conclude that the anti-retaliation provision does not confine the actions and harms it forbids to those that are related to employment or occur at the workplace. We also conclude that the provision covers those (and only those) employer actions that would have been materially adverse to a reasonable employee or job applicant. In the present context that means that the employer’s actions must be harmful to the point that they could well dissuade a reasonable worker from making or supporting a charge of discrimination.

Nonetheless, the Court distinguished Burlington because the plaintiff in that case had engaged in protected conduct and the question presented to the court was the scope of retaliatory behavior. "We must look to what Congress actually enacted, not what we believe Congress might have passed were it confronted with the facts at bar. For the reasons we have laid out, it was not “absurd” for Congress to limit the class of persons who are entitled to sue to employees who personally opposed a practice, made a charge, assisted, or participated in an investigation. Our interpretation does not undermine the anti-retaliation provision’s purpose because retaliation is still actionable, but only in a suit by a primary
actor who engaged in protected activity and not by a passive bystander."

Insomniacs can read the full opinion at http://www.ca6.uscourts.gov/opinions.pdf/09a0202p-06.pdf.

NOTICE: This summary is designed merely to inform and alert you of recent legal developments. It does not constitute legal advice and does not apply to any particular situation because different facts could lead to different results. Readers should not act upon this information without legal advice. If you have any questions about anything you have read, you should consult with an attorney.

Ohio Supreme Court: All State Age Discrimination Claims Are Governed by § 4112.14(C)’s Deference to Arbitration Procedures and Cannot Be Re-Litigated.

This morning, the Ohio Supreme Court held in Meyer v. United Parcel Service, Inc., that the prohibition in § 4112.14(C) on pursuing an age discrimination lawsuit when an arbitration remedy is otherwise available to the plaintiff applies to all age discrimination claims brought under Ohio Revised Code Chapter 4112. If this seems complicated, that is because it is.

In Meyer, the plaintiff was fired – for a third time – by UPS after 25 years of employment. Having been reinstated twice before by using the grievance process in the collective bargaining agreement, he again filed a grievance, but it was denied and his discharge was upheld – by a panel of union members and management -- for being due to just cause under the bargaining agreement. He also filed a lawsuit alleging workers compensation retaliation and later amended his complaint to add claims for age discrimination (in that he was replaced by an employee decades younger than himself) under Ohio Revised Code § 4112.99 and public policy. Both claims were tried to a jury and he was awarded $336,208 in back pay, punitive damages and pre-judgment interest and $135,147 in attorney fees and court costs. On appeal, the appellate court ruled that the workers compensation claim should not have been tried to a jury, but rejected the employer’s argument that the §4112.99 age discrimination claim should have been barred by the arbitration prohibition provision in §4112.14(C) and remanded the case to the trial court. The employer appealed to the Supreme Court, which agreed only to resolve the dispute involving the age discrimination claim.

Under Ohio law, plaintiffs may chose between a variety of age discrimination statutes. Section 4112.02(N) provides that an

aggrieved individual may enforce the individual’s rights relative to discrimination on the basis of age as provided for in this section by instituting a civil action, within one hundred eighty days after the alleged unlawful discriminatory practice occurred, in any court with jurisdiction for any legal or equitable relief that will effectuate the individual’s rights. (italics added).

This provision authorizes compensatory and punitive damages for successful plaintiffs. However, a plaintiff who files a lawsuit under §4112.02(N) “is barred, with respect to the practices complained of, from instituting a civil action under section 4112.14 of the Revised Code and from filing a charge with the commission under section 4112.05 of the Revised Code.”

Section 4112.05 permits individuals to file Charges of Discrimination with the Ohio Civil Rights Commission within six months of the alleged discrimination.

Section 4112.14 (formerly codified at § 4101.17) prohibits age discrimination in hiring and firing, permits the filing of a lawsuit by an aggrieved employee or applicant, and provides reinstatement, back pay and attorneys fees to successful plaintiff. However, plaintiffs who file under § 4112.14 may not file a Charge of Discrimination with the Ohio Civil Rights Commission or file a lawsuit under § 4112.02(N). This section also provides that the remedies available “are coexistent with remedies available pursuant to sections 4112.01 to 4112.11 of the Revised Code,” but it seems unlikely that plaintiffs under §4112.14 may obtain compensatory or punitive damages. In addition, when this statute was codified at § 4101.17, the statute of limitations for these age discrimination claims were held to be six years. Since this statute was recodified at § 4112.14, it is no longer clear whether the limitations period for claims brought under § 4112.14 are still six years, but the Supreme Court has refused to confirm this or limit the claims to 180 days as in §4112.02(N). Importantly for the Meyer case, § 4112.14(C) provides that § 4112.14 lawsuits and other lawsuits brought

pursuant to sections 4112.01 to 4112.11 of the Revised Code shall not be available in the case of discharges where the employee has available to the employee the opportunity to arbitrate the discharge or where a discharge has been arbitrated and has been found to be for just cause. (italics added).

Notably, § 4112.14(C) does not specifically address claims brought under § 4112.99 (but, rather, addresses only claims brought under §§ 4112.01 to 4112.11).

Section 4112.99 provides that “Whoever violates this chapter is subject to a civil action for damages, injunctive relief, or any other appropriate relief.” This is a general statute and must be paired with a more specific statute, like §4112.02(N) or § 4112.14. In any event, this general provision authorizes compensatory and punitive damages regardless of whether it is paired with more specific statutes like § 4112.02(N) or § 4112.14. This is important because there is an argument that §4112.14 does not otherwise authorize compensatory or punitive damages. Plaintiffs who bring an action under § 4112.99 need not specify which more specific statute supports their claims.

In Meyer, the Court held that age discrimination lawsuits may not be brought “where the employee has available to the employee the opportunity to arbitrate the discharge or where a discharge has been arbitrated and has been found to be for just cause.” Therefore, even if the employee filed a lawsuit within 180 days under §4112.02(N) and even thought that statute does not mention arbitration proceedings, that age discrimination lawsuit is still governed by § 4112.14(C). In addition, even though Meyer’s grievance was not arbitrated by a single arbitrator, the bargaining agreement’s grievance procedure was equivalent to an arbitration and, thus, was covered by § 4112.14(C) arbitration clause.

Friends of the court filed briefs in the Meyer case urging the Court to address other questions posed by §4112.14, such as the length of its limitations period and whether it authorizes compensatory and punitive damages. However, the Court declined to do so. Instead, the reasoning of the Court was that all age discrimination claims brought under §4112.99 are subject to §4112.02(N) and §4112.14 and because §4112.14(C) prohibits age discrimination claims where the plaintiff had arbitration available to him or her, no age discrimination claims can be brought under §4112.99 if an arbitrator – or effective equivalent – upheld the discharge under a just cause standard. This might indicate that plaintiffs should only file claims under §4112.02(N) and not mention § 4112.99, but the syllabus of the Court’s opinion – which states the law of the case – does not limit its holding to §4112.99 claims. Rather, the syllabus refers to all age discrimination claims.

Insomniacs can read the full court opinion at http://www.sconet.state.oh.us/rod/docs/pdf/0/2009/2009-ohio-2463.pdf.

NOTICE: This summary is designed merely to inform and alert you of recent legal developments. It does not constitute legal advice and does not apply to any particular situation because different facts could lead to different results. Information here can change or be amended without notice. Readers should not act upon this information without legal advice. If you have any questions about anything you have read, you should consult with or retain an employment attorney.