AGE DISCRIMINATION

Gomez-Perez v. Potter

The U.S. Supreme Court in May 2008 decided that a plaintiff can assert a claim under the Age Discrimination in Employment Act of 1967 when an employer retaliates against an employee for filing a complaint based on age discrimination. The Court reached this holding despite the fact that the federal statute on which the claim was based does not mention the word “retaliation.” The case was noteworthy because the majority consisted of an unusual blend of conservative and liberal justices.

The Age Discrimination in Employment Act (ADEA), 29 U.S.C.§§ 621 et seq. , provides protection for employees of ages 40 and older from employment discrimination based on the age of the employee. The statute applies to both employees and applicants for employment. The ADEA proscribes discrimination against a person because of the person's age with regard to any term, condition, or privilege of employment. The statute applies to any employer who has 20 or more employees. It also applies to state and local governments, employment agencies, and the federal government.

The section of the ADEA that applies to federal government employee is 29 U.S.C.§ 633a(a). Under this section, “All personnel actions affecting employees or applicants for employment who are at least 40 years of age … in the United States Postal Service and the Postal Rate Commission … shall be made free from any discrimination based on age.” The agency authorized to interpret the statute, the Equal Employment Opportunity Commission, took the view that the ADEA was designed to prohibit “retaliation for opposing any practice made unlawful by” the statute.

At least one appellate court previously held that the ADEA created a cause of action for retaliation when a federal employee complains about age discrimination. In Forman v. Small, 271 F.3d 285 (D.C. Cir. 2001), a curator with the National Museum of American History of the Smithsonian Institution brought suit under the ADEA, alleging that the Smithsonian Institution had retaliated against him when he alleged that he had been the victim of age discrimination. The court recognized that the ADEA allowed the plaintiff to bring the retaliation claim because a workplace, noting, “It is difficult to imagine how a workplace could be ‘free from any discrimination based on age’ if, in response to an age discrimination claim, a federal employer could fire or take other action that was adverse to an employee.”

Myrna Gomez-Perez was first hired by the U.S. POSTAL SERVICE in New York in 1987. She was transferred in 1995 to the Caribbean District and began working in Puerto Rico. When she learned that her mother was ill, Gomez-Perez requested a transfer from the Dorado Post Office to the Moca Post Office so that she could be closer to her mother. Her supervisor approved this request, but one month later, she requested to be moved back to the Dorado Post Office. On the same day that she made this request, her supervisor converted her old position into a part-time job and hired another employee to fill it. Thus, the supervisor denied her request.

Gomez-Perez, then 45, subsequently filed an equal employment opportunity complaint with the Postal Service, arguing that her supervisor had discriminated against her on the basis of her age. After she filed the complaint, she alleged that she became the subject of various forms of retaliation, including suggestions that she had sexually harassed co-workers. Her work hours were reduced dramatically as well.

In 2003, Gomez-Perez filed suit against the Postal Service as well as John E. Potter, the Postmaster General, in the U.S. District Court for the District of Puerto Rico. She argued that her supervisor had retaliated against her for filing the EEO complaint, and she based her claim on 29 U.S.C.§ 633a(a). In 2006, the district court held in favor of the Postal Service, finding that the ADEA did not allow private plaintiffs to bring retaliation claims under its provisions. Gomez-Perez v. Potter, No. 03-2236, 2006 WL 488060 (D.P.R. Feb. 28, 2006).

Gomez-Perez then appealed the decision to the First Circuit Court of Appeals. Before the appellate court, she argued that the Supreme Court in previous cases had recognized a cause of action for retaliation when the statute only refers explicitly to discrimination. More specifically, the Supreme Court in Jackson v. Birmingham Board of Education, 544 U.S. 167, 125 S. Ct. 1497, 161 L. Ed. 2d 361 (2005), the Court held that under Title IX, retaliation constitutes a form of discrimination that is prohibited by federal statute even though the statute does refer specifically to retaliation. The First Circuit was not persuaded, however, and ruled that the ADEA did not create a cause of action for retaliation. Gomez-Perez v. Potter, 476 F. 3d 54 (1st Cir. 2007).

During oral argument, the justices focused most of their attention on the language of the statute. Justice Antonin Scalia noted to Gomez-Perez's counsel that the plain language of the ADEA does not specifically cover retaliation claims. Justice Ruth Bader Ginsburg, on the other hand, suggested that an anti-discrimination statute must cover retaliation claims. “A person who is discriminated against will quite commonly say, ‘I was not promoted because that was discrimination, and then because I complained about it, all these bad things happened to me.’”

In a 6-3 decision the Court reversed the First Circuit's decision. Gomez-Perez v. Potter, No. 06-1321, 2008 WL 2167189 (May 27, 2008). Justice Samuel Alito, a conservative, sided with his more liberal counterparts and wrote the majority opinion. Alito focused much of his attention on how the Court had treated retaliation claims under similar federal statute, including the Court's treatment of such claims under Title IX in Jackson. Much earlier, the Court had used a similar rationale in Sullivan v. Little Hunting Park, Inc., 396 U.S. 229, 90 S. Ct. 400, 24 L. Ed. 2d 386 (1969) to find that a federal statute that prohibited discrimination based on race also prohibited retaliation.

Chief Justice John Roberts wrote a dissent, which was joined in part by Scalia and Justice Clarence Thomas. Roberts argued that the Court placed too much reliance on the precedent set forth in Jackson and Sullivan. Thomas also wrote a separate dissent where he argued that the Court should have decided the case based on the plain meaning of the statute's language.

Kentucky Retirement System v. Equal Employment Opportunity Commission

The Age Discrimination in Employment Act of 1967 (ADEA), 29 U.S.C.A. §§ 621 et seq., was enacted to protect older workers from arbitrary employment practices, such as the setting up of age requirements unrelated to the ability needed for the job or creating a two-tiered benefits plan based on age. While similar in wording to Title VII of the Civil Rights Act of 1964, 42 U.S.C.A,§§ 2000e et seq., the ADEA has some defenses and provisions uniquely applicable to age discrimination. The most important difference is that a person alleging age discrimination must prove that the employer intentionally discriminated on the basis of age. This standard of liability is called disparate treatment and is often very hard to prove. In contrast the standard of liability known as disparate impact only requires the plaintiff to show that the employer used a facially neutral test or other employment practice that unjustifiably resulted in discrimination against members of a protected group. Because the Supreme Court disallowed disparate impact in ADEA cases, plaintiffs have had a harder time prevailing. Such was the case in Kentucky Retirement System v. Equal Employment Opportunity Commission,—U.S.—, 128 S. Ct. 2361,—L. Ed. 2d—(2008), where the Court ruled that a state and county retirement plan that gave different levels of pension benefits to “hazardous position” workers based on their ages did not violate the ADEA.

Charles Lickteig, who worked in the Jefferson County, Kentucky Sheriff's Department, became eligible to retire at age 55. Classified as a hazardous position worker, Lickteig continued to work, became disabled, and then retired at age 61 after 18 years of employment. He discovered that he was treated differently than younger workers who became disabled before they reached the age of 55 or had served 20 years. The disability plan awarded benefits based in part on how close a disabled worker was to reaching normal retirement. The plan sought to provide disabled workers with the same retirement benefits they would have had if they continued to work until eligible for normal retirement. Lickteig filed a complaint with the Equal Employment Opportunity Commission (EEOC), alleging that because older workers who became disabled after the age of 55 did not receive the same amount of benefits as younger workers, the same the plan affects older workers differently than younger workers.

The EEOC sided with Lickteig and filed suit in Kentucky federal district court alleging that the plan violated the ADEA. The district court and a panel of the Sixth Circuit Court of Appeals ruled in favor of the state, finding that the disability retirement benefits program, while taking age into account, did not attach any stigma based on age itself. The entire Sixth Circuit reheard the case and reversed itself, holding that the act of treating younger disabled retirees more generously than older retirees was sufficient to establish an ADEA violation.

The Supreme Court, in a 5–4 decision, reversed the Sixth Circuit ruling. Justice Stephen Breyer, writing for the majority, noted that Lickteig had to prove that the state intentionally discriminated on the basis of age when it created the two-tier disability retirement system. He concluded that Lickteig and the EEOC had failed to meet that burden of proof. The benefit at issue was offered to all employees working in hazardous positions on the same nondiscriminatory terms. Moreover, Congress had approved programs that calculated permanent disability benefits using a formula that expressly took age into account. The Kentucky plan reasonably took age and length of service into account when structuring benefits for disabled workers who were eligible for retirement. The differences in treatment were “not motivated by age.”

Justice Anthony Kennedy, in a dissenting opinion joined by Justices Antonin Scalia, Ruth Bader Ginsburg, and Samuel Alito, argued that the decision undercut the framework of the ADEA. Kentucky's motivations did not matter when assessing the benefits plan. Kennedy stated that !By explicit command of Kentucky's disability plan, age is an express disadvantage.” It made no sense to force plaintiffs to prove intentional discrimination when the plan was discriminatory on its face.

Meachum v. Knolls Atomic Power Laboratory

The Supreme Court issued an important ruling in June 2008 involving burdens of proof under the Age Discrimination in Employment Act (ADEA), 29 U.S.C.§§ 623(a)-(c). Under the statute , an employer may avoid liability for age discrimination if the employer's business practices were based on a “reasonable factor than age.” The Court determined that the employer bears the burden of proving that an action was for a reason other than age, rather than requiring an employee to prove that the action was not based on such a factor. The decision reversed a ruling from the Second Circuit Court of Appeals.

The ADEA establishes general prohibitions against age discrimination. The statute was based on an earlier version of the Civil Rights Act of 1964 but was drafted with an understanding that age presents unique problems for employers because an employer may need to terminate an older employee for a reason other than the employee's age. Accordingly, the statute provides, “It shall not be unlawful for an employer … to take any action otherwise prohibited [in the act] … where age is a bona fide occupational qualification reasonably necessary to the normal operation of the particular business, or where the differentiation is based on reasonable factors other than age. …” 29 U.S.C.§ 623(f)(1) (2000).

In Smith v. City of Jackson, 544 U.S. 228, 125 S. Ct. 1536, 161 L. Ed. 2d 410 (2005), the Court recognized that a plaintiff can bring a disparate-impact claim under the ADEA, meaning that a plaintiff may prove a violation by showing that an employer's practice had the effect of discriminating against employees by age. A disparate-impact claim differs from a disparate-treatment claim in that the latter focuses on intentional discrimination based on age.

Both disparate-impact and disparate-treatment claims under the ADEA are governed by a burden-shifting scheme established in Wards Cove Packing Co. v. Atonio, 490 U.S. 642, 109 S. Ct. 2115, 104 L. Ed. 2d 722 (1989). Under this case, the plaintiff initially has the burden to prove that the employer's business practice has a significant disparate impact on older workers, meaning those over the age of forty. If the plaintiff can prove this, the burden shifts to the defendant to provide a legitimate business justification for the practice. Even if the employer can show this justification, though, the plaintiff may still prove a case under the ADEA by showing that the employer could have adopted an alternative that would have been just as effective as the discriminatory option.

Knolls Atomic Power Laboratory is one of several contractors employed by the federal government to maintain U.S. nuclear-powered warships. The United States Navy's Nuclear Propulsion Program, in consultation with Knolls itself, sets the staffing limit for the lab. Due in large part to the end of the COLDWAR, the demands for Knolls' services in the area of naval nuclear reactors decreased. Knolls thus had to reduce its workforce by a total of 143 people. The company made a buyout offer that about 100 employees accepted. However, the company was left with the need to eliminate about 30 other jobs.

To determine which of the remaining employees would be terminated, the company ordered its supervisors to list the employees on a matrix and ranking them in a number of categories. These categories included performance, flexibility, criticality of skills, and length of service. The performance category was based primarily on the average of previous evaluations, while the length of service was based on objective criteria. On the other hand, the flexibility and criticality categories were judged on subjective criteria based largely on the opinions of the supervisors. Of an estimated 2,063 company employees, 31 were selected for layoff based on these rankings. Thirty of the 31 employees who were laid off were over the age of 40.

Most of the employees brought suit, arguing that Knolls had violated the ADEA. The employees brought claims for both disparate treatment as well as disparate impact, arguing that the company “designed and implemented its workforce reduction process to eliminate older employees and that, regardless of intent, the process had a discriminatory impact on ADEA-protected employees.” The workers produced a statistical analysis showing that the results achieved by Knolls' ranking process could rarely happen by chance in terms of the ages of the affected employees.

The trial court held in favor of the employees on the disparate-impact claim but held in favor of Knolls on the disparate treatment claim. Meachum v. Knolls Atomic Power Laboratory, 185 F. Supp. 2d 193 (N.D.N.Y. 2002). On appeal, the Second Circuit Court of Appeals affirmed. Meachum v. Knolls Atomic Power Laboratory, 381 F.3d 56 (2d Cir. 2004). Shortly after the Second Circuit's decision, though, the Supreme Court rendered its decision in Smith, and in 2005, the Court vacated the Second Circuit's decision and remanded the case for further consideration.

On remand, a divided panel of the Second Circuit held in favor of Knolls, finding that the employees had failed to meet their burden of proof. Meachum v. Knolls Atomic Power Laboratory, 461 F.3d 134 (2d Cir. 2006). The dissent in the case, written by Judge Rosemary Pooler, argued that the majority had misinterpreted the standard for disparate-impact cases. According to the dissent, the statutory exemption in cases where an employer can establish reasonable factors other than age is an affirmative defense that the employer must prove.

In a 7–1 decision in which Justice Stephen Breyer did not participate, the Court reversed the Second Circuit. According to the Court, the exemption that applies when an employer gives reasons other than age provides an affirmative defense, and the burden of persuasion falls on the employer to prove this defense. This ruling is consistent with the Court's principle stating that “[w]hen a proviso … carves an exception out of the body of a statute or contract those who set up such exception must prove it.” The ruling means that the treatment of this exception is the same as the exception where an employer imposes bona fide occupational qualifications, which is another exception that the Court treats as an affirmative defense. In issuing this ruling, the Court vacated the Second Circuit and remanded for further proceedings.

Justice Antonin Scalia wrote a concurring opinion, where he argued that the question before the Court should have been answered by deferring to the Equal Employment Opportunity Commission's rule. Justice Clarence Thomas dissented in part of the opinion because he disagrees that the ADEA allows disparate impact claims based on age.

Sprint/United Management Co. v. Mendelsohn

The admission of information at trial is governed by rules of evidence. The Federal Rules of Evidence govern all criminal and civil matters filed in federal courts and have been adopted, in large part, by state judicial systems. Whether certain information is admissible at trial can determine the outcome of a litigation, so lawyers are particularly interested in how the U.S. Supreme Court interprets evidence rules. This was the case in Sprint/United Management Co. v. Mendelsohn,—U.S.—, 128 S. Ct. 1140, 170 L. Ed. 2d 1 (2008), where the lower courts were divided over whether to admit testimony mony in age discrimination lawsuits from employees who were not supervised by the alleged company wrongdoer. The central issue was whether a per se rule applied admitting or excluding such evidence. A per se rule instructs the parties that the court will not examine the details of the proffered testimony or documents to determine admissibility; instead, the rule acts as a bright line that either admits or bars the introduction of that type of evidence. Such rules are disfavored by the courts, as relevance and prejudice are determined in the context of the facts and arguments in a particular case. Seen in this light, the announcement of a per se rule by the Supreme Court is a major development. In this case the Court pulled back from such a ruling, finding that the trial court's basis for its ruling was unclear and warranted clarification from that court.

Ellen Mendelsohn was employed in the Business Development Strategy Group pf the Sprint/United Management Company from 1989 until 2002. Mendelsohn was terminated in 2002 as part of a company-wide reduction in force. She filed suit in federal district court under the Age Discrimination in Employment Act of 1967 (ADEA), 29 U.S.C.§§ 621 et. seq., alleging she was laid off because of her age. To help prove her claim, she wanted to introduce testimony by five former Sprint employees who claimed that their supervisors had discriminated on the basis of their age. Three of the employees alleged that they had heard one or more Sprint supervisors or managers make remarks denigrating older workers. One employee alleged that an intern program was a scheme for age discrimination and that she had seen a spreadsheet suggesting that supervisors could consider age in making layoff decisions. Another witness was prepared to testify that he had been given unwarranted negative performance evaluations because of his age and that he had witnessed another employee being harassed because of her age. The last witness alleged that the company had required him to get permission before hiring anyone over the age of 40. After he was terminated Sprint hired a younger employee to replace him and the company rejected his later job applications.

All of this proposed testimony suggested a hostile work environment based on age discrimination. However, none of the witnesses worked with Mendelsohn in the Business Development Strategy Group and none had worked under her supervisors in her chain of command. Sprint moved to exclude the testimony, contending that it was irrelevant to the central element in Mendelsohn's claim that she was fired by her direct manager because of her age. Sprint said the testimony would only be relevant if the witnesses were “similarly situated” in that they shared the same supervisors. Finally, it argued that the testimony should be barred under Rule 403 of the Federal Rules of Evidence, as its probative value was substantially outweighed by the danger of unfair prejudice, confusion of the issues, misleading of the jury, and undue delay. The court agreed with Sprint and issued a brief order that stated Mendelsohn could only introduce evidence of discrimination against Sprint employees “who are similarly situated to her.” The court defined “similarly situated to her” as requiring proof that her direct manager was the decision-maker in any adverse employment action and actions were in “temporal proximity.” Beyond that, the district court provided no explanation for its ruling.

As the trial proceeded, the court orally clarified this ruling, stating that Mendelsohn could introduce testimony going to a totally different question as to whether the reduction in force was a pretext for age discrimination. In the end, Sprint prevailed at trial. The Tenth Circuit of Appeals interpreted the written order as the application of a per se rule barring evidence from employees with other supervisors as irrelevant to proving discrimination in ADEA cases. The appeals court concluded the lower court had abused it discretion because in this case the issue was not discriminatory discipline or actions but rather a company-wide policy of discrimination. Therefore, Tenth Circuit found the evidence relevant and reversed and remanded the case for a new trial.

The Supreme Court, in a unanimous decision, vacated the lower court decisions and returned the case to the district court to clarify its evidentiary ruling. Justice Clarence Thomas, writing for the Court, ruled that the Tenth Circuit should not have ruled on the relevancy of the evidence and instead, should have remanded the case for clarification. The appeals court had failed to give the great deference to district court evidentiary rulings that the Court has required. It was unclear if the district court had used an incorrect precedent in making its ruling. Because of this ambiguity it was incorrect for the appeals court to conclude the district court abused its discretion. If in fact the court had applied a per se rule, the appeals court would have been correct to conclude the court had abused its discretion.