Friday, January 18, 2008

Supreme Court Takes Two More Employment Discrimination Cases

4united_states_supreme_court_112904 SCOTUSblog is reporting:

Among other cases granted is a test of whether federal law protects a worker from being fired after being a witness in a company or agency’s internal investigation of sexual harassment on the job (Crawford v. Metro Nashville Government, 06-1595).  The Sixth Circuit Court ruled that only workers who pursue their own complaint about discrimination or persuade the federal government to pursue a charge are protected from retaliation under Title VII of federal civil rights law.


In a separate case involving workers’ rights — here, a claim of age bias in the workplace — the Court granted review of whether a worker or the employer has the burden of proving that the action taken was or was not done for a valid reason other than age (Meacham v. Knolls Atomic Power Laboratory, 06-1505, grant limited to first question). Justice Stephen G. Breyer is recused from the case. The Second Circuit Court ruled that workers claiming a violation of the Age Discrimination in Employment Act bear the burden of demonstrating that the layoffs at issue in the case were unreasonable and not justified by a reason other than age.

I had mistakenly written in another post that Crawford had not been granted. This has been fixed in the other post.

As far as Crawford, this is an important case because it directly concerns whether employees are likely to cooperate with their employers' internal investigations of harassing, discriminatory, or retaliatory content.

FWIW, I think 6th Circuit is clearly wrong and that the participation clause of Section 704(a) clearly does protect witnesses who participate in an internal investigation both for textual and policy reasons.

As far as Meacham, the issue of burden on the RFOA issue, I hope the Court reverses the Second Circuit and finds that the RFOA defense is in the nature of an affirmative defense and therefore, the employer has the burden.  This should be so for either a disparate treatment or disparate impact case.


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I agree that the employer should bear the burdens of production and persuasion on the RFOA defense in a disparate impact case, but I have never been able to identify any circumstance in which the RFOA defense is even relevant to a disparate treatment case. Although the Court has assumed rather than held that the McDonnell Douglas framework for assessing circumstantial evidence applies to ADEA cases, as long as that assumption prevails, why would the RFOA defense ever come into play? McDonnell Douglas only requires the defendant to articulate by admissible evidence a legitimate nondiscriminatory reason for its decision (something akin to a reasonable factor other than age), leaving plaintiff with the burden to produce evidence and persuade the jury that the articulated reason is a pretext for discrimination. Under that framework, the defendant never bears the burden to prove by a preponderance of evidence that a RFOA rather than age was the reason for the decision. If the plaintiff lacks sufficient evidence to create a jury question on pretext for age discrimination, the plaintiff never gets to a jury, and the defense cannot come into play. If the plaintiff has sufficient evidence to create a jury question, under McDonnell Douglas and its progeny, the plaintiff still bears the burden of persuasion; if the plaintiff carries that burden, persuading the jury by a preponderance of the evidence that age was at least a substantial motivating factor in the decision, then doesn't that finding make it logically impossible for the defendant to have also proven the RFOA defense? I see no place for the RFOA defense in a disparate treatment case as long as under the ADEA, like under Title VII but unlike under the Equal Pay Act, the plaintiff bears the burden of persuasion to prove age caused (or was a substantial motivating factor) in the decision. If it was, then how can the defendant have relied on a reasonable factor other than age (short of proving the Mount Healthy same decision defense)? Or is the RFOA defense the Mount Healthy defense by another name?

Posted by: Michael Masinter | Jan 18, 2008 4:18:28 PM

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