Wednesday, October 14, 2009

The ADEA's Pattern or Practice Problem After Gross

First, I would like to thank Professors Rick Bales, Marcia McCormick, Jeffrey Hirsch, and Paul Secunda for inviting me to participate as a guest blogger.  I am grateful for the opportunity to contribute and for the support they have offered me in connection with my scholarly work. 

For my first series of blog posts, I plan to focus on an area of employment discrimination law that is the subject of my current research:  “pattern or practice” claims of discrimination.  I find this area of employment law particularly fascinating because it involves the statistical proof of employment discrimination – and therefore implicates many of the same controversial issues that arise in disparate impact cases like Ricci v. DeStefano – but seems to be receiving far less attention.  This lack of attention is somewhat surprising, at least to me, because the EEOC has placed a renewed emphasis on litigating systemic discrimination cases, including pattern or practice claims.  As a result, a number of doctrinal issues have surfaced recently in pattern or practice law, but the Supreme Court has not yet had the opportunity or the inclination to address them.  In this series of posts, I plan to highlight a few of the problem areas and offer my preliminary thoughts on how a consistent and cohesive approach to pattern or practice law can be formulated. 

Let me begin by providing a brief background on the pattern or practice doctrine.  Title VII provides the EEOC with authority to bring a civil action for appropriate relief when it has reasonable cause to believe that an employer is engaged in a “pattern or practice” of intentional (disparate treatment) discrimination.  The EEOC will bring a pattern or practice case where it identifies an employer that it believes to be engaged in systematic discrimination against a group, rather than just isolated instances of discrimination.  The EEOC has declared that addressing systemic discrimination is a top priority for the Commission. (See EEOC Fiscal Year 2008 Performance and Accountability Report).  Private plaintiffs may also bring a pattern or practice claim, although most courts require them to obtain class certification before pursuing a pattern or practice claim.  

Courts distinguish pattern or practice discrimination cases from individual discrimination cases, and have developed a completely separate analytical framework for handling pattern or practice cases.  In individual cases, courts typically apply either the traditional McDonnell-Douglas burden-shifting framework or the mixed motives burden-shifting test codified by the 1991 Amendments to the Civil Rights Act, at 42 U.S.C. § 2000e-2(m).  In pattern or practice cases, however, courts apply a different, two-phased burden-shifting framework as set out in International Brotherhood of Teamsters v. United States, 431 U.S. 324 (1977).      

Under Teamsters, pattern or practice cases are divided into two phases.  In Phase I, the plaintiff bears the burden of proving that the employer was engaged in a pattern or practice of discrimination.  This is generally accomplished through the use of statistical evidence.  For example, in Teamsters, the government compared the rates of minorities hired by the employer into desirable positions with the minority population rates in the city.  The Teamsters Court noted that statistical imbalances are often the “telltale sign of purposeful discrimination,” that can justify a burden shift.  Thus, if the plaintiff successfully meets its burden in Phase I, it will create a rebuttable presumption that all individual employment decisions made during the period of the pattern or practice were discriminatory.  The employer then bears the burden, in Phase II, of rebutting this presumption as to any individual claimant by proving that the individual employment decision affecting that claimant was not the product of the discrimination.

One frequently recurring question in pattern or practice law is:  Under what circumstances, and under which antidiscrimination statutes, can this Teamsters method of proof be used by plaintiffs?  In this first post, I want to briefly raise that question in the context of the ADEA, and to consider whether the Supreme Court’s recent opinion in Gross v. FBL Financial Services, 129 S.Ct. 2343 (2009), may have changed the answer.  

Prior to Gross, there seemed to be little question that an ADEA plaintiff could pursue a pattern or practice claim and use the Teamsters burden-shifting framework.  At least six circuit courts of appeals had held, borrowing from the Title VII context, that an ADEA plaintiff could pursue the pattern or practice theory.  This was consistent with courts’ general willingness to borrow analytical proof frameworks (like the McDonnell-Douglas framework and the mixed motives burden-shifting test in individual cases) from the Title VII context and apply them to cases decided under other antidiscrimination statutes.    

After Gross, there is a now a real question whether the Supreme Court would agree.  Unlike Title VII, the words “pattern or practice” do not appear anywhere in the text of the ADEA.  In Gross, the Supreme Court held that the mixed motives test, as codified by the 1991 Amendments to Title VII, did not apply to ADEA cases because Congress did not add similar mixed motives language to the ADEA.  The Court instructed:  “When conducting statutory interpretation, we ‘must be careful not to apply rules applicable under one statute to a different statute without careful and critical examination.’”  Thus, despite a line of cases applying some form of mixed motives analysis in ADEA cases, the Supreme Court held in Gross that an ADEA plaintiff cannot rely on mixed motives proof, but rather must show that age was the “but for” cause of the adverse employment action.  

If the Court approached the pattern or practice question in the same way, it might conclude that ADEA plaintiffs cannot pursue a pattern or practice claim or invoke the Teamsters method of proof because, unlike Title VII, the statute does not explicitly authorize a “pattern or practice” claim.  Precisely this argument was presented to the Tenth Circuit by the defendant in Thompson v. Weyerhaeuser Co., 2009 WL 2902069 (10th Cir. Aug. 26, 2009), decided just two months after Gross.  The Tenth Circuit rejected the employer’s argument, and permitted the ADEA plaintiff to pursue a pattern or practice claim, despite the Supreme Court’s ruling in Gross.  The Tenth Circuit acknowledged that the words “pattern or practice” are found in Title VII but not in the ADEA.  Nonetheless, the court reasoned, the mixed motive burden-shifting framework at issue in Gross was of a different kind and was founded on the text of the 1991 Amendments to Title VII.  The pattern or practice burden-shifting framework, by contrast, is “mentioned in neither statute” (at least as an explicit burden-shifting framework) and “has been established by the courts.”  It remains to be seen whether other courts will agree with the Tenth Circuit’s distinction and continue to allow pattern or practice claims under the ADEA, or whether they will interpret Gross to prohibit the borrowing of the pattern or practice analytical framework where the statutory text does not expressly authorize such borrowing.  

Congressional Democrats are now planning to introduce a bill to amend the ADEA to override Gross.  The proposed bill would make it clear that once an ADEA plaintiff establishes that age was a motivating factor, the burden shifts to the defendant to establish that it would have taken the adverse action regardless of plaintiff’s age.  This narrow proposed bill would resolve the mixed-motive question at issue in Gross, but it would not resolve the pattern or practice issue raised by the defendant in Thompson. 

Some scholars and observers have called for Congress to take a broader approach and completely overhaul disparate treatment discrimination law.  There are a number of textual differences and inconsistencies amongst the antidiscrimination statutes – some of which may reflect intended differences in how certain discrimination cases are handled, and some of which may not.  A narrow bill would resolve the particular issue that the Supreme Court identified in Gross, but the Court may in the future use the same textualist reasoning to draw other (possibly unintended) distinctions amongst the statutes.  If Congress does take comprehensive action to overhaul disparate treatment law, it would be wise to clear up the many unresolved issues in pattern or practice law, including whether pattern or practice claims are available under the ADEA.    

In future posts, I will revisit this ADEA pattern or practice problem, and will also turn my attention to other problem areas in pattern or practice law.  My goal in this project is to begin developing some principles for determining when the application of the Teamsters pattern or practice analytical framework is justified and when it is not.  

-Jason Bent

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There was a good decision this summer re-affirming the viability of this theory notwithstanidng Gross. Thompson v. The Weyerhaeuser Co., No. 07-7090 (10th Cir. Aug. 26, 2009).

Posted by: Paul Mollica | Oct 14, 2009 12:27:38 PM

Mike Zimmer emailed me the following comment, and asked me to post it here. I think he raises some excellent points, and I will discuss them further in one of my next posts on this topic:

"Nomenclature might not be that important here. The Supreme Court has used the systemic disparate treatment theory in Trans World Airlines v. Thurston where the employer explicitly, by express policy, treated pilots disqualified from flying by age differently from those disqualified for other reasons, e.g., flunking a physical. Teamsters and Hazelwood School District cases, under Title VII, are generally viewed as systemic disparate treatment cases where statistical evidence is used to establish a practice of discrimination.

In systemic disparate treatment cases, when the plaintiff proves that the employer was engaged in a policy or practice of discrimination by showing an express policy and the employer cannot prove BFOQ or by using statistical evidence to establish a discriminatory practice that the employer cannot undermine by showing, as in EEOC v. Sears, that the reason for the shortfall of women was their lack of interest in good jobs, then liability is established. What shifts to the defendant, then, is trying to limit liability by proving that the people adversely affected by the employers discrimination in fact were not discriminated against.

I think the argument would be that the proof of a discriminatory practice by statistics is a way to prove an ADEA violation just as proof of a policy discriminatory on its face. If those systemic disparate treatment cases brought by the government are called pattern or practice cases under Title VII or not doesn't seem to matter. Nor should the nomenclature used to describe systemic disparate treatment cases brought by private plaintiffs under the ADEA."

Posted by: JB | Oct 14, 2009 3:21:04 PM

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