New court rulings on age, race discrimination

Court and Legislative Updates – JULY 2009
By Dunn, Carney, Allen, Higgins & Tongue

The Courts and the Legislature have been very busy lately.  We provide you the following summaries of some of the most significant changes and developments.  If any of these summaries raise questions, please contact us to discuss.

The ADEA is Just Different

The U. S. Supreme Court recently ruled that a plaintiff bringing claims of age discrimination must prove that “but for” his age, the adverse employment action would not have occurred, the highest burden of proof.

In Gross v. FBL Financial Services, Inc., the employee, Gross, sued his employer, alleging intentional age discrimination in violation of the Age Discrimination in Employment Act (ADEA), asserting that he was demoted because of his age. The employer denied that it took age into consideration and, in the alternative, argued that even if it did, it had other legitimate reasons for changing Gross’s position.  At trial, the court instructed the jury to find for Gross if it found age was a motivating factor in the demotion decision.  The court then told the jury that age was a motivating factor if it played a part in the demotion.  The court also told the jury to find for the employer if it proved that it would have demoted Gross regardless of age.  The jury found for Gross and awarded significant damages.

The employer appealed to the Eighth Circuit and won.  There, the court held that the jury was wrongly provided a “mixed motive” instruction based on the standard established for cases under Title VII in Price Waterhouse v. Hopkins, and clarified that the instruction did not apply to cases brought under the ADEA.  A mixed motive case refers to when an employee alleges he suffered an adverse employment action because of both permissible and impermissible considerations.

On review, the Supreme Court decided that a plaintiff bringing a claim of intentional discrimination (disparate treatment) under the ADEA must prove that, “but for” his age, the adverse employment action would not have occurred.  This is the highest burden of proof, and a standard that will make ADEA claims more difficult for employees to win.  The Supreme Court also rejected Gross’s request to embrace the “mixed motive” theory for claims under the ADEA.  Indeed, it held that a mixed motive jury instruction is never proper in an ADEA case.

The Court’s decision is certainly a win for employers for two reasons.  First, employers will no longer have to prove that they would have made the same decision regardless of an employee’s age.  Second, employees now have a much higher threshold of proof – showing that the adverse action would not have occurred but for their age.

Fear of Lawsuits is Not a Legitimate Non-Discriminatory Reason

The U.S. Supreme Court recently held that an employer’s concern about the statistical disparity along race lines related to a promotional exam (and the liability this could create) was not sufficient reason to deny the top applicants the promotions they would have otherwise received.

In Ricci v. DeStefano, the U.S. Supreme Court was asked to review the race discrimination claims brought by plaintiff Ricci and 17 other white and Hispanic firefighters from the City of New Haven, Connecticut.  These claims were raised under Title VII of the Civil Rights Act of 1964 and the Equal Protection Clause of the Fourteenth Amendment.

New Haven, like many other cities, used a written test to determine which firefighters were eligible for promotion.  After it administered the test to Ricci and the other plaintiffs, the City learned that the African-American candidates scored lower on the tests and that none of them were in the top positions that made them eligible for promotion.  The City became concerned about discrimination challenges that could arise from this result, and thus invalidated the test results.

When Ricci and the other plaintiff challenged the denial of their promotions and sued, their claims were summarily rejected.  On appeal, the Second Circuit Court of Appeals affirmed, lamenting that there were “no good alternatives” available to the City in this case.

The U.S. Supreme Court took a different approach when it held that the fear of litigation by African-American firefighters was not a sufficient (legitimate) reason to deny promotions by invalidating test results.  The Supreme Court found that the City was engaged in “express, race-based decision making” when it declined to certify the examination results because of the statistical disparity based on race.

Best Practices

Employers certainly see the irony of this case.  In an effort to avoid one lawsuit, the City acted too quickly and created another lawsuit.  The lessons for employers arising from this case are significant.  First, if you are using any form of selection criteria, ensure it is validated.  This will require an analysis of the suitability of the test to the skills and knowledge required for the position, as well as a review of the testing and evaluation methods.  Validated tests are good evidence that an employer is trying to use an objective tool to discover the best qualified candidate for a position.

Second, understand where your selection tool falls on the spectrum of validation.  In general, testing falls into three categories: (1) solid and defensible, (2) defensible but with some limitations, and (3) fatally flawed.  A “solid and defensible” test will take the requirements of the federal Uniform Guidelines into account.  The test will be job-related in that it measures critical knowledge, skills, and abilities that are required for job success.  Also, the standard for success should be based on legitimate considerations and not arbitrary.  Clearly, involving those with significant knowledge of the job and those who understand testing is critical.  Employers should strive to ensure their tests are solid and defensible.

In those cases where testing cannot be achieved at a “solid and defensible” level, employers may find themselves using tests that are “defensible but with some limitations”.  These tests usually have some evidentiary support of validity, but also have one or more flaws that may undermine the validity of the test scores.  While these tests are not unlawful, their use will place employers in a more difficult legal position if the tests are alleged to produce results that have a discriminatory impact.  The bottom line is to use this level of test only where the decisions based on their results are less important, where the results show no discriminatory impact, and with the understanding of the potential liability risks associated with it.

Oregon House Bill 2744 to Become Law

Effective January 1, 2010, employers in Oregon with 25 or more employees must provide leave during specific periods of time to certain employees who are spouses of military members serving on active duty.  During a time of war, an employee whose spouse has been called or ordered to active duty is entitled to 14 days of unpaid leave per deployment, after the notification of deployment has been received but before the deployment occurs.  Similarly, up to 14 days of unpaid leave per deployment is available to employees who are military spouses when the service member is on leave from deployment.

Employees who intend to take this leave must notify their employer within five business days of receiving official notice of spouse’s deployment or leave from deployment.  Employees will be permitted to substitute any accrued leave during their time away.  The Bureau of Labor and Industries will enforce this law.  If an employer fails to grant leave to an employee-spouse exercising their right to military family leave, the employee-spouse could file a discrimination or retaliation suit.

Oregon Senate Bill 519 is Now Awaiting Signature – we will send another update on this bill after the Governor signs it.

Thanks to Irene Scruggs for writing this Enews.  If you have any questions about these issues, please contact Irene or Tamsen Leachman.

By Dunn, Carney, Allen, Higgins & Tongue

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