Adverse Impact Not Available in Age Cases, November 20, 2003
Joining a number of other federal appellate courts, the Fifth Circuit has held that the disparate or adverse impact theory cannot be applied in age discrimination cases. Smith v. Jackson, No. 02-60850 (5th Cir. November 13, 2003). The First, Seventh, Tenth, and Eleventh circuits have come to the same conclusion. The Second, Eighth, and Ninth circuits disagree. The Supreme Court considered the issue in 2001, but dismissed the appeal after hearing oral argument.
In the Smith case, 30 police officers and public safety dispatchers (all over 40 years old) sued the city of Jackson, Mississippi alleging that they were injured by the city's new performance pay plan. The plan granted substantially larger salary increases to individuals under 40 than to those over 40. The plaintiffs supported the adverse impact claim with statistics that showed the average pay increases differed by age, with older officers and dispatchers receiving smaller raises than their younger counterparts.
Rejecting the adverse impact claim, the Fifth Circuit stated that “After surveying the well-traversed arguments on either side of this debate, we hold that the ADEA was not intended to remedy age-disparate effects that arise from the application of employment plans or practices that are not based on age.” Referring to the Supreme Court’s decision in Griggs v. Duke Power Co., 401 U.S. 424 (1971), the court explained that “fundamental to our decision is the ADEA's express exception permitting employer conduct based on ‘reasonable factors other than age’– an exception absent from Title VII – and the inapplicability to the ADEA context of the policy justifications identified by the Supreme Court . . . for recognizing a disparate impact cause of action in the Title VII context.
Worker Fired for Bagel Attack Can't Prove Discrimination, November 20, 2003
A Hispanic employee who was fired for "one-sided violence in the workplace" after she attacked a co-worker with a bagel at a company breakfast cannot prove discrimination. Argueta v. North Shore Long Island Jewish Health Sys. Inc., No. 01-CV-4031 (E.D.N.Y., November 6, 2003). Witnesses saw Liberty Argueta repeatedly strike a co-worker with a bagel at a workplace breakfast. Argueta denied that she did so, but was fired following an investigation into the incident. She then sued, claiming race, color, and national origin discrimination in violation of Title VII and New York law.
The Court rejected Argueta's claims, holding that "for the purposes of deciding whether Argueta was terminated based on her race, color, or national origin, the relevant question is not what happened, but rather, what the decisionmakers believed happened." There was no evidence to suggest that any decisionmaker harbored discriminatory animus toward Argueta.
Six Year or Fewer Difference in Age No Prima Facie Case, November 19, 2003
A difference of six years or less between a terminated employee and his replacement will not support a prima facie case, absent direct evidence of age discrimination, the Sixth Circuit has held. Grosjean v. First Energy Corp., No. 02-3361 (6th Cir. November 13, 2003. Grosjean, a 54 year old employee of First Energy was stripped of his supervisory responsibilities, which were given to a 48 year old. He then sued, alleging age discrimination.
Affirming the District Court's entry of summary judgment for First Energy, the Sixth Circuit held that "Grosjean failed to make his prima facie case of age discrimination because he was not replaced by a person significantly younger than himself." The court reviewed more than 60 cases regarding what constitutes a significant age differential under the ADEA, and announced a rule to help trial courts make "firm determinations." The rule established by the Court is that "in the absence of direct evidence that the employer considered age to be significant, an age difference of six years or less between an employee and a replacement is not significant."
At-Will Employment Principle Upheld Against Wrongful Discharge Claim, November 12, 2003
The fundamental at-will employment principle maintains that either an employer or employee may terminate their employment relationship at any time and for any reason not proscribed by law. The Sixth Circuit recently upheld that principle in a wrongful discharge case brought by an employee who was terminated for monitoring his supervisor's e-mail communications. Mannix v. Monroe County, No. 02-1001 (6th Cir. Nov. 3, 2003). The plaintiff, a network administrator for the Monroe County, Michigan government, suspected his supervisors of financial improprieties and started to monitor their e-mail correspondence. After the plaintiff printed out and displayed an e-mail from one supervisor stating that he wanted to fire the plaintiff, the county learned of the plaintiff's improper conduct and fired him.
At trial, the plaintiff obtained a judgment for $80,000 on his wrongful discharge claim. The Sixth Circuit reversed, holding that under Michigan law, at-will employment is the "default rule" unless the employee could show that he could only be fired for just cause. In this case, the employee expressly agreed to an at-will employment relationship when he signed and accepted the county's offer letter describing his job as "at-will." The court disregarded the plaintiff's contention that he did not understand the term "at-will" when he signed the letter and noted that revised employment policies distributed to all county employees after the plaintiff started working there made clear his at-will employment status. In addition, the county's progressive discipline system did not give the plaintiff any legitimate expectation that he could only be fired for just cause because he clearly agreed that he was an at-will employee.
Balanced Workforce Initiative Is Evidence Of Discrimination, November 7, 2003
A federal appellate court has ruled that an employer's affirmative action plan, known as its "Balanced Workforce Initiative" ("BWF"), constituted direct evidence of discrimination. Frank v. Xerox Corp., Nos. 02-20416 and 02-20516, 92 FEP Cases 1270 (5th Cir. Sept. 30, 2003). Xerox utilized the BWF plan to make sure that all racial and gender groups were proportionately represented at all levels of employment. Several black employees in Xerox's Houston office sued claiming that they were denied promotions and otherwise adversely affected by Xerox's adherence to the BWF plan.
The BWF identified racial and gender goals for each job. Corporate reports based on the BWF indicated that black employees were over-represented and whites under-represented in almost every job category in the company's Houston office. The court found that this was sufficient evidence to show that Xerox considered race in implementing its employment policies and that the plaintiffs were denied employment opportunities because they were black. The court then reversed the trial court's summary judgment in favor of Xerox, permitting the plaintiffs' claim that they were injured by the company's adverse employment action to go to trial.
Each Lower Paycheck Is New Discriminatory Act, November 3, 2003
An employee who is paid less because of race, sex or another protected classification, has an ongoing claim of discrimination each time she receives the lower paycheck. Typically, this analysis is referred to as the "continuing violation" theory, endorsed in Bazemore v. Friday, 478 U.S. 385 (1986). The Supreme Court fine-tuned this theory last year in National Railroad Passenger Corp. v. Morgan, 536 U.S. 101 (2002).
Addressing nuances in these claims, the Seventh Circuit has held that a worker who sued for race discrimination more than three years after he did not receive a promised pay raise can sue his employer, not as a "continuing violation" under Morgan, but because each paycheck he received was a separate discriminatory act under Bazemore. Reese v. Ice Cream Spec. Inc., No. 02-1633 (7th Cir., October 30. 2003). This ruling brings the Seventh Circuit in line with other circuit courts that have considered the issue.
Charlie Reese complained that, although he was told he would receive a pay raise in February 1997, he did not, even though a white co-worker did. But Reese only realized this fact in August 2000. Reese complained to the EEOC, which dismissed his claim as untimely. He then sued, with the trial court dismissing the claim on summary judgment. The Seventh Circuit vacated the judgment and remanded the claim, explaining that Reese's "claims for pay within the 300-day period are not time-barred, because each check . . .was potentially a fresh act of discrimination."
What's the distinction? Morgan looked at "continuing violations" in situations like harassment, that do not lend themselves to temporal precision and instead rely on the cumulative effect of repeated conduct. But each paycheck that is less because of an alleged discriminatory reason is a specific act that can be precisely identified under the Bazemore analysis.
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