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Possible Hits by the Supremes
The High Court has accepted almost a dozen new employment-discrimination cases for review, in addition to several that were argued last year but have not yet been ruled on. New hurdles for employers could result.
Could the U.S. Supreme Court be preparing for a major re-examination of key laws governing the workplace? Court watchers have their antennae up after the high court accepted almost a dozen new employment-discrimination cases for review this term. The new cases -- most of which involve age discrimination claims and allegations of retaliation -- could pose new hurdles for employers conducting internal investigations and add new protections for workers who are not the target of such workplace probes. Laurie McCann, a senior attorney with the AARP Foundation in Washington, which has filed amicus briefs in two cases before the high court involving the Age Discrimination in Employment Act, says the number of workplace discrimination cases accepted this term -- especially those dealing with age bias -- is "very significant." "I'm not great at reading tea leaves but, particularly the ADEA cases, I think, reflect the larger number of older workers in the workplace," McCann says. "I think it's an important issue for society, the nation and our workforce." Especially in a troubled economy, McCann says, older workers tend to be the onse targeted in furloughs and cost-cutting programs. AARP, she adds, has been conducting many outreach programs with employers about dealing with older workers avoiding litigation. One of the most recent cases accepted by the court: * Meacham vs. Knolls Atomic Power Laboratory: At issue is which side -- employer or employee -- bears the burden of proving the existence of a reasonable business justification in furloughing employees? In 1996, Knolls, a federal research lab in New York state, reduced the size of its workforce and laid off 31 workers, all but one over the age of 40. An age-discrimination lawsuit followed. Although the workers won at the trial court-level, the U.S. 2nd Court of Appeals reversed, ruling that the employees had not been able to show that the reduction-in-force evaluation system was unreasonable. In an amicus brief supporting the Supreme Court appeal, attorneys for the AARP Foundation argued that the language of the ADEA is clear: The employer must demonstrate that the reasons for termination were rational and not discriminatory. Although the ADEA recently celebrated its 40th anniversary and "the procedural issues are pretty well resolved," McCann says, the current appeals tend to involve questions of proof. * Crawford vs. Metropolitan Government of Nashville: The high court has agreed to decide if workers are protected against retaliation when they are questioned in an internal investigation. The case involves a suit filed by Vicki S. Crawford, payroll coordinator for the Nashville municipal government for 30 years, and her responses during the probe of harassment charges against her supervisor. Although Crawford had not complained about her boss, she did answer questions and described what she described as harassment. No action was taken again the supervisor but Crawford and two other women who testified during the internal investigation were fired. The U.S. 6th Circuit Court of Appeals ruled for the city, holding that Title VII of the Civil Rights Act of 1964 does not provide protection for employees called in for questioning during an internal investigation. * CBOCS West Inc. vs. Humphries: The court has agreed to decide if a law that bars discrimination in business dealings permits retaliation claims by employees who suffer adverse consequences for reporting the discrimination. The retaliation provision is not included in the Civil Rights Act of 1866, known as Section 1981, although federal courts have generally permitted such claims. In addition to the new cases accepted for appeal, the high court is expected to rule by the end of its term in July on several important employment cases argued between the beginning of the term in October and the end of last year. In December, the court heard argument in Spring/United Management Co. vs. Mendelsohn, an age-discrimination case in which the propriety of allowing so-called me-too evidence was questioned, as a jury can infer a discriminatory motive based on other employees who experienced discrimination, albeit by different supervisors. A federal jury in Denver had rejected the claims of Ellen Mendelsohn, whose lawsuit said her dismissal at age 51 in a reduction in force was age discrimination. The lower judge had refused to let Mendelssohn's attorney present testimony from five others workers who lost their jobs in the same furlough and who also claimed their age was the reason. The U.S. 10th Circuit Court of Appeals ordered a new trial but Sprint/United Management asked the Supreme Court for review. And in November, the court heard argument on the question of whether workers may sue their employers to recover losses caused by claimed mishandling of 401(k) retirement plans. The U.S. 4th Circuit Court of Appeals had affirmed the dismissal of the lawsuit filed under the Employee Retirement Income Security Act by James LaRue against his employer, the consulting firm DeWolff, Bobert & Associates Inc. The Fourth Circuit held that employees could only sue for mismanagement of the entire corporate retirement account, not the accounts of individual workers. LaRue's lawsuit contends he lost profits totaling $150,000 when DeWolff managers failed to follow his instructions to move his 401(k) investment to a different mutual fund. The high court is also reviewing a case argued in November involving a policy of the Equal Employment Opportunity Commission that employees may file a job-discrimination complaint in a letter instead of the official "Form 5" that is used for a discrimination charge. A federal judge in New York dismissed the lawsuit of Patricia Kennedy against Federal Express, ruling that Kennedy and 13 co-plaintiffs had failed to file the charge using the proper form. The U.S. 2nd Circuit Court of Appeals reinstated the lawsuit, holding that Kennedy's responses on an intake questionnaire contained enough information and show her intent to file a formal discrimination charge.
February 4, 2008 Copyright 2008© LRP Publications |
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