Summer-Released Employment-Law Cases No Picnic for Employers

Employee Rights Against Workplace Retaliation Extended and Employer Burden of Evidence in Age Discrimination Cases Toughened

In the retaliation cases, the U.S. Supreme Court held:

• Six-to-three that federal government employees who complain of age discrimination can bring a retaliation claim (just like private workplace employees can) under the Federal Age Discrimination in Employment Act (ADEA). Gomez-Perez v. Potter, No. 06-1037 decided May 27, 2008); and

• Seven-to-two that an employee losing his job after complaining about alleged racially discrimination treatment of another employee, can bring a federal Section 1981 civil rights statute civil claim. CBOS West, Inc. v. Humphries, No. 06-1431, also decided May 27.

The justices relied upon retaliation rights upheld previously under Title VII and other antidiscrimination statutes to expand these two statues to include retaliation protection of employees.

These decisions expanding retaliation rights by a large majority of justices seem to be a departure from recent five-to-four pro-employer discrimination and labor-law decisions. The court apparently wanted to maintain consistency in the interpretation of the federal antidiscrimination statutes, even though there was an absence of an express “retaliation” rights wording in these two statutory sections.

The more troubling decision for employer defense of age discrimination (ADEA) cases came in Meacham v. Knolls Atomic Power Lab. No. 06-1505, where the court on June 19, 2008, held:

• Seven-to-one that an employer defending a disparate-impact age discrimination claim bears both the burden of production and the burden of persuasion that “reasonable factors other than age” were the basis for an adverse employment decision, if that justification is used as a defense.

The court toughened the employer’s affirmative defense of “reasonable factors other than age.” This defense can be found as an exception contained in the ADEA statute which reads as follows:

“It shall not be unlawful for an employer to take any action prohibited (under the ADEA)…where age is a bona fide occupational qualification reasonably necessary to the normal operation of the particular business (the so-called BFOQ defense) or where the discrimination is based on reasonable factors other than age” (the so-called RFOA defense).

Where an employer claims the benefits of an exception to liability under a protective rights statutes, courts often declare that to be an “affirmative” defense, which the employer must prove. That was the reasoning here.

The context of this case was a reduction-in-force implemented by the Knolls Laboratory, which resulted in the layoffs of 31 employees—30 of whom were over the age of 40. These layoffs allegedly were made based on non-age factors including “performance, flexibility and critical skills.” After a jury awarded these employees $6 million, the employer appealed and the U.S. Court of Appeals (2nd Circuit) reversed and imposed the burden of proof upon the plaintiff exemployees of showing that reasonable factors other than age were not the base for the employer’s decision. Then the U.S. Supreme Court reversed, and determined that the burden of proof of this RFOA affirmative defense belongs upon the employer. The court sent the case back to the 2nd Circuit Court of Appeals to review the evidence under this burden-of-proof standard.