On February 18, 2010, the Equal Employment Opportunity Commission published a Notice of Proposed Rulemaking in the Federal Register.  The proposed rule will address the meaning of “reasonable factors other than age” (RFOA) under the Age Discrimination in Employment Act (ADEA) in response to the Supreme Court decisions in Smith v. City of Jackson, 544 U.S. 228 (2005), and Meacham v. Knolls Atomic Power Laboratory, 128 S. Ct. 2395 (2008). 

In Smith, the Court held that a disparate impact claim can be made under the ADEA but that such claims are limited by the RFOA provision of the ADEA.  In Meacham, the Court held that the RFOA provision of the ADEA creates an affirmative defense for employers.  Seeking to clarify the scope and application of the RFOA provision, the EEOC has proposed amendments to 29 C.F.R. § 1625.7 which would add the following:

• A totality of the circumstances test specifying that the analysis of an RFOA defense “must be made on the basis of all the particular facts and circumstances surrounding each individual situation.”
• A definition for “reasonable” and a sample list of factors to examine when determining whether an employment practice is reasonable.  Generally, “a reasonable factor is one that is objectively reasonable when viewed from the position of a reasonable employer” that is “mindful of its responsibilities under the ADEA.” 
• A sample list of factors to consider when determining if an employment practice is based on “factors other than age.”

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Earlier this week, Outback Steakhouse agreed to pay $19 million to settle a sex-discrimination class action brought by the Equal Employment Opportunity Commission.  The suit, filed in 2006, alleges that the company discriminated against female employees by not allowing them to advance to management positions.  OSI Restaurant Partners, the parent company of Outback denies the allegations and stated that settling the suit with funds provided by insurance was preferable to continued litigation.  The settlement also requires Outback to hire an outside consultant and implement an online application system to ensure equal opportunities in the future.  In 2001, Outback settled a sex-discrimination brought by a corporate level female employee for $2.2 million.

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In the first seven days of this month, the United States Court of Appeals for the Fourth Circuit reversed two lower court rulings in favor of employee-plaintiffs.  In Wesley v. Arlington County, the Court held that the district court erred in its application of the McDonnell Douglas burden shifting framework when it granted a motion for summary judgment for the employer. 

Wesley, a firefighter in Arlington County, Virginia, claimed that she was discriminated against and refused a requested promotion due to her race and sex.  For years she met all of the department’s published and formal objective requirements for promotion to Captain but she was continually passed up by the Chief during a final “roundtable,” where unpublished subjective criteria are discussed. 

The McDonnell Douglas framework requires an employee to present a prima facie case of discrimination which the employer may then rebut by showing an alternative cause for the allegedly discriminatory act.  To be victorious, an employee must then prove that the employer’s cause was merely pretextual.  To survive a motion for summary judgment, an employee need only present a prima facie case.  The Court found that the trial judge wrongly applied the second and third prongs of the McDonnell Douglas frame work when it granted a motion for summary judgment for the County. 

In the second case, Harman v. Unisys Corp., the court granted a motion to dismiss an employee’s numerous discrimination and Fair Labor Standards Act allegations.  The Court agreed with the trial judge’s dismissal of several counts and even stated that the complaint was “cumbersome and voluminous and contains numerous irrelevant allegations.”  However, the Court found that the district court should have allowed the employee an opportunity to refine her pleading and cure formal defects, even if the court doubted her ability to do so.

While these decisions are unpublished and therefore non-binding authority, they nonetheless show an increased willingness of the Court of Appeals of the Fourth Circuit to give employee-plaintiffs an opportunity to properly present their case. 

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In an opinion handed down on October 30, 2009, the Nebraska Supreme Court held that an employer is not relieved of its obligation to pay workers’ compensation just because the Social Security Administration previously labeled an employee as totally disabled.  In the case, Manchester v. Driver’s Management, a truck driver was injured in an accident for which she was found to be at fault.  She was fired shortly thereafter.  Due to injuries received during the accident and an exacerbation of prior psychological issues, she was temporarily unable to work after the accident.

About three years prior to the accident and 18 months before being hired, the employee was labeled as totally disabled by the Social Security Administration due to psychological issues.  The employer claimed that since the employee was “totally disabled,” she had no loss of earning power from her present injuries.  According to her employer, she was only eligible for workers’ compensation payments for the time during which she was employed.  The court disagreed and found that the prior determination by the Social Security Administration was not controlling on the issue of earning power and liability for workers’ compensation.

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On November 12, 2009, the United States District Court for the District of Columbia issued an opinion reinforcing the notion that “the Supreme Court favors an increasingly broad interpretation of statutes containing anti-retaliation provisions.”  In the case, Mansifield v. Billington, a plaintiff filed a motion for relief upon reconsideration of a previously dismissed retaliation claim brought under the Equal Pay Act. 

The plaintiff delivered a letter to her employer alleging that she was being paid less than her male counterparts.  About two weeks later, she was told her position was being eliminated.  She filed a complaint alleging gender discrimination under Title VII and retaliation under the EPA.  Her retaliation claim was dismissed in June 2006 and her Title VII claim in September 2008.  In October 2009, she filed her motion on the basis that evolving federal case law and recent Supreme Court decisions support her position.  The Court granted the motion, citing the “changing trend in the interpretation of federal laws prohibiting retaliation in the work place.”  The Court also acknowledged that retaliation is another form of intentional discrimination.

For information on The Employment Law Group® law firm’s Equal Pay Act Practice, click here.

On November 19, 2009, the 9th Circuit Court of Appeals held that The Rehabilitation Act applies to an anesthesiologist hired by a medical center as an independent contractor.  The decision was made in Fleming v. Yuma Reg’l Med. Ctr..  At issue was whether section 504(d) of the Act, which makes reference to the Americans with Disabilities Act (ADA), incorporates all of Title I of the ADA or just the “standards.”  Citing the broad language of the Act, the Court held that Congress intended to the Act to be more expansive than the ADA.  The Court also noted that “Congress did not use language of incorporation when it referred to the ADA in § 504.”  This interpretation is in line with the 10th Circuit.  

Other courts have taken a different approach.  The 6th and 8th circuits have held that the Act should be read to incorporate all of Title I of the ADA thereby excluding independent contractors.  With a split among the circuits, perhaps we’ll see this on the Supreme Court’s docket before long.

For information on The Employment Law Group® law firm’s Discrimination Law Practice, click here.

On November 21, 2009, the Genetic Information Non-Discrimination Act of 2008 (P.L. No. 113-233) also known as GINA will take effect.  Title II of the Act prohibits employers, employment agencies, and other employment related entities from discriminating against an employee or applicant due to genetic information.  Some of the prohibited acts include failing or refusing to hire, or to refer for hiring, an individual due to genetic information.  Covered entities are also prohibited from discriminating with respect to “compensation, term, conditions, or privileges of employment…because of genetic information with respect to the employee.” 

The Act restricts the ways in which an employer may go about obtaining genetic information from an individual and their family.  With a few narrow exceptions, employers and other covered entities are prohibited from requesting, requiring, or otherwise obtaining genetic information about an employee or their family.  This includes an employee’s or applicant’s family medical history.  The Act also mandates certain privacy restrictions regarding the sharing of genetic information, similar to the restrictions contained in the Health Insurance Portability and Accountability Act (HIPPA).

Employment rights under the Act are to be enforced by the Equal Employment Opportunity Commission (EEOC).  The EEOC has mandated that employers display new posters with disclosures about this law where other Equal Employment Opportunity posters are required.  As with most federal employment laws, enforcement of employee rights under this Act can be complex and may require that an individual first file an administrative complaint. 

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On November 3, 2009, the 5th Circuit Court of Appeals held that a Sarbanes-Oxley Act (SOX) claim can be precluded by a failed Title VII discrimination suit.  The per curium decision came in Thanedar v. Time Warner, Inc..  To determine whether the SOX claim was barred, the Court used a transactional test and found that “the two claims rest on ‘the same nucleus of operative facts.’”  Accordingly, the preclusive effect of the prior Title VII judgment “extends to all rights the original plaintiff had ‘with respect to all or any part of the transaction, or series of connected transactions, out of which the [original] action arose.’”

For information on The Employment Law Group® law firm’s Sarbanes-Oxley Practice, click here.

On October 28, 2009 President Obama approved legislation expanding the Family Medical Leave Act (FLMA).  The amendment to the FLMA extends the availability of exigency leave to the family of regular armed forces in addition to activated Reserve and National Guard members.  The amendment also expands caregiver leave for service members and veterans.  The amendment was included in Section 565 of the Fiscal Year 2010 National Defense Authorization Act (H.R. 2647).

The FLMA previously provided up to 12 weeks of exigency leave for family members of Reserve and National Guard members called or about to be called to active duty.  This amendment expands coverage to the families of regular military members that are deployed or about to be deployed.  The burden and struggles faced by the family of any deployed service member is tremendous, regardless of their duty status. 

The Act also expands caregiver coverage to apply to the aggravation of pre-existing conditions as well as to veterans for up to 5 years after their separation or retirement from the military.  Caregivers are able to take up to 26 weeks of leave per year.  This coverage is extended to injuries that existed before the individual joined the military which were aggravated by service in the line of duty.  And, perhaps most importantly coverage is extended to conditions that were not apparent until after the individual became a veteran.  This includes post traumatic stress disorder, more commonly referred to as PTSD, and brain injuries which often are not manifest during an individual’s military service.

The vast improvements in our soldiers’ body armor are saving lives. However, many of the individuals saved by these improvements are coming home with missing limbs and other traumatic injury or illness. The adjustments to civilian life take time and soldiers need the support of their family members.  This Act is an important step in giving these warriors much needed help. 

For information on The Employment Law Group® law firm’s Family Medical Leave Act Practice, click here.

On October 9, 2009, the California Court of Appeals issued a decision in Nazir v. United Airlines, Inc. In a case which cautions defendants against over-burdening a plaintiff in the employment context, the Court reviewed “what well may be the most oppressive motion ever presented to a superior court.”  In this opinion, the Court took on the growing problem of abuse of the summary judgment procedure, particularly in employment litigation, “especially by deep pocket defendants,” seeking “to overwhelm less well funded defendants.”

Defendants filed an astounding 1,056 page motion for summary judgment, an 1,150 page further reply, and hundreds of evidentiary objections to plaintiff’s response.  Regarding the numerous objections made by the defendants, the Court asked, “Can this be serious?  Can counsel see themselves rising at trial with those objections while plaintiff is testifying before a jury?”  Given the quality of the objections, the Court reasoned that apparently the defendants “assign[ed] the most junior lawyer to ‘do the objections,’” and suggested that “[p]erhaps a wiser practice would be to have the most experienced lawyer, presumably with a better understanding of the law of evidence, deal with the objections.”

The motion was harshly criticized by the Court both for its length and frivolity.  The Court reversed the trial court’s granting of the defendants’ motion and awarded costs to the plaintiff.

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