Rep. Barney Frank (D-Mass) has reintroduced the Employment Non-Discrimination Act in the form of H.R. 2981.  The bill, which was introduced in the House on June 19, 2009, would include protections for gay, lesbian, bisexual, and transgendered individuals in the workplace.  In particular, the bill would provide a comprehensive federal prohibition of employment discrimination on the basis of sexual orientation or gender identity.  Examples of prohibited conduct would include:  (1) refusing to hire an individual because of an actual or perceived sexual orientation and (2) discharging an employee because of an actual or perceived sexual orientation.  The bill would also make it illegal for an employer to retaliate against an employee who opposes any discriminatory practice under the Act. 
 
A similar version of the bill passed the House in the previous session of Congress. Currently 12 states and the District of Columbia ban job discrimination on the basis of sexual orientation or gender identity.  For information on The Employment Law Group® law firm’s LGBT Discrimination Practice, click here.

In a 5-4 decision, the Supreme Court has held that an employee bringing a claim under the Age Discrimination in Employment Act (ADEA) must show that age was the “but for” cause of the challenged adverse action.  Moreover, the court held that the burden does not shift back to the employer to prove that it would have taken the same action regardless of the employee’s age even where the employee has produced some evidence that age was a motivating factor in the adverse decision.  In Gross v. FBL Financial Services, Inc., Jack Gross, a 54-year old employee filed a complaint against FBL Financial Services, alleging that the company demoted him from a claims administration director to a claims project coordinator because of his age.  Gross won at trial under an ADEA mixed-motive instruction, which allowed the jury to find liability based on age being a “motivating factor” in the adverse action.  The Supreme Court reversed, finding that “the ordinary meaning of the ADEA’s requirement that an employer took adverse action ‘because of age’ is that age was the [primary] ‘reason’ that the employer decided to act,” and not just one of many factors that played a role in the employer’s decision.  According to the Court, victims of age discrimination can no longer rely on the Supreme Court’s Price Waterhouse ruling as a basis for mixed-motive jury instructions in ADEA cases because “[t]he ADEA’s text does not authorize an alleged mixed-motives age discrimination claim.”  While the immediate impact of this decision may be discouraging for employees, the good news is that it will likely spur Congress to amend the ADEA so that employees need only prove that age was a motivating factor in an employer’s decision.  For additional information on the ADEA, visit The Employment Law Group® law firm’s Age Discrimination Practice at http://employmentlawgroup.net/PracticeAreas/AgeDiscrimination.asp.

Scott Oswald, a Principal of The Employment Law Group® law firm spoke at a D.C. Bar CLE event titled, “Changing Currents in Employment Law:  Recent Developments Update.”  The program, which took place on June 18, 2009, provided an overview of the new developments in employment law, including key issues that affect employers and employees during the current economic climate.  Mr. Oswald provided a summary of the ADA Amendments Act of 2008 and highlighted its impact on the definition of “disability” under the Americans with Disabilities Act.  Examples of definitional amendments include:

• Redefining the meaning of the term “substantially limits”;
• Amending the “regarded as” prong of the disability definition; and
• Amending the list of activities that constitute “major life activities” to include “major bodily functions.”

To view the full presentation, click here.

In a recent decision, the Maryland Court of Appeals has clarified that a school board “may not raise the defense of sovereign immunity to any claim of $100,000 or less,” including claims brought by individuals under the Age Discrimination in Employment Act (“ADEA”).  In her complaint, Ms. Zimmer-Rubert, a 60-year old teacher alleged that the Board of Education of Baltimore County (“Board”) discriminated against her by rejecting her employment application and filling vacant positions with younger teachers despite her qualifications.  The Board moved to dismiss the teacher’s claim, arguing that it could not be sued for age discrimination because as a state agency it was entitled to sovereign immunity.  The court rejected the Board’s argument, concluding that § 5-518(c) of the Maryland Code Courts and Judicial Proceedings Article expressly waives all governmental immunity, including sovereign immunity, for disputes in the amount of $100,000 or less.  Finding that Ms. Zimmer-Rubert’s complaint demanded only $100,000 in damages, the court allowed the teacher to proceed with her ADEA claim against the Board. 

The takeaway point of this case is that the Eleventh Amendment immunity from suit is not absolute.  However, plaintiff must affirmatively seek and apply any statutory exceptions to the sovereign immunity defense.  For more information on discrimination claims and the ADEA, visit The Employment Law Group® law firm’s Age Discrimination Practice at http://www.employmentlawgroup.net/PracticeAreas/AgeDiscrimination.asp.

The Second Circuit has recently ruled that an employer’s invidious comments about other individuals in an employee’s protected group can support an inference of discriminatory intent in Title VII actions.  In Sassaman v. Gamache, Carl Sassaman filed a complaint against his employer, alleging that his employer discriminated against him by forcing him to resign because of a gender stereotype related to allegations that he had sexually harassed a female colleague.  To support his allegations, Sassaman pointed to the company’s failure to properly investigate the charges of sexual harassment against him before forcing him to resign and his supervisor’s statement indicating that he probably sexually harassed his female co-worker because he is a male.  The company moved for summary judgment, arguing that the alleged statement was nothing more than a “mere stray remark” and “something of an aside after the termination decision had been made.”  The district court granted the company summary judgment, concluding that the comments attributed to Sassaman’s supervisor were “ambiguous and incapable of demonstrat[ing] actionable gender stereotyping.”  The Second Circuit reversed, holding that a reasonable jury could infer discriminatory intent from the alleged remark about the propensity of men to engage in sexual harassment and the company’s arguable failure to properly investigate the charges of sexual harassment against Sassaman.  Accordingly, the Second Circuit vacated the district court’s decision and remanded the case to the district court. 

This decision is significant because it reminds employers that discrimination against employees on the basis of a belief, perception or gender stereotype may be actionable under Title VII.  For more information about The Employment Law Group® law firm’s Discrimination Practice, visit http://www.employmentlawgroup.net/PracticeAreas/Discrimination-Law.asp.