Monday, November 23, 2009

Does Gross Require an Employee to Prove Age was the Sole Cause?

Today's Wall Street Journal (online) includes an article entitled: Age Bias at Work Is Harder to Prove. I don't read the WSJ but came across the link in a blog I do read. The Supreme Court Blog uncritically characterized the WSJ article as saying that Gross v. FBL Financial Services, "requires plaintiffs alleging age discrimination to establish that their age was the sole cause of the employer’s action." Sure enough, the WSJ article quotes a "senior attorney" with the AARP as saying that the "but-for cause" standard elected in Gross is "widely interpreted as meaning the 'sole cause.'"

That infuriated me. I can understand the AARP's motives for saying this but they are wrong (more on this in a minute). The WSJ and certainly ScotusBlog should have questioned this statement by an AARP attorney (an organization that "supports the rights of older workers" by filing briefs arguing for "vigourous enforcement" of the ADEA). That is sloppy journalism.
Shortly after it was released, I wrote about what Gross means for employers. I won't repeat those statements here. I cautioned that, despite what the publicity said, the decision doesn't make it easier to discriminate against older workers. It merely simplifies the way an age claim is analyzed by a court. While it ostensibly distinguishes between a "motivating factor" and a "but for" factor most humans (including Supreme Court justices) aren't capable of making such fine distinctions about human motivation. Gross makes a meaningful difference for employers only in very close cases.

The AARP attorney is dead wrong for two reasons. "But for" does not mean "sole cause." The opinion in Gross said as much by quoting a well-known treatise on tort causation: "An act or omission is not regarded as a cause of an event if the particular event would have occurred without it.” In short, if you take away the improper motivation, would the decision have been the same. That is simply not a "sole cause" analysis. Better yet, two decades earlier two members of the majority in Gross flatly stated that "because of" (i.e., "but for") does not mean that the illegal motive "must be the sole cause of a decision before there is a Title VII violation." Price Waterhouse v. Hopkins, 490 U.S. 228, 284 (1989) (Kennedy & Scalia, dissenting).

So, employers that want to fire an older worker because they can prove some legitimate reason could be in for a costly and unpleasant litigation experience.

But the AARP attorney is actually quoted as saying that Gross was "widely interpreted" as imposing a "sole cause" standard. Assuming he was accurately quoted, that is also dead wrong. The only accurate measure of how Gross has been interpreted is by the court decisions. No court of appeals has held Gross requires a showing of "sole cause." I found several district court decisions that expressly rejected the proposition. Only one decision seems to have said that "but for" means "sole cause" in an age case. The decision, however, wasn't close so the causal standard made no difference. Under any standard, one non-precedent-setting court decision does not constitute a widely accepted interpretation.

So why did the AARP attorney argue against the interests of its members (and conversely, why am I, an employers' attorney, arguing for a less strenuous causation standard)? The AARP is engaging in fear mongering so that Congress will legislatively overturn Gross. At least one such bill has been introduced. It is a terrible bill for employers. This bill would not just apply to age claims but almost every type of discrimination or retaliation claim. Under this bill, these claims would essentially be analyzed as Title VII claims are now.

As I said before, I could care less about the supposed difference between a "but for" and "motivating factor" causation standard. I don't think there is one.

What bothers me is the mess that would be created in turning every discrimination and retaliation claim into a "mixed motive" case. Even now, some 18 years after Congress added the mixed motive claim for Title VII purposes, it continues to confuse and confound the courts and jurors. Even worse, merely saying (as the introduced bill would do) that an employee in an age case can recover when age was a "motivating factor" even if the employer would have made the same decision anyway creates a potentially irreconcilable contradiction with the numerous statutory provisions and rules relating to pension and other benefits which expressly permit age to be a factor under certain circumstances.

Employers simply do not need more uncertainty.

Tuesday, November 3, 2009

Glimpses – Three Recent Sixth Circuit Employment Decisions

The unpublished decisions I'll mention here do not warrant separate (or much) discussion so I'll just summarize the important parts.

One decision, Stimpson v. United Parcel Service, upheld UPS' firing of an employee over the employee's FMLA objections. The employee had been in a bike/car accident and had phoned UPS. The court held the employee had given adequate initial notice of his condition but ultimately rejected the argument that the employee's firing violated the FMLA. The court concluded that the employee had not shown he had a "serious health condition." The employee's medical records showed he had "suffered only contusions and mild to moderate back pain." The return to work forms the employee presented simply said he could not work "for medical reasons." This fell "far short" the court held, of establishing "(1) the date on which the serious health condition began, (2) the probable duration of the condition, (3) the appropriate medical facts within the health care provider's knowledge, and (4) a statement that the employee is unable to perform [his] job duties" as required by prior court decisions. Because the employee failed to show that "his back pain significantly limited his movement or lifting ability, particularly when treated with the prescription [the employee] refused to take", the employee could not establish he had a serious health condition.

The second decision, Johnson v. Interstate Brands Corp., upheld the firing of an employee for fighting. Fighting, of course, requires two (or more) employees and employers often draw pretty fine distinctions in the discipline imposed depending on who started the fight, who escalated it, whether blows were thrown (or made contact) and even the consequences of the fight. This decision is no different. Two female employees fought in the break room. The facts as to who did what were disputed including among the witnesses. One employee (who was not fired) threw water on the fired employee. The fired employee raised her arm to block the water and made contact with the other employee's arm. The employer decided to fire her because she made physical contact but its past disciplinary practices (these were union employees) would not have justified firing the employee who "merely" threw the water on the fired employee. The court upheld this distinction. Flinging water was not, the court said, the same as physically striking someone.

The final one, Harps v. TRW Automotive U.S. LLC, concerns an employer's change to retiree health care benefits. A lot could be written about this area of employment law. It is enough to say generally that when an employer agrees in a collective bargaining agreement to pay health care benefits to retirees, it must do so very carefully. Sixth Circuit law all but creates an irrefutable presumption that the retiree benefits (when established in a CBA) cannot be cancelled after the term of the CBA. Oddly, ERISA does not require retiree health benefits to be "vested." Employers, however, can do so by agreement and that is where the litigation battle occurs. Sixth Circuit caselaw on when language in a CBA will "vest" retiree health benefits is extremely favorable to retirees. So much so that unions and retirees file these kind of lawsuits in the Sixth Circuit even if none of the work was performed within Ohio, Tennessee, Kentucky or Michigan, the States that comprise the Sixth Circuit. These kind of lawsuits can be won, however. In this case, the Sixth Circuit held that the CBA unambiguously disclaimed the employer's obligation to provide retiree medical benefits beyond the term of the CBA. The CBA provision which governed the payment of retiree medical benefits concluded by saying "[t]his clause shall not be construed to convey any rights to those beyond the term of this agreement." I will caution that this level of contract drafting is not for the inexperienced. The costs of providing vested retiree medical benefits can be enormous and there are subtle wording issues that have cost employers significant amounts of money. I mention the Harps case simply because it is relatively rare when the employer wins one of these cases.