A federal court of appeals recently upheld a jury verdict for an employee in an age discrimination claim. The decision shows what happens when an employer explains a hiring or promotion decision by relying on a criteria not mentioned in the vacancy announcement.
National American University was hiring a director of admissions for its Rapid City, South Dakota campus. The employee worked for the university and sought the promotion. She was one of three finalists but was not offered the job when the two preferred candidates declined it. Instead, the university broadened its search ultimately offering the job to a substantially younger candidate.
At trial, the University explained its refusal to promote the plaintiff on the ground that she lacked management experience. While a director of admissions would seemingly need "management experience" the position vacancy announcements failed to mention it.
Worse, in its EEOC response, the University asserted the employee had "struggled" with her performance and had received "mediocre" ratings. Yet, at trial, the University abandoned this explanation and its witnesses praised the employee's performance.
The lessons from the decision are pretty basic. Make sure hiring or promotion decisions can be and are explained by reference to criteria stated in the job description. While employers are not rigidly bound by what is in the position vacancy, it is a mistake to explain a promotion decision by citing criteria that are not in the job description.
The decision also illustrates the importance of making sure the response to an EEOC charge will be the reason asserted at trial. It is often tempting, in responding to an EEOC charge, to "embellish" by asserting problems the employer had with the employee, even if the problems were not considered in reaching the decision at issue. If that is what the University did here, it backfired
Friday, June 25, 2010
Friday, June 18, 2010
Silently Revisiting Gross v FBL - Does the "Causation Standard" Make a Difference
I'm back. The press of work and other good causes prevented me from updating the blog. For that I apologize.
I was prompted to write a post because of a Sixth Circuit decision that came out today. A teacher at a high school in Michigan sued the school claiming he had been retaliated against under the first amendment for having filed a prior lawsuit alleging harassment of his daughter by another teacher. (While constitutional retaliation clams are sometimes different than statutory retaliation claims, those differences are unimportant here.)
What caught my eye was the court's description of the causation standard. In 1977, in a case called Mount Healthy City Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 285–86 (1977), the Supreme Court said that constitutional retaliation claims required the plaintiff to establish that the improper motive played a "substantial" or "motivating" factor in the decision. The Court didn't explain but cited to a companion case decided the same day, Arlington Heights v. Metropolitan Housing Dev. Corp., 429 U.S. 252 (1977), which explained, among other things, that the constitution did not require a "sole cause" showing but that the evidence in that case failed to show a racial bias motivated the decision.
Skipping forward to today, the Sixth Circuit set out the "substantial or motivating factor" standard from Mt. Healthy saying "we have interpreted this inquiry to mean that a motivating factor is essentially but-for cause—without which the action being challenged simply would not have been taken." (Quotations omitted.)
That caught my eye because the 1991 amendments to Title VII - which said a plaintiff can prevail if he or she shows discrimination was a "motivating factor" - have led many to argue that "motivating factor" is a lower or lesser standard than "but for" causation. Most court decisions simply assume that there is a difference. (But see Harper, The Causation Standard in Federal Employment Law: Gross v. FBL Financial Services, Inc., and the Unfulfilled Promise of the Civil Rights Act of 1991, 58 Buffalo L. Rev. 69 (2010) (discussing difference but ultimately drawing unsupported conclusion that Congress must have intended there to be a difference between a "motivating" and "substantial" factor). The Supreme Court decision in Gross didn't help this by contrasting the Title VII language from the language in the ADEA: "Unlike Title VII, the ADEA's text does not provide that a plaintiff may establish a discrimination by showing that age was simply a motivating factor." Gross v. FBL Financial Services, Inc., 557 U.S. ____ (2009). Loose language read out of context is the bane of any jurist or lawyer. Read in context, the Court seems to have been attempting to explain its holding - that the dual motive theory does not apply to the ADEA.
So what does this mean, practically? Anyone who thinks they can coherently explain the difference (or that there is a difference) between a "contributing", "motivating", "substantial", "causal" or "because of" / "but for" factor is trying to sell you the Brooklyn Bridge. I've been practicing employment law for 20 plus years and would not begin to try and explain it. Employers certainly shouldn't get way-laid by concerns over causation or motivation.
I was prompted to write a post because of a Sixth Circuit decision that came out today. A teacher at a high school in Michigan sued the school claiming he had been retaliated against under the first amendment for having filed a prior lawsuit alleging harassment of his daughter by another teacher. (While constitutional retaliation clams are sometimes different than statutory retaliation claims, those differences are unimportant here.)
What caught my eye was the court's description of the causation standard. In 1977, in a case called Mount Healthy City Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 285–86 (1977), the Supreme Court said that constitutional retaliation claims required the plaintiff to establish that the improper motive played a "substantial" or "motivating" factor in the decision. The Court didn't explain but cited to a companion case decided the same day, Arlington Heights v. Metropolitan Housing Dev. Corp., 429 U.S. 252 (1977), which explained, among other things, that the constitution did not require a "sole cause" showing but that the evidence in that case failed to show a racial bias motivated the decision.
Skipping forward to today, the Sixth Circuit set out the "substantial or motivating factor" standard from Mt. Healthy saying "we have interpreted this inquiry to mean that a motivating factor is essentially but-for cause—without which the action being challenged simply would not have been taken." (Quotations omitted.)
That caught my eye because the 1991 amendments to Title VII - which said a plaintiff can prevail if he or she shows discrimination was a "motivating factor" - have led many to argue that "motivating factor" is a lower or lesser standard than "but for" causation. Most court decisions simply assume that there is a difference. (But see Harper, The Causation Standard in Federal Employment Law: Gross v. FBL Financial Services, Inc., and the Unfulfilled Promise of the Civil Rights Act of 1991, 58 Buffalo L. Rev. 69 (2010) (discussing difference but ultimately drawing unsupported conclusion that Congress must have intended there to be a difference between a "motivating" and "substantial" factor). The Supreme Court decision in Gross didn't help this by contrasting the Title VII language from the language in the ADEA: "Unlike Title VII, the ADEA's text does not provide that a plaintiff may establish a discrimination by showing that age was simply a motivating factor." Gross v. FBL Financial Services, Inc., 557 U.S. ____ (2009). Loose language read out of context is the bane of any jurist or lawyer. Read in context, the Court seems to have been attempting to explain its holding - that the dual motive theory does not apply to the ADEA.
So what does this mean, practically? Anyone who thinks they can coherently explain the difference (or that there is a difference) between a "contributing", "motivating", "substantial", "causal" or "because of" / "but for" factor is trying to sell you the Brooklyn Bridge. I've been practicing employment law for 20 plus years and would not begin to try and explain it. Employers certainly shouldn't get way-laid by concerns over causation or motivation.
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