Boston Employment Lawyer Blog

In an unusual but welcome move, the U.S. Court of Appeals for the Eleventh Circuit in Ash v. Tyson Foods has reversed its own decision in a race discrimination case. The court had overturned a jury verdict against Tyson Foods related to employment bias at a plant in Gadsden, Alabama. A brief filed by a retired Alabama federal judge and a group of civil rights leaders urged the court to reconsider its ruling. More than a year after its last ruling, the court reversed itself, albeit grudgingly. The New York Times' coverage on the decision can be viewed here.

This case has made its way through the appellate courts several times over the years. Two black employees at the Tyson plant, Anthony Ash and John Hithon, alleged discrimination based on race when they were passed over for promotion in favor of two white employees. The plaintiffs further alleged that their manager created a hostile work environment by frequently referring to adult black male employees as “boy.” They filed suit based on, among other causes of action, Title VII of the Civil Rights Act of 1964. When the case went to trial in 2002, the jury awarded the plaintiffs over $1.4 million in compensatory and punitive damages.

Following the jury verdict, the employer first appealed the case to the Eleventh Circuit. A three-judge panel of the Eleventh Circuit unanimously affirmed in part and reversed in part, finding that the evidence presented at trial was not sufficient to establish unlawful discrimination or to support the damage award. It held that the manager’s use of the word “boy,” in the absence of an adjective such as “black” or “white” is not in and of itself evidence of discriminatory intent. In 2006, the Supreme Court unanimously vacated the Eleventh Circuit’s ruling and remanded the case, rebuking the court for its finding regarding the manager’s language. The Supreme Court’s per curiam opinion noted that the circuit court should have considered factors like “context, inflection, tone of voice, local custom, and historical usage.”

At this point, Hithon pursed the case on his own, without Ash. When the Eleventh Circuit heard the case again, this time in 2010, it reached a conclusion similar to its earlier finding. In a 2-1 ruling, the court held that the manager’s use of the word “boy” was “conversational” and “nonracial in context,” and it once again mostly reversed the trial court’s verdict. Once again, the Eleventh Circuit's controversial ruling caught the attention of the New York Times in this article.

The Eleventh Circuit’s new ruling once again overlooked evidence beyond the words themselves. Testimony at trial by the plaintiffs and other witnesses established the connotation that the word "boy" evinces. Ash, for instance, told the jury that “being in the South, and everybody know [sic] being in the South, a white man says ‘boy’ to a black man, that’s an offensive word.”

Continue reading "Race Discrimination Victim Prevails Before the Eleventh Circuit" »

A lawsuit filed in federal court in Portland, Maine alleges that Kohl’s Department Stores unlawfully discriminated against an employee based on her disability. The Equal Employment Opportunity Commission (EEOC) filed suit against the Wisconsin-based national retail store chain on behalf of Pamela Manning, who suffers from Type 1 diabetes. Manning worked at Kohl’s Westbrook, Maine store location. Because of her condition, she requires regular insulin injections. Beginning in January 2010, her complaint alleges, Kohl’s switched her full-time work schedule from a consistent daily schedule to an irregular one. This interfered with her daily routine of medical care. She presented her employer with a note from her doctor requesting that she have a regular work schedule, but Kohl’s refused to change it. She eventually developed health complications due to her inability to routinely administer her medications, and she had to quit her job with Kohl’s.

The EEOC filed suit in August 2011, alleging violations of the Americans With Disabilities Act of 1990 (ADA). It first attempted to settle the matter between Manning and Kohl’s through a conciliation process, which was unsuccessful. The lawsuit seeks monetary compensation for Manning and a revision of Kohl’s policies relating to disability discrimination. The EEOC’s Boston office is handling the litigation. They argue that it would have cost Kohl’s nothing to maintain a set schedule for Manning, but the cost of failing to do so was potentially catastrophic for Manning.

Kohl’s filed a response on October 24 denying liability and disability discrimination. According to a report in the American Journal, Kohl’s acknowledged changing Manning’s schedule in January 2010 but denied allegations regarding its knowledge of Manning’s diabetes. Kohl’s also admitted to receiving the note from Manning’s doctor but denies refusing to accommodate Manning’s needs. It claims that it makes “good faith efforts” to accommodate its employees’ scheduling needs. The Journal article does not mention how Kohl’s reconciles these seemingly contradictory claims.

The EEOC is a federal agency within the U.S. Department of Labor. Its purpose is to investigate allegations of employment discrimination and enforce federal anti-discrimination laws like the ADA and the Civil Rights Act of 1964. When an employee makes a complaint, the EEOC will investigate and make a finding or recommendation as to whether it believes unlawful discrimination occurred. Occasionally, it will file a lawsuit directly on behalf of an employee. More often, it will issue a “right to sue” letter that gives the employee a window of time to file a court claim with the help of an employment discrimination lawyer.

Continue reading "Disability Discrimination Case Brought Against Kohl's" »

The Equal Employment Opportunity Commission (EEOC) recently settled a discrimination suit against New York-based fish wholesaler M. Slavin & Sons, Inc. for $900,000. The EEOC filed suit in December 2009 based on complaints by more than thirty employees of physical and verbal sexual harassment. According to the EEOC's 2009 Press Release, some of M. Slavin’s owners and managers subjected certain non-Caucasian male employees, mostly African-American, to ongoing harassment including groping, offensive sexual comments, and racial slurs.

Some employees left the company because of the harassment, and the individual who first reported the harassment further alleges that he faced retaliation from M. Slavin managers. He claims that managers instructed other employees not to associate with him and threatened his life.

The EEOC’s lawsuit, filed in U.S. District Court for the Eastern District of New York, claimed that M. Slavin violated Title VII of the Civil Rights Act of 1964, which prohibits discrimination in employment based on race, color, sex, and other protected categories. Discrimination based on sex includes sexual harassment, and it encompasses actions against any gender. The law also protects people who seek to defend their rights from retaliation by their employer, and it allows employees to make claims against employers who create a hostile work environment based on race, sex, and other protected categories.

On December 15, 2011, the EEOC announced that M. Slavin had agreed to pay $900,000 to settle the lawsuit, in addition to providing other relief. As part of the settlement, the company is required to revise its policies on sexual harassment, discrimination, and retaliation, and submit to monitoring by the EEOC for a period of five years. The Company is also required to retain an independent consultant to handle discrimination complaints and must provide one-on-one training for the owners and managers who committed the worst acts of harassment. Finally, the Company is required to provide annual anti-discrimination training for all of its owners and managers, publicize the resolution of the lawsuit to all employees at the work site, and notify the EEOC of any and all new discrimination complaints.

Continue reading "New York Fish Market Settles Race Discrimination and Sexual Harassment Lawsuit" »

Age discrimination in the workplace manifests itself not only in the form who gets fired, but also who gets hired. A study performed by AARP reviewing employment data for August 2011 found that job seekers age 55 or older spent an average of 52.4 weeks unemployed. In sharp contrast, the average length of time for younger job seekers was 37.4 weeks. The unemployment rate for applicants in the same age demographic jumped from about 3% in December 2007 to about 7% in August 2011, with rates roughly equal for men and women. By August 2011, nearly half of older job seekers met the criteria to be designated “long-term unemployed,” meaning they had been out of work for 27 weeks or more.

Not surprisingly, there appears to be a correlation between a faltering economy and age discrimination claims. According to the National Bureau of Economic Research, the most recent recession began around December 2007 and ended in about June 2009. Based on the EEOC's Enforcement & Litigation Statistics, the number of age discrimination cases filed dramatically rose from 2007 to 2008 by 5,479 or about 29%. There was a relatively small decrease from 2008 to 2009 and a relatively small increase from 2009 to 2010. Overall, from 2007 through 2010, the EEOC saw about a 21% rise in age discrimination claims.

The federal Age Discrimination in Employment Act (ADEA) protects employees age 40 years old or older from age discrimination. The law prohibits employers with 20 or more employees from discriminating in hiring or firing, as well as pay, job duties, and other aspects of employment, because of age. The Massachusetts Fair Employment Practices provides similar protection for employees age 40 years old or older, but applies to employers with 6 or more employees.

Continue reading "Age Discrimination Presents a Problem for Older Job Seekers" »

Age discrimination continues to be a hot button issue. Fox News commentator John Stossel stirred controversy in a report on age discrimination in the workplace in which he suggests that the law should not protect older workers from termination based solely on their age. In doing so, Stossel states "we slow down as we age" and "maybe 25 year olds can do it better."

Of course, federal law protects employees from discrimination based on age. Specifically, the Age Discrimination in Employment Act of 1967 (ADEA) prohibits age discrimination against employees who are at least 40 years old. Such protection applies to both employees and job seekers in relation to any and all terms and conditions of employment, benefits, promotions, hiring, firing, layoffs, and job assignments.

The Equal Employment Opportunity Commission, the federal agency responsible for enforcing anti-discrimination laws, recently voted 3-2 to propose regulations defining “reasonable factors other than age” (RFOA) in the ADEA. The proposals could significantly increase protections for older employees, both in the context of layoffs and firings. Congress and the Supreme Court have held that personnel decisions that affect older workers in greater proportion than younger workers need only be “reasonable” to comply with the ADEA. This is different from the higher standard of “business necessity” used for disparate impact claims based on sex or race under Title VII. As the Supreme Court in Smith v. City of Jackson recognized:

Unlike the business necessity test, which asks whether there are other ways for the employer to achieve its goals that do not result in a disparate impact on a protected class, the reasonableness inquiry includes no such requirement.

Continue reading "Age Discrimination Criticism Arises as EEOC Works to Revise Standards for Employers" »

Sexual harassment has been at the forefront of the news in recent weeks thanks to two major stories. One involves the allegations of sexual harassment against Republican presidential candidate Herman Cain. The other is the twentieth anniversary this year of the sexual harassment allegations against Supreme Court Justice Clarence Thomas during his confirmation process. The Christian Science Monitor recently published an article examining the history of sexual harassment as both a legal and social concept over the past 30 to 40 years, identifying six high profile cases that have raised public awareness of the issue. While sexual harassment is undoubtedly still a widespread problem across the country (and the world), it is worthwhile to occasionally review how far we have come.

1. Meritor Savings Bank v. Vinson: Originally, quid pro quo was the only type of legally actionable sexual harassment. This type of sexual harassment occurs when an employee is required to submit to a supervisor's sexual advances as a condition of employment (e.g., "sleep with me or you're fired"). The Supreme Court's 1986 ruling in Meritor Savings Bank v. Vinson expanded the definition of sexual harassment to include hostile work environment:

In sum, we hold that a claim of "hostile environment" sex discrimination is actionable under Title VII ... and that the District Court did not err in admitting testimony about respondent's sexually provocative speech and dress.

For more information on the differences between quid pro quo and hostile work environment sexual harassment, please visit our website here.

2. Jensen v. Eveleth Tavonite Co.: The first class-action sexual harassment lawsuit was filed in 1988 on behalf of Minnesota mining company employee Lois Jensen, who described a pattern of harassment and abuse beginning when she went to work there in 1975. The lawsuit continued until a settlement was reached in 1998. Jensen’s story was the subject of the 2005 Charlize Theron film “North Country”.

3. Clarence Thomas and Anita Hill: While Clarence Thomas awaited confirmation to the U.S. Supreme Court in 1991, Hill went public with allegations of sexually suggestive remarks when she worked as his assistant years earlier. The Supreme Court confirmed Thomas, but the controversy served to make the whole country aware of the topic of sexual harassment, sparking a dialogue on what is and is not appropriate in the workplace.

4. General Larry Smith and Lieutenant General Claudia Kennedy: In 1999, Lt. Gen. Kennedy was the highest-ranking female officer in the Army and was nearing retirement. When she learned that General Smith was being considered for an inspector general position, which would involve investigating sexual harassment claims, she went public with allegations that he had touched her in an inappropriate and unwanted manner in 1996. An inquiry found that Smith had behaved inappropriately and his nomination was withdrawn.

Continue reading "A Brief History of Sexual Harassment" »

The link between sexual harassment and the restaurant business has come into the national spotlight recently, in part due to allegations by several women against Republican presidential candidate Herman Cain and the discussions they have inspired. As we discussed in a previous blog post here, journalists at MSNBC took the opportunity to review statistics on the prevalence of sexual harassment in restaurants. The surprising results appeared last week in a Huffington Post article entitled, Restaurants, Sexual Harassment Go Hand-In-Hand, According To New Report.

According to the article, fewer than 9% of American workers are employed by restaurants, yet 37% of the sexual harassment suits reported by the federal government so far in 2011 have taken place in restaurants. A poll of Louisiana restaurant employees cited by MSNBC indicated that 42% of female restaurant employees had experienced some form of sexual harassment during their careers.

The Equal Employment Opportunity Commission announced in 2006 that it had entered into a settlement agreement with Cracker Barrel, a nationwide chain of “family dining” restaurants, for $2 million to resolve discrimination claims including sexual harassment. Earlier this year, a female employee of a Gordon Ramsay-affiliated restaurant in New York City filed a sexual harassment complaint with the state’s human rights agency. She alleged that male chefs subjected her to ongoing verbal abuse, sexual propositions, and groping. Male chefs staged a walkout in protest in April that apparently shut the restaurant down for several days.

Continue reading "Sexual Harassment Disproportionately Affects Restaurant Workers" »

As sexual harassment allegations swirl, Republican presidential candidate Herman Cain has received much media scrutiny in recent days. Stories have appeared in the press about settlements with two women who accused him of sexual harassment when he headed the National Restaurant Association in the late 1990’s. That number very recently increased to three. Few definitive details of the two cases are available since the identities of the two women remain confidential and Cain’s own accounts of the events have been criticized less than consistent, even in the eyes of some of his supporters.

In an article entitled, Cain Accuser Got a Year’s Salary in Severance Pay, the New York Times reported that one of the alleged sexual harassment victims received a payment of $35,000, equal to one year’s salary, in severance when she left her employment with the National Restaurant Association. She left after Cain allegedly engaged in conduct that made her uncomfortable on a work outing with heavy drinking, which is said to be a common feature of hospitality industry events. People with knowledge of the situation confirmed the payment and its amount for New York Times reporters, with one person stating that the high amount of the woman’s severance was unusual given her pay grade and short tenure.

A second accuser also received a payment related to multiple claims of harassing behavior by Cain, but few details of her case have come to light. People who have commented to the media have requested anonymity, in part to protect the accusers’ privacy. Cain has offered various explanations for the two cases and has been criticized for being evasive. He told a Fox News host that the payments were for “agreements” and not “settlements.” This statement prompted conservative host Charles Krauthammer to suggest that Cain's answer was “Clintonian,” referring to former President Bill Clinton’s tendency to split hairs about the meanings of words during the Lewinsky scandal of the late 1990’s.

The Cain sexual harassment scandal brings to light the mechanics involved in a settlement or severance agreement. Whether the document is described as severance or a settlement is typically insignificant. Regardless of its title, an agreement in this context is simply a binding contract between two or more parties. In this particular case, the alleged sexual harassment victims received payment in exchange for the legal promise not to sue the National Restaurant Association and Cain for sexual harassment. It is not uncommon for such agreements to contain additional terms such as, for instance, confidentiality and mutual non-disparagement, in which all parties agree not to speak negatively about each other.

Assuming that Cain agreed to the latter as part of the agreement, his characterization of the sexual harassment allegations as a “a witch hunt” and contention that he was falsely accused may run afoul of any existing non-disparagement obligations. Not surprisingly, Cain’s public commentary has led one victim’s attorney to request that the confidentiality requirements of the settlement agreement be lifted so that his client may defend herself.

Continue reading "Sexual Harassment Claims Against Herman Cain " »

Discrimination by employers because of an employee’s disability or health condition is a serious problem for American workers. The Equal Employment Opportunity Commission (EEOC), a federal agency that investigates discrimination claims, has filed suit against a Nashua, New Hampshire company, alleging that it fired an employee because she has a heart condition in violation of the Americans with Disabilities Act (ADA).

The lawsuit, filed in a federal court in Concord, New Hampshire, alleges that Windmill International, Inc., a defense contractor, terminated employee Nancy Hajjar, shortly after she gave notice that she would need time off for a surgical procedure related to a heart condition and that she may require heart surgery as well. The EEOC claims that the company terminated her because of “an actual or perceived impairment of her circulatory or cardiovascular functions.” Windmill claims that it fired Ms. Hajjar because of job performance problems, but the EEOC alleges that the company did not follow the same progressive discipline procedures afforded to other employees, concluding that the company's explanation is false. The EEOC's Press Release can be viewed here, EEOC Sues Windmill International for Disability Discrimination.

The ADA, which became effective in 1992 and was amended in 2009, protects employees suffering from disabilities from certain types of discrimination in the workplace. Employers with 15 or more employees must provide equal opportunity to disabled employees for all employment opportunities available to other employees. The law prohibits discrimination in hiring, firing, promotions, pay, and terms and conditions of employment. The same holds true under the Massachusetts Fair Employment Practices Act (M.G.L. c. 151B), which also prohibits handicap discrimination in the workplace and which applies to employers with 6 or more employees.

The EEOC is an independent law enforcement agency in the executive branch of the federal government. The agency was created in 1965, after passage of the Civil Rights Act of 1964. It investigates claims of discrimination based on certain protected categories including race, gender, religion, age, and disability. It has authority to bring suit against employers that it suspects violated anti-discrimination statutes. People who believe they are the victims of unlawful discrimination must file a complaint with the EEOC, which will investigate the claim. A prospective plaintiff, before filing a lawsuit, must receive a “right-to-sue” letter from the EEOC when it concludes its review of the case. To learn more about disability discrimination and your rights, the following resources may be helpful:

• Handicap Discrimination Overview, Conforto Law Group, P.C.
• A Guide to Disability Rights Laws, Civil Rights Division, U.S. Department of Justice
• Disability Resources, Americans with Disabilities Act

Continue reading "Americans with Disabilities Act Violations Alleged in EEOC Lawsuit Against New Hampshire Company" »

Age discrimination claims continue to be on the rise. Texas Roadhouse, a Kentucky-based chain of more than 350 restaurants in 46 U.S. states, faces a lawsuit from the Equal Employment Opportunity Commission (EEOC) over claims of alleged widespread age discrimination in hiring for host, bartender, and server positions. The suit, filed in U.S. District Court for the District of Massachusetts, requests anti-discrimination training for managers and employees aimed at preventing further alleged age discrimination. The lawsuit also requests monetary damages for people denied employment based on discriminatory reasons.

The EEOC alleges that the restaurant chain discriminates against older job applicants. According to a press release issued by the EEOC, the number of complaints received by the agency has increased significantly since at least 2007, prompting the agency to commence an investigation at the end of 2010. That investigation led to the current lawsuit. According the lawsuit:

Defendants’ hiring officials have told older unsuccessful applicants that “there are younger people here who can grow with the company”; “you seem older to be applying for this job” and “do you think you would fit in?”; the restaurant was “a younger set environment”; “we are looking for people on the younger side... but you have a lot of experience”; “How do you feel about working with younger people?”; “we think you are a little too old to work here… we like younger people”; “we’re hiring for greeters but we need the young, hot ones who are ‘chipper’ and stuff”; “our age group is in their young 20s, college students”; “I’m basically looking for young teenagers”; and “we really go with a younger crowd and have a younger establishment.”

The lawsuit is premised on the Age Discrimination in Employment Act (ADEA), a federal statute that protects employees 40 years old or older from discrimination based on age. The ADEA prohibits favoring a younger person over a person who is at least 40 years old solely based on age in all aspects of employment. This includes hiring, firing, promotions, layoff, job duties and assignments, benefits, and other features or requirements of employment.

Continue reading "Age Discrimination Lawsuit Brought by EEOC Against Texas Roadhouse Restaurant Chain" »

Age discrimination is a hot topic these days. A blog post in Forbes entitled, Is There a Lawsuit Here? Five Tips for Older Job Seekers, piqued my interest. While the article was certainly informative, in my opinion, it contained certain misconceptions.

First, the article claimed that "proving you’ve been deprived of a job or laid off to sweep the path for younger and cheaper workers isn’t easy to do" and "is darn near impossible." To be clear, age discrimination is generally no more or less difficult to prove than discrimination based on gender, race, or any other protected category. Whether or not proving age discrimination is "impossible" will truly depend on the facts in each case. There is some indication, however, that age discrimination claims are potentially less difficult to prove since many jurors will be able to relate to the plaintiff or someday imagine themselves in the plaintiff's predicament. Consider the following statistics compiled by Jury Verdict Research:

• In 2008, age discrimination victims prevailed in 67% of all trials across the country -- as compared to a win rate of 53% for disability discrimination cases, 52% for race discrimination, and 60% in sex discrimination.
• In 2009, age discrimination tied with sex discrimination cases with a win rate of 57% -- as compared to 47% for disability discrimination and 52% for race discrimination
  
• From 2003 through 2009, age discrimination claims filed in state court received the highest median award at about $332,000. The next highest median award was in race discrimination cases, which came in at about $289,000

As any employment law attorney (regardless of whether they represent management or employees) will tell you, the cases with the strongest evidence of discrimination generally settle before trial. Therefore, the statistics above are likely based largely on cases where the employer thought it had a good chance of winning. Overall, the statement that proving age discrimination "is darn near impossible" is (at best) too large of a generalization.

Second, the article states that "[a]n employer can ask you how old you are. They shouldn’t, but they can." While this may be true in certain states, its not the case in Massachusetts. As the Employment Discrimination Guidelines make clear, Massachusetts employers can only inquire about a prospective employee's age in very limited circumstances:

Generally; the only proper question is, "Are you under 18, yes or no?" Questions about age may be allowed if necessary to satisfy the provisions of a state or federal law (for example, certain public safety positions have age limits for hiring and retiring). Also, if the Commission has previously identified age as a bona fide occupational qualification for the position.

An employer that violates this regulation by asking a prospective employee his or her age, when prohibited from doing so, indicates that the candidate's age is a factor in the hiring decision. Massachusetts courts have held that such forbidden inquiries serves as powerful evidence of discriminatory animus.

Third, the article references Gross v. FBL Financial Services, Inc., where the Supreme Court held that an plaintiff asserting wrongful termination based on age under the Age Discrimination in Employment Act (ADEA) bears the burden of proving that, “but for” age, he or she would not have been terminated. (Thanks to The Oyez Project, the oral argument before the Supreme Court in this case can be heard here). In doing so, the article appears to imply that the Gross decision: (1) dispensed with the McDonnell Douglas burden shifting framework, which we describe on our website's Age Discrimination page here; and (2) made it more difficult for victims of age discrimination to prove their claim.

Federal decisions that later applied the Supreme Court's analysis in the Gross decision cast serious doubt on the legitimacy of both claims. In Yee v. UBS, for instance, the Northern District of Illinois in 2010 explicitly rejected the first claim (i.e., that the McDonnell Douglas shifting framework is no longer operative):

UBS claims the Supreme Court did more than that in Gross, and held that the burden-shifting paradigm established in McDonnell Douglas is “inapplicable to the ADEA.” We disagree. In fact, defendants’ contention is belied by the express statement in Gross that the Supreme Court “has not definitely decided whether the evidentiary framework in McDonnell Douglas Corp. v. Green … utilized Title VII cases is appropriate in the ADEA context.” There is no basis in Gross to find that the Supreme Court decided sub silentio a question that was not presented in the case, especially since the Supreme Court acknowledged in Gross (and, for that matter, in Reeves and O’Connor) that it had not yet resolved the issue. To be sure, the Supreme Court in Gross clearly held that in ADEA cases a plaintiff must prove that discrimination was “the” reason for the adverse action to prevail. But, Gross did not equate the burden of proof in an ADEA with the method of presenting that proof.

(internal citations omitted) (emphasis added).

Likewise, in Jones v. Oklahoma City Public Schools, the Tenth Circuit in 2010 explicitly rejected the second claim (i.e., Gross makes it more difficult for victims of age discrimination to prove their claim):

OKC argues that Gross compels dismissal of Jones’ claim because it requires an ADEA plaintiff to provide some evidence that her employer was motivated solely by age when making an adverse employment decision. OKC’s argument is flawed on several levels, but we need address only one: It conflates two separate standards for causation. The ADEA, like other anti-discrimination statutes, includes a causation requirement. It prohibits employers from “discriminat[ing] against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s age.” The statute, however, does not define the phrase “because of,” and before Gross, it was unclear which causal standard applied. Gross clarified that the ADEA requires “but-for” causation. Consequently, to succeed on a claim of age discrimination, a plaintiff must prove by a preponderance of the evidence that her employer would not have taken the challenged action but for the plaintiff’s age. “Although this argument was not raised below, inasmuch as [Gross] was decided after [Jones] filed her notice of appeal, we may consider changes in governing law arising during the pendency of the appeal.” OKC argues that in mandating but-for causation, Gross established that “age must have been the only factor” in the employer’s decision-making process. We disagree. The Tenth Circuit has long held that a plaintiff must prove but-for causation to hold an employer liable under the ADEA. Moreover, we have concluded that this causal standard does “not require[] [plaintiffs] to show that age was the sole motivating factor in the employment decision.” Instead, an employer may be held liable under the ADEA if other factors contributed to its taking an adverse action, as long as “age was the factor that made a difference.”

(internal citations omitted) (emphasis added).

Even if the article's characterization of the Gross decision is correct, which I question, the decision would not be binding on state courts deciding an age discrimination claim under state law. For instance, age discrimination in Massachusetts is also prohibited under the Fair Employment Practices Act, which is separate and apart from the ADEA.

This is the longest blog post I've written in quite a long time and, as you can see above, the answers are never as simple or as straightforward as some would like to think. Luckily, the take-away messages are simple: (1) If you feel that your employer is treating your poorly because of your age, meet with an attorney who specializes in employment who can analyze the strength of your potential claim, and (2) A little knowledge is a dangerous thing.

Based on a recent decision by the New Jersey Supreme Court, an employee engages in protected activity under the New Jersey Law Against Discrimination where she or he copies and takes company documents for the purpose of aiding the prosecution of a discrimination claim.

In Quinlan v. Curtiss-Wright Corporation, the plaintiff-employee, Joyce Quinlan, was an experienced human resources professional who had joined the defendant-employer, Curtiss-Wright Corporation, in 1980. By 1999, she had become the Executive Director of Human Resources. In 2003, the employer re-organized its HR department and, in doing so, promoted a male employee, Kenneth Lewis, with significantly less experience to the position of Vice President. As a result, the plaintiff-employee became this particular male employee's subordinate.

The plaintiff believed that she had been passed over for the Vice President position because she is a woman. At trial, for instance, Quinlan presented evidence that few women held senior managerial positions within the company; that women (including Quinlan herself) were commonly excluded from certain company events, even when the discussions related to the HR department; and that the CEO often golfed with Lewis.

Quinlan provided her attorneys with more than 1,800 pages of company documents, which she believed bolstered her case. In November 2003, counsel filed a complaint on plaintiff's behalf alleging, among other claims, gender discrimination. Plaintiff's counsel later produced to opposing counsel the company documents his client had assembled.

Several weeks after making this production, the plaintiff's attorneys deposed Lewis and, during the course of that deposition, questioned him about his most recent performance appraisal, which rated him as needing improvement in several areas. Lewis claimed that he had never before seen the appraisal. Following this deposition, the company terminated Quinlan for allegedly continuing to copy confidential information.

In charging the jury, the trial court noted that there was a significant difference between the taking of the document and its use at the deposition:

[W]hile Joyce Quinlan's conduct in copying and removing copies of documents is not protected and is conduct for which she could have been justifiably terminated, the conduct of her attorneys in using those documents in the process of prosecuting this lawsuit is protected activity and could not properly have been a determinative factor in terminating her. In other words, if you find that a determinative factor in Curtiss-Wright's decision to terminate Joyce Quinlan was her attorneys' use of any of the documents, including but not limited to [Mr. Lewis's performance appraisal], such a finding would be the basis of finding for Joyce Quinlan. On the other hand, if the real reason for her termination was her copying and removing the documents, including but not limited to [the performance appraisal], such a motive by Curtiss-Wright would not be actionable.

The jury ultimately found for the plaintiff-employee, awarding her approximately $4.2 million in back pay and front pay economic damages for her retaliation claim. The jury also found, by clear and convincing evidence, that the employer had intentionally engaged in unlawful conduct and, as a result, awarded approximately $4.5 million in punitive damages.

The Appellate Division found that the trial court had erred in its jury instruction and vacated the retaliation verdict. The New Jersey Supreme Court disagreed with the Appellate Division and reinstated the retaliation verdict. In so doing, the Court adopted a flexible, totality of the circumstances approach to decide whether an employee is privileged to take or to use documents belonging to the employer. The Court set forth seven factors:

1. How the employee obtained the document
2. With whom the employee shared the document
3. The nature and content of the document
4. Whether the taking of the document violated a company policy that is routinely enforced
5. The relevance of the document to the employee's claim vs. whether its disclosure was unduly disruptive to the employer
6. The relevance of the document to the employee's claim vs. whether the document was likely to be destroyed or lost
7. The broad remedial purpose of anti-discrimination laws and how permitting or precluding the use of the document will affect the legitimate rights of both employers and employees

Overall, given the nuances in cases like this, employees are well-advised to first meet with an attorney before deciding to take company documents.