Boston Employment Lawyer Blog

The Supreme Court in Engquist v. Oregon Department of Agriculture rejected a class-of-one equal protection theory in the public employment context. The case involved a public employee’s claim that she had been treated arbitrarily compared to similarly situated employees, arguing that such treatment gives rise to a class-of-one equal protection claim.

In 1992, Anup Engquist began working as an international food standard specialist for the Export Service Center, a laboratory within the Oregon Department of Agriculture. During her employment, Engquist experienced difficulty working with a colleague, Joseph Hyatt, alleging that he had made false statements about her. Engquist reported Corristan's conduct to her boss, who required that both employees attend diversity and anger management training. In 2001, John Szczepanski assumed supervisory status over Corristan, Engquist, and Hyatt. Thereafter, Szczepanski passed up Engquist in favor of Corristan for a position for which Engquist was more qualified. Enguist's position was later eliminated.

A jury ruled in Engquist's favor, which the Ninth Circuit reversed. In an opinion authored by Chief Justice John G. Roberts Jr., the Supreme Court ultimately agreed with the Ninth Circuit. In doing so, Justice Roberts perceived practical problems with Engquist's class-of-one equal protection theory:

We agree that, even if we accepted Engquist’s claim, it would be difficult for a plaintiff to show that an employment decision is arbitrary. But this submission is beside the point. The practical problem with allowing class-of one claims to go forward in this context is not that it will be too easy for plaintiffs to prevail, but that governmentswill be forced to defend a multitude of such claims in the first place, and courts will be obliged to sort through themin a search for the proverbial needle in a haystack.

The dissent, led by Justice John Stevens, addressed these practical concerns:

Presumably the concern that actually motivates today’s decision is fear that governments will be forced to defendagainst a multitude of “class of one” claims unless theCourt wields its meat-axe forthwith. Experience demonstrates, however, that these claims are brought infrequently, that the vast majority of such claims are asserted in complaints advancing other claims as well, and that all but a handful are dismissed well in advance of trial. Experience also demonstrates that there are in fact rare cases in which a petty tyrant has misused governmental, power. Proof that such misuse was arbitrary because unsupported by any conceivable rational basis should suffice to establish a violation of the Equal Protection Clause without requiring its victim also to prove that the tyrant was motivated by a particular variety of class-based animus.

Overall, the Engquist decision deprives public employees of constitutional rights.

For more information, please visit the New York Times article entitled, Justices Reject ‘Class of One’ Argument.

Employees recently scored two major victories before the United States Supreme Court. Both cases involved allegations of workplace discrimination. In each case, the Supreme Court recognized an employee's right to bring claims for retaliation where reports of unlawful discrimination result in a backlash by the employer.

In Gomez-Perez v. Potter, Myrna Gómez-Pérez worked as a clerk for the United States Postal Service in Puerto Rico. During her employment, Gómez alleged that she was subject to retaliatory treatment after filing an age discrimination complaint against her supervisors under the Age Discrimination in Employment Act (ADEA). The federal district court of Puerto Rico granted summary judgment to USPS, reasoning that the United States had not waived sovereign immunity as to retaliation claims under the ADEA. Gómez appealed to the First Circuit Court of Appeals, which disagreed on the sovereign immunity issue but dismissed the retaliation on the basis that the ADEA does not recognize such claims by federal employees.

In CBOCS West, Inc. v. Humphries, Hendrick Humphries, who is African-American, worked as an associate manager at Cracker Barrel. Following his termination, Humphries filed suit based on race discrimination and retaliation under Section 1981 of the Civil Rights Act of 1866. The main issue was whether Section 1981 recognizes a claim for retaliation. While Humphries lost his case in federal district court, the Seventh Circuit Court of Appeals held that Section 1981 protects against retaliation.

In both cases, the Supreme Court refused to restrict employee rights, and affirmed the viability of workplace retaliation claims under the Age Discrimination in Employment Act and Section 1981 of the Civil Rights Act of 1866. For more information about the Supreme Court's decisions, please visit the New York Times article entitled, Justices Favor Workers in Cases of Bias Retaliation.

In 1996, civil rights advocates established Equal Pay Day to acknowledge the pay gap between genders in which female employees earn approximately 75% of the wages of their male counterparts. Ensuring equal pay across genders continues to be a struggle. Numerous lawsuits have been brought on behalf of women throughout the United States who, despite performing the same work as their male counterparts, are paid substantially less. In December 2007, for example, the Ninth Circuit affirmed class action certification in Dukes v. Wal-Mart, which seeks redress for approximately 1.6 million current and former female Wal-Mart employees consistently passed up for promotions and salary increases that went to lesser qualified males (See Gender Discrimination Class Action Certified by Ninth Circuit Against Wal-Mart).

Perhaps the most important suit to-date has been the United States Supreme Court's May 2007 ruling in Ledbetter v. Goodyear Tire & Rubber Co., which signifies a near-fatal blow to an employee's right to seek redress for pay discrimination. Lilly Ledbetter worked at Goodyear for 19 years before realizing she was being paid significantly less than every single one of her male counterparts. Although a jury agreed that Ms. Ledbetter had been paid unfairly, the Supreme Court reversed on the basis that her claim was time-barred by Title VII’s 180 day limitations period. For a more detailed discussion about the Ledbetter case, please visit: Supreme Court Routs Title VII in 2007: Goodyear Wins Right to Discriminate Based on Gender.

To undo the harsh effects created by the Ledbetter decision, Senator Edward Kennedy (D-Mass) proposed the Fair Pay Restoration Act, which would re-establish the long-standing rule that each discriminatory paycheck constitutes a new act of discrimination and re-starts the 180 day statute of limitations clock.

In July 2007, the U.S. House of Representatives passed the Fair Pay Restoration Act by a vote of 225 to 1999. Unfortunately, the White House recently threatened to veto the bill in an effort to keep the Ledbetter decision as the status quo. This will likely be a talking point in the 2008 Presidential Race. While most Democrats support the bill, most Republicans oppose the legislation. The likely Republican nominee, Arizona Senator John McCain, opposes the Fair Pay Restoration Act:

I am all in favor of pay equity for women, but this kind of legislation, as is typical of what's being proposed by my friends on the other side of the aisle, opens us up to lawsuits for all kinds of problems. This is government playing a much, much greater role in the business of a private enterprise system.

For more information on this issue please visit the Washington Post's article entitled, White House Threatens to Veto Discrimination Bill.

The Supreme Court recently rejected a legal challenge from AARP, which contended that employers that reduce health benefits for former employees who become eligible for Medicare violate age discrimination laws.

The case began approximately eight years ago in 2000 when retired county workers in Erie, Pennsylvania who had their health benefits reduced when they turned 65 claimed that such a policy violated the Age Discrimination in Employment Act (ADEA). The U.S. Court of Appeals in Philadelphia held that this policy amounted to age discrimination.

Initially, the Equal Employment Opportunity Commission (EEOC) agreed with the Appeals Court decision. In 2003, however, the EEOC determined that the ruling would incentivize employers to not offer benefits to retirees for fear of running afoul of age discrimination laws. With this concern in mind, the EEOC proposed an exception to the ADEA, allowing employers to reduce health benefits when former employees became eligible for Medicare.

In June 2008, the Appeals Court essentially reversed itself and upheld the EEOC's new policy. For more information, please visit the Los Angeles Times article entitled, Supreme Court allows retiree benefit cuts

The Age Discrimination in Employment Act of 1967 (ADEA) prohibits workplace discrimination based on age against employees and job applicants who are 40 years of age or older.

Age discrimination cases before the Supreme Court this term abound. The Court recently issued another opinion in an age discrimination case; the second one in less than one week. In Federal Express v. Holwecki the Supreme Court decided what constitutes a "Charge of Discrimination" submitted to the Equal Employment Opportunity Commission (EEOC).

In Federal Express v. Holwecki, the plaintiff-employees filled out an intake questionnaire in which they alleged age discrimination and filed it with the EEOC. Attached to the questionnaire was an affidavit further detailing the discrimination and stating: “Please force Federal Express to end their age discrimination plan.” The plaintiff-employees, however, did not fill out the official Charge of Discrimination documentation.

A Charge must be filed with EEOC within 180 days from the date of the alleged violation. As an aside, the 180-day filing deadline is extended to 300 days if the charge also is covered by a state or local anti-discrimination law, which is the case in Massachusetts.

After filing suit, the Federal District Court in Manhattan dismissed the suit on the basis that the statute of limitations had expired. In doing so, the district court took a hyper-technical approach, concluding that the questionnaire and affidavit were insufficient to constitute an official Charge. The Second Circuit Court of Appeals reversed the lower court's decision, stating that the plaintiff-employees' documentation was the equivalent of an official Charge of Discrimination. The Supreme Court agreed:

Documents filed by an employee with the EEOC should be construed, to the extent consistent with permissible rules of interpretation, to protect the employee’s rights and statutory remedies. Construing ambiguities against the drafter may be the more efficient rule to encourage precise expression in other contexts; here, however, the rule would undermine the remedial scheme Congress adopted. It would encourage individuals to avoid filing errors by retaining counsel, increasing both the cost and likelihood of litigation.

For more about the Supreme Court's ruling in Federal Express v. Holwecki, check out the New York Times article entitled, Supreme Court Alters Tone in Discrimination Case.

Employees who are victims of age discrimination may be able to submit a new kind of evidence at trial to prove their case. The U.S. Supreme Court issued a unanimous ruling in Sprint/United Management Co. v. Mendelsohn, which involved the issue of “me too” witnesses at trial.

Ellen Mendelsohn, who worked for Sprint for 13 years, was 51 years old at the time she was selected for a mass layoff. During trial, she sought to introduce the testimony of former employees who saw spreadsheets with the ages of employees targeted for layoffs and who heard managers make age-biased comments. Mendelsohn’s proposed witnesses had not worked for the same immediate supervisor as Mendelsohn and had not been dismissed from Sprint at the exact same time.

The Supreme Court granted Mendelsohn's writ of certiorari on the issue of whether the federal rules of evidence allow victims of workplace discrimination to offer testimony of co-workers who may have suffered discrimination under similar circumstances, but under different supervisors.

Although the Supreme Court did not issue a definitive finding on the issue, the Court concluded that "such evidence is neither per se admissible nor per se inadmissible.” Notably, the Supreme Court stated that the 10th Circuit Court of Appeals had not fully explained her reasons for excluding Mendelsohn’s proposed witnesses. In doing so, the Court vacated the 10th Circuit's ruling and remanded the case back to the U.S. District Court in Kansas City, Kansas.

The Age Discrimination in Employment Act (ADEA) of 1967 prohibits employers from refusing to hire, discharge, or otherwise discriminate against employees who are at least 40 years of age. The goal of the ADEA is to promote the employment of older persons and to prohibit employers from engaging in arbitrary discrimination based on age.

This term, the Supreme Court will hear no less than five cases involving age discrimination. As reported by National Public Radio (NPR) in an article entitled
Age Discrimination Hits Supreme Court, the traditional notions of retirement are changing:

The percentage of people 65 and over who continue to work has grown from 10.8 percent in 1985 to 16 percent last year .... For people 55 to 64, the numbers also are up, from 54.2 percent in 1985 to 63.8 percent in 2007.

Novel issues abound. In Gomez-Perez v. Potter, for instance, Myrna Gómez-Pérez worked as a clerk for the United States Postal Service in Puerto Rico. After filing an age discrimination charge against her supervisors under the ADEA, Gómez alleged that she suffered retaliation. The federal district court granted summary judgment for the Postal Service, reasoning that the United States had not waived sovereign immunity as to retaliation claims under the ADEA.

Gómez appealed to the United States Court of Appeals for the First Circuit. The First Circuit reversed, in part, holding that the United States did waive sovereign immunity, but that Section 15 of the ADEA does not provide a cause of action for retaliation by federal employers.

As reported in an article by the Washington Post entitled Public Workers' Shield Against Reprisal for Bias Claims Pondered, Chief Justice John G. Roberts Jr. and Justice Antonin Scalia will likely interpret this issue differently from Justice Ruth Bader Ginsburg.

The Houston Chronicle ran an Editorial entitled, Pay Stub, which urges the Senate to pass the Fair Pay Restoration Act to ensure equal pay across genders. We wrote about the Act in a post on January 30, 2008 entitled, Two Important Congressional Bills: The Fair Pay Restoration Act & The Civil Rights Act of 2008.

The Act would essentially nullify the Supreme Court's ruling in Lilly Ledbetter v. Goodyear Tire & Rubber Co., which sets a strict deadline for filing actions based on equal pay. Under the Supreme Court's ruling, the statute of limitations in such actions starts to run when an employee first begins to receive unequal pay, even if the employee is completely unaware of the employer's discriminatory pay practice. As the Editorial points out, the ruling panders to the corporate interest:

[I]t's a disaster for employees. The reality of the work environment, as almost any employee knows, is that it is difficult to know how much money any individual worker makes. In fact, companies typically discourage employees from discussing pay issues in the workplace at all. Anyone receiving discriminatory wages will be highly unlikely to find out in a timely manner.

To read more about the Ledbetter decision, please visit our January 31, 2008 post entitled, Supreme Court Routs Title VII in 2007: Goodyear Wins Right to Discriminate Based on Gender.

Senator Edward Kennedy (D-Mass) has proposed two new, much-necessary bills. The first, called the Fair Pay Restoration Act, would essentially undo the harsh effects created by the Supreme Court's ruling in Lilly Ledbetter v. Goodyear Tire & Rubber Co., which held that the 180 day statute of limitations deadline for filing discrimination actions starts to run when a worker first begins to receive unequal pay, instead of when the employee actually becomes aware that his or her pay is discriminatory. We wrote about the Ledbetter decision on December 31, 2008 in a post entitled, Supreme Court Routs Title VII in 2007: Goodyear Wins Right to Discriminate Based on Gender. Senator Kennedy's bill would make clear that the statute of limitations clock starts to run after the employee becomes aware of discrimination.

Senator Kennedy’s second bill, the Civil Rights Act of 2008, would undo more bad Supreme Court precedent as well. Among other things, the bill would reverse the 2001 Supreme Court decision in Alexander v. Sandoval, which held that individuals could not challenge federally-funded programs on the basis of discriminatory effect, but must rather meet the heavy burden of proving discriminatory intent.

The New York Times today featured an editorial on these two bills entitled, Restoring Civil Rights.

The Supreme Court has granted certiorari in two promising cases. In both cases, the Court of Appeals ruled against the plaintiff-employee. One case involves the protection of employees from retaliation. We wrote about this case in a post on January 14, 2007 entitled, Title VII Sexual Harassment Case May Find Itself on the Supreme Court Docket. The other case involves evidentiary burdens in age discrimination suits where the employer alleges legitimate, nondiscriminatory reasons for a layoff.

In the first case, the employer asked an employee to cooperate in an investigation regarding sexual harassment in the workplace, who was fired after telling investigators that she had seen her co-worker engage in a series of inappropriate acts. In what has been criticized as a cramped interpretation of Title VII, the Sixth Circuit Court of Appeals held that cooperating with the investigation did not constitute "opposition" to sexual harassment. Click here for the Sixth Circuit's decision.

The second case deals with age discrimination under the Age Discrimination in Employment Act. There, the employer conducted a reduction in force in which 31 employees were let go. All RIF'd employees, save for one, were 40 years old or older. The Second Circuit Court of Appeals ultimately overturned the jury verdict in favor of the employees on the basis that they failed to disprove the employer's business necessity defense. Click here for the Second Circuit's decision.

The New York Times reported on both cases in an article entitled, Justices Add More Cases on Job Discrimination.

The Supreme Court's docket in 2008 may include a case out of Nashville, TN involving sexual harassment. An article out of the Tennessean gives a synopsis of the facts:

The case began in 2002, when Vicky Crawford, then a payroll supervisor who had worked for the school system for 30 years, was contacted by school officials looking into allegations of sexual misconduct against Gene Hughes, then the schools' employee relations director.Crawford told investigators that she had seen Hughes grab his crotch in her presence, that he had asked to see her breasts, and on one occasion, he grabbed her head and tried to force it into his groin. At the time, Hughes was responsible for investigating all claims of sexual harassment in the school district. The lawsuit alleges that the internal investigation ended with no disciplinary action against Hughes. But Crawford, and two other female employees who cooperated with the probe, were fired, the suit says.

Title VII prohibits employers from taking adverse employment actions against employees who oppose unlawful employment practices such as sexual harassment. At issue in Crawford's retaliation claim under Title VII is the definition of oppose.

Crawford argued that she opposed Hughes' inappropriate conduct by cooperating with the school's internal investigation. In response, the school argued that Title VII's whistleblower provision was not intended to protect employees participating in an internal investigation initiated by an employer. Disregarding Title VII's broad remedial purpose, the district court and the Sixth Court agreed with the school's argument and dismissed Crawford's retaliation claim. Click here for the Sixth Circuit's decision.

If the Supreme Court grants certiorari, the issue will focus on whether an employee who is terminated after cooperating with an internal investigation in which she alleges unlawful employment practices states a claim for retaliation under Title VII.

Employment attorneys seem to agree that the most controversial decision in 2007 was the Supreme Court’s ruling in Lilly Ledbetter v. Goodyear Tire & Rubber Co. Let's review what happened:

In 1979, Lilly Ledbetter began working as a supervisor at Goodyear’s tire assembly department in Gadsden, Alabama. During her first weeks of employment, her wages were identical to those of her male counterparts. Twenty years later, a rift in pay between Ms. Ledbetter and her male colleagues had become painstakingly clear.

In 1998, Ms. Ledbetter received an anonymous letter, which revealed that she made about $15,000 less than her male co-workers at Goodyear. Inexplicably, Ms. Ledbetter’s pay was not even on par with recent hires with far less job experience. Ms. Ledbetter filed a discrimination charge with the Equal Employment Opportunity Commission less than a month after receiving the anonymous tip. At trial, her attorneys highlighted the disparity in pay between males and females doing the same work at the Gadsen Goodyear plant. The jury ultimately sided with Ms. Ledbetter, awarding her over $3.5 million in damages, which the district judge later reduced down to $360,000.

Title VII requires discrimination complaints to be made within 180 days of the employer’s discriminatory conduct. Goodyear appealed, arguing that the jury should not have considered each of the annual salary reviews that Ms. Ledbetter had received throughout her 20 year career with Goodyear. Citing Title VII, Goodyear maintained that the jury should only have evaluated the lone annual salary review that Ms. Ledbetter received in the 180 day limitations period before Ms. Ledbetter filed her complaint, despite the fact that the pay disparity had occurred over nearly two decades.

The U.S. Court of Appeals for the Eleventh Circuit, in part, agreed with Goodyear’s argument and held that the jury should have not have been allowed to evaluate Goodyear’s discriminatory pay decisions over Ms. Ledbetter’s entire career in light of Title VII’s 180 day limitations period. In doing so, the Eleventh Circuit ignored the vital fact that Ms. Ledbetter had not learned of the pay disparity until 1998.

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