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McDonnell Douglas Corporation v. Green: A Framework for Analyzing Discriminatory Intent Using Indirect Evidence

In the landmark McDonnell Douglas Corporation v. Green, 411 U.S. 792 (1973), the Supreme Court described a burden-shifting framework by which employees can prove their employers engaged in unlawful discrimination under Title VII without any “direct” evidence of discriminatory intent. The enduring aspect of this case was the Court’s description of the burden-shifting proof framework, and not so much the outcome of particular factual case before it.

Summary

In short, McDonnell Douglas clarified that even if an employee lacks direct evidence of intentional discrimination (like a statement from her boss saying, “We’re firing you because of your race”), the employee can still prevail on a claim of intentional discrimination by presenting only indirect or circumstantial evidence that supports an inference of her employer’s discriminatory intent (like evidence that her boss replaced her with a less qualified employee of a different race). The opinion describes an order of presenting proof and shifting burdens to help courts analyze discrimination claims where the plaintiff has chosen to proceed using purely indirect or circumstantial evidence.

Facts

Green was a black mechanic, lab technician, and civil rights activist. He worked for McDonnell Douglas Corporation, a St. Louis aerospace company, until his termination in 1964. After his discharge, Green participated in a protest against McDonnell Douglas in which he asserted that his termination had been racially motivated and in violation of Title VII of the Civil Rights Act of 1964. The protest involved a “stall-in” in which protesters parked vehicles to block the roads leading to one of the company’s factories. Green was arrested for obstructing traffic. After the protest, McDonnell Douglas publicly advertised a job opening for qualified mechanics. Green applied for the position. Although Green was a qualified mechanic, McDonnell Douglas declined to hire him. McDonnell Douglas later defended this decision not to hire Green on the grounds that Green had engaged in illegal traffic-obstructing conduct while participating in the protest.

Procedural Posture

Green filed a charge with the Equal Employment Opportunity Commission (EEOC), alleging McDonnell Douglas refused to rehire him on the basis of race and retaliation in violation of Title VII. The EEOC found reasonable cause to believe McDonnell Douglas’ rejection of Green’s reemployment application violated the anti-retaliation provision of §704(a) of Title VII. That section forbids discrimination against applicants or employees for making any attempt to protest or rectify allegedly discriminatory employment conditions. 42 U.S.C. § 2000e–3(a). The EEOC made no finding as to Green’s allegation that McDonnell Douglas violated §703(a)(1) of Title VII, which prohibits racial and other types of status-based discrimination. 42 U.S.C. § 2000e–2(a)(1).

Green filed suit. The District Court dismissed Green’s claims, holding that McDonnell Douglas refused to rehire Green because of his participation in illegal protest demonstrations, rather than his race or opposition to racial discrimination. The District Court ruled that Green’s (illegally) obstructing traffic in protest was not an activity protected by §704(a), and dismissed Green’s §703(a)(1) racial discrimination claim on the grounds that the EEOC had made no finding of racial discrimination in any employment decision. The Court of Appeals affirmed the dismissal of the §704(a) retaliation claim. But it reversed the dismissal of Green’s §703(a)(1) racial discrimination claim, holding that an EEOC determination of reasonable cause was not a jurisdictional prerequisite to pursuing a discrimination claim in federal court violation. McDonnell Douglas appealed this decision. The Supreme Court granted cert.

The Court’s Decision: A Framework for Analyzing Indirect Evidence of Discrimination

In a 9-0 decision in favor of Green, the McDonnell Douglas Court described burden-shifting framework of organizing and evaluating indirect proof of discrimination. An employee may use this approach to show intentional discrimination by an employer in the absence of any direct evidence of discrimination. More than 45 years later, the McDonnell Douglas framework continues to guide lower courts’ summary judgment analyses of many discrimination and retaliation claims.

The McDonnell Douglas framework entails three discrete steps. First, the plaintiff employee must establish a prima facie case by presenting sufficient indirect evidence to give rise to an inference of discrimination. For example, in a non-hiring case, the employee can establish a prima facie case by presenting evidence that (1) the employee is a member of a Title VII protected group; (2) she applied and was qualified for the position sought; (3) the job was not offered to  her; and (4) the employer continued to seek applicants with similar qualifications. Similarly, in a demotion or termination case, the employee can establish a prima facie of racial discrimination case by showing (1) that she is a member of a Title VII protected group, (2) that she was qualified for the position she held, (3) that she was demoted and/or discharged from that position, and (4) that the position remained open and was ultimately filled by a someone of a different race. See, e.g., St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 506 (1993).

If the employee can prove the elements of a prima facie case, the McDonnell Douglas analysis moves to the second step.

In that second step, the burden shifts to the defendant employer. The employer is allowed to offer a purported non-discriminatory reason for the adverse action suffered by the employer— such as the refusal to hire, or a termination. For example, in McDonnell Douglas, the employer argued that it refused to rehire Green not because of his race, but because he illegally obstructed traffic. Once the employer offers a non-discriminatory reason for its decision, the burden shifts back to the employee.

In that final step of the McDonnell Douglas framework, the plaintiff employee must be allowed the opportunity to demonstrate that the defendant’s proffered explanation is not consistent with a completely honest or unbiased view of the employee, making the explanation “pretext” for a discriminatory bias underlying the adverse employment action.

The Court therefore held that while the Court of Appeals correctly found Green proved a prima facie case of race discrimination, it erred in holding that McDonnell Douglas had failed to discharge its burden of presenting a legitimate, non-discriminatory reason for its decision to not rehire Green (his participation in illegal traffic obstructing). Critically, the Court made clear that on remand the employee Green must be given a fair opportunity to show that his employer’s stated reason was a pretext for a racially discriminatory decision. The Court indicated that one way an employee in Green’s position could successfully demonstrate pretext was with comparator evidence — such as by showing that white employees who engaged in similar illegal activity were retained or hired by McDonnell Douglas. Other evidence that may be relevant at the pretext stage, depending on the circumstances, could include evidence that the employer had discriminated against the respondent when he was an employee, or followed a discriminatory policy toward minority employees. See McDonnell Douglas, 411 U.S. at 804-05. This framework and its application has been the topic of much scholarly literature.

The McDonnell Douglas Court agreed with the Court of Appeals that an employee’s right to bring suit under Title VII is not confined to charges as to which the EEOC has made a reasonable cause finding.

Analysis

McDonnell Douglas clarified that even if an employee lacks direct evidence of intentional discrimination (like an admission from a supervisor that the employee was fired because of her race), the employee can still prevail on a claim of intentional discrimination by presenting only indirect or circumstantial evidence that supports an inference of her employer’s discriminatory intent (like evidence that her boss replaced her with a less qualified employee of a different race). The opinion there describes an order of presenting proof and shifting burdens to help courts analyze discrimination claims that turn on purely indirect or circumstantial evidence. First, the employee must establish a prima facie case which will give rise to an inference of discrimination. Second, the employer is allowed to offer a purported non-discriminatory reason for its adverse action against the plaintiff. And in the final step of this framework, the employee must be allowed the opportunity to show that the employer’s proffered explanation is just pretext for discriminatory bias.

It is worth noting that for an employee to prove unlawful discrimination, the McDonnell Douglas proof framework is not required. Rather “discrimination may be proven through direct and indirect evidence or through the McDonnell Douglas burden-shifting framework.” Jacobs v. N.C. Admin. Office of the Courts, 780 F.3d 562, 572 (4th Cir. 2015) (emphasis added) (citing Raytheon Co. v. Hernandez, 540 U.S. 44, 49-50 & n3 (2003)). As noted above, direct evidence is “evidence of conduct or statements that both reflect[s] directly the alleged discriminatory attitude and … bear[s] directly on the contested employment decision.” Warch v. Ohio Cas. Ins. Co., 435 F.3d 510, 520 (4th Cir. 2006) (quoting Taylor v. Virginia Union Univ., 193 F.3d 219, 232 (4th Cir. 1999) (en banc)).

The McDonnell Douglas framework turns on circumstantial evidence and inference, having the employee demonstrate the employer’s proffered non-discriminatory reason for termination is “unworthy of credence.” Texas Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 256 (1981). “The Supreme Court constructed the elements of the [McDonnell Douglas] prima facie case to give

plaintiffs who lack direct evidence a method for raising an inference of discrimination.” Diamond v. Colonial Life & Acc. Ins. Co., 416 F.3d 310, 318 (4th Cir. 2005) (citing Burdine, 450 U.S. at 253–54 and Costa v. Desert Palace, Inc., 299 F.3d 838, 855 (9th Cir. 2002), aff’d, 539 U.S. 90 (2003)).

Where “a plaintiff has direct evidence of discrimination … the McDonnell Douglas framework is of little value[.]” Id. at 318 n4 (citing Price Waterhouse v. Hopkins, 490 U.S. 228, 271 (1989) (O’Connor, J., concurring) (noting that the Supreme Court has suggested that the burden-shifting framework is inapplicable where a plaintiff presents direct evidence of discrimination)).

An employee who has direct evidence of discrimination, or a combination of direct and indirect evidence, may therefore prove her claims without using the McDonnell Douglas method.

This site is intended to provide general information only. The information you obtain at this site is not legal advice and does not create an attorney-client relationship between you and attorney Tim Coffield or Coffield PLC. Parts of this site may be considered attorney advertising. If you have questions about any particular issue or problem, you should contact your attorney. Please view the full disclaimer. If you would like to request a consultation with attorney Tim Coffield, you may call 1-434-218-3133 or send an email to info@coffieldlaw.com.

 

Originally published on timcoffieldattorney.com 

Title II of the Genetic Information Nondiscrimination Act of 2008 (GINA): Protections from Employment Discrimination Based on Genetic Information

Title II of the Genetic Information Nondiscrimination Act of 2008 (GINA) protects employees and job applicants from employment discrimination based on genetic information. Title II of GINA prohibits employers (and various employer-like entities and programs) from using genetic information in making any employment decisions — such as firing, hiring, promotions, pay, and job assignments. This law also prohibits employers from requesting or requiring genetic information or genetic testing as a prerequisite for employment.

GINA went into effect on November 21, 2009. The Equal Employment Opportunity Commission (EEOC) enforces Title II of GINA, regarding protections from genetic discrimination in employment. The Departments of Labor, Health and Human Services and the Treasury have responsibility for issuing regulations for Title I of GINA, which addresses the use of genetic information in health insurance.

Genetic Information Defined

Under Title II of GINA, “genetic information” includes any information about an individual’s genetic tests and genetic testing of an individual’s family members. Critically, this definition encompasses an individual’s family medical history — i.e. information about diseases or disorders among members of the individual’s family. 42 U.S.C. §2000ff(4). EEOC regulations clarify that GINA’s use of the phrase “manifestation of a disease or disorder in family members” in its definition of “genetic information” refers to an employee’s “family medical history,” interpreted in accordance with its normal understanding as used by medical providers. 29 C.F.R. §1635.3(c)(iii).

GINA’s definition of “genetic information” includes family medical history because this kind of information is often used to predict an individual’s risk of future diseases, disorders, or other medical conditions that might theoretically, in the future, impair her ability to work.

Genetic information also includes an individual’s request for, or receipt of, genetic services, or the participation in clinical research that includes genetic services by the individual or a family member of the individual. 42 U.S.C. §2000ff(4)(B). Genetic information under GINA also encompasses the genetic information of a fetus carried by an individual or a family member of the individual, and the genetic information of any embryo legally held by the individual or family member using an assisted reproductive technology. See 29 U.S.C. §1182(f).

Discrimination and Harassment on the Basis of Genetic Information

GINA’s basic intent is to prohibit employers from making a “predictive assessment concerning an individual’s propensity to get an inheritable genetic disease or disorder based on the occurrence of an inheritable disease or disorder in [a] family member.” H.R.Rep. No. 110–28, pt. 3, at 70 (2007), 2008 U.S.C.C.A.N. 112, 141. Congress therefore included family medical history in the definition of “genetic information” because it understood that employers could potentially use family medical history “as a surrogate for genetic traits.” H.R.Rep. No. 110–28, pt. 1, at 36 (2007), 2008 U.S.C.C.A.N. 66, 80. See Poore v. Peterbilt of Bristol, L.L.C., 852 F. Supp. 2d 727, 730 (W.D. Va. 2012); see also the Final Rule implementing Title II of the Genetic Information Nondiscrimination Act, as published in the Federal Register on November 9, 2010; and the Final Rule on Employer-Sponsored Wellness Programs and Title II of the Genetic Information Nondiscrimination Act, as published in the Federal Register on May 17, 2016.

To prevent employers from treating employees and applicants differently based on assumptions about their genetic traits, GINA prohibits employers from discriminating against an employee or job applicant on the basis of genetic information. This includes hiring, firing, pay, job assignments, promotions, layoffs, training, fringe benefits, or any other term or condition of employment. 42 U.S.C. §2000ff(1)(a).

The rationale for this prohibition makes good sense. Just as Title VII prohibits discrimination on the basis of race, sex, or religion because these characteristics have no bearing on an individual’s ability to work, GINA prohibits employers from using of genetic information in making employment decisions because an individual’s genetic information has no bearing on her current ability to work.

Title II of GINA also prohibits harassment of the basis of genetic information. Harassment is a form of discrimination that does not necessarily involve an adverse employment decision (like a termination or demotion). For example, harassment can include offensive or derogatory remarks about an employee or applicant’s genetic information, or about the genetic information of a family member. A harasser might be a supervisor, a co-worker, or even a non-employee, such as a customer or client. To be considered illegal, the harassing conduct towards an employee or applicant must be either sufficiently pervasive or severe as to create an abusive work environment or must result in an adverse employment decision.

Six Exceptions to the Rule Against Obtaining or Requesting Employee Genetic Information

GINA prohibits employers from using an employee’s genetic information to make any employment decision and further prohibits employers from requesting, requiring, or purchasing genetic information about an applicant or employee. 42 U.S.C. § 2000ff–1(b). However, the law also provides six narrow exceptions to the rule prohibiting an employer from obtaining genetic information about employees. An employer may request, require or purchase genetic information if:

  • The information is acquired inadvertently, or accidentally;
  • The information is part of a health or genetic service provided by the employer on a voluntary basis, such as a wellness program;
  • The information is in the form of a family medical history to comply with the certification requirements of the Family Medical Leave Act (FMLA), state or local leaves laws, or specific employer leave policies;
  • The information is from sources that are commercially and publically available, including newspapers, books, magazines, and electronic sources;
  • The information is part of genetic monitoring that is either required by law or provided on a voluntary basis; or
  • The information can be requested, required, or purchased by employers who conduct DNA testing for law enforcement purposes as a forensic lab or for human remains identification.

See 42 U.S.C. § 2000ff–1(b).

Confidentiality and Disclosure of Genetic Information

If an employer obtains an employee’s genetic information under any of the exceptions, GINA requires that the information be kept confidential. If any of the genetic information is in written form, it must be stored apart from any other personal information in a separate medical file. 42 U.S.C. § 2000ff–5(a). An employer may, however, disclose employee genetic information to third parties under six limited circumstances:

  • If the employer is disclosing genetic information to the employee or family member about whom the information is regarding upon the written request of the employee or family member;
  • If the employer is disclosing genetic information to an occupational or another health researcher that is conducting research within federal regulations;
  • If the employer is disclosing genetic information in response to a court order, except that the covered entity may disclose only the genetic information that is authorized by the order;
  • If the employer is disclosing genetic information to government officials who are investigating compliance with Title II of GINA, provided the information is relevant to the investigation;
  • If the employer is disclosing genetic information in accordance with the certification process for FMLA leave or state family and medical leave laws; or
  • If the employer is disclosing genetic information to a public health agency in regard to information about the manifestation of a disease or a disorder that concerns a contagious illness that presents the imminent potential of death or life-threatening illness.

See 42 U.S.C. § 2000ff–5(b).

Retaliation

Similar to other employment laws, Title II of GINA prohibits any form of retaliation against an individual for opposing employment practices that discriminate on the basis of genetic information, or for participating in proceedings or investigations involving possible GINA violations. This means employers (and other people) may not fire, demote, harass, or otherwise retaliate against an applicant or employee for opposing genetic information discrimination or participating in a GINA proceeding. 42 U.S.C. § 2000ff–6(f).

Remedies

As with other employment and civil rights laws, if an employee prevails in court on a claim that her employer violated GINA, the employee may recover lost wages and other damages, as well as costs and reasonable attorney fees. 42 U.S.C. § 2000ff–6.

For additional information about this law and its history, the National Human Genome Research Institute is a solid resource.

This site is intended to provide general information only. The information you obtain at this site is not legal advice and does not create an attorney-client relationship between you and attorney Tim Coffield or Coffield PLC. Parts of this site may be considered attorney advertising. If you have questions about any particular issue or problem, you should contact your attorney. Please view the full disclaimer. If you would like to request a consultation with attorney Tim Coffield, you may call 1-434-218-3133 or send an email to info@coffieldlaw.com.

 

Originally published on timcoffieldattorney.net 

Vance v. Ball State, 133 S.Ct. 2434 (2013): Vicarious Liability for Workplace Harassment

Vance v. Ball State, 133 S.Ct. 2434 (2013) addresses the circumstances under which an employer (i.e. a company or government that employs workers) can be held responsible in a lawsuit if one of its employees harasses another. This is generally referred to as “vicarious liability” — when the employer company or government is liable for the actions of its employees. Vance discusses the differing standards of proof for holding a company responsible for harassment in its workplace. Which standard applies depends on whether the harassing employee qualifies as a “supervisor,” as the case defines that term, and whether the harassment at issue culminated in a tangible employment action.

The plaintiff in Vance, an African-American woman, sued her employer, Ball State University, alleging that a fellow employee, Davis, violated Title VII of the Civil Rights Act through physical and verbal acts of racial harassment, thereby creating a racially hostile work environment. The District Court granted summary judgment to Ball State. It held that Ball State was not vicariously liable for Davis’ alleged actions because Davis, who lacked the authority to take tangible employment actions against Vance, was not a supervisor. The Seventh Circuit affirmed this decision, as did the Supreme Court.

In so holding, the Court articulated differing standards of proof for holding an employer liable for harassment in the workplace.

Co-Worker Harassment: Negligence

Under one approach, if the harassing employee was the victim’s co-worker, the employer can be held responsible (i.e. lose a lawsuit, and have to compensate the victim for the harassment he or she suffered at work) if the employer was negligent in allowing the harassment to take place. In other words, the employer can be liable for co-worker harassment if the company knew or should have known that the harassment would take place or was taking place, but did not take adequate steps to prevent or stop it.

Supervisor Defined

Under another approach — the primary topic of the decision in Vance — an employer can be held strictly liable or responsible for harassment by any of its “supervisors” against subordinate employees. This presents the question of what kind of employee constitutes a “supervisor” for the purposes of holding the employer responsible for that employee’s harassment of another worker. In Vance, the Supreme Court held that an employee is a “supervisor” for purposes of vicarious liability under Title VII only if he is empowered by the employer to take “tangible employment actions” against the victim. A tangible employment action means “a significant change in employment status, such as hiring, firing, failing to promote, reassignment with significantly different responsibilities, or a decision causing a significant change in benefits.” Burlington Industries, Inc. v. Ellerth, 524 U.S. 742, 761 (1998).

In so defining “supervisor,” the Court rejected various colloquial meanings of the term, and determined the concept was best understood by looking to the employer / employee framework set out in Title VII and the Court’s prior decisions in Ellerth and Faragher v. Boca Raton, 524 U.S. 775, 807 (1998).

Supervisor Harassment I: Strict Liability for Harassment Resulting in a Tangible Employment Action

The Vance Court further decided that if a supervisor’s harassment culminates in a “tangible employment action”, then the employer is strictly liable for the harassment. For example, if a supervisor demoted or fired a subordinate because she refused his sexual advances, the employer is responsible for that harassment — regardless of whether anyone at the company other than the harassing supervisor and the victim knew about the harassment.

Supervisor Harassment II: In the Absence of a Tangible Employment Action, Employer May Escape Liability with Faragher / Ellerth Defense

The Vance Court also discussed the standard for holding an employer liable for supervisor harassment when the harassment does not result in a tangible employment action. Under those circumstances, the Court explained , the employer may escape liability for the harassment if it can establish, as an affirmative defense, that (1) the employer exercised reasonable care to prevent and correct any harassing behavior and (2) that the plaintiff unreasonably failed to take advantage of the preventive or corrective opportunities that the employer provided. This affirmative defense was described at length in previous Supreme Court cases Faragher v. Boca Raton, 524 U.S. 775, 807 (1998) and Burlington Industries, Inc. v. Ellerth, 524 U.S. 742, 761, 765 (1998). This is significant, because when the harasser is a supervisor the burden of proof is on the employer to prove this defense, as opposed to the situation where the harasser was a co-worker, in which case the victim has the burden of proving the employer was negligent in controlling working conditions. If the employer cannot prove the Faragher / Ellerth defense or another defense, it will generally be liable for the supervisor’s harassment.

As noted above, if the harassing employee does not qualify as a supervisor and is instead just a rank-and-file co-worker, Vance says that to hold the employer liable, the harassment victim can show that the employer was negligent in controlling working conditions and allowing a work environment where harassment could take place. But as explained Vance, it is generally easier for the victim of harassment to prevail against an employer if the harasser  is considered a “supervisor” rather than a just “co-worker.” This is because the employer is strictly liable for a supervisor’s harassment — liable without proof of negligence — if the harassment results in a tangible employment action, or if the employer is unable to meet its burden of proof to establish the Faragher / Ellerth defense.

This site is intended to provide general information only. The information you obtain at this site is not legal advice and does not create an attorney-client relationship between you and attorney Tim Coffield or Coffield PLC. Parts of this site may be considered attorney advertising. If you have questions about any particular issue or problem, you should contact your attorney. Please view the full disclaimer. If you would like to request a consultation with attorney Tim Coffield, you may call 1-434-218-3133 or send an email to info@coffieldlaw.com.

The Age Discrimination in Employment Act and the Older Workers Benefits Protection Act: Protections for Employees Over 40

The Age Discrimination in Employment Act of 1967 (ADEA) protects employees and job applicants age 40 and older from discrimination based on age in hiring, discharge, promotion, compensation, or other terms, conditions or privileges of employment. The Older Workers Benefit Protection Act (OWBPA), an amendment to the ADEA, specifically prohibits employers from denying benefits to older employees, despite the increased costs of providing benefits to employees as they age.  

Prohibitions on Age Discrimination

Enforced by the Equal Employment Opportunity Commission, the ADEA applies to private employers with 20 or more employees, employment agencies, labor organizations, and state, local and federal governments. The purpose of the ADEA and the OWBPA is to promote employment of older workers based on their ability and skill, while protecting them from any form of discrimination or denial of benefits based on their age. As Congress observed in Section 2 of the ADEA, older workers often find themselves disadvantaged in their efforts to retain employment or to regain employment after being displaced from their jobs. 29 U.S.C. § 621. The ADEA sought to level the playing field for olders workers.

Under the ADEA, it is therefore unlawful to discriminate against a person over 40 because of his or her age with respect to any term, condition, or privilege of employment, including hiring, firing, promotion, layoff, compensation, benefits, job assignments, and training. Harassing an older worker because of age is also prohibited.

Specifically, Section 4 of the ADEA makes it unlawful for an employer unlawful to:

  • Fail or refuse to hire or discharge any person or otherwise discriminate against any individual with respect to terms, conditions, compensation, or privileges of employment due to the individual’s age;

  • Reduce the wage rate of any employee based on age; or

  • Limit or classify employees in a way that would deprive or potentially deprive them of employment opportunities.

See 29 U.S.C. § 623. The ADEA also applies to employment agencies, making it unlawful for them to:

  • Fail or refuse to refer for employment, or otherwise discriminate against any individual based on age, or classify or refer any individual for employment based on the individual’s age.

See 29 U.S.C. § 623(b). The ADEA also applies to labor organizations, making it unlawful for them to:

  • Exclude or expel from membership, or otherwise discriminated against due to an individual’s age; or

  • Limit, segregate, or classify its membership, or fail or refuse to refer employment in a way that would deprive or tend to deprive any individual of employment opportunities, because of the individual’s age.

See 42 U.S.C. § 623(c). It’s worth noting that the ADEA does allow employers and other applicable entities to favor older workers based on age even when doing so adversely affects a younger worker who is 40 or older. In other words, employers are allowed to discriminate against young employees based on their age.

Protection from Retaliation

Importantly, the ADEA also makes it unlawful to retaliate against an individual for opposing employment practices that discriminate based on age, or for filing an age discrimination charge, testifying, or participating in any way in an investigation, proceeding, or litigation under the ADEA. 29 U.S.C. § 623(d).

Specific Protections

The ADEA also includes a variety of specific protections for older workers in employment advertisements and job notices, apprenticeship programs, and pre-employment inquiries (although there is no prohibition on an employer asking an applicant’s age or date of birth as part of the application process).

Advertisements and Job Notices

The ADEA generally makes it unlawful for an employer to include age preferences, specifications or any limitations to job notices or advertisements. 29 U.S.C. § 623(e).

Apprenticeship Programs

The ADEA also generally makes it unlawful for apprenticeship programs to discriminate on the basis of age.

Pre-employment Inquiries

The ADEA does not specifically prohibit employers from asking an applicant’s date of birth or age. However, an employer’s inquiry about applicants’ ages may disparately impact older workers by discouraging them from applying, or may indicate a possible intent by the employer to discriminate based on age, inconsistent with the requirements of the ADEA.

Regulations interpreting the provisions of the ADEA are available here:

Benefits

Benefits for older workers are protected under the OWBPA amendment to the ADEA, which generally prohibits employers from denying benefits to older employees based on their age. This is a significant protection, as the cost of providing benefits to older employees is generally greater than the cost of providing the same benefits to younger employees. Congress recognized the financial implications of this protection, expressing a concern that the greater costs associated with older workers may create a disincentive for employers to hire older workers. Under limited circumstances, therefore, employers may be permitted to reduce certain benefits based on a worker’s age, provided the cost the employer incurs to provide those benefits to older workers is no less than the cost of providing the benefits to younger workers.   

Waivers of ADEA Claims or Rights

The ADEA and OWBPA also set out specific requirements that permit waivers of age discrimination claims or rights in certain circumstances. For example, employers sometimes offer to pay departing employees a severance payment if the employee will sign an agreement waiving any legal claims he or she might have against the employer, including age discrimination claims under the ADEA. Similarly, an employee might enter into a settlement agreement with her employer to resolve a potential age discrimination claim. Under the OWBPA, for an ADEA waiver to be valid, the waiver must meet minimum standards to be considered “knowing and voluntary.” Among other requirements, a valid ADEA waiver must:

 

  • Be in understandable writing;

 

  • Refer specifically to ADEA rights or claims;

  • Be in exchange for valuable consideration in addition to anything of value to which the employee was already entitled;

  • Not waive rights or claims that may arise in the future;

  • Advise the employee in writing to consult an attorney before signing the waiver;

  • Provide the employee with a certain amount of time to consider the agreement before signing — for individual agreements, at least 21 days, for “group” waiver agreements, at least 45 days, and for any settlements of ADEA discrimination claims, a “reasonable” amount of time.

 

See 29 U.S.C. § 626(f). If an employer requests an ADEA waiver in connection with a reduction in force — such as an exit incentive or other employment termination program involving a group, the minimum requirements for a valid waiver are more extensive. The EEOC has issued a detailed policy document describing the requirements for valid waivers under these circumstances, titled “Understanding Waivers of Discrimination Claims in Employee Severance Agreements.”

This site is intended to provide general information only. The information you obtain at this site is not legal advice and does not create an attorney-client relationship between you and attorney Tim Coffield or Coffield PLC. Parts of this site may be considered attorney advertising. If you have questions about any particular issue or problem, you should contact your attorney. Please view the full disclaimer. If you would like to request a consultation with attorney Tim Coffield, you may call 1-434-218-3133 or send an email to info@coffieldlaw.com.

Oncale v. Sundowner Offshore Services, 523 U.S. 75 (1998)

 

Oncale v. Sundowner Offshore Services is an important case in the development of employee protections from sexual harassment, same-sex discrimination, sexual orientation discrimination, and sexual identity discrimination. Specifically, Title VII of the Civil Rights Act of 1964 — the primary federal law barring sex-based discrimination in employment — prohibits workplace discrimination and harassment that is “because of … sex.” 42 U.S.C. § 2000e-2(a)(1). This language plainly bars an employer from treating male employees better than female employees, or vice versa, and plainly bars employers from making sexual activities a condition of employment. But the text of Title VII does not specifically explain whether this “because of … sex” language also bars sexualized harassment by a straight employee against another straight employee of the same sex, or whether it bars discrimination against an employee because of his/her/their sexual orientation or gender identity.

Summary

Oncale specifically concerns the meaning of the phrase “because of…sex” in the context of same-sex harassment among straight male employees. The central decision in Oncale was that Title VII’s rule against discrimination “because of… sex” applied to sexualized harassment in the workplace between members of the same sex, even when the conduct at issue is not motivated by sexual desire. This decision was a precursor to later cases applying that same “because of … sex” language in the context of discrimination based on sexual orientation and gender identity.

Facts and Procedural Background

Oncale worked for Sundowner on an oil rig in the Gulf of Mexico. He was part of a crew of eight men. On several occasions, certain crew members subjected Oncale to “sex-related, humiliating actions … in the presence of the rest of the crew … physically assaulted Oncale in a sexual manner, and … threatened him with rape.” 523 U.S. at 77. Oncale complained to his supervisors about the behavior, but they allowed it to continue. Oncale eventually quit, and requested that his personnel file reflect that he left “due to sexual harassment and verbal abuse.” Id. Apparently all the crew members were straight, so presumably their actions were not motivated by sexual desire. Id. at 79.

Oncale sued Sundowner, claimed that the harassing behaviors directed against him by his straight male co-workers constituted discrimination “because of … sex” under Title VII. The District Court granted summary judgment for Sundowner, dismissing the case on the grounds that Oncale, being male, had no cause of action under Title VII for harassment by male co-workers. The Fifth Circuit affirmed. 83 F.3d 118 (1996).

Supreme Court Decision: Same-Sex Discrimination is Action Under Title VII

In a 9-0 decision written by Scalia, the Supreme Court reversed, holding that sex discrimination consisting of same-sex sexual harassment is actionable under Title VII. The Court’s reasoning here was that (1) under Newport News Shipbuilding & Dry Dock Co. v. EEOC, 462 U. S. 669, 682 (1983), Title VII’s prohibition of discrimination “because of … sex” protects men as well as women, and (2) under Castaneda v. Partida, 430 U. S. 482, 499 (1977), in the related context of racial discrimination in the workplace, the Court had rejected any conclusive presumption that an employer will not discriminate against members of his own race. “Because of the many facets of human motivation, it would be unwise to presume as a matter of law that human beings of one definable group will not discriminate against other members of their group.” Castaneda, 430 U.S. at 499. It therefore follows that males might discriminate against other males.

The Court’s Rationale

The Court further explained there was no justification in Title VII’s language or the Court’s precedents for a categorical rule barring a claim of discrimination “because of … sex” just because the victim and the harasser are of the same sex. Scalia explained that while male-on-male sexual harassment “was assuredly not the principal evil Congress was concerned with when it enacted Title VII … Statutory prohibitions often go beyond the principal evil to cover reasonably comparable evils, and it is ultimately the provisions of our laws rather than the principal concerns of our legislators by which we are governed.” Oncale, 523 U.S. at 79.

The Court therefore held that same-sex harassment is actionable under Title VII, so long as the conduct meets the well-established elements of a sexual harassment claim: (1) that the conduct at issue was “not merely tinged with offensive sexual connotations, but actually constituted ‘discrimina[tion] … because of … sex’ and (2) that the conduct “severe or pervasive enough to create an objectively hostile or abusive work environment[.]” Id. at 81.

The objective severity of harassment should be judged from the perspective of a reasonable person in the plaintiff’s position, considering “all the circumstances.” Id. (citing Harris v. Forklift Systems, Inc., 510 U.S. 17, 23 (1993)); see also Meritor Savings Bank, FSB v. Vinson, 477 U.S. 57, 67 (1986). Scalia further pointed out that in all harassment cases, including same-sex cases, the “severe or pervasive” inquiry requires “careful consideration of the social context in which particular behavior occurs and is experienced by its target.” Oncale at 81. For example, “[a] professional football player’s working environment is not severely or pervasively abusive, for example, if the coach smacks him on the buttocks as he heads onto the field – even if the same behavior would reasonably be experienced as abusive by the coach’s secretary (male or female) back at the office.” Id. “The real social impact of workplace behavior often depends on a constellation of surrounding circumstances, expectations, and relationships which are not fully captured by a simple recitation of the words used or the physical acts performed.” Id. at 81-82.

The Court therefore rejected Sundowner’s argument that recognizing liability for same-sex harassment would transform Title VII into a “general civility code” for the American workplace. Scalia explained that Title VII is directed at discrimination “because of” sex, not merely “conduct tinged with offensive sexual connotations.” Id. at 81. The Court also pointed out that Title VII does not reach “genuine but innocuous differences” in the ways men and women routinely interact with members of the same, and the opposite, sex. Id.

Analysis and Significance

In short, Oncale is important because it held that Title VII’s protection against workplace discrimination “because of… sex” applies to sex-based conduct between members of the same sex, even in the absence of sexual desire. This was an important early decision in the development of the rights of employees to be free from workplace discrimination because of their sexual orientation or gender identity. For example, in 2015 the EEOC cited Oncale as part of its rationale for issuing an agency decision that Title VII bars sexual orientation-based employment discrimination. Oncale therefore laid the foundation for analyzing same-sex harassment and sex-based harassment without “sexual desire” by indicating that any discrimination based on sex is actionable if it places the victim in an objectively hostile or abusive work environment, regardless of the victim’s or harasser’s gender or sexual preference.

This site is intended to provide general information only. The information you obtain at this site is not legal advice and does not create an attorney-client relationship between you and attorney Tim Coffield or Coffield PLC. Parts of this site may be considered attorney advertising. If you have questions about any particular issue or problem, you should contact your attorney. Please view the full disclaimer. If you would like to request a consultation with attorney Tim Coffield, you may call 1-434-218-3133 or send an email to info@coffieldlaw.com.  

Equal Pay Act of 1963: Equal Pay for Equal Work

The Equal Pay Act (EPA) prohibits sex-based wage discrimination between men and women in the same establishment who perform jobs that require substantially equal skill, effort, and responsibility under similar working conditions. 29 U.S.C. § 206(d). Enacted in 1963, the EPA was an amendment to the Fair Labor Standards Act of 1938 (FLSA) and (under certain circumstances) is enforced by the Equal Employment Opportunity Commission (EEOC). Here’s a link to the EEOC Compliance Manual on compensation discrimination. The forms of compensation in which the EPA requires equality include all payments made to or on behalf of employees as remuneration for employment. This ultimately covers all forms of compensation including:

  • Salary
  • Overtime pay
  • Stock options
  • Profit sharing and bonus plans
  • Bonuses
  • Vacation and holiday pay
  • Life insurance
  • Hotel accommodations
  • Cleaning or gasoline allowances
  • Reimbursement for travel expenses
  • Benefits

Substantially Equal Work

In short, the EPA requires that men and women be given equal pay for equal work in the same establishment. The jobs need not be identical, but they must be substantially equal. Determination of job equality is based on the content and requirements of the job itself, not the job title. Under the EPA, job factors and requirements are measured by looking to whether the job roles being compared entail substantially equal amounts of skill, effort, responsibility, and working conditions within the same establishment. The comparative skills of job roles are measured by looking to the experience, ability, education and training required to perform their respective daily job requirements. This means the skills required to complete the job, not what skills an individual employee has prior to taking the job. Therefore, two jobs could be considered equal under the EPA even if one of the employees holds a higher degree in another field. If the degree is not specific to the job requirements, it does not need to be considered under the EPA.  

Under the the EPA, a comparison of job effort looks to the amount of physical or mental exertion it takes to perform the necessary job requirements. If there is are two jobs within the same department, and one requires more effort (physically or mentally) than another, then lower payment for the job requiring less exertion may not violate the EPA or its regulations, regardless of whether that job is held by a female or male employee.

Similarly, under the EPA, a comparison of job responsibility turns on the degree of accountability required to perform the respective positions. If a corporate representative holds a position that requires more accountability and responsibility than another position, this may justify difference in pay between the two positions. Additionally, a comparison of jobs under the EPA may entail an evaluation of working conditions, such as physical surroundings or hazards.

Pursuing Claims for Pay Discrimination Under the EPA

If an employee believes her or his employer has run afoul of the EPA by failing to provide equal compensation for equal work, the employee can either file a charge with the EEOC or a lawsuit in court. Importantly, however, under the EPA, an employee is generally required to file a lawsuit within two years of when she received the discriminatory pay. It is important to understand that, unlike some other laws, the filing of a charge with the EEOC does not toll or extend the two-year limitations period for filing an EPA lawsuit.

Compliance Entails Increasing Pay

If an employer needs to correct a pay differential to comply with the EPA, the law requires the employer to increase the pay of the lower paid employee. The EPA specifically prohibits employers from creating pay “equality” by reducing the pay of the higher paid employee. 29 U.S.C. § 206(d)(1).

Exceptions to the EPA

The are four main exceptions to the EPA — situations in which a difference in pay between men and women who perform substantially equal work does necessarily not violate the law. These exceptions arise when the difference in pay results from (i) a seniority system; (ii) a merit system; (iii) an incentive system, i.e. a system which measures earnings by quantity or quality of production; or (iv) a differential based on any other factor other than sex. 29 U.S.C. § 206(d)(1).

These exceptions are affirmative defenses, meaning the employer has the burden of proving them. To use one or more of these exceptions in defending against a claim of unequal pay between men and women, the employer must establish that the difference in pay was the result of a real (“bona fide”) merit, seniority, or incentive system. The employer must therefore prove that the systems were bona fide, meaning they were not put in place for discriminatory purposes. To determine whether a merit, seniority, or incentive system is “bona fide”, courts may look to a variety of factors, including whether the employer used predetermined criteria to measure merit, seniority, or productivity; whether the criteria were communicated to all employees; whether the criteria were consistently applied to all employees; and whether those criteria truly were the basis for any disparity in the compensation received by male and female employees.  

The Lilly Ledbetter Act

The Lilly Ledbetter Fair Pay Act of 2009 made it easier for many employees to bring claims to recover for violations of the EPA. The Ledbetter Act was the first bill that Obama signed into law as president. The Ledbetter Act responded to a 2007 Supreme Court decision (Ledbetter v. Goodyear, 550 U.S. 618 (2007), link to decision here), which made it harder for certain workers to pursue pay discrimination claims because it interpreted the statute of limitations of pay disparity claims to run from the date the employer decided on a pay rate (often the date of hire).

In the Ledbetter case, a former longtime Goodyear employee alleged that she received poor evaluations based on her sex. Consequently, Ledbetter claimed, her pay did not increase as it should have if she had been evaluated fairly, and that by the end of her employment she was earning a significantly lower wage than her male colleagues. The jury found for Ledbetter, and awarded her back pay and damages; however, the Supreme Court ultimately threw out that verdict, on the grounds that Ledbetter’s pay discrimination claim was time-barred as to any pay decisions made more than 180 days before Ledbetter filed her charge of discrimination with the EEOC. In short, the Court held that a pay discrimination claim under Title VII could not be based on alleged events, such as the issuance of paychecks that paid women less than men for substantially equal work, that took place after the last pay decision. As a practical matter, this holding made it more difficult for workers to pursue claims of pay discrimination — particularly when the wage at issue was decided upon several years in the past — outside the applicable limitations period.

The Ledbetter Act changed that by clarifying that in pay discrimination cases, the relevant statute of limitations restarts each time the employer issues a discriminatory paycheck. The intended result of the Ledbetter Act was to make it easier for the victims of pay discrimination to recover lost wages.

This site is intended to provide general information only. The information you obtain at this site is not legal advice and does not create an attorney-client relationship between you and attorney Tim Coffield or Coffield PLC. Parts of this site may be considered attorney advertising. If you have questions about any particular issue or problem, you should contact your attorney. Please view the full disclaimer. If you would like to request a consultation with attorney Tim Coffield, you may call 1-434-218-3133 or send an email to info@coffieldlaw.com.