Welcome to the Employment Law section of our webpage. Employment law issues are complex, often subject to state and local law (not ordinarily covered on CLIC pages) as well as federal law. This front page will reflect our most current information on employment law affecting educational institutions.
American Council On Education Comments on Proposed Rule Requiring Federal Contractors to participate in the E-Verify System: Dated August 11, 2008; addressed to the GSA
Meacham v. Knolls Atomic Power Laboratory, 128 S.Ct. 2395 (2008)
Knolls, as part of an involuntary reduction in force, told its managers to score their employees on the basis of their “performance,” “flexibility,” and “critical skills.” The scores were added up with points given for years of service, and then the total determined who would be laid off. Thirty of the thirty-one employees terminated for having the lowest scores were 40 years of age or older. The employees claim that the reduction in force had a disparate impact on the older employees, violating the ADEA. The Supreme Court held that an employer bears both the burden of production and the burden of persuasion when proving that it used a “reasonable factor other than age” for its employment policy or action which has a disparate impact on an employee over the age of 40.
The *reasonable factor other than age*(which appeared alongside the BFOQ defense in the statute) was found to be an affirmative defense, in the same manner as BFOQ, and thus the defendant bears the burden of proof of showing reasonableness.
Where the factor is clearly reasonable, the additional burden on the employer is minimal; where it is not, more evidence is required to go from production to persuasion. However, the Court did reason that an ADEA plaintiff cannot just allege that a general policy has a disparate impact on older workers, but rather, they must identify a specific employment practice that has resulted in a disparity. See Supreme Court Rules Employers Bear Burden of Proving Reasonableness of Employment Policies and Actions, Jackson Lewis newsletter, June 20, 2008.
Gomez-Perez v. Potter, Postmaster General, No. 06-1321 (U.S. Supreme Court May 27, 2008)
The Court held that under the federal-sector provision of the Age Discrimination in Employment Act (ADEA), a federal employee may bring a retaliation claim against a federal employer even though the statutory language does not specifically authorize such a claim. The Court read the general statutory phrase of the federal-sector provision “discrimination based on age” to include retaliation based on the filing of an age discrimination complaint, despite the fact that the ADEA’s private-sector provision explicitly lists retaliation under prohibited employer practices and the federal sector text does not. See § 623(d) and 633(a). The Court argued that retaliation is another form of intentional discrimination because not only is it an intentional act but the employee is subject to differential treatment by their employer. See Jackson v. Birmingham Bd. Of Ed., 544 U.S. 167 (2005). See the SCOUT WIKI analysis of this opinion.
The respondent Humphries claimed that his employer dismissed him because of his race and because he complained to managers that a black co-employee was also dismissed on the basis of race. Humphries brought suit under Title VII and 42 USC § 1981. The Title VII case was dismissed on procedural grounds.
In ruling on the 1981 claim, the Court found that an employee of a private employer can bring a retaliation claim under 42 U.S.C. § 1981, which gives “[a]ll persons…the same right…to make and enforce contracts…as enjoyed by white citizens.” The basic question before the Court was whether the provision encompasses a complaint of retaliation against a person who has complained about a violation of another person’s contract-related “right.” The Court based its reasoning on Sullivan v. Little Hunting Park, Inc., 396 U.S. 229 (1969), where § 1982, which provides that “all citizens…shall have the same right, …, as is enjoyed by white citizens…to inherit, purchase, lease, sell, hold, and convey real and personal property,” was said to encompass retaliation claims. Since 1991, federal appeals courts have uniformly interpreted § 1981 as encompassing retaliation actions, and have also repeatedly construed §§ 1981 and 1982 similarly. 1981 has a longer statute of limitiations than Title VII, and also contains no limitations on the amount of punitive and pain and suffering damages. In addition, a plaintiff has four years to file a suit under 1981, unlike the 300 statute of limitations under Title VII. For more see Supreme Court Gives Green Light for Retaliation Claims under Two Civil Rights Statutes, by Jackson Lewis, posted May 28, 2008.
OCR Case Processing Manual: The March 2008 Case Processing Manual (CPM) sets forth OCR procedures for investigating complaints. See the notice specifying the revisions made to the manual.
Proposed Rule; Disparate Impact Under the Age Discrimination in Employment Act, 73 Fed. Reg. 16807 (March 31, 2008)
The Equal Employment Opportunity Commission is issuing this notice of proposed rulemaking
to address issues related to the United States Supreme Court's decision in Smith v. City of Jackson. The Court ruled that disparate impact claims are cognizable under the ADEA but that liability is precluded when the impact is attributable to a reasonable factor other than age. Current
EEOC regulations interpret the ADEA as prohibiting an employment practice that has a disparate impact on individuals within the protected age group unless it is justified as a business necessity. This proposed rule would states adopts the "reasonable factor other than age" language. The proposed rule also states that an individual challenging an allegedly unlawful employment practice bears the burden of isolating and identifying the specific employment practice responsible for the adverse impact.
Federal Express Corp. v. Holowecki, (No. 06-1322) U.S. Supreme Court, Feb. 27, 2008
The question in this case was whether a completed EEOC questionnaire form along with a six page affidavit equaled a charge for EEOC purposes under the ADEA. In this case, even though the EEOC did not notify FedEx or conduct an investigation or conciliation, the Court ruled that any document filed with the EEOC that can reasonably be construed as a request for action to protect an employee's rights or otherwise settle a dispute constitutes a discrimination charge under the ADEA. See the Winston and Strawn Labor and Employment Briefing titled: Supreme Court Adopts EEOC Standard Regarding Whether a Filing Constitutes a Charge. The EEOC was urged by the Court to revise its forms and procedures.
FMLA Proposed Rules; 73 Fed. Reg. 7875 (Feb. 11, 2008)
This proposed rule contains a number of technical changes to the FMLA regulations, including clarification of the rules for substituting paid leave for unpaid leave. See the Jackson Lewis article titled Much Anticipated Proposed Revisions to FMLA Regulations Released (Feb. 11, 2008) and also The Department of Labor web page on the proposed changes, which includes a Fact Sheet and FAQ. Comments can be submitted online until midnight April 11, 2008.
links updated 6/10/8 rab
Last Revised 24-Aug-08 12:14 PM.
