RECENT DEVELOPMENTS IN DISCRIMINATION AND HARASSMENT IN THE WORKPLACE

Transcription

1 RECENT DEVELOPMENTS IN DISCRIMINATION AND HARASSMENT IN THE WORKPLACE I. AGE DISCRIMINATION By Edward T. Ellis 1 A. Disparate Impact Claims Under the ADEA After Smith v. City of Jackson 1. The Supreme Court Finds Disparate Impact Claims Permissible Under the Age Discrimination in Employment Act In Smith v. City of Jackson, 125 S. Ct (2005), the Supreme Court ( Court ) resolved a circuit split as to whether plaintiffs could bring disparate impact claims under the Age Discrimination in Employment Act ( ADEA ) by ruling that the ADEA does in fact encompass such claims. The Court relied on the similarity of the language in ADEA 4(a)(2) and Title VII of the Civil Rights Act of 1964 ( Title VII ) 703(a)(2). Id. at These provisions are nearly identical, with the substitution of age in the ADEA for race, color, religion, sex, or national origin in Title VII. Id. at The Court had previously held that plaintiffs could bring disparate impact claims under Title VII 703(a)(2). Griggs v. Duke Power Co., 401 U.S. 424, (1971). Based on the premise that when Congress uses the same language in two statutes having similar purposes, particularly when one is enacted shortly after the other, it is appropriate to presume that Congress intended that text to have the same meaning in both statutes, the Court held that ADEA 4(a)(2) authorizes disparate impact claims. Smith, 125 S. Ct. at While allowing disparate impact claims under ADEA 4(a)(2), the Court pointed out that the scope of disparate impact liability is narrower under the ADEA than under Title VII for two reasons. Id. at First, the ADEA, unlike Title VII, contains the defense, in 4(f)(1), that an employer may take any action otherwise prohibited... where the differentiation is based on reasonable factors other than age. Id. at 1544; see also 29 U.S.C. 623(f)(1). Second, Congress passed the Civil Rights Act of 1991 ( 1991 Act ) to amend Title VII in response to the Court s holding in Wards Cove Packing Co. v. Atonio, 490 U.S. 642 (1989), a case in which the Court had narrowly construed disparate impact liability under Title VII 703(a)(2). As the 1991 Act did not amend the ADEA, the Court concluded that the narrow construction of disparate impact liability set forth in Wards Cove is applicable to the ADEA. Smith, 125 S. Ct. at The Court relied on the narrower scope of liability to affirm the lower court s dismissal of the plaintiffs disparate impact claim. Id. at It found not only that the pay plan at issue was based on reasonable, non-age factors as allowed under ADEA 4(f)(1), but also that the plaintiffs had failed to identify the specific practice being challenged as required by Wards 1 Edward T. Ellis is the chair of the employment and labor practice at Montgomery, McCracken, Walker & Rhoads, LLP, 123 South Broad Street, Philadelphia, Pennsylvania Erin Siuda, a summer associate at Montgomery, McCracken and a law student at George Washington University in Washington, D.C., assisted in researching and drafting this article.

2 Cove. Although the ADEA authorized disparate impact claims, therefore, the narrower scope of disparate impact liability under the ADEA allowed the defendants to win the case. Id. at The Application of Smith v. City of Jackson Most lower courts that have addressed the issue since Smith have recognized that the ADEA allows for disparate impact claims, but have denied relief under this theory of liability for one reason or another. In Duggan v. Orthopaedic Institute of Ohio, Inc., 365 F. Supp. 2d 853 (N.D. Ohio 2005), the District Court for the Northern District of Ohio affirmed the availability of a disparate impact claim under the ADEA. It then found that the plaintiff lacked standing because the policy change about which he was complaining took place after he had left his job. Id. at 862 n.5. It found further that even if the plaintiff did have standing, his disparate impact claim failed because the employer s actions were based on a reasonable factor other than age as allowed by ADEA 4(f)(1). Id. at 862. In Wilson v. MVM, Inc., No. Civ. A , 2005 WL (E.D. Pa. May 24, 2005), the District Court for the Eastern District of Pennsylvania relied on ADEA 4(f)(1) in denying the plaintiff s summary judgment motion. The District Court for the Middle District of Georgia, in Davis v. Valley Hospitality Services, LLC, -- F. Supp. 2d --, No. 4:04-CV-20 (CDL), 2005 WL (M.D. Ga. Apr. 25, 2005), granted the defendant s summary judgment motion on the plaintiffs ADEA disparate impact claim. While recognizing the availability of such a claim, the court found that the appropriate avenue for addressing the plaintiffs allegations of facially discriminatory policies was a disparate treatment claim. Id. at *8. In Ackerman v. Home Depot, Inc., No. Civ. A. 304CV0058N, 2005 WL (N.D. Tex. May 31, 2005), the District Court for the Northern District of Texas acknowledged the Smith holding, but found that the plaintiff did not present statistical proof that the defendant adhered to policies disparately impacting older workers. B. EEOC Retiree Health Benefit Regulations In Erie County Retirees Association v. County of Erie, 220 F.3d 193 (3d Cir. 2000), the Third Circuit Court of Appeals held that an employer that provides lesser health care benefits to Medicare-eligible retirees than to non-medicare-eligible retirees violates the ADEA unless it meets the statutory equal cost/equal benefit exception. The equal cost/equal benefit exception allows the coordination of retiree health benefits with Medicare only if (1) the cost incurred by the employer for health benefits provided to Medicare-eligible retirees is equal to the cost incurred for health benefits provided to non-medicare-eligible retirees, or (2) the total health benefits, including those provided by Medicare, received by Medicare-eligible retirees are equal to the health benefits received by non-medicare-eligible retirees. Id. at 216. see also 29 U.S.C. 623(f)(2)(B)(i). Following Erie County, many employers dropped retiree benefits altogether due to the increased costs associated with providing equal benefits to all retirees. In an effort to reverse the negative impact of Erie County, the EEOC approved a rule exempting employer coordination of retiree health benefits with Medicare or comparable state-sponsored health benefits programs from the ADEA. -2-

3 In AARP v. EEOC, No. 05-CV-509, 2005 WL (E.D. Pa. Mar. 30, 2005), the District Court for the Eastern District of Pennsylvania addressed the validity of this proposed rule, which would allow employers to adopt the same type of policy that the Erie County court had rejected. While not disputing that the rule conflicted with the Erie County holding, the EEOC argued that ADEA 9 authorized it to create exemptions to the ADEA so long as they are reasonable and necessary and proper in the public interest. Id. at *2; see also 29 U.S.C It claimed that the proposed rule fit these parameters because employers would eliminate retiree benefits altogether without such an exception. AARP, 2005 WL , at *5. The District Court rejected the EEOC s argument on three grounds. First, an agency cannot issue rules that are contrary to congressional intent. The Third Circuit had previously held in Erie County that Congress intended for the ADEA to apply when an employer reduces health benefits based on Medicare eligibility. See Erie County, 220 F.3d 193 at 215. The EEOC, therefore, could not issue an exemption that was contrary to this intent. AARP, 2005 WL , at *5. Second, an agency s rulemaking authority does not take precedence over the substantive provisions of the statute under which the agency exercises its rulemaking authority. While the EEOC had rulemaking power under ADEA 9, its proposed rule had to be evaluated according to the substantive provisions of the ADEA rather than according to the rulemaking provision itself. Id. Third, an agency has the authority to issue rules where Congress has left an ambiguity in the law. The EEOC, therefore, was free to issue rules to fill the gaps in Title VII that were left by Congress. In the case of the ADEA s applicability to retiree benefits, however, the Third Circuit had previously determined in Erie County that Congress had left no relevant gap. Id. at *6. The District Court held, therefore, that the EEOC s proposed rule was invalid and permanently enjoined the implementation of the exemption. On May 31, 2005, the EEOC filed a timely notice of appeal of the court s decision, which is currently pending in the Third Circuit. II. SEX DISCRIMINATION A. Same-Sex Cases 1. The Applicability of Title VII to Same-Sex Harassment In Oncale v. Sundowner Offshore Services, Inc., 523 U.S. 75 (1998), the Court held that sexual harassment claims were not limited to harassment by a person of the opposite sex, but also may be based on harassment by a person of the same sex, even if that person is not a homosexual. The Court identified three ways in which a same-sex harassment plaintiff could prevail: (1) the plaintiff could present evidence that the alleged harasser was motivated by sexual desire; (2) the plaintiff could present evidence that the harasser was motivated by a general hostility to people of the plaintiff s gender in the workplace; or (3) the plaintiff could present evidence of differential treatment of the sexes in a mixed-gender workplace. Id. at The Oncale Court was not concerned that its holding would turn Title VII into a general civility code for the workplace for two reasons. First, Title VII claims, even when based on harassment by someone of the same sex, are available only when an employee endures -3-

4 discrimination because of sex. The critical issue, Title VII s text indicates, is whether members of one sex are exposed to disadvantageous terms or conditions of employment to which members of the other sex are not exposed. Id. at 80 (quoting Harris v. Forklift Sys., Inc., 510 U.S. 17, 25 (1993) (Ginsburg, J., concurring)). Second, Title VII only prohibits behavior that is so objectively severe and pervasive that it alters the conditions of the victim s employment. Anything less may be offensive, but does not fall within the scope of Title VII. Id. at Recent Treatment of Same-Sex Harassment Cases by the Circuit Courts In Hamm v. Weyauwega Milk Products, Inc., 332 F.3d 1058 (7th Cir. 2003), the Seventh Circuit rejected a male plaintiff s allegation of discrimination because of sex by his male coworkers. The court found that the plaintiff failed to establish that he was discriminated against because of sex as required by Title VII. Id. at The incidents about which the plaintiff was complaining were related to his coworkers negative view of his job performance or perception of his sexual orientation. Id. at Even those instances involving sexuallyexplicit insults were not harassment in violation of Title VII because they were motivated by the work related frustrations of the plaintiff s coworkers rather than by the plaintiff s sex. Id. at In McCown v. St. John s Health System, Inc., 349 F.3d 540 (8th Cir. 2003), the plaintiff, a male construction worker, filed suit against his employer alleging that his male supervisor continually subjected him to sexually offensive conduct, such as grabbing the plaintiff by the buttocks and telling the plaintiff to squeal like a pig, in violation of Title VII. The Eighth Circuit found that although the supervisor s conduct was inappropriate and vulgar, it did not constitute harassment because of sex. Id. at 544. The court considered the three ways that a plaintiff can prove same-sex harassment as provided in Oncale, and found that the plaintiff could not meet any of them. First, the plaintiff did not produce evidence that his supervisor was motivated by sexual desire towards him. Second, the plaintiff did not produce evidence that his supervisor was motivated by a general hostility to men in the workplace. Third, the plaintiff could not produce direct comparative evidence of how his supervisor treated males versus females in a mixed-gender workplace because he only supervised men in an area where women were not present. Id. at In Pedroza v. Cintas Corp. No. 2, 397 F.3d 1063 (8th Cir. 2005), the Eighth Circuit also held that the female plaintiff failed to show that she was subjected to harassment because of sex by her female coworker. The coworker repeatedly blew kisses at the plaintiff, used sexually tinged foul language around the plaintiff, and rubbed her own buttocks while looking at the plaintiff. Id. at The relevant workplace was entirely female, and the plaintiff conceded that her coworker did not show hostility towards other women in the workplace, so the court focused on whether the evidence showed the coworker to be a homosexual and therefore motivated by sexual desire towards the plaintiff. Id. at The evidence of sexual desire was limited to the nature of the harassing actions themselves. The plaintiff argued that the court should not compare her case to same-sex harassment cases involving men in which the gendervulgar behavior was not indicative of sexual desire, such as McCown. The plaintiff claimed that such bawdy, locker room behavior is not as commonplace among females, [so] a reasonable jury could more readily infer actual sexual desire based on similar statements or acts by females. Id. at The court rejected this argument, declining to establish different -4-

5 standards for male and female same-sex harassment cases. It then held that the evidence was not sufficient to suggest that the plaintiff s coworker was motivated by sexual desire and affirmed the district court s grant of summary judgment in favor of the defendant. Id. at In Dick v. Phone Directories Co., 397 F.3d 1256 (10th Cir. 2005), the Tenth Circuit found that there was a genuine issue of material fact as to whether harassing conduct on the part of the female plaintiff s coworkers and supervisor, all of whom were female, was motivated by sexual desire. The court made it clear that the relevant issue under the first evidentiary route discussed in Oncale is whether the harasser was motivated by sexual desire, not whether the harasser is a homosexual. Id. at While the fact that the harasser is a homosexual may support a finding that the harassment was motivated by sexual desire, it is not necessary. Id. at Applying this analysis to the facts of the case, the court found that a reasonable jury could interpret the sexually explicit insults, gestures, games, and touches about which the plaintiff was complaining as motivated by sexual desire, so it reversed the district court s summary judgment order in favor of the defendant. Id. at 1266, B. Gender Stereotyping 1. Gender Stereotyping Claims Under Title VII In Price Waterhouse v. Hopkins, 490 U.S. 228 (1989), the Court held that employment discrimination directed at a person because that person does not conform to traditional gender stereotypes is covered by Title VII. The plaintiff was a female senior manager whose partnership candidacy was put on hold for a year, rather than being granted or denied, based partly on gender stereotyping comments made in employment evaluations completed by her superiors. Id. at They described the plaintiff as macho and suggested that she take a course at charm school. In order to improve her chances at partnership, a member of the evaluating board told the plaintiff that she should walk, dress, and speak in a more feminine manner. Id. at 235. The Court held that such comments were gender stereotyping in violation of Title VII, noting that we are beyond the day when an employer could evaluate employees by assuming or insisting that they matched the stereotype associated with their group. Id. at The Availability of Gender Stereotyping Claims to Both Men and Women The lower courts have consistently held that Price Waterhouse applies to gender stereotyping of both men and women. In Higgins v. New Balance Athletic Shoe, Inc., 194 F.3d 252 (1st Cir. 1999), the First Circuit held that Price Waterhouse is equally applicable to men and women, pointing out in dictum that just as a woman can ground an action on a claim that men discriminated against her because she did not meet stereotyped expectations of femininity, a man can ground a claim on evidence that other men discriminated against him because he did not meet stereotyped expectations of masculinity. Id. at 261 n.4; see also Smith v. City of Salem, 378 F.3d 566, 574 (6th Cir. 2004); Simonton v. Runyon, 232 F.3d 33, 37 (2d Cir. 2000). The Higgins court rejected the plaintiff s contention of gender stereotyping, however, because he had failed to present this argument to the district court, thereby forfeiting it on appeal. Higgins, 194 F.3d at