At Work: Solutions for Employers & Employees

Last June, many were surprised by the Supreme Court's decision in Gross v. FBL Financial, which held plaintiffs bringing claims for age discrimination under the Age Discrimination in Employment Act (ADEA) to a higher standard of proof than is required for plaintiffs who sue under other statutes for discrimination on the basis of gender, race, religion or pregnancy. The FBL Financial decision, authored by conservative Justice Clarence Thomas, was roundly criticized by advocates for employees. Congress is now considering a legislative override, a proposal that was just endorsed by the New York Times.

http://www.nytimes.com/2009/10/13/opinion/13tue3.html?_r=1&ref=opinion

Current Democratic control of Congress may mean that H.R. 3721, which would overturn the FBL Financial decision, likely will be passed in the near future, a reality that impacts strategy for litigants on both sides of age discrimination claims.

Continue reading "Congress Weighs Legislative Override of Supreme Court Age Discrimination Decision" »

Posted by Tiffanie Benfer at 05:27 PM | Permalink | Comments (0) | TrackBacks (0)

Last week's 5-4 decision in Gross v. FBL Financial Services, authored by conservative Justice Clarence Thomas, took several surprising turns. First, the Court addressed an issue -- standard of proof for claims under the Age Discrimination in Employment Act (ADEA) -- that was not even raised by the parties. Second, the Court declined to apply settled caselaw and evidence of Congressional intent for other statutes barring discrimination. The end result is an interpretation of the ADEA that makes the burden of proof for older workers bringing federal claims of age discrimination much higher than it is for workers alleging other forms of discrimination.

What does the FBL Financial decision say?

The Court’s decision turns on shifting burdens of proof in age discrimination cases, the kind of topic that makes non-lawyer eyes glaze over. To a large extent, it comes down to the difference between “a” and “the.” Under Title VII (which protects workers from discrimination on the basis of classifications such as race and gender), when there is a case of “mixed motives,” there is a shifting burden of proof, and employees must show that the protected class was a motivating factor. The FBL Financial decision basically takes away the option of arguing mixed motives in an age discrimination case – employees must argue that age was the motivating factor, not just a motivating factor.

What does FBL Financial mean in practice?

Continue reading "Supreme Court Raises the Bar for Older Workers" »

Posted by Tiffanie Benfer at 10:55 AM | Permalink | Comments (0) | TrackBacks (0)

Barack Obama signed the Lilly Ledbetter Fair Pay Act yesterday. I've written about this legislation before, and won't repeat it today, except to say that this is a sign that the current Congress is willing to take action to protect employees' rights, and a sign that Congress is willing to overrule the Supreme Court when it will not fully implement Congressional intent.

Here is an excerpt from President Obama's remarks:

"Equal pay is by no means just a women's issue -- it's a family issue. It's about parents who find themselves with less money for tuition and child care; couples who wind up with less to retire on; households where one breadwinner is paid less than she deserves; that's the difference between affording the mortgage -- or not; between keeping the heat on, or paying the doctor bills -- or not. And in this economy, when so many folks are already working harder for less and struggling to get by, the last thing they can afford is losing part of each month's paycheck to simple and plain discrimination.

"So signing this bill today is to send a clear message: that making our economy work means making sure it works for everybody; that there are no second-class citizens in our workplaces; and that it's not just unfair and illegal, it's bad for business to pay somebody less because of their gender or their age or their race or their ethnicity, religion or disability; and that justice isn't about some abstract legal theory, or footnote in a casebook. It's about how our laws affect the daily lives and the daily realities of people: their ability to make a living and care for their families and achieve their goals.

"Ultimately, equal pay isn't just an economic issue for millions of Americans and their families, it's a question of who we are -- and whether we're truly living up to our fundamental ideals; whether we'll do our part, as generations before us, to ensure those words put on paper some 200 years ago really mean something -- to breathe new life into them with a more enlightened understanding that is appropriate for our time."

-- Pres. Barack H. Obama, in remarks at signing ceremony for the Lilly Ledbetter Fair Pay Act of 2009, Jan. 29, 2009

Posted by Tiffanie Benfer at 11:28 AM | Permalink | Comments (0) | TrackBacks (0)

By Tiffanie Benfer

Just this morning, the Court issued a decision that sets forth a broad interpretation of the anti-retaliation provision of Title VII, and concluded it applies to employees participating in an internal investigation of Title VII violations. The decision in Crawford v. Metropolitan Government of Nashville will make it easier for employees to bring retaliation claims. It serves as a caution to employers, who should be aware that they may be liable for retaliation even if a court finds that there is no merit to the underlying discrimination claim.

Continue reading "The Supreme Court Recognizes a Broad Interpretation of the Anti-retaliation Provision of Title VII " »

Posted by Tiffanie Benfer at 12:44 PM | Permalink | Comments (0) | TrackBacks (0)

By Tiffanie Benfer, Esq.

January is National Stalking Awareness Month. I think it is quite poetic that on January 9, 2009, the Supreme Court considered Ms. Dawn Martin’s Petition for rehearing, which asks the Court to reconsider whether her termination for reporting a stalker in the workplace falls within the scope of the anti-retaliation provision of Title VII. Ms. Martin was stalked in her workplace, and then was subsequently fired for asking her employer to implement existing security procedures to keep the stalker out of the workplace. If the lower court’s decision is not reversed, women like Ms. Martin will be forced to choose between their safety and their job. The Court previously denied Ms. Martin’s Petition for Certiorari in 2008.

Ms. Martin asks that the Court reconsider her work place stalking case in light of the Court’s consideration of Crawford v. Metropolitan Government of Nashville and Davidson County. http://www.oyez.org/cases/2000-2009/2008/2008_06_1595/ Oral argument in the Crawford matter took place on October 8, 2008, the Court considered: “Does the anti-retaliation provision of Title VII of the Civil Rights Act apply to employees fired for participating in an internal investigation of sexual harassment?”

Continue reading "The Supreme Court Considers Again the Scope of Title VII's Anti-Retaliation Provision" »

Posted by Tiffanie Benfer at 10:24 AM | Permalink | Comments (0) | TrackBacks (0)

TWO, FOUR, SIX, EIGHT, WOMEN SAY THE HOUSE IS REALLY GREAT!

The House of Representatives, that is… Two hours ago, the House of Representatives passed two bills that will help prevent gender based pay discrimination. The Lilly Ledbetter Fair Pay Act reverses the decision of the Supreme Court, which I wrote about in my first ever entry on this blog. The decision had interpreted the statute of limitations for Title VII so narrowly that it made it impossible in practical terms for those who suffered pay discrimination to seek recourse.

The Paycheck Fairness Act stiffens penalties for gender based pay discrimination. It also addresses a related problem, protecting workers who share pay information with their colleagues from retribution by the employer. This protection is necessary because employers who forbid employees from sharing pay information are effectively preventing the employees from learning about pay discrimination.

These were just the second and third pieces of legislation voted on by the House since it resumed sessions on Tuesday. Last year, the Senate struck down the Lilly Ledbetter Fair Pay Act. It should pass handily in the newly elected Senate.

This looks like a signal for sea change in direction after the conservative Bush years. The conservative majority of the Supreme Court may continue to try to narrowly interpret civil rights legislation, but Congress has sent a strong message – through the ADA Amendments Act (which I previously wrote about) and these new laws – that it will take swift action to undo the damage done by the Court. It will be interesting to see if Congressional action to overturn Supreme Court decisions tempers the "conservative activism" of this Supreme Court the next time it is called on to interpret civil rights legislation.

Here's a link about the vote: http://money.cnn.com/2009/01/09/news/economy/pay_equity/

Posted by Tiffanie Benfer at 05:53 PM | Permalink | Comments (0) | TrackBacks (0)

At the last Presidential debate John McCain talked about Joe the Plumber and the media swooned. The anecdote was simple, easily understood, and appealing. So what if the real Joe isn't really a plumber? Never let the truth get in the way of a good story...

Barack Obama countered with the true story of Lilly Ledbetter, but nobody swooned. "Huh?" was the more common response. Ledbetter's story doesn’t fit nicely into a sound bite, and it's got all that darn complexity that comes with the truth, so why should we take the trouble to understand it?

It is worth knowing Lilly Ledbetter’s story because it says something important about employment law and something profound about the Supreme Court. Here’s the Ledbetter story, in a nutshell:

Continue reading "Joe the Plumber and Lilly ... who?" »

Posted by Tiffanie Benfer at 10:57 AM | Permalink | Comments (0) | TrackBacks (0)