Employment Law Chronicle for Virginia & the District of Columbia

In Gross v. FBL Financial Services, Inc. (Gross), an important 5-4 employment law decision, the Supreme Court of the United States held that a "mixed-motive" jury instruction is "never proper" in a suit brought under the Age Discrimination in Employment Act (ADEA). A "mixed-motive" case exists where the employee presents evidence that the employer's adverse decision was motivated, in part, by unlawful discrimination even if the employer was motivated by other, lawful reasons.

In analogous Title VII cases, where an employee presents direct evidence that the employer's adverse decision was motivated in part by unlawful employment discrimination (because of race, sex, religion, national origin, or color), a burden-shifting mechanism kicks in. Instead of the norm where the burden of persuasion rests with the employee, the jury in a Title VII mixed-motive case is instructed that the employer bears the burden of persuasion to establish that it would have made the same adverse decision absent the alleged unlawful discrimination.

Based on the majority's view of differences in the statutory language of Title VII and the ADEA, the Court refused to apply Title VII's burden-shifting mechanism to ADEA claims. Under Gross, regardless of whether an employee presents direct (or other) evidence that age was a motivating factor in the employer's adverse decision, the employee always retains the burden of persuasion to establish "but-for" causation, i.e., that age discrimination was, in fact, the reason for the adverse decision. As a practical matter, Gross makes age discrimination claims, which were already difficult for employee's to establish because of the comparatively high "but-for' causation standard, ever more difficult from the employee's perspective.

Held: Vacated and remanded, THOMAS, J., delivered the opinion of the Court, in which ROBERTS, C. J., and SCALIA, KENNEDY, and ALITO, JJ., joined. STEVENS, J., filed a dissenting opinion, in which SOUTER, GINSBURG, and BREYER, JJ., joined. BREYER, J., filed a dissenting opinion, in which SOUTER and GINSBURG, JJ., joined.

In my ongoing effort to chronicle in one place (this blog) the major employment laws affecting employers in Virginia and the District of Columbia, here is an overview of the Reconstruction Era Civil Rights Acts as applied to modern-day employment discrimination lawsuits.

Continue reading "Employment Discrimination Law (Federal): Reconstruction Era Civil Rights Acts: 42 U.S.C. §§ 1981, 1983, 1985, and 1986." »

As a courtesy to employment lawyers and employers, The Employment Law Chronicle provides links to the text of key Federal, Virginia, and District of Columbia labor and employment laws published on government sites.

The DC Human Rights Act prohibits employment discrimination on the basis of race, color, religion, national origin. sex, age, marital status, personal appearance, sexual orientation, gender identity or expression, family responsibilities, genetic information, disability, matriculation, or political affiliation.

As a courtesy to employers and employment lawyers, The Employment Law Chronicle provides links to the text of key Federal, Virginia, and District of Columbia labor and employment laws published on public sites.

The Virginia Human Rights Act prohibits discrimination because of race, color, religion, national origin, sex, pregnancy, childbirth or related medical conditions, age, marital status, or disability.

Employers in Virginia, the District of Columbia and nationwide need to ensure that testing and selection procedures used to screen job applicants or existing employees for advancement or other opportunities do not have a discriminatory impact on the basis of race, sex, age, disability or other protected category. In recent years, testing and selection criteria have been a prime target of the Equal Employment Opportunity Commission's (EEOC) enforcement efforts. For example, in November 2006, the Eighth Circuit affirmed a $3 million judgment in EEOC v. Dial Corp resulting from a strength test that appeared to have excluded women from entry-level jobs. In 2007, Ford Motor Company, two of its affiliates, and the UAW entered into a $1.6 million settlement stemming from cognitive apprenticeship tests that appeared to have excluded African Americans. That settlement came on the heels of an $8.5 million settlement in a related case.

In the wake of these multi-million dollar judgments and settlements, the EEOC issued a fact sheet to assist employers in understanding how to avoid employment discrimination claims based on tests and other selection criteria.

Continue reading "EEOC Best Practices: How to Test Employees Without Violating Discrimination Laws" »