In late January 2019, the Seventh Circuit Court of Appeals ruled that the Age Discrimination in Employment Act (“ADEA”) does not allow outside job applicants to bring disparate impact claims. The plaintiff in the case, Dale Kleber, an attorney, is now asking the Supreme Court to review that decision.
Facts and Procedural History
The U.S. Supreme Court held yesterday that the Age Discrimination in Employment Act (ADEA) applies to state and local government employers, regardless of their size. In doing so, the Court unanimously adopted the Ninth Circuit’s reading of the statute when four other Circuits held the opposing position.
On June 14, 2017, the Equal Employment Opportunity Commission held a public meeting entitled “The ADEA @ 50 – More Relevant Than Ever,” to commemorate the Age Discrimination in Employment Act’s 50th anniversary and to “explore the state of age discrimination in America today and the challenges it poses for the future.” Participants in the meeting included Victoria Lipnic, newly-appointed Chairman of the EEOC, and various workers’ advocates who provided their thoughts on the perceived increasing prevalence of age discrimination in the workplace. Despite the enactment of the ADEA a half-century ago, the participants cited various statistics demonstrating the difficulty still facing older individuals in the workplace. This discrimination faced by older workers in an aging-American workforce coupled with various statements by Chairman Lipnic regarding the ADEA are signals to employers that ADEA enforcement may receive an increased focus during the Trump administration. In a previous post, we discussed the impact of Chairman Lipnic’s appointment and the direction of the EEOC under her new leadership and highlighted that ADEA enforcement would be one of the agency’s main focuses.
On October 5, 2016, the Eleventh Circuit, sitting en banc, held that an unsuccessful job applicant “cannot sue an employer for disparate impact [under § 4(a)(2) of the ADEA] because [an] applicant has no ‘status as an employee.’” Villarreal v. R.J. Reynolds Tobacco Co., --- F.3d ---, No. 15-10602, 2016 WL 5800001, at *1 (11th Cir. Oct. 5, 2016).
In February of 2016, the Equal Employment Opportunity Commission (“EEOC”) released detailed information and statistics summarizing the charges of discrimination that the agency received throughout its 2015 fiscal year. The EEOC is the administrative agency charged with implementing and enforcing a number of federal anti-discrimination employment statutes, including Title VII of the Civil Rights Act of 1964 (“Title VII”), the Age Discrimination in Employment Act (“ADEA”), and the Americans with Disabilities Act (“ADA”). Under each of these statutes, employees seeking to bring a claim of unlawful discrimination, harassment, or retaliation must first file a charge with the EEOC. The recently released report provides helpful information regarding the types of charges that employees filed in the 2015 fiscal year, which ran from October 1, 2014 to September 20, 2015.
On December 7, 2015, the United States District Court for the Western District of Pennsylvania permitted a plaintiff to pursue discrimination claims alleging that she had been forced to retire as a result of her age and disability status—despite the fact that she had voluntarily agreed to retire as part of a union grievance settlement. This case, Melan v. Belle Vernon Area School District, serves as a warning to employers settling grievances under a collective bargaining agreement that implicate employees’ federally protected rights.
In the past few months, the EEOC has filed two federal lawsuits challenging what might be considered “run of the mill” separation agreements. Such separation or severance agreements have become a relatively common practice when the employment relationship is terminated, as the employer can offer a severance payment in exchange for a broad release of potential claims. These agreements provide employers with the finality that is necessary for making business decisions, risk assessments, long-term plans, and the like. In cases in which there are potentially viable claims, settling them immediately avoids the time and expense of litigation. And even if the employee would not have had any viable claims against the employer, merely avoiding the possibility of litigation and its costs is usually well worth the amount of the severance payment. The indication that EEOC is taking a closer look at these agreements is thus concerning to employers and the lawyers who represent them.
The EEOC recently voted to move forward on new regulations that will likely make it easier for older workers to bring disparate impact claims, and harder for employers to defend against such claims. The EEOC is taking the position that employers have to prove their choices are reasonable when adopting policies that might adversely affect older workers, and the rules provide several guidelines for consideration. In light of the new regulations, employers should revisit the factors used in making hiring, promotion, and termination decisions and take steps to minimize the use of subjective criteria and procedures. Employers should also consider the likelihood that litigation costs may increase as more cases may survive summary judgment, and consult with legal counsel to determine whether additional precautions must be put into place to proactively address potential disparate impact issues.
In recent months the federal government has announced a number of initiatives designed to increase the employment of individuals with disabilities in both the private and government sectors. These measures send a clear message to employers: audit your practices now to ensure adequate outreach and accessibility to the disabled.
Earlier this summer the House Judiciary Committee on the Constitution, Civil Rights, and Civil Liberties held hearings on H.R. 3721, a/k/a the “Protecting Older Workers From Discrimination Act” (POWADA), which was introduced in the wake of the Supreme Court’s controversial 5-4 decision in Gross v. FBL Financial Services, Inc. In the decision written by Justice Clarence Thomas, the Supreme Court held that under the Age Discrimination in Employment Act (ADEA), a plaintiff pursuing a disparate treatment claim for age discrimination must prove, by a preponderance of the evidence, that the employee would not have suffered an adverse employment action “but for” his age. The Court held that the text of the ADEA did not authorize “mixed motives” claims, and that the burden of persuasion does not shift to the employer, even when there is evidence that the plaintiff’s age was a motivating factor in the adverse decision.
The U.S. Court of Appeals for the Ninth Circuit recently held—consistent with other courts that have considered the issue—that “insurance agents are independent contractors and not employees for purposes of various federal employment statutes,” including ERISA, the ADEA, and Title VII. In Murray v. Principal Financial Group, Inc., case number 09-16664, the panel unanimously affirmed a district court order granting summary judgment in favor of a purported employer because it found that the plaintiff was an independent contractor, not an employee entitled to the protections of Title VII. The panel’s opinion clarifies the appropriate test for distinguishing between employees and independent contractors in the context of Title VII, and concludes that despite apparent precedent for multiple tests, there is, in fact, only one.
Committees in both the House and the Senate heard testimony this week regarding the Protecting Older Workers Against Discrimination Act (H.R. 3721 and S. 1756). Democrats introduced the Act last fall with hopes of restoring employees’ rights under the Age Discrimination in Employment Act (“ADEA”) by overturning the Supreme Court’s decision in Gross v. FBL Fin. Servs. Inc., 557 U.S. __ (2009).
A new proposed rule by the Equal Employment Opportunity Commission provides new guidance in determining what constitutes a “reasonable factor other than age” in defending against a claim under the Age Discrimination in Employment Act. The EEOC introduced the proposed rule on February 18, 2010 and is currently soliciting comments until Monday, April 19, 2010.
The Obama Administration announced on February 1, 2010, that it requested $385.3 million for the Equal Employment Opportunity Commission for fiscal year 2011. In addition, the administration requested $162 million for the Civil Rights Division of the Department of Justice. Significantly, the requests represent an $18 million dollar budget increase for the EEOC and a $17 million dollar budget increase for the DOJ Civil Rights Division.
On July 15, 2009, the EEOC issued guidance entitled "Understanding Waivers of Discrimination Claims in Employee Severance Agreements." In this guidance, the EEOC generally explains the waiver of discrimination claims through release agreements and answers questions employees may have about the effect of those agreements on the filing of charges of discrimination and on severance pay. These questions include the following: "May I still file a charge with the EEOC if I believe I have been discriminated against based on my age, race, sex or disability, even if I signed a waiver ...
President Obama recently nominated Victoria A. Lipnic for a seat on the five-member Equal Employment Opportunity Commission (EEOC). Lipnic is Republican, with an extensive background in employment law. During the prior Administration, she served as Assistant Secretary of Labor for Employment Standards from 2002-2009. In that capacity, Lipnic oversaw the Department of Labor’s largest agency, and led the teams that revised the Part 541 overtime regulations under the Fair Labor Standards Act (FLSA), and the Family and Medical Leave Act (FMLA) regulations.
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- News & Events
- Ninth Circuit
- NLRA
- NLRB
- NLRB Poster
- NLRB; NLRA; Labor Law; Union; Collective Bargaining; Workplace Rights
- NLRB; Property Rights; Misclassification
- NLRB; Union; Collective Bargaining Agreement
- No-Poach Agreements
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- Noah’s Ark
- Noel Canning
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- OFCCP Developments
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- Off Duty Conduct
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- Offshoring
- OLMS
- omicron
- Ondray Harris
- Ondray T. Harris
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- Oregon
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- OSHA
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- PAGA
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- paid time off
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- Patricia Shiu
- Pattern and Practice
- Paulsen v. Renaissance Equity Holdings
- Pay
- Pay and Promotions
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- pay disclosure
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- Pay Reporting
- pay scale
- Pay Secrecy
- Pay Transparency
- Pay/Compensation
- Paycheck Deductions
- Paycheck Fairness Act
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- Payroll Debit Cards
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- PBGC
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- PCORI
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- Penalties
- Penalty
- Pennsylvania
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- Perfectly Clear Successor
- Performance and Accountability Report
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- Personal Jurisdiction; FLSA; Class Actions; Collective Action; General Jurisdiction; Specific Jurisdiction; Rule 23
- Personnel Policies
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- Qualified Plans
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- Race Discrimination
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- Range
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- Reasonable Accommodation
- Reasonable Accommodations
- Recess Appointments
- Recordkeeping
- recruiting
- Reduction-in-Force
- Register Guard
- Regular Rate
- Regular Rate of Pay
- Regulation
- Regulations
- Regulatory Compliance
- Rehabilitation Act
- Reilly Moore
- Reimbursement
- Reimbursements
- release
- Religion
- Religious Accommodation
- Religious accommodation; Title VII; SCOTUS; Supreme Court; Third Circuit
- Religious Accommodations
- Religious Beliefs
- Religious Discrimination
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- Religious Institutions
- remedies
- Remote Work
- remote workforce
- Reopen Workplace
- Reopening Business
- Reopening Workplace
- Repeal
- report
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- Representation Election
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- Reprisal
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- Reproductive Rights
- Rescind
- RESPECT Act
- rest breaks
- Restaurant
- Restaurant Industry
- Restaurants
- Restoring Balance and Fairness to the National Labor Relations Board
- restriction
- Restrictive Covenants
- Restrictive Covenants Act
- Retail
- Retail Litigation Center
- Retaliation
- Retirement Plans
- Retirement Savings
- Return to Work
- Revenue Procedure 2013-12
- Revenue Ruling 2014-9
- Ricci v. DeStefano
- Richard Griffin
- RICO
- RIF
- RIFs
- right of first refusal
- Right to Disconnect
- Right to Know
- Right to Work
- Right-To-Sue
- Rising Star
- Rite Aid and Lamons Gasket
- Robert Quackenboss
- Roland Juarez
- Roland Juarez; Los Angeles Business Journal
- Roland M. Juarez
- Rollovers
- Roth
- Rounding Policy
- Rounding Time
- Rule 23
- Rule 68 Offer
- Rule-Making
- Rulemaking
- Ryan A. Glasgow
- Ryan Bates
- Ryan Glasgow
- Sabbath
- Safety
- Safety Incentives
- Salary
- Salary Basis Test
- Salary History
- Salary History Bans
- Salary History Inquiries
- Salary Inquiry
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- Sales Commissions
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- San Francisco
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- Sanjee Weliwitigoda
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- SB 459
- SB 553
- SB 95
- SB-973
- SBA
- SBC
- SCA
- Scabby
- Scale
- Scheduling Letter
- Schneiderman
- School Closings
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- Scott Brown
- Scott H. Kimpel
- Scott Nelson
- SCOTUS
- Sealed Records
- SEC
- Second Circuit
- Secondary Boycotts
- Section 125
- Section 1557
- Section 1983
- Section 203
- Section 2802
- Section 302
- Section 7
- Section 7 Rights
- Secure Scheduling
- Security
- Security Screenings
- Seff v. Broward County
- SEIU
- Self-Insured Health Plans
- Senate Bill 1162
- Separation Agreements
- Settlement
- Settlement Agreement
- Settlement Agreements
- Settlement Disclosure
- Seventh Circuit
- severance
- Severance Agreements
- Severance Payments
- Severe Injury Report
- Sex Discrimination
- Sexual Harassment
- Sexual Orientation
- SFFA
- Shaena Rowland
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- Shelter in Place
- Short-Time Compensation Program
- Shutdowns
- Sick Leave
- Sick Pay
- Silica Standards
- Single employer
- SIR Dashboard
- Sixth Circuit
- Slow the Spread
- Social Distancing
- Social Media
- Social Media Evidence
- Social Media Policy
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- Solicitation/Distribution Policy
- Southern California Pizza Co.
- Speak Out Act
- Specialty Healthcare
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- Spokeo
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- Standard of Review
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- state court
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- Statistical Audits
- Statute of Limitations
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- Statutes of Limitations
- Staub v. Proctor Hospital
- Stay Violations
- Steering Claims
- STEM
- Stengart v. Loving Care Agency
- Stephen Pattison
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- Stillborn
- Strategic Objectives
- Strategic Plan
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- Stray Remarks
- Strike
- Strike Plans
- Strike Tactics
- Students for Fair Admissions
- SUB Payments
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- Subpoena
- Subpoena Duces Tecum
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- Successor Bargaining Duty
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- Suitable Seating
- Summary of Benefits and Coverage
- Super Lawyers
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- Supplemental Paid Sick Leave
- Supply Chain
- Supreme Court
- Susan Wiltsie
- Suspension
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- Systemic Discrimination
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- Technatomy Corporation
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- Telephone Consumer Protection Act
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- Temporary Employees
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- Tenth Circuit
- Terence Connor
- Terrence Flynn
- Tesla
- Test Factor
- Testing
- Texas
- Texas Constitution
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- Texas Legal Awards
- Texas Mutual v. Ruttiger
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- Texting
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- The Boeing Company
- The Opportunity to Work Ordinance
- Third Circuit
- Third-party Liability
- Thompson v. North American Stainless
- Thriving in Their 40s
- Time Rounding
- Timekeeping
- Tip
- Tip Credit
- Tip Pooling
- Tip Sharing
- Tipped Employees
- Tipped Workers
- Tipping Policies
- Tips
- Title III
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- Title VII of the Civil Rights Act of 1964
- Tolling
- Top Insurance Cases
- TRAC
- Trade Secrets
- Trade Secrets & Non-Competes
- Trademark
- Traditional labor
- Trailblazer
- Training
- Training Programs
- Transgender
- Transgender Rights
- Transparency
- TransUnion
- Tratree
- Traxler v. Multnomah County
- Trial Management
- TRICARE
- Trucking Industry
- Trump Administration
- Trump Rule
- Tyler S. Laughinghouse
- Typicality Requirement
- U.S. Senate
- U.S. Senate Finance Committee
- UAW
- Uber
- Uber Drivers
- ULP
- ULP Charge
- UNC
- Unconscionability Doctrine
- Undocumented Workers
- undue hardship
- Unemployment
- Unemployment Benefits
- Unemployment Compensation
- Unemployment Discrimination
- Unemployment Insurance
- Unfair Labor Charge
- Unfair Labor Practice
- Unfair Labor Practices
- Uniform Glossary
- Unilateral Change
- Union
- Union Apparel
- Union Button
- Union Dues
- Union Election
- Union Elections
- Union Information Request
- Union Insignia
- Union Logo
- Union Organizing
- Union Organizing and the NLRB
- Union Rat
- Union Representation
- Union Representation Elections
- Union Sticker
- Unions
- United States v. Windsor
- University of North Carolina
- Unlawful Insistence
- Unlimited Vacation
- Unsuccessful Assisted Reproduction
- UPMC Braddock
- US Chamber of Commerce
- US Supreme Court
- USAction
- USCIS
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- Use or Lose Rule
- USERRA
- Vacation
- Vacation Pay
- Vacation Scheduling
- Vaccination
- Vaccine
- Vaccine Incentives
- Vaccines
- Valley Hospital Medical Center
- Variant
- VBA
- VCP
- Venue
- Veterans Preference Act
- VETS-100A
- VETS-4212
- VEVRAA
- Victoria Lipnic
- Video
- Viking River
- Virginia
- Virginia Business Magazine
- Virginia Center for Inclusive Communities
- Virginia Employment Legislation
- Virginia Human Rights Act
- Virginia Labor Law
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- Virginia Lawyers Weekly
- Virginia Marijuana Laws
- Virginia Overtime Wage Act
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- Virginial Lawyers Weekly
- Virus
- Visa Waiver
- Vital Industry
- Volks Rule
- Voluntary Incentive
- Voter List
- VW
- Wage & Hour
- Wage and Hour
- Wage and Hour Exclusion
- Wage Equality Act
- Wage Fixing
- Wage Inquiries
- Wage Investigation
- Wage Payment
- Wage Penalties
- Wage Reduction
- Wage Statement
- Wage Theft
- Wage Theft Prevention Act
- Wage Transparency
- Waiter
- Waiting Period Rules
- Waiver
- Waivers
- walk around
- Walling v. Portland Terminal
- Wang v. Chinese Daily News
- WARN
- WARN Act
- Washington DC
- We Can Help
- Weapons
- Web Accessibility
- Web Designer
- Webinar
- Website
- Website Accessibility
- Weight Restrictions
- Weingarten
- Wellness Programs
- Wesson
- West Virginia Workplace Freedom Act
- WHD
- Whistleblower
- Whistleblowers
- White Collar Exemption
- William Emanuel
- William J. Emanuel
- Wilma Liebman
- Windsor Decision
- Withdrawal of Recognition
- withholding requirements
- Witness Statements
- Women
- Women In Leadership
- Women of Influence
- Women’s Equality Act
- Work Schedule
- Work Transfers
- Work-Sharing
- Worker Misclassification
- Worker Protection
- Worker Safety
- Workers Bill of Rights
- Workers Compensation
- Workers' Compensation Insurance
- Workplace AI
- Workplace Diversity
- Workplace Investigations
- Workplace Monitoring
- Workplace Policies
- Workplace Privacy
- Workplace Rules
- Workplace Safety
- Workplace Technology
- Workplace Violence
- Workplace Violence Prevention
- WR Reserve
- Wrongful Discharge
- Year In Review
Authors
- Jessica N. Agostinho
- Walter J. Andrews
- Ian P. Band
- Ryan M. Bates
- Christy E. Bergstresser
- Theanna Bezney
- Jesse D. Borja
- Brian J. Bosworth
- Jason P. Brown
- M. Brett Burns
- Daniel J. Butler
- Christopher J. Cunio
- Jacqueline Del Villar
- Kimberlee W. DeWitt
- Steven J. DiBeneditto Jr.
- Robert T. Dumbacher
- Raychelle L. Eddings
- Elizabeth England
- Juan C. Enjamio
- Karen Jennings Evans
- Geoffrey B. Fehling
- Jason Feingertz
- Katherine Gallagher
- Ryan A. Glasgow
- Sharon S. Goodwyn
- Meredith Gregston
- Eileen Henderson
- Kirk A. Hornbeck
- J. Marshall Horton
- Roland M. Juarez
- Keenan Judge
- Suzan Kern
- Elizabeth King
- Stephen P. Kopstein
- Torsten M. Kracht
- James J. La Rocca
- Kurt G. Larkin
- Jordan Latham
- Tyler S. Laughinghouse
- Crawford C. LeBouef
- Michael S. Levine
- Michelle S. Lewis
- Brandon Marvisi
- Lorelie S. Masters
- Reilly C. Moore
- Michael J. Mueller
- J. Drei Munar
- Alyce Ogunsola
- Christopher M. Pardo
- Michael A. Pearlson
- Adriana A. Perez
- Kurt A. Powell
- Robert T. Quackenboss
- D. Andrew Quigley
- Michael Reed
- Jennifer A. Reith
- Amber M. Rogers
- Alexis Zavala Romero
- Zachary Roop
- Adam J. Rosser
- Katherine P. Sandberg
- Elizabeth L. Sherwood
- Cary D. Steklof
- C. Randolph Sullivan
- Veronica A. Torrejón
- Debra Urteaga
- Emily Burkhardt Vicente
- Kevin J. White
- Holly H. Williamson
- Susan F. Wiltsie