Both federal and California law protect employees who oppose illegal harassment or discrimination, as well as employees who participate in an investigation. What exactly does it mean to “oppose” a practice?
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2009 U.S. SUPREME COURT
LABOR & EMPLOYMENT CASES
By Christopher W. Olmsted
Reverse
Discrimination
Ricci v. DeStefano
Nineteen city firefighters from the City of New Haven, Connecticut alleged that the city discriminated against them with regard to promotions. Seventeen of the firefighters were white and two of were Hispanic. They had passed the test for promotions to management. However, there was a public outcry when it became known that none of the black firefighters who passed the exam had achieved a high enough score to be considered for promotion. The City of New Haven invalidated the test results. City officials stated that they feared a lawsuit over the test’s disparate impact on a protected minority. The complainants claimed they were denied the promotions because of their race.
The Court held 5-4 that New Haven's decision to ignore the test results violated Title VII of the Civil Rights Act of 1964. The Court noted that sometimes giving preference to a certain race is acceptable. It may be necessary, for example, to remedy past discriminatory practices. But an employer may not do so unless it has a strong basis in evidence to believe it will be subject to disparate-impact liability if it fails to take the race-conscious, discriminatory action.
The City could not demonstrate a strong basis in evidence to find the tests inadequate and that it would face disparate impact liability if it had certified the results. The low pass rate for African Americans was not alone sufficient justification. The City had hired a professional consultant and spent $100,000 to develop the test, and the questions had been carefully screened so that they were job related. The City was unable to explain its “flawed test” theory. Moreover, there was insufficient evidence to show that alternative testing methods could have produced a less adverse result. Thus, throwing out the test was just pure unjustifiable discrimination against the whites and Hispanic firefighters.
Read more details about the case.
Federal Age Discrimination in Employment Act (ADEA)
Gross v. FBL
In Gross v. FBL, a sharply divided U.S. Supreme Court held that plaintiffs pursuing age discrimination under the federal Age Discrimination in Employment Act (ADEA) are held to a more stringent burden of proof than under other discrimination laws such as Title VII. Plaintiffs must show that age discrimination was the basis for an adverse employment action, instead of merely showing that age was one motivating factor.
The Court found that an employer need not show that it would have made the same adverse employment decision regardless of age, even if the employee produces some evidence that age may have been a contributing factor in the decision. The burden of proof rests entirely on the plaintiff that the adverse decision would not have happened but for discrimination.
Read more details about the case.
Sexual Harassment/Retaliation
Crawford v.
Metropolitan
Both federal and California law protect employees who oppose illegal harassment or discrimination, as well as employees who participate in an investigation. What exactly does it mean to “oppose” a practice?
The U.S. Supreme Court examined this question in a decision published on January 26, 2009 titled Crawford v. Metropolitan Government of Nashville. Employers should note this decision because it clarifies the anti-retaliation aspect of Title VII, and by analogy, the California Fair Employment and Housing Act (“FEHA”).
The court held that the Title VII anti-retaliation provision's protection extends to an employee who speaks out about discrimination not on her own initiative, but in answering questions during an employer's internal investigation.
Because “oppose” is undefined by statute, it carries its ordinary dictionary meaning of resisting or contending against. A person can “oppose” conduct by responding to someone else's questions just as surely as by provoking the discussion. Relying on an EEOC interpretation of the law, the Court wrote: “When an employee communicates to her employer a belief that the employer has engaged in ... a form of employment discrimination, that communication virtually always constitutes the employee's opposition to the activity.”
Read more details about the case.
Dispute Resolution & Arbitration
14 Penn Plaza LLC v. Pyett
In 14 Penn Plaza LLC v. Pyett, a union had entered into a collective bargaining agreement that required union members to submit all employment discrimination claims to binding arbitration.
When unionized night watchmen were reassigned to porter duties, they grieved the reassignment, alleging a violation of the CBA and age discrimination. The union pursued the claims, but later dropped the age claim. The workers filed an age discrimination charge with the EEOC, and later sued the employer. The trial court and the appellate court rejected the employer’s claim that the workers could not file a civil lawsuit, but rather must submit to arbitration on account of the union agreement.
The U.S. Supreme Court ruled in favor of the employer. It held that a provision in a collective-bargaining agreement that clearly and unmistakably requires union members to arbitrate ADEA claims is enforceable as a matter of federal law.
Download entire December 2009 Legal Update in PDF format.
This article is intended as a brief overview of the law and are not intended to substitute as legal advice. Any questions or concerns regarding any statute or case law should be addressed to a licensed attorney. Copyright © 2009 by Barker Olmsted & Barnier, APLC. San Diego, California. All rights reserved.
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